<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999 OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ____________________
TO _____________________
COMMISSION FILE NUMBER: 0-9789
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PREMIER PARKS INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3995059
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
11501 NORTHEAST EXPRESSWAY, OKLAHOMA CITY, OKLAHOMA 73131
(Address of principal executive offices, including zip code)
(405) 475-2500
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes: X No :
Indicate the number of shares outstanding of each of the issuer's classes
of common stock as of the latest practicable date:
At November 1, 1999, Premier Parks Inc. had outstanding 78,249,406 shares
of Common Stock, par value $.025 per share.
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<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
PREMIER PARKS INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents .................... $ 170,692,000 $ 400,578,000
Accounts receivable .......................... 72,545,000 31,484,000
Inventories .................................. 28,095,000 21,703,000
Prepaid expenses and other current assets .... 24,661,000 29,200,000
Restricted-use investment securities ......... 216,851,000 206,075,000
------------- -------------
Total current assets ...................... 512,844,000 689,040,000
Other assets:
Debt issuance costs .......................... 47,956,000 45,099,000
Restricted-use investment securities ......... 95,189,000 111,577,000
Deposits and other assets .................... 54,405,000 73,887,000
------------- -------------
Total other assets ........................ 197,550,000 230,563,000
Property and equipment .......................... 2,059,686,000 1,675,959,000
Less accumulated depreciation ................ 177,590,000 104,806,000
------------- -------------
Total property and equipment .............. 1,882,096,000 1,571,153,000
Investment in theme park partnerships ........... 404,247,000 294,893,000
Less accumulated amortization ................ 22,359,000 11,373,000
------------- -------------
Total investment in theme park partnerships 381,888,000 283,520,000
Intangible assets ............................... 1,328,223,000 1,321,616,000
Less accumulated amortization ................ 84,081,000 43,427,000
------------- -------------
Total intangible assets .................... 1,244,142,000 1,278,189,000
------------- -------------
Total assets .............................. $4,218,520,000 $4,052,465,000
------------- -------------
------------- -------------
</TABLE>
See accompanying notes to consolidated financial statements
-2-
<PAGE>
ITEM 1 - FINANCIAL STATEMENTS (CONTINUED)
PREMIER PARKS INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ........................................ 59,713,000 25,285,000
Accrued liabilities ..................................... 64,736,000 100,606,000
Accrued interest payable ................................ 36,711,000 33,269,000
Current maturities of long-term debt .................... 210,584,000 195,671,000
Current portion of capitalized lease obligations ........ 2,329,000 2,367,000
------------- -------------
Total current liabilities ............................ 374,073,000 357,198,000
Long-term debt and capitalized lease obligations:
Notes payable ........................................... 1,295,702,000 1,257,062,000
Credit facilities ....................................... 583,000,000 599,500,000
Capitalized lease obligations ........................... 4,531,000 6,125,000
------------- -------------
Total long-term debt and capitalized lease obligations 1,883,233,000 1,862,687,000
Other long-term liabilities and minority interest .......... 48,077,000 54,037,000
Deferred income taxes ...................................... 196,584,000 151,978,000
------------- -------------
Total liabilities .................................... 2,501,967,000 2,425,900,000
Stockholders' equity:
Preferred stock of $1.00 par value ...................... 12,000 12,000
Common stock of $.025 par value ......................... 1,953,000 1,912,000
Capital in excess of par value .......................... 1,689,426,000 1,640,532,000
Retained earnings ....................................... 46,969,000 133,000
Deferred compensation ................................... (17,719,000) (25,111,000)
Accumulated other comprehensive income (loss)
- foreign currency translation adjustment ............ (4,088,000) 9,087,000
------------- -------------
Total stockholders' equity ........................... 1,716,553,000 1,626,565,000
------------- -------------
Total liabilities and stockholders' equity ........... $ 4,218,520,000 $ 4,052,465,000
------------- -------------
------------- -------------
</TABLE>
See accompanying notes to consolidated financial statements
-3-
<PAGE>
ITEM 1 - FINANCIAL STATEMENTS (CONTINUED)
PREMIER PARKS INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
(UNAUDITED)
<TABLE>
<CAPTION>
1999 1998
------------- -------------
<S> <C> <C>
Revenue:
Theme park admissions ................................... $ 247,831,000 $ 222,394,000
Theme park food, merchandise and other .................. 223,897,000 212,683,000
------------- -------------
Total revenue ...................................... 471,728,000 435,077,000
------------- -------------
Operating costs and expenses:
Operating expenses ...................................... 132,908,000 113,664,000
Selling, general and administrative ..................... 38,897,000 45,885,000
Noncash compensation .................................... 1,267,000 675,000
Costs of products sold .................................. 47,636,000 47,204,000
Depreciation and amortization ........................... 40,149,000 33,869,000
------------- -------------
Total operating costs and expenses ................. 260,857,000 241,267,000
------------- -------------
Income from operations ............................. 210,871,000 193,810,000
------------- -------------
Other income (expense):
Interest expense ........................................ (48,159,000) (46,028,000)
Interest income ......................................... 6,072,000 11,989,000
Equity in operations of theme park partnerships ......... 28,057,000 12,183,000
Other income (expense), including minority interest ..... 354,000 (944,000)
------------- -------------
Total other income (expense) ....................... (13,676,000) (22,800,000)
------------- -------------
Income before income taxes ......................... 197,195,000 171,010,000
Income tax expense ......................................... 80,365,000 70,254,000
------------- -------------
Net income ......................................... $ 116,830,000 $ 100,756,000
------------- -------------
------------- -------------
Net income applicable to common stock .............. $ 111,008,000 $ 94,934,000
------------- -------------
------------- -------------
Per share amounts:
Net income per average common share - basic ............. $ 1.42 $ 1.26
------------- -------------
------------- -------------
Net income per average common share - diluted ........... $ 1.29 $ 1.17
------------- -------------
------------- -------------
Weighted average number of common shares outstanding-basic . 78,200,000 75,363,000
------------- -------------
------------- -------------
Weighted average number of common shares outstanding-diluted 90,366,000 86,082,000
------------- -------------
------------- -------------
</TABLE>
See accompanying notes to consolidated financial statements
-4-
<PAGE>
ITEM 1 - FINANCIAL STATEMENTS (CONTINUED)
PREMIER PARKS INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
(UNAUDITED)
<TABLE>
<CAPTION>
1999 1998
-------------- --------------
<S> <C> <C>
Revenue:
Theme park admissions............................................. $470,501,000 $395,839,000
Theme park food, merchandise and other............................ 388,391,000 338,267,000
-------------- --------------
Total revenue................................................ 858,892,000 734,106,000
-------------- --------------
Operating costs and expenses:
Operating expenses................................................ 290,431,000 235,240,000
Selling, general and administrative............................... 128,600,000 106,829,000
Noncash compensation.............................................. 10,503,000 2,025,000
Costs of products sold............................................ 81,907,000 76,672,000
Depreciation and amortization..................................... 114,135,000 71,408,000
-------------- --------------
Total operating costs and expenses........................... 625,576,000 492,174,000
-------------- --------------
Income from operations....................................... 233,316,000 241,932,000
-------------- --------------
Other income (expense):
Interest expense.................................................. (141,719,000) (101,893,000)
Interest income................................................... 19,606,000 24,418,000
Equity in operations of theme park partnerships................... 26,700,000 24,755,000
Other income (expense), including minority interest............... 156,000 (1,890,000)
-------------- --------------
Total other income (expense)................................. (95,257,000) (54,610,000)
-------------- --------------
Income (loss) before income taxes and extraordinary loss..... 138,059,000 187,322,000
Income tax expense................................................... 67,600,000 80,665,000
-------------- --------------
Income before extraordinary loss............................. 70,459,000 106,657,000
Extraordinary loss on extinguishment of debt, net of
income tax benefit of $4,104,000 in 1999 and $526,000 in 1998...... (6,157,000) (788,000)
-------------- --------------
Net income................................................... $64,302,000 $105,869,000
-------------- --------------
-------------- --------------
Net income applicable to common stock........................ $46,836,000 $94,225,000
-------------- --------------
-------------- --------------
Per share amounts:
Income per average common share - basic:
Income before extraordinary loss............................. $ 0.68 $ 1.51
Extraordinary loss........................................... (0.08) (0.01)
-------------- --------------
Net income................................................... $ 0.60 $ 1.50
-------------- --------------
-------------- --------------
Income per average common share - diluted:
Income before extraordinary loss............................. $ 0.68 $ 1.48
Extraordinary loss........................................... (0.08) (0.01)
-------------- --------------
Net income................................................... $ 0.60 $ 1.47
-------------- --------------
-------------- --------------
Weighted average number of common shares outstanding-basic........... 77,439,000 62,719,000
-------------- --------------
-------------- --------------
Weighted average number of common shares outstanding-diluted......... 80,002,000 63,909,000
-------------- --------------
-------------- --------------
</TABLE>
See accompanying notes to consolidated financial statements
-5-
<PAGE>
ITEM 1 - FINANCIAL STATEMENTS (CONTINUED)
PREMIER PARKS INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net income ............................... $ 116,830,000 $ 100,756,000 $ 64,302,000 $ 105,869,000
Other comprehensive income (loss) -
Foreign currency translation adjustment 5,622,000 10,334,000 (13,175,000) 10,692,000
------------- ------------- ------------- -------------
Comprehensive income ..................... $ 122,452,000 $ 111,090,000 $ 51,127,000 $ 116,561,000
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
</TABLE>
See accompanying notes to consolidated financial statements
-6-
<PAGE>
ITEM 1 - FINANCIAL STATEMENTS (CONTINUED)
PREMIER PARKS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
(UNAUDITED)
<TABLE>
<CAPTION>
1999 1998
------------- -------------
<S> <C> <C>
Cash flow from operating activities:
Net income ............................................................... $ 64,302,000 $ 105,869,000
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization ....................................... 114,135,000 71,408,000
Equity in operations of theme park partnerships, net of cash received (18,568,000) (24,755,000)
Minority interest in (earnings) loss ................................ (231,000) 2,147,000
Noncash compensation ................................................ 10,503,000 2,025,000
Interest accretion on notes payable ................................. 25,788,000 21,028,000
Interest accretion on restricted-use investments .................... (7,609,000) (8,695,000)
Extraordinary loss on early extinguishment of debt .................. 10,261,000 1,314,000
Amortization of debt issuance costs ................................. 4,823,000 3,779,000
Deferred income taxes ............................................... 56,073,000 80,132,000
Increase in accounts receivable ..................................... (41,061,000) (38,632,000)
Increase in inventories and prepaid expenses ........................ (1,853,000) (14,980,000)
(Increase) decrease in deposits and other assets .................... 19,482,000 (19,738,000)
Decrease in accounts payable and accrued liabilities ................ (2,409,000) (54,056,000)
Increase in accrued interest payable ................................ 3,442,000 35,121,000
------------- -------------
Total adjustments ................................................... 172,776,000 56,098,000
------------- -------------
Net cash provided by operating activities ......................... 237,078,000 161,967,000
------------- -------------
Cash flow from investing activities:
Additions to property and equipment ...................................... (334,250,000) (194,073,000)
Investment in theme park partnerships .................................... (39,034,000) --
Acquisition of theme parks, net of cash acquired ......................... (80,952,000) (1,022,643,000)
Maturities of restricted-use investments ................................. 13,221,000 --
Purchase of restricted-use investments ................................... -- (321,750,000)
------------- -------------
Net cash used in investing activities ............................... (441,015,000) (1,538,466,000)
------------- -------------
Cash flow from financing activities:
Repayment of long-term debt .............................................. (496,818,000) (700,381,000)
Proceeds from borrowings ................................................. 499,024,000 1,361,703,000
Net cash proceeds from issuance of preferred stock ....................... -- 301,185,000
Net cash proceeds from issuance of common stock .......................... 1,951,000 954,542,000
Payment of cash dividends ................................................ (17,466,000) (5,822,000)
Payment of debt issuance costs ........................................... (10,934,000) (41,065,000)
------------- -------------
Net cash provided by (used in) financing activities ................. (24,243,000) 1,870,162,000
------------- -------------
Effect of exchange rate changes on cash ............................. (1,706,000) 992,000
------------- -------------
Increase (decrease) in cash and cash equivalents .................... (229,886,000) 494,655,000
Cash and cash equivalents at beginning of period ............................ 400,578,000 84,288,000
------------- -------------
Cash and cash equivalents at end of period .................................. $ 170,692,000 $ 578,943,000
------------- -------------
------------- -------------
</TABLE>
See accompanying notes to consolidated financial statements
-7-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. GENERAL - BASIS OF PRESENTATION
On March 24, 1998, the company then known as Premier Parks Inc.
("Premier Operations") merged (the "Merger") with an indirect wholly-owned
subsidiary thereof, pursuant to which Premier Operations became a wholly-owned
subsidiary of Premier Parks Holdings Corporation ("Holdings") and the holders of
shares of common stock ("Common Stock") of Premier Operations became, on a
share-for-share basis, holders of Common Stock of Holdings. On the Merger date,
Premier Operations' name was changed to Premier Parks Operations Inc., and
Holdings' name was changed to Premier Parks Inc. References herein to the
"Company" or "Premier" mean (i) for all periods or dates prior to March 24,
1998, Premier Operations and its consolidated subsidiaries and (ii) for all
subsequent periods or dates, Holdings and its consolidated subsidiaries
(including Premier Operations).
During 1998, the Company purchased approximately 97% of the outstanding
capital stock of Walibi, S.A. ("Walibi"). See Note 2 below. On April 1, 1998,
the Company purchased all of the outstanding capital stock of Six Flags
Entertainment Corporation ("SFEC" and, together with its subsidiaries, "Six
Flags") and consummated the related transactions described in Note 2 below.
Management's Discussion and Analysis of Financial Condition and Results
of Operations which follows these notes contains additional information on the
results of operations and the financial position of the Company. Those comments
should be read in conjunction with these notes. The Company's annual report on
Form 10-K for the year ended December 31, 1998 includes additional information
about the Company, its operations and its financial position, and should be
referred to in conjunction with this quarterly report on Form 10-Q. The
information furnished in this report reflects all adjustments (all of which are
normal and recurring) which are, in the opinion of management, necessary to
present a fair statement of the results for the periods presented.
Results of operations for the three-month and nine-month periods ended
September 30, 1999 are not indicative of the results expected for the full year.
In particular, the Company's theme park operations contribute most of their
annual revenue during the period from Memorial Day to Labor Day each year.
The accompanying consolidated financial statements for the nine months
ended September 30, 1998 do not include the results of Walibi or Six Flags for
the first three months of that period. See Note 2.
On November 5, 1999, SFEC was merged into Premier Operations, and the
Company entered into a new credit facility (the "New Credit Facility"). See Note
7.
-8-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
START-UP COSTS
As of January 1, 1999, the Company adopted the provisions of AICPA
Statement of Position No. 98-5, "Accounting for Start-Up Activities." Generally,
the statement requires the write-off of previously capitalized start-up costs
and precludes the future capitalization of these types of costs. Start-up costs
include pre-opening costs and professional fees and other costs associated with
incorporating or otherwise starting a business. The effect of the adoption of
the provisions of the statement was not material to the financial position,
operations or cash flows of the Company and is included in depreciation and
amortization.
INCOME PER SHARE
The following table reconciles the weighted average number of common
shares outstanding used in the calculations of basic and diluted income per
share for the three and nine-month periods ended September 30, 1999 and 1998.
Additionally, the weighted average number of shares for the nine month periods
does not include the impact of the conversion of the Company's mandatorily
convertible preferred stock into approximately 9.6 million shares of Common
Stock as the effect of the conversion and resulting decrease in preferred stock
dividends is antidilutive. In determining net income applicable to common
stock for the nine-month periods, the dividends paid on the Company's
mandatorily convertible preferred stock have been deducted from net income.
<TABLE>
<CAPTION>
THREE THREE
MONTHS MONTHS NINE MONTHS NINE MONTHS
ENDED ENDED ENDED ENDED
SEPT. 30, 1999 SEPT. 30, 1998 SEPT. 30, 1999 SEPT. 30, 1998
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Weighted average number of common shares
outstanding--basic ............................. 78,200,000 75,363,000 77,439,000 62,719,000
Effect of potential common shares issuable upon the
exercise of employee stock options ............. 2,612,000 1,165,000 2,563,000 1,190,000
Convertible preferred stock ....................... 9,554,000 9,554,000 -- --
---------- ---------- ---------- ----------
Weighted average number of common shares
outstanding--diluted ........................... 90,366,000 86,082,000 80,002,000 63,909,000
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
</TABLE>
On June 9, 1998, the Company's common shareholders approved a
two-for-one stock split effective July 24, 1998. The par value of the Common
Stock was decreased to $.025 per share from $.05 per share. Additionally, the
authorized common shares of the Company were increased to 150,000,000. The
accompanying consolidated financial statements and notes to the consolidated
financial statements reflect the stock split as if it had occurred as of the
earliest date presented.
RECLASSIFICATIONS
Certain items in the December 31, 1998 consolidated balance sheet and
consolidated statements of operations for the three and nine months ended
September 30, 1998 have been reclassified to conform to the 1999 presentation.
2. ACQUISITION OF THEME PARKS
On March 26, 1998, the Company purchased (the "Private Acquisition")
approximately 49.9% of the outstanding capital stock of Walibi for an aggregate
purchase price of $42,300,000, of which 20% was
-9-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
paid through issuance of 448,910 shares of Common Stock and 80% was paid in
cash. In June 1998, the Company purchased an additional 44.0% of the outstanding
capital stock of Walibi for an aggregate purchase price of $38,100,000, which
was paid through issuance of 347,746 shares of Common Stock and $31,400,000 in
cash. During the remainder of 1998, the Company purchased an additional 3% of
Walibi, which included the issuance of an additional 9,298 shares of Common
Stock. On the date of the Private Acquisition, Walibi's indebtedness aggregated
$71,181,000, which indebtedness was assumed or refinanced by the Company. The
Company funded the cash portion of the purchase price (and the refinancing of
such indebtedness) from borrowings under its senior secured credit facility (the
"Premier Credit Facility") entered into in March 1998. As of the acquisition
dates and after giving effect to the purchases, $11,519,000 of deferred tax
liabilities were recognized for the tax consequences attributable to the
differences between the financial carrying amounts and the tax basis of Walibi's
assets and liabilities. Approximately $60,118,000 of costs in excess of the fair
value of the net assets acquired was recorded as goodwill. The Company may be
required to issue additional shares of Common Stock based on Walibi's revenues
during 1999, 2000 or 2001. The value of the additional shares to be issued, if
any, will be recognized as additional goodwill. At September 30, 1999, the
Company owned 98.6% of the capital stock of Walibi and intends to purchase the
remaining shares during the balance of 1999.
On April 1, 1998, the Company acquired (the "Six Flags Acquisition")
all of the capital stock of SFEC for $976.0 million, paid in cash. In connection
with the Six Flags Acquisition, the Company issued through public offerings (i)
36,800,000 shares of Common Stock (with gross proceeds of $993.6 million), (ii)
5,750,000 Premium Income Equity Securities ("PIES") (with gross proceeds of
$310.5 million), (iii) $410.0 million aggregate principal amount at maturity of
the Company's 10% Senior Discount Notes due 2008 (the "Senior Discount Notes")
(with gross proceeds of $251.7 million) and (iv) $280.0 million aggregate
principal amount of the Company's 9 1/4% Senior Notes due 2006 (the "Senior
Notes"), and SFEC issued $170.0 million aggregate principal amount of its 8 7/8%
Senior Notes due 2006 (the "SFEC Notes"). In addition, in connection with the
Six Flags Acquisition, the Company (i) assumed $285.0 million principal amount
at maturity of senior subordinated notes (the "SFTP Senior Subordinated Notes")
of Six Flags Theme Parks Inc. ("SFTP"), an indirect wholly-owned subsidiary of
SFEC, which notes had an accreted value of $278.1 million at April 1, 1998 (fair
value of $318.5 million at that date) and were discharged in full pursuant to a
tender offer in June 1999 (see Note 3(d)) and (ii) refinanced all outstanding
SFTP bank indebtedness with the proceeds of $410.0 million of borrowings under a
new $472.0 million senior secured credit facility of SFTP (the "Six Flags Credit
Facility"). As of the acquisition date and after giving effect to the purchase,
$65,619,000 of deferred tax liabilities were recognized for the tax consequences
attributable to the differences between the financial carrying amounts and the
tax basis of Six Flags' assets and liabilities. Approximately $1,200,974,000 of
costs in excess of the fair value of the net assets acquired was recorded as
goodwill.
In addition to its obligations under outstanding indebtedness and other
securities issued or assumed in the Six Flags Acquisition, the Company also
guaranteed in connection therewith certain contractual obligations relating to
the partnerships that own two Six Flags parks, Six Flags Over Texas and Six
Flags Over Georgia (the "Partnership Parks"). Specifically, the Company
guaranteed the obligations of the general partners of those partnerships to (i)
make minimum annual distributions of approximately $46.3 million (subject to
cost of living adjustments) to the limited partners in the Partnership Parks and
(ii) make minimum capital expenditures at each of the Partnership Parks during
rolling five-year periods, based generally on 6% of such park's revenues. Cash
flow from operations at the Partnership Parks will be used to satisfy these
requirements first, before any funds are required from the Company. The Company
also guaranteed the obligation to purchase a maximum number of 5% per year
(accumulating to the extent not purchased in any given year) of the total
limited partnership units outstanding as of the date of the partnership
agreements that govern the partnerships (to the extent tendered by the unit
holders). The
-10-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
agreed price for these purchases is based on a valuation for each respective
Partnership Park equal to the greater of (i) a value derived by multiplying such
park's weighted-average four-year EBITDA (as defined) by a specified multiple
(8.0 in the case of the Georgia park and 8.5 in the case of the Texas park) or
(ii) $250.0 million in the case of the Georgia park and $374.8 million in the
case of the Texas park. The Company's obligations with respect to Six Flags Over
Georgia and Six Flags Over Texas will continue until 2027 and 2028,
respectively.
As the Company purchases units relating to either Partnership Park, it
will be entitled to the minimum distribution and other distributions
attributable to such units, unless it is then in default under the applicable
agreements with its partners at such Partnership Park. Pursuant to its 1999
offer to purchase units in these partnerships, during May 1999, the Company
acquired an additional 0.9% of the units in the Texas partnership for
approximately $3.3 million. The Company was not required to purchase any limited
partnership units of the limited partner in the Georgia partnership during 1999,
as no limited partners thereof tendered any units. On September 30, 1999, the
Company owned approximately 25% and 34%, respectively, of the limited
partnership units in the Georgia and Texas partnerships.
The accompanying statement of operations for the nine months ended
September 30, 1999 reflects the results of Six Flags and Walibi. The statement
of operations for the nine months ended September 30, 1998 does not reflect the
results of those entities for the first three months of that period. The
following summarized unaudited pro forma results of operations for the nine
months ended September 30, 1998, assume that the Six Flags Acquisition, the
acquisition of Walibi and the related financings occurred as of the beginning of
that period.
<TABLE>
<CAPTION>
(IN THOUSANDS)
<S> <C>
Total revenues .................................................. $ 758,452
Net income ...................................................... 19,081
Net income per common share - basic ............................. 0.02
Net income per common share - diluted ........................... 0.02
</TABLE>
On May 4, 1999 the Company acquired all of the capital stock of the
companies that own and operate Reino Aventura, a theme park located in Mexico
City on a site of approximately 107 acres, for a cash purchase price of
approximately $59.6 million. The Company funded the acquisition from existing
cash. The transaction was accounted for as a purchase.
On May 25, 1999, the Company also acquired the assets of White
Water-Atlanta water park and American Adventures entertainment park located in
Atlanta, Georgia and on May 13, 1999, the Company acquired the assets of
Splashtown water park located in Houston, Texas. The transactions were accounted
for as purchases.
On October 6, 1999, the Company entered into agreements (i) to purchase
Warner Bros. Movie World Germany, near Dusseldorf, Germany, and to enter into a
joint venture with Warner Bros. to develop and manage a new Warner Bros. Movie
World Theme Park scheduled to open in Madrid, Spain in 2002 and (ii) to provide
Premier with long-term license agreements for exclusive theme park usage in
Europe and Latin and South America (including Mexico) of the Looney Tunes1,
Hanna-Barbera, Cartoon Network and DC Comic characters. See Note 7.
- -----------------------
1 Looney Tunes is a copyright and trademark of Warner Bros., a division of Time
Warner Entertainment Company, L.P.
-11-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. LONG-TERM INDEBTEDNESS
(a) On January 31, 1997, Premier Operations issued $125,000,000 of 9
3/4% senior notes due January 2007 (the "1997 Notes"). The 1997 Notes are senior
unsecured obligations of Premier Operations. The 1997 Notes are redeemable, at
Premier Operations' option, in whole or in part, at any time on or after January
15, 2002, at varying redemption prices. The 1997 Notes are guaranteed on a
senior, unsecured, joint and several basis by all of Premier Operations'
principal domestic subsidiaries.
The indenture under which the 1997 Notes were issued limits the ability
of Premier Operations and its subsidiaries to dispose of assets; incur
additional indebtedness or liens; pay dividends; engage in mergers or
consolidations; and engage in certain transactions with affiliates.
By virtue of the Merger, all obligations under the 1997 Notes and the
related indenture remained as obligations of Premier Operations and were not
assumed by Holdings.
(b) In March 1998, Premier Operations entered into the Premier Credit
Facility and terminated its then outstanding $115.0 million credit facility,
resulting in a $788,000 extraordinary loss, net of tax benefit of $526,000, in
the first quarter of 1998 in respect of debt issuance costs related to the
terminated facility. At September 30, 1999, Premier Operations had borrowed
$193.5 million under the Premier Credit Facility. The Premier Credit Facility
included a five-year $75.0 million revolving credit facility (of which none was
outstanding at September 30, 1999), a five-year term loan facility (of which
$70.0 million was outstanding at September 30, 1999), requiring principal
payments of $7.5 million, $25.0 million, $30.0 million and $10.0 million in the
second, third, fourth and fifth years, and an eight-year $125.0 million term
loan facility (of which $123.5 million was outstanding as of September 30, 1999)
requiring principal payments of $1.0 million in each of the first six years and
$25.0 million and $94.0 million in the seventh and eighth years, respectively.
Borrowings under the Premier Credit Facility were guaranteed by Premier
Operations' domestic subsidiaries and secured by substantially all of the assets
of Premier Operations and such subsidiaries (other than real estate).
The Premier Credit Facility contained restrictive covenants that,
among other things, limited the ability of Premier Operations and its
subsidiaries to dispose of assets; incur additional indebtedness or liens;
pay dividends; repurchase stock; make investments; engage in mergers or
consolidations and engage in certain transactions with subsidiaries and
affiliates. In addition, the Premier Credit Facility required that Premier
Operations comply with certain specified financial ratios and tests. On
November 5, 1999, the Company refinanced the indebtedness outstanding under
the Premier Credit Facility with a portion of the proceeds of the New Credit
Facility. See Note 7.
(c) On April 1, 1998, the Company issued $410.0 million principal
amount at maturity of Senior Discount Notes and $280.0 million principal amount
of Senior Notes. The notes are senior unsecured obligations of Premier and are
not guaranteed by Premier's subsidiaries. The Senior Discount Notes do not
require any interest payments prior to October 1, 2003 and, except in the event
of a change of control of the Company and certain other circumstances, any
principal payments prior to their maturity in 2008. The Senior Notes require
annual interest payments of approximately $25.9 million (9 1/4% per annum) and,
except in the event of a change of control of the Company and certain other
circumstances, do not require any principal payments prior to their maturity in
2006. The notes are redeemable, at the Company's option, in whole or in part, at
any time on or after April 1, 2002 (in the case of the Senior Notes) and April
1, 2003 (in the case of the Senior Discount Notes), at varying redemption
prices.
Approximately $70.7 million of the net proceeds of the Senior Notes
were deposited in escrow to prefund the first six semi-annual interest payments
thereon, and $75.0 million of the net proceeds of the
-12-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Senior Discount Notes were deposited in a restricted-use investment in escrow,
until April 1, 2003, to provide a fund to pay certain of Premier's potential
obligations to the limited partners of the Partnership Parks. See Note 2.
The indentures under which the Senior Discount Notes and the Senior
Notes were issued limit the ability of the Company and its subsidiaries to
dispose of assets; incur additional indebtedness or liens; pay dividends; engage
in mergers or consolidations; and engage in certain transactions with
affiliates.
(d) On June 30, 1999, the Company issued $430.0 million principal
amount of 9 3/4% Senior Notes (the "New Notes"). The New Notes are senior
unsecured obligations of Premier and are not guaranteed by Premier's
subsidiaries. The New Notes require annual interest payments of approximately
$41.9 million and, except in the event of a change in control of the Company and
certain other circumstances, do not require any principal payments prior to
their maturity in 2007. The New Notes are redeemable, at the Company's option,
in whole or in part, at any time on or after June 15, 2003 at varying redemption
prices. The indenture under which the New Notes were issued contains covenants
substantially similar to those relating to the Senior Notes and the Senior
Discount Notes.
The net proceeds of the New Notes were used to fund the purchase in a
tender offer of $87.5 million of PPO's 12% Senior Notes and the entire $285.0
million principal amount of SFTP's 12 1/4% Senior Subordinated Notes. The $2.5
million balance of PPO Notes were redeemed in September 1999. The tender offer
resulted in an extraordinary loss of $10.3 million on extinguishment of debt,
net of income tax benefit, of $4.1 million.
(e) On April 1, 1998, SFEC issued $170.0 million principal amount of
SFEC Notes, which are senior obligations of SFEC. The SFEC Notes were guaranteed
on a fully subordinated basis by Holdings. The SFEC Notes require annual
interest payments of approximately $15.1 million (8 7/8% per annum) and, except
in the event of a change of control of SFEC and certain other circumstances, do
not require any principal payments prior to their maturity in 2006. The SFEC
Notes are redeemable, at SFEC's option, in whole or in part, at any time on or
after April 1, 2002, at varying redemption prices. The net proceeds of the SFEC
Notes, together with other funds, were deposited in a restricted use investment
in escrow to provide for the repayment in full on December 15, 1999 of
pre-existing notes (the "SFEC Zero Coupon Notes") of SFEC (with a carrying value
of $191.0 million at September 30, 1999).
The indenture under which the SFEC Notes were issued limits the ability
of SFEC and its subsidiaries to dispose of assets; incur additional indebtedness
or liens; pay dividends; engage in mergers or consolidations; and engage in
certain transactions with affiliates. On November 5, 1999, SFEC was merged into
PPO, which assumed all of SFEC's obligations under the indenture.
(f) On April 1, 1998, SFTP entered into the Six Flags Credit Facility,
pursuant to which it had outstanding $409.0 million at September 30, 1999. The
Six Flags Credit Facility included (i) a $100.0 million five-year revolving
credit facility to be used to refinance pre-existing Six Flags bank indebtedness
and for working capital and other general corporate purposes (of which $38.0
million was outstanding on September 30, 1999); and (ii) a $372.0 million term
loan facility (the "Term Loan Facility"), of which $371.0 million was
outstanding on September 30, 1999. Borrowings under the Term Loan Facility would
have matured on November 30, 2004. However, aggregate principal payments and
reductions of $1.0 million were required during each of the first, second, third
and fourth years; aggregate principal payments of $25.0 million and $40.0
million are required in years five and six, respectively, and $303.0 million at
maturity. Borrowings under the Six Flags Credit Facility were secured by
substantially all of the assets of SFTP and its subsidiaries and a pledge of the
stock of SFTP, and were guaranteed by such
-13-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
subsidiaries and SFEC.
The Six Flags Credit Facility contained restrictive covenants that,
among other things, limited the ability of SFTP and its subsidiaries to dispose
of assets; incur additional indebtedness or liens; pay dividends, except that
(subject to covenant compliance) dividends were permitted to allow SFEC to meet
cash pay interest obligations with respect to its SFEC Notes; repurchase stock;
make investments; engage in mergers or consolidations and engage in certain
transactions with subsidiaries and affiliates. In addition, the Six Flags Credit
Facility required that SFTP comply with certain specified financial ratios and
tests. On November 5, 1999, the Company refinanced the indebtedness outstanding
under the Six Flags Credit Facility with a portion of the proceeds of the New
Credit Facility. See Note 7.
4. COMMITMENTS AND CONTINGENCIES
In December 1998, a final judgment of $197.3 million in compensatory
damages was entered against SFEC, SFTP, Six Flags Over Georgia, Inc. and Time
Warner Entertainment Company, L.P. ("TWE"), and a final judgment of $245.0
million in punitive damages was entered against TWE and of $12.0 million in
punitive damages was entered against the referenced Six Flags entities. TWE has
appealed the judgments. The judgments arose out of a case entitled SIX FLAGS
OVER GEORGIA, INC. AND SIX FLAGS THEME PARKS, INC. V. SIX FLAGS FUND, LTD., AND
AVRAM SALKIN, AS TRUSTEE OF THE CLAIMS TRUST based on certain disputed
partnership affairs prior to the Six Flags Acquisition at Six Flags Over
Georgia, including alleged breaches of fiduciary duty. The sellers in the Six
Flags Acquisition, including Time Warner Inc., have agreed to indemnify the
Company against any and all liabilities arising out of this litigation.
On June 2, 1997, a water slide collapsed at the Company's
Waterworld/USA park in Concord, California, resulting in one fatality and the
park's closure for twelve days. Although the collapse and the resulting closure
had a material adverse impact on that park's operating performance for 1997, as
well as a lesser impact on the Company's Sacramento water park (which is also
named "Waterworld/USA"), located approximately seventy miles from the Concord
park, the Company's other parks were not adversely affected. The Company has
recovered all of the Concord park's operating shortfall under its business
interruption insurance. The Company has paid the self-retention limit on its
liability insurance and believes that such liability insurance coverage should
be adequate to provide for any additional personal injury liability which may
ultimately be found to exist in connection with the collapse.
On March 21, 1999, a raft capsized in the river rapids ride at Six
Flags Over Texas, one of the Company's Partnership Parks, resulting in one
fatality and injuries to ten others. While the Partnership Park is covered by
the Company's multi-layered general liability insurance coverage of up to
$100,000,000 per occurrence, with no self-insured retention, the impact of this
incident on the Company's financial position, operations or liquidity has not
yet been determined.
On August 7, 1999, a raft capsized in the river rapids ride at
Riverside Park, one of the Company's parks, resulting in injuries to four
individuals. While the park is covered by the Company's multi-layered general
liability insurance coverage of up to $100,000,000 per occurrence, with no
self-insured retention, the impact of this incident on the Company's financial
position, operations or liquidity has not yet been determined.
The Company is party to various other legal actions arising in the
normal course of business. Matters that are probable of unfavorable outcome to
the Company and which can be reasonably estimated are accrued. Such accruals are
based on information known about the matters, the Company's estimates
-14-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
of the outcomes of such matters and its experience in contesting, litigating and
settling similar matters.
None of the other actions are believed by management to involve amounts
that would be material to the Company's consolidated financial condition,
operations or liquidity after consideration of recorded accruals.
5. INVESTMENT IN THEME PARK PARTNERSHIPS
The following reflects the summarized results of the four parks managed
by the Company for the three and nine months ended September 30, 1999 and
September 30, 1998. The summarized results for the nine months ended September
30, 1998 do not include the results of the Partnership Parks for the first three
months of that period. The general partner and limited partnership interests in
the Partnership Parks were purchased on April 1, 1998 and the lease agreement
with the owner of Six Flags Marine World, which established a revenue sharing
arrangement in which the Company participates, became effective at the beginning
of the 1998 operating season. The summarized results include the results of
White Water Atlanta (which is owned by the partnership that owns Six Flags Over
Georgia) only for the period subsequent to its acquisition on May 25, 1999.
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
SEPT. 30, 1999 SEPT. 30, 1998 SEPT. 30, 1999 SEPT. 30, 1998
-------------- -------------- -------------- --------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Revenue .............................. $100,797 $ 88,285 $200,944 $168,934
Expenses:
Operating expenses ................ 27,279 27,226 72,723 57,466
Selling, general and administrative 6,639 8,602 27,750 21,831
Costs of products sold ............ 8,690 9,645 18,548 18,116
Depreciation and amortization ..... 3,980 3,478 11,502 7,815
Interest expense, net ............. 1,433 1,241 5,640 5,242
Other expense ..................... 264 62 458 229
-------- -------- ------ --------
Total .......................... 48,285 50,254 136,621 110,699
-------- -------- ------ --------
Net income ........................ $ 52,512 $ 38,031 64,323 $ 58,235
-------- -------- ------ --------
</TABLE>
The Company's share of income from operations of the Partnership Parks
for the three and nine months ended September 30, 1999 were $33,937,000 and
$39,219,000, respectively, prior to interest, depreciation and amortization
charges of $5,880,000 and $12,519,000, respectively. The Company's share of
income from operations of the Partnership Parks for the three and nine months
ended September 30, 1998 was $15,163,000 and $28,896,000, respectively, prior to
interest, depreciation and amortization charges of $2,980,000 and $4,141,000,
respectively. There is a substantial difference between the carrying value of
the Company's investment in the theme parks and the net book value of the theme
parks. The difference is being amortized over 20 years for the Partnership Parks
and over the expected useful life of the rides and equipment installed by the
Company at Six Flags Marine World.
-15-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. BUSINESS SEGMENTS
The Company manages its operations on an individual park location
basis. Discrete financial information is maintained for each park and provided
to the Company's management for review and as a basis for decision making. The
primary performance measure used to allocate resources is earnings before
interest, tax expense, depreciation and amortization ("EBITDA"). All of the
Company's parks provide similar products and services through a similar process
to the same class of customer through a consistent method. As such, the Company
has only one reportable segment - operation of theme parks. The following tables
present segment financial information, a reconciliation of the primary segment
performance measure to income before income taxes and a reconciliation of theme
park revenues to consolidated total revenues. Park level expenses exclude all
noncash operating expenses, principally depreciation and amortization. The
segment financial information for the nine months ended September 30, 1998 does
not include the results of Six Flags, Walibi and the Partnership Parks for the
first three months of that period.
-16-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
SEPT. 30,1999 SEPT. 30, 1998 SEPT. 30, 1999 SEPT. 30, 1998
------------- -------------- -------------- --------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Theme park revenue .............................. $ 572,525 $ 523,362 $ 1,059,836 $ 903,040
Theme park cash expenses ........................ 256,838 242,702 604,045 491,148
----------- ----------- ----------- -----------
Aggregate park EBITDA ........................... 315,687 280,660 455,791 411,892
Third-party share of EBITDA from parks
accounted for under the equity method ........ (25,596) (28,278) (40,692) (43,302)
Amortization of investment in theme park
partnerships ................................. (4,348) (2,980) (10,987) (4,141)
Unallocated net expenses, including corporate and
other expenses from park acquired after
completion of the operating season............. (6,312) (10,484) (29,805) (28,244)
Depreciation and amortization ................... (40,149) (33,869) (114,135) (71,408)
Interest expense ................................ (48,159) (46,028) (141,719) (101,893)
Interest income ................................. 6,072 11,989 19,606 24,418
----------- ----------- ----------- -----------
Income before income taxes ...................... $ 197,195 $ 171,010 $ 138,059 $ 187,322
----------- ----------- ----------- -----------
----------- ----------- ----------- -----------
Theme park revenue .............................. $ 572,525 $ 523,362 $ 1,059,836 $ 903,040
Theme park revenue from parks accounted for under
the equity method ............................... (100,797) (88,285) (200,944) (168,934)
----------- ----------- ----------- -----------
Consolidated total revenue ...................... $ 471,728 $ 435,077 $ 858,892 $ 734,106
----------- ----------- ----------- -----------
----------- ----------- ----------- -----------
</TABLE>
Six of the Company's parks are located in Europe and one is located in
Mexico. The following information reflects the Company's assets and revenue by
domestic and foreign categories as of and for the nine months ended September
30, 1999. The Company acquired its European operations on March 26, 1998 and
acquired its Mexican park on May 4, 1999:
<TABLE>
<CAPTION>
(In thousands)
----------------------------------------------------
DOMESTIC FOREIGN TOTAL
---------- -------- ----------
<S> <C> <C> <C>
Total assets....................................... $3,952,250 $266,270 $4,218,520
Revenue............................................ 771,464 87,428 858,892
</TABLE>
7. SUBSEQUENT EVENTS
On October 6, 1999, the Company entered into agreements (i) to purchase
Warner Bros. Movie World Germany, near Dusseldorf, Germany and to enter into a
joint venture with Warner Bros. to develop and manage a new Warner Bros. Movie
World Theme Park scheduled to open in Madrid, Spain
-17-
<PAGE>
PREMIER PARKS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
in 2002 and (ii) to provide Premier with long-term license agreements for
exclusive theme park usage in Europe and Latin and South America (including
Mexico) of the Looney Tunes, Hanna-Barbera, Cartoon Network and DC Comic
characters. The transactions will require an aggregate cash payment at closing
of approximately $180 million, which the Company expects to fund from a portion
of the proceeds of the New Credit Facility described below. The Company expects
to close the transactions in mid-November 1999.
On November 5, 1999, the Company entered into the New Credit Facility
and, in connection therewith, merged SFEC into Premier Operations. The New
Credit Facility includes a $300 million five-year revolving credit facility, a
$300 million, five-and-one-half-year multicurrency reducing revolving facility
and a $600 million six-year term loan. Borrowings under the revolving credit
facility must be repaid in full for thirty consecutive days each year. The
multicurrency facility, which permits optional prepayments and refinancings,
requires quarterly mandatory reductions of 2.5% of the committed amount thereof
commencing on December 31, 2001, 5.0% commencing on December 31, 2002, 7.5%
commencing on December 31, 2003 and 20.0% commencing on December 31, 2004. Any
borrowings outstanding in excess of such reduced committed amounts at the time
of such reduction must be repaid. The term loan facility requires quarterly
repayments of 0.25% thereof commencing on December 31, 2001 and 24.25%
commencing on December 31, 2004. The principal borrower under the facility is
SFTP, and borrowings under the New Credit Facility are guaranteed by Holdings,
Premier Operations and all of the Company's domestic subsidiaries and are
secured by substantially all of the Company's assets.
The New Credit Facility contains restrictive covenants that, among
other things, limit the ability of Premier Operations and its subsidiaries to
dispose of assets; incur additional indebtedness or liens; repurchase stock;
make investments; engage in mergers or consolidations; pay dividends, except
that (subject to covenant compliance) dividends will be permitted to allow
Holdings to meet cash interest obligations with respect to its Senior Notes,
Senior Discount Notes and New Notes, cash dividend payments on its PIES and its
obligations to the limited partners in the Partnership Parks, and engage in
certain transactions with subsidiaries and affiliates. In addition, the New
Credit Facility requires that Premier Operations comply with certain specified
financial ratios and tests.
On November 5, 1999, the Company borrowed $892.0 million under the New
Credit Facility principally to repay all amounts outstanding under the Premier
Credit Facility and the Six Flags Credit Facility and to provide funds to
consummate the Warner Bros. transactions described above. The termination of the
Premier and Six Flags Credit Facilities will result in an extraordinary loss in
the fourth quarter of 1999 solely in respect of the debt issuance costs related
thereto in an amount of approximately $5.2 million net of estimated tax benefit
of $3.4 million.
-18-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
GENERAL
Results of operations for the three months and nine months ended
September 30, 1999 and the three months ended September 30, 1998 include the
results of Walibi, Six Flags and the Partnership Parks (each of which was
acquired during 1998), for the entire period. Results for the nine months ended
September 30, 1998 do not include the results of Walibi, Six Flags or the
Partnership Parks for the first three months of that period. Results of
operations for the 1999 periods also include the results of the May 1999
acquisitions (Reino Aventura, White Water Atlanta and Splashtown) from and after
their respective acquisition dates.
Results of operations for the three-month and nine-month periods ended
September 30, 1999 are not indicative of the results expected for the full year.
In particular, the Company's theme park operations contribute most of their
annual revenue during the period from Memorial Day to Labor Day each year.
THREE MONTHS ENDED SEPTEMBER 30, 1999 VS. THREE MONTHS ENDED
SEPTEMBER 30, 1998
Revenue in the third quarter of 1999 totaled $471.7 million ($460.8
million without giving effect to the parks (the "Acquired Parks") acquired in
the May 1999 acquisitions) compared to $435.1 million for the third quarter of
1998. The $25.6 million (5.9%) increase in 1999 revenue (excluding the Acquired
Parks) compared to revenue for the third quarter of 1998 resulted primarily from
a 10.7% increase in attendance, and the admission revenues and in-park spending
associated therewith. The four newly branded Six Flags parks achieved a 20.1%
increase in attendance for the third quarter of 1999 compared to the third
quarter of 1998.
Operating expenses for the third quarter of 1999 increased $19.2
million ($15.3 million excluding the Acquired Parks) compared to the 1998
period. The 13.5% increase (excluding the Acquired Parks) resulted primarily
from increased staffing levels and other expenses associated with higher
attendance levels. As a percentage of revenues, operating expenses were 28.2% in
1999 as compared to 26.1% in the prior year period.
Selling, general and administrative expenses (including noncash
compensation) for the third quarter of 1999 decreased $6.4 million, compared to
the expenses for the comparable quarter of 1998. As a percentage of revenue,
these expenses (including noncash compensation) were 8.5% in 1999, down from
10.7% in 1998. Selling, general and administrative expenses for the Acquired
Parks were $1.7 million for the third quarter of 1999. Advertising expenditures
for the quarter increased by $2.7 million, reflecting a return to historical
advertising levels at the Six Flags parks and additional expenditures in support
of the 1999 transition of four original Premier parks to the Six Flags brand.
The increase in noncash compensation related to the issuance of restricted stock
and conditional employee stock options in the fourth quarter of 1998. The $11.4
million decrease in remaining selling, general and administrative expenses in
the 1999 period resulted from reduced corporate level expenditures, including
staffing, related to the closing of the former Six Flags corporate office
subsequent to the April 1, 1998 acquisition, and significant cost reductions in
other areas, including insurance.
-19-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
Costs of products sold remained relatively constant for the two
quarters. As a percentage of theme park food, merchandise and other revenue,
costs of products sold represented 21.3% in 1999, as compared to 22.2% in 1998.
Depreciation and amortization expense for the third quarter of 1999
increased $6.3 million compared to the 1998 level attributable to the
recognition of depreciation and amortization expense associated with the
Acquired Parks and to the Company's on-going capital program. Interest expense,
net increased $8.0 million compared to interest expense, net for the third
quarter of 1998, representing a $2.1 million increase in interest expense and a
$5.9 million decline in interest income. The increase in interest expense
resulted from higher average interest rates on a slightly higher outstanding
debt while the decline in interest income resulted from a lower average cash and
cash equivalents balance during the 1999 period compared to the 1998 period.
Equity in operations of theme park partnerships reflects the Company's
share of the income or loss of Six Flags Over Texas and Six Flags Over Georgia
(including its ownership of White Water Atlanta in the 1999 period), the lease
of Six Flags Marine World and the management of all four parks. The Company's
ownership interests in Six Flags Over Texas and Six Flags Over Georgia commenced
on April 1, 1998, the date of the Six Flags Acquisition. The Company earns its
share of the cash flow from the lease and management of Six Flags Marine World
during the second half of the year. The $15.9 million increase in the equity in
operations of theme park partnerships compared to the level for the third
quarter of 1998 was attributable to improved performance at the Partnership
Parks and the inclusion of the results of White Water Atlanta.
Income tax expense was $80.4 million for the third quarter of 1999
compared to $70.3 million, for the same quarter of 1998. The effective tax rate
for the third quarter of 1999 was 40.8% compared to a rate of 41.1% for the
comparable quarter of 1998. The Company's quarterly effective tax rate will vary
from period-to-period based upon the inherent seasonal nature of the theme park
business, and as a result of permanent differences associated with goodwill
amortization for financial purposes and the deductible portion of the
amortization for tax purposes.
NINE MONTHS ENDED SEPTEMBER 30, 1999 VS. NINE MONTHS ENDED
SEPTEMBER 30, 1998
The table below sets forth certain financial information with respect
to the Company for the nine months ended September 30, 1999 and 1998 and with
respect to Six Flags and Walibi for the three months ended March 31, 1998
(representing the pre-acquisition portion of the 1998 period) and on a pro forma
basis for the nine months ended September 30, 1998 with respect to depreciation
and amortization, interest expense, net and income tax expense as if the
acquisitions of Six Flags and Walibi had occurred on the first day of 1998:
-20-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
<TABLE>
<CAPTION>
Nine months Ended September 30, 1998
--------------------------------------------------------------------------
Historical Historical
Six Flags Walibi for
for Period Period Pro
Nine months Prior to Prior to Forma Company
Ended Historical April 1, March 26, Adjust- Pro
Sept. 30, 1999 Premier 1998(1) 1998(2) ments Forma
---------------- -------------- -------------- ------------- ------------ ----------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Revenue:
Theme park admissions ........... $ 470,501 $ 395,839 $ 15,047 $ 883 $ -- $ 411,769
Theme park food,
Merchandise and other ......... 388,391 338,267 7,792 624 -- 346,683
---------------- -------------- -------------- ------------- ------------- ----------
Total revenue ................. 858,892 734,106 22,839 1,507 -- $ 758,452
---------------- -------------- -------------- ------------- ------------- ----------
Operating costs and expenses:
Operating expenses .............. 290,431 235,240 45,679 4,626 -- 285,545
Selling, general and
Administrative ................ 128,600 106,829 19,278 3,407 -- 129,514
Noncash compensation ............ 10,503 2,025 -- -- -- 2,025
Costs of products sold .......... 81,907 76,672 2,193 248 -- 79,113
Depreciation and amortization ... 114,135 71,408 17,629 3,214 6,440 (3) 98,691
---------------- -------------- -------------- ------------- ------------- ----------
Total operating costs
and expenses .................. 625,576 492,174 84,779 11,495 6,440 594,888
---------------- -------------- -------------- ------------- ------------- ----------
Income (loss) from operations . 233,316 241,932 (61,940) (9,988) (6,440) 163,564
---------------- -------------- -------------- ------------- ------------- -----------
Other income (expense):
Interest expense, net ........... (122,113) (77,475) (21,262) (889) (17,901)(4) (117,527)
Equity in operations
of theme park partnerships .... 26,700 24,755 -- -- (13,162)(5) 11,593
Other income (expense), including
minority interest ............. 156 (1,890) -- (1) -- (1,891)
---------------- -------------- -------------- ------------- ------------- ----------
Total other income (expense) .... (95,257) (54,610) (21,262) (890) (31,063) (107,825)
Income (loss) before income taxes
and extraordinary loss ........... 138,059 187,322 (83,202) (10,878) (37,503) 55,739
Income tax expense (benefit) ....... 67,600 80,665 (27,792) (4,786) (12,217)(6) 35,870
---------------- -------------- -------------- ------------- ------------- ----------
Income (loss) before extraordinary
loss ............................. $ 70,459 $ 106,657 $(55,410) $(6,092) $(25,286) $ 19,869
---------------- -------------- -------------- ------------- ------------- ----------
---------------- -------------- -------------- ------------- ------------- ----------
EBITDA(7) .......................... $ 357,954 $ 315,365 $(44,311) $(6,774) $ -- $ 264,280
---------------- -------------- -------------- ------------- ------------- ----------
---------------- -------------- -------------- ------------- ------------- ----------
Adjusted EBITDA(8) ................. $ 397,173 $ 344,261 $(44,311) $(6,774) $(11,950) $ 281,226
---------------- -------------- -------------- ------------- ------------- ----------
---------------- -------------- -------------- ------------- ------------- ----------
</TABLE>
- ---------------
(1) Includes results of Six Flags for the period prior to April 1, 1998, the
acquisition date, adjusted to (i) eliminate results of the Partnership
Parks and (ii) eliminate the expense associated with certain one-time
option payments resulting from the purchase.
-21-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(2) Includes results of Walibi for the period prior to March 26, 1998, the
acquisition date.
(3) Includes adjustments to eliminate the historical depreciation and
amortization for Six Flags and Walibi and the inclusion of estimated pro
forma depreciation and amortization for the three months ended March 31,
1998.
(4) Includes adjustments to reflect additional interest expense associated
with the Senior Notes, the Senior Discount Notes, the SFEC Notes, the
Premier Credit Facility and the Six Flags Credit Facility net of (a) the
elimination of the historical interest expense associated with the Company
and Six Flags credit facilities outstanding prior to April 1, 1998 and the
long term debt of Walibi and (b) the amortization of the fair market value
adjustments on the SFTP Senior Subordinated Notes and the SFEC Zero Coupon
Notes recorded in connection with the acquisition of Six Flags. Issuance
costs associated with the borrowings are being amortized over their
respective periods.
(5) Includes adjustments to reflect the Company's share of the operations of
the Partnership Parks using the equity method of accounting.
(6) Includes adjustments to reflect the application of income taxes to the pro
forma adjustments and to the pre-acquisition operations of Six Flags and
Walibi, after consideration of permanent differences, at a rate of 38%.
(7) EBITDA is defined as earnings before interest expense, net, income tax
expense (benefit), noncash compensation, depreciation and amortization and
minority interest. The Company has included information concerning EBITDA
because it is used by certain investors as a measure of a company's
ability to service and/or incur debt. EBITDA is not required by generally
accepted accounting principles ("GAAP") and should not be considered in
isolation or as an alternative to net income, net cash provided by
operating, investing and financing activities or other financial data
prepared in accordance with GAAP or as an indicator of the Company's
operating performance. This information should be read in conjunction with
the Statements of Cash Flows contained in the Consolidated Financial
Statements.
(8) Adjusted EBITDA is defined as EBITDA of the Company plus the Company's
share (based on its ownership interests) of the EBITDA of the Partnership
Parks, determined on a pro forma basis as if Six Flags, Walibi and the
Company's interests in the Partnership Parks had been acquired on January
1, 1998.
- -------------
Revenue in the first nine months of 1999 totaled $858.9 million ($840.5
million without giving effect to the Acquired Parks) compared to $734.1 million
(actual) and $758.5 million (pro forma) for the first nine months of 1998. The
$82.1 million (10.8%) increase in 1999 revenue (excluding the Acquired Parks)
compared to pro forma revenue for the first nine months of 1998 resulted
primarily from an aggregate same park attendance increase of 4 million (15.2%)
and substantial season pass sales, resulting in increased admission and in-park
revenues.
Operating expenses for the first nine months of 1999 increased $55.2
million ($48.3 million excluding the Acquired Parks) compared to actual expenses
for the first nine months of 1998 and decreased $2.0 million (excluding the
Acquired Parks) compared to pro forma expenses for the first nine months of
1998. The decrease (excluding the Acquired Parks) compared to pro forma expenses
for 1998 resulted primarily from operating efficiencies realized at the Six
Flags parks subsequent to their acquisition on April 1, 1998 partially offset by
higher expenses at the original Premier parks resulting from increased
attendance and revenues. Comparing 1999 actual (excluding the Acquired Parks) to
1998 pro forma as a percentage of revenues, these expenses were 33.8% and 37.7%
respectively.
Selling, general and administrative expenses (including noncash
compensation) for the first nine months of 1999 increased $30.2 million and $7.6
million compared to the actual and pro forma expenses for the first nine months
of 1998. Selling, general and administrative expenses for the Acquired Parks
were $2.4 million for the 1999 period. Advertising expenditures for the nine
months increased by $25 million over the pro forma expense for 1998 reflecting a
return to historical advertising levels of expenditures at the Six Flags parks
and additional expenditures in support of the 1999 transition of four
-22-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
original Premier parks to the Six Flags brand. Noncash compensation, increased
by $8.3 million, related to the issuance of restricted stock and conditional
employee stock options during 1998. Remaining selling, general and
administrative expenses decreased by $28.3 million in the 1999 period primarily
as a result of reduced corporate level expenditures, including staffing, related
to the closing of the former Six Flags corporate office subsequent to the April
1, 1998 acquisition, as well as certain other savings, including insurance.
Comparing 1999 actual (including the Acquired Parks) to 1998 pro forma as a
percentage of revenues, these expenses were 16.3% and 17.3% respectively.
Costs of products sold in the 1999 period increased $5.2 million ($3.6
million excluding the Acquired Parks) and $2.8 million ($1.2 million excluding
the Acquired Parks), respectively, compared to actual and pro forma expenses for
the first nine months of 1998.
Depreciation and amortization expense for the first nine months of 1999
increased $42.7 million and $15.4 million, respectively, compared to the actual
and pro forma amounts for the first nine months of 1998. The increase compared
to the pro forma 1998 level was attributable to the Company's on-going capital
program at the previously owned parks and from the additional improvements
associated with the Acquired Parks. Interest expense, net increased $44.6
million compared to the actual interest expense, net for the first nine months
of 1998 and increased $4.6 million compared to the pro forma interest expense,
net for the first nine months of 1998. The increase compared to pro forma
interest expense, net for 1998 resulted from higher average interest rates on a
slightly higher average debt and reduced interest income from lower average cash
and cash equivalent balances during the 1999 period.
Equity in operations of theme park partnerships reflects the Company's
share of the income or loss of Six Flags Over Texas and Six Flags Over Georgia
(including White Water Atlanta), the lease of Six Flags Marine World and the
management of all four parks. The Company's ownership interests in Six Flags
Over Texas and Six Flags Over Georgia commenced on April 1, 1998, the date of
the Six Flags Acquisition. The Company earns its share of the cash flows from
the lease and management of Six Flags Marine World during the second half of the
year. The $15.1 million increase in the equity in operations of theme park
partnerships compared to the pro forma level for the first nine months of 1998
was attributable to improved performance at the Partnership Parks and the
inclusion of the results of White Water Atlanta.
Income tax expense was $67.6 million for the first nine months of 1999
compared to a $80.7 million expense and a $35.9 million expense for the actual
and pro forma results, respectively, for the first nine months of 1998. The
effective tax rate for the first nine months of 1999 was 49.0% compared to a
rate on the pro forma amount of 64.4% for the first nine months of 1998. The
Company's effective tax rate will vary from period-to-period based upon the
inherent seasonal nature of the theme park business and as a result of permanent
differences associated with goodwill amortization for financial purposes and the
deductible portion of the amortization for tax purposes.
-23-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
LIQUIDITY, CAPITAL COMMITMENTS AND RESOURCES
At September 30, 1999, the Company's indebtedness (including $191.0
million carrying value of the pre-existing SFEC notes which will be repaid in
full from the proceeds of the SFEC Notes, together with other funds, all of
which have been deposited in escrow) aggregated $2,096.1 million, of which
approximately $212.9 million (including $191.0 million carrying value of the
pre-existing SFEC Notes) matures prior to September 30, 2000. On November 5,
1999, the Company refinanced all amounts outstanding under the Premier and Six
Flags Credit Facilities (aggregating $602.5 million at September 30, 1999) with
a portion of the proceeds of a borrowing under the New Credit Facility. See
Notes 3 and 7 to the Company's Consolidated Financial Statements for additional
information regarding the Company's indebtedness.
During the nine months ended September 30, 1999, net cash provided by
operating activities was $237.1 million. Net cash used in investing activities
in the first nine months of 1999 totaled $441.0 million, consisting primarily of
capital expenditures and acquisitions of theme parks. Net cash used in financing
activities in the first nine months of 1999 was $24.2 million, representing
primarily proceeds of the issuance of New Notes described in Note 3(d) to the
Company's Consolidated Financial Statements, offset by the retirement of the
Premier Operations and SFTP notes described therein.
As more fully described in Note 2 to the Company's Consolidated
Financial Statements, in connection with the Six Flags Acquisition, the Company
guaranteed certain obligations relating to the Partnership Parks. Cash flow from
operations at the Partnership Parks will be used to satisfy these requirements
before any funds are required from the Company.
The degree to which the Company is leveraged could adversely affect its
liquidity. The Company's liquidity could also be adversely affected by
unfavorable weather, accidents or the occurrence of an event or condition,
including negative publicity or significant local competitive events, that
significantly reduce paid attendance and, therefore, revenue at any of its theme
parks.
The Company believes that, based on historical and anticipated
operating results, cash flows from operations, available cash and available
amounts under the New Credit Facility will be adequate to meet the Company's
future liquidity needs, including anticipated requirements for working capital,
capital expenditures, scheduled debt and PIES requirements and obligations under
arrangements relating to the Partnership Parks, for at least the next several
years. The Company may, however, need to refinance all or a portion of its
existing debt on or prior to maturity or to seek additional financing.
To minimize the Company's exposure to changing foreign currency rates
on ride purchases, in the past the Company has entered into foreign exchange
forward contracts. No foreign exchange forward contracts are outstanding as of
September 30, 1999. Additionally, the Company has not hedged its exposure to
changes in foreign currency rates related to its foreign parks.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS NOT YET ADOPTED
In June, 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("SFAS 133"). SFAS No. 133 establishes
accounting and reporting standards for derivative instruments, including
-24-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
certain recognition of all derivatives as either assets or liabilities in the
balance sheet and measurement of those instruments at fair value. If certain
conditions are met, a derivative may be specifically designated as a hedge. The
accounting for changes in the fair value of a derivative (that is, gains and
losses) depends on the intended use of the derivative and whether it qualifies
as a hedge. SFAS No. 133 is effective for all fiscal quarters of fiscal years
beginning after June 15, 1999. A subsequent pronouncement, SFAS 137, was issued
in July 1999 that delayed the effective date of SFAS 133 until the fiscal year
beginning after June 15, 2000. The Company plans to adopt the provisions of SFAS
133 in the first quarter of the year ending December 31, 2001. If the provisions
of SFAS No. 133 were to be applied as of September 30, 1999, they would not have
a material effect on the Company's financial position as of such date, or the
results of operations for the three-month and nine-month periods then ended.
IMPACT OF YEAR 2000 ISSUE
The Company's Year 2000 Project (the "Project") is in process. The
Project is addressing the Year 2000 issue caused by computer programs being
written utilizing two digits rather than four to define an applicable year. As a
result, the Company's computer equipment, software and devices with embedded
technology that are time sensitive may misinterpret the actual date beginning on
January 1, 2000. This could result in a system failure or miscalculations
causing disruptions of operations, including, but not limited to, a temporary
inability to process transactions.
The Company has undertaken various initiatives intended to ensure that
its computer equipment and software will function properly with respect to dates
in the Year 2000 and thereafter. In planning and developing the Project, the
Company has considered both its information technology ("IT") and its non-IT
systems. The term "computer equipment and software" includes systems that are
commonly thought of as IT systems, including accounting, data processing,
telephone systems, scanning equipment and other miscellaneous systems. Those
items not to be considered as IT technology include alarm systems, fax machines,
monitors for park operations or other miscellaneous systems. Both IT and non-IT
systems may contain embedded technology, which complicates the Company's Year
2000 identification, assessment, remediation and testing efforts. Based upon its
identification and assessment efforts to date, the Company is in the process of
replacing the computer equipment and upgrading the software it currently uses to
become Year 2000 compliant. In addition, in the ordinary course of replacing
computer equipment and software, the Company plans to obtain replacements that
are in compliance with Year 2000.
The Company has initiated correspondence with its significant vendors
and service providers to determine the extent such entities are vulnerable to
Year 2000 issues and whether the products and services purchased from such
entities are Year 2000 compliant. The Company expects to receive a favorable
response from such third parties and it is anticipated that their significant
Year 2000 issues will be addressed on a timely basis.
With regard to IT, non-IT systems and communications with third
parties, the Company anticipates that the Project will be completed in November
1999.
As noted above, the Company is in the process of replacing certain
computer equipment and software because of the Year 2000 issue. The Company
estimates that the total cost of such replacements will be no more than $1.5
million. Substantially all of the personnel being used on the Project are
existing Company employees. Therefore, the labor costs of its Year 2000
identification, assessment, remediation and testing efforts, as well as
currently anticipated labor costs to be incurred by the Company with respect
-25-
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
to Year 2000 issues of third parties, are expected to be less than $0.8 million.
The Company has not yet developed a most reasonably likely worst case
scenario with respect to Year 2000 issues, but instead has focused its efforts
on reducing uncertainties through the review described above. The Company has
not developed Year 2000 contingency plans other than as described above, and
does not expect to do so unless merited by the results of its continuing review.
However, all but one of the Company's parks will not be in operation on January
1, 2000 due to the operating season for the Company's parks being primarily from
Memorial Day to Labor Day.
The Company presently does not expect to incur significant operational
problems due to the Year 2000 issue. However, if all Year 2000 issues are not
properly and timely identified, assessed, remediated and tested, there can be no
assurance that the Year 2000 issue will not materially impact the Company's
results of operations or adversely affect its relationships with vendors or
others. Additionally, there can be no assurance that the Year 2000 issues of
other entities will not have a material impact on the Company's systems or
results of operations.
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
See "Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations" above and Item 7A of the Company's December
31, 1998 Form 10-K.
-26-
<PAGE>
PART II - OTHER INFORMATION
ITEMS 1 - 5
Not applicable.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 $1,200,000,000 Credit Agreement among Premier Parks Inc.,
Premier Parks Operations Inc., Six Flags Theme Parks Inc., as
Primary Borrower, the Foreign Subsidiary Borrowers from time
to time parties hereto, the Several Lenders from time to time
parties hereto, The Bank of New York, as Syndication Agent,
Bank of America, N.A. and The Bank of Nova Scotia, as
Documentation Agents, Lehman Brothers Inc. and Lehman Brothers
International (Europe) Inc., as Advisors , Lead Arrangers and
Book Managers, and Lehman Commercial Paper Inc., as
Administrative Agent, dated as of November 5, 1999 (Exhibits
and Schedules intentionally deleted)
27.1 Financial Data Schedule - September 30, 1999
(b) Reports on Form 8-K
None
-27-
<PAGE>
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 thereunto duly authorized.
PREMIER PARKS INC.
(Registrant)
/s/ Kieran E. Burke
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
/s/ James F. Dannhauser
CHIEF FINANCIAL OFFICER
Date: November 15, 1999
-28-
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
$1,200,000,000
CREDIT AGREEMENT
AMONG
PREMIER PARKS INC.,
PREMIER PARKS OPERATIONS INC.,
SIX FLAGS THEME PARKS INC.,
AS PRIMARY BORROWER
THE FOREIGN SUBSIDIARY BORROWERS
FROM TIME TO TIME PARTIES HERETO,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE BANK OF NEW YORK,
AS SYNDICATION AGENT,
BANK OF AMERICA, N.A.
AND
THE BANK OF NOVA SCOTIA,
AS DOCUMENTATION AGENTS,
LEHMAN BROTHERS INC.
AND
LEHMAN BROTHERS INTERNATIONAL (EUROPE) INC.,
AS ADVISORS, LEAD ARRANGERS AND BOOK MANAGERS,
AND
LEHMAN COMMERCIAL PAPER INC.,
AS ADMINISTRATIVE AGENT
DATED AS OF NOVEMBER 5, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
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SECTION 1. DEFINITIONS........................................................................1
1.1 Defined Terms...............................................................1
1.2 Other Definitional Provisions..............................................35
SECTION 2. AMOUNT AND TERMS OF TRANCHE B TERM LOAN COMMITMENTS...............................35
2.1 Tranche B Term Loan Commitments............................................35
2.2 Procedure for Tranche B Term Loan Borrowing................................35
2.3 Repayment of Tranche B Term Loans..........................................36
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS AND SWING LINE COMMITMENT........36
3.1 Revolving Credit Commitments...............................................36
3.2 Procedure for Revolving Credit Borrowing...................................37
3.3 Swing Line Commitment......................................................37
3.4 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans..........38
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENTS.....................................39
4.1 Multicurrency Commitments..................................................39
4.2 Procedure for Multicurrency Borrowing......................................40
4.3 Automatic Reduction of Multicurrency Commitment............................40
4.4 Certain Prepayments........................................................41
4.5 Certain Additional Provisions Relating to Multicurrency Loans..............41
SECTION 5. LETTERS OF CREDIT.................................................................43
5.1 L/C Commitment.............................................................43
5.2 Procedure for Issuance of Letter of Credit.................................43
5.3 Fees and Other Charges.....................................................43
5.4 L/C Participations.........................................................44
5.5 Reimbursement Obligation of the Borrowers..................................45
5.6 Obligations Absolute.......................................................45
5.7 Letter of Credit Payments..................................................46
5.8 Applications...............................................................46
SECTION 6. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND THE LETTERS OF CREDIT..............46
6.1 Repayment of Loans; Evidence of Debt.......................................46
6.2 Commitment Fees, etc. .....................................................47
6.3 Termination or Reduction of Revolving Credit Commitments; Multicurrency
Commitments.............................................................47
6.4 Optional Prepayments.......................................................48
6.5 Mandatory Prepayments and Commitment Reductions............................48
6.6 Conversion and Continuation Options........................................50
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6.7 Minimum Amounts and Maximum Number of Eurocurrency Tranches................50
6.8 Interest Rates and Payment Dates...........................................51
6.9 Computation of Interest and Fees...........................................51
6.10 Inability to Determine Interest Rate......................................52
6.11 Pro Rata Treatment and Payments...........................................52
6.12 Requirements of Law.......................................................56
6.13 Taxes.....................................................................57
6.14 Indemnity.................................................................58
6.15 Illegality................................................................59
6.16 Change of Lending Office..................................................59
6.17 Replacement of Lenders under Certain Circumstances........................59
SECTION 7. REPRESENTATIONS AND WARRANTIES....................................................60
7.1 Financial Condition........................................................60
7.2 No Change..................................................................61
7.3 Existence; Compliance with Law.............................................61
7.4 Corporate Power; Authorization; Enforceable Obligations....................61
7.5 No Legal Bar...............................................................62
7.6 Litigation.................................................................62
7.7 No Default.................................................................62
7.8 Ownership of Property; Liens...............................................62
7.9 Intellectual Property......................................................62
7.10 Taxes.....................................................................63
7.11 Federal Regulations.......................................................63
7.12 Labor Matters.............................................................63
7.13 ERISA.....................................................................63
7.14 Investment Company Act; Other Regulations.................................64
7.15 Subsidiaries..............................................................64
7.16 Use of Proceeds...........................................................64
7.17 Environmental Matters.....................................................64
7.18 Accuracy of Information, etc..............................................65
7.19 Security Documents........................................................66
7.20 Solvency..................................................................67
7.21 Year 2000 Matters.........................................................67
7.22 Regulation H..............................................................67
7.23 Parks.....................................................................67
SECTION 8. CONDITIONS PRECEDENT..............................................................67
8.1 Conditions to Initial Extension of Credit..................................67
8.2 Conditions to Each Extension of Credit.....................................71
SECTION 9. AFFIRMATIVE COVENANTS.............................................................72
9.1 Financial Statements and Other Information.................................72
9.2 Notices of Material Events.................................................74
9.3 Existence, Etc.............................................................75
9.4 Insurance..................................................................76
9.5 Compliance with Contractual Obligations and Requirements of Law............78
ii
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<CAPTION>
9.6 Additional Collateral, etc.................................................79
9.7 Further Assurances.........................................................81
9.8 Environmental Laws.........................................................81
9.9 Clean Down.................................................................82
9.10 Additional Contributions..................................................82
9.11 Surveys; Landlord Consents................................................82
SECTION 10. NEGATIVE COVENANTS...............................................................82
10.1 Certain Financial Covenants...............................................82
10.2 Indebtedness..............................................................86
10.3 Liens.....................................................................87
10.4 Prohibition of Fundamental Changes........................................88
10.5 [RESERVED]................................................................91
10.6 Restricted Payments.......................................................92
10.7 Capital Expenditures......................................................92
10.8 Investments...............................................................93
10.9 Prepayment of Certain Indebtedness........................................94
10.10 Transactions with Affiliates.............................................94
10.11 Changes in Fiscal Periods................................................95
10.12 Certain Restrictions.....................................................95
10.13 Lines of Business........................................................96
10.14 Modifications of Certain Documents.......................................96
10.15 Limitation on Activities of Parent and Holdings..........................96
10.16 Limitation on Hedging Agreements.........................................97
SECTION 11. EVENTS OF DEFAULT................................................................97
SECTION 12. THE AGENTS......................................................................101
12.1 Appointment..............................................................101
12.2 Delegation of Duties.....................................................101
12.3 Exculpatory Provisions...................................................101
12.4 Reliance by Agents.......................................................102
12.5 Notice of Default........................................................102
12.6 Non-Reliance on Agents and Other Lenders.................................102
12.7 Indemnification..........................................................103
12.8 Agent in Its Individual Capacity.........................................103
12.9 Successor Agents.........................................................104
12.10 Authorization to Release Liens and Guarantees...........................104
12.11 The Arrangers...........................................................104
SECTION 13. MISCELLANEOUS...................................................................104
13.1 Amendments and Waivers...................................................104
13.2 Notices..................................................................107
13.3 No Waiver; Cumulative Remedies...........................................108
13.4 Survival of Representations and Warranties...............................108
13.5 Payment of Expenses......................................................108
13.6 Successors and Assigns; Participations and Assignments...................109
iii
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<CAPTION>
13.7 Adjustments; Set-off.....................................................112
13.8 Counterparts.............................................................113
13.9 Severability.............................................................113
13.10 Integration.............................................................113
13.11 GOVERNING LAW...........................................................114
13.12 Submission To Jurisdiction; Waivers.....................................114
13.13 Acknowledgments.........................................................114
13.14 Confidentiality.........................................................115
13.15 Release of Collateral and Guarantee Obligations.........................115
13.16 Accounting Changes......................................................116
13.17 Delivery of Lender Addenda..............................................116
13.18 WAIVERS OF JURY TRIAL...................................................116
iv
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vi
<PAGE>
<CAPTION>
ANNEXES:
A Pricing Grid
B Existing Letters of Credit
SCHEDULES:
1.1(a) Mortgaged Property
1.1(b) Contributed Assets
1.1(c) Existing Parks
7.4 Consents, Authorizations, Filings and Notices
7.8 Material Real Properties
7.15 Subsidiaries
7.19(a)-1 UCC Filing Jurisdictions
7.19(a)-2 UCC Financing Statements to Remain on File
7.19(a)-3 UCC Financing Statements to be Terminated
7.19(b) Mortgage Filing Jurisdictions
7.22 Mortgaged Property in Flood Zones
8.1(k) Environmental Reports
8.1(q)(i) Real Properties for which Mortgagee=s Title Insurance Shall be
Obtained
8.1(q)(ii) Real Properties for which Surveys Shall be Delivered
9.11(a) Real Properties for which Post-Closing Boundary Surveys Shall be
Delivered
9.11(b) Post-Closing Landlord Consents
10.2(b) Existing Indebtedness
10.3(b) Existing Liens
10.8(a) Existing Investments
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Baer Marks & Upham LLP
F-2 Form of Legal Opinion of General Counsel
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Prepayment Option Notice
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Joinder Agreement
L Form of Foreign Subsidiary Opinion
vii
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M Form of Borrowing Notice
</TABLE>
viii
<PAGE>
CREDIT AGREEMENT, dated as of November 5, 1999, among PREMIER
PARKS INC., a Delaware corporation ("PARENT"), PREMIER PARKS OPERATIONS INC., a
Delaware corporation, as surviving corporation of the Merger described below
("HOLDINGS") , SIX FLAGS THEME PARKS INC., a Delaware corporation (the "PRIMARY
Borrower"), each FOREIGN SUBSIDIARY BORROWER (as hereinafter defined), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "LENDERS"), LEHMAN BROTHERS INC. and LEHMAN
BROTHERS INTERNATIONAL (EUROPE) INC., as advisors, lead arrangers and book
managers (in such capacity, the "ARRANGERS"), THE BANK OF NEW YORK, as
syndication agent (in such capacity, the "SYNDICATION AGENT"), BANK OF AMERICA,
N.A. and THE BANK OF NOVA SCOTIA, as documentation agents (collectively, in such
capacity, the "DOCUMENTATION AGENTS"), and LEHMAN COMMERCIAL PAPER INC., as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, on or prior to the date hereof, (i) Six Flags
Entertainment Corporation, a Delaware corporation ("SFEC") and S.F. Holdings,
Inc., a Delaware corporation ("SFHI") consummated a merger, of which SFEC was
the surviving corporation and (ii) Premier Parks Operations Inc., a Delaware
corporation ("PPO"), and SFEC consummated a merger (the "MERGER"), and Holdings
is the surviving corporation of the Merger, and (iii) the Contributed Assets (as
hereinafter defined) were contributed by Holdings to the Primary Borrower (the
"CONTRIBUTION");
WHEREAS, the Primary Borrower, PPO and/or certain of their
respective affiliates are parties to the Existing Credit Agreements (as
hereinafter defined), and Holdings and the Primary Borrower wish to refinance
the Existing Credit Agreements; and to provide funding for such refinancing and
for the working capital and general corporate purposes of Holdings and the
Primary Borrower and their subsidiaries following the Merger and the
Contribution, Parent, Holdings and the Borrowers have requested the Lenders to
make available the credit facilities described herein; and
WHEREAS, the Lenders are willing to make such credit
facilities available upon and subject to the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
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"ACQUISITION": any acquisition, whether in a single
transaction or series of related transactions, by Holdings or any one
or more of its Subsidiaries of (a) all or a substantial part of the
assets, or of a business, unit or division, of any Person, whether
through purchase of assets or securities, by merger or otherwise; or
(b) any Person that becomes a Subsidiary after giving effect to such
acquisition.
"ADJUSTMENT DATE": as defined in the Pricing Grid.
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"AFFILIATE": any Person that directly or indirectly controls,
or is under common control with, or is controlled by, Holdings and, if
such Person is an individual, any member of the immediate family
(including parents, spouse, children) of such individual and any trust
whose principal beneficiary is such individual or one or more members
of such immediate family and any Person who is controlled by any such
member or trust. As used in this definition, "control" (including, with
its correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in any event, any Person that
owns directly or indirectly securities having 10% or more of the voting
power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership
interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other
Person. Notwithstanding the foregoing, (a) no individual shall be an
Affiliate solely by reason of his or her being a director, officer or
employee of Parent, Holdings or any of its Subsidiaries and (b) none of
(i) the Wholly Owned Subsidiaries of the Parent, (ii) Marine
World/Africa USA in Vallejo, California, (iii) Marine World Joint
Powers Authority, a joint exercise of powers authority created under
the laws of the State of California, or (iv) the joint venture
established pursuant to the Spanish WB Acquisition, shall be
Affiliates.
"AGENTS": the collective reference to the Syndication Agent,
the Documentation Agents and the Administrative Agent.
"AGGREGATE EXPOSURE": with respect to any Lender at any time,
an amount equal to (a) until the Closing Date, the aggregate amount of
such Lender's Commitments at such time and (b) thereafter, the sum of
(i) the aggregate then unpaid principal amount of such Lender's Tranche
B Term Loans, (ii) the amount of such Lender's Revolving Credit
Commitment then in effect or, if the Revolving Credit Commitments have
been terminated, the amount of such Lender's Revolving Extensions of
Credit then outstanding and (iii) the amount of such Lender's
Multicurrency Commitment then in effect or, if the Multicurrency
Commitments have been terminated, the amount of such Lender's
Multicurrency Extensions of Credit then outstanding.
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"AGGREGATE EXPOSURE PERCENTAGE" with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the sum of the Aggregate Exposures
of all Lenders at such time.
"AGREEMENT": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"ANNIVERSARY DATE": as defined in Section 9.4.
"APPLICABLE EXCHANGE DATE": with respect to (a) any
Multicurrency Loan to be made, the date on which the Eurocurrency Rate
therefor is determined for the initial Interest Period for such
Multicurrency Loan, and (b) with respect to any outstanding
Multicurrency Loan, the date on which the Eurocurrency Rate was
determined for the then-current Interest Period with respect to such
Multicurrency Loan.
"APPLICABLE MARGIN": for each Type of Loan, the rate per
annum set forth opposite such Type of Loan under the relevant column
heading below:
<TABLE>
<CAPTION>
Base Rate Eurocurrency
Loans Loans
--------- ------------
<S> <C> <C>
Revolving Credit Loans,
Multicurrency Loans and
Swing Line Loans 1.75% 2.75%
Tranche B Term Loans 2.25% 3.25%,
</TABLE>
PROVIDED, that on and after the first Adjustment Date occurring after
December 31, 1999, the Applicable Margins will be determined pursuant
to the Pricing Grid.
"APPLICATION": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing
Lender to issue a Letter of Credit.
"ARRANGERS": as defined in the preamble hereto.
"ASSET SALE": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
Section 10.4(c)) which yields gross proceeds to Holdings, or any of its
Subsidiaries (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities
and valued at fair market value in the case of other non-cash proceeds)
in excess of $1,000,000.
"ASSIGNEE": as defined in Section 13.6(c).
"ASSIGNMENT AND ACCEPTANCE": as defined in Section 13.6(c).
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"ASSIGNOR": as defined in Section 13.6(c).
"AUTHORITY": as defined in the definition of "Marine World
Agreements".
"AVAILABLE MULTICURRENCY COMMITMENT": with respect to any
Multicurrency Lender at any time, an amount equal to the excess, if
any, of (a) such Lender's Multicurrency Commitment then in effect over
(c) such Lender's Multicurrency Extensions of Credit then
outstanding.
"AVAILABLE REVOLVING CREDIT COMMITMENT": with respect to any
Revolving Credit Lender at any time, an amount equal to the excess, if
any, of (a) such Lender's Revolving Credit Commitment then in effect
over (b) such Lender's Revolving Extensions of Credit then
outstanding; PROVIDED, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's
Available Revolving Credit Commitment pursuant to Section 6.2(a), the
aggregate principal amount of Swing Line Loans then outstanding shall
be deemed to be zero.
"BANKRUPTCY CODE": the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASE CAPITAL EXPENDITURE AMOUNT": as defined in
Section 10.7.
"BASE RATE": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect
on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "PRIME RATE"
shall mean the rate of interest per annum publicly announced from time
to time by the Reference Lender as its prime or base rate in effect at
its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by the Reference
Lender in connection with extensions of credit to debtors); "BASE CD
RATE" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; and "THREE-MONTH SECONDARY CD RATE"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day)
by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Reference Lender from three New York City
negotiable certificate of deposit dealers of recognized standing
selected
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<PAGE>
by it. Any change in the Base Rate due to a change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"BASE RATE LOANS": Loans for which the applicable rate of
interest is based upon the Base Rate.
"BENEFITTED LENDER": as defined in Section 13.7.
"BOARD": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"BORROWERS": the collective reference to the Primary Borrower
and the Foreign Subsidiary Borrowers.
"BORROWING DATE": any Business Day specified by a Borrower as
a date on which such Borrower requests the relevant Lenders to make
Loans, or issue Letters of Credit, hereunder.
"BUSINESS": as defined in Section 7.17(b).
"BUSINESS DAY": (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close and (b) with respect to all notices and determinations in
connection with, and payments of principal and interest on,
Eurocurrency Loans, any day which is a Business Day described in clause
(a) and which is also a day for trading by and between banks in Dollar
deposits in the interbank Eurodollar market; PROVIDED, that when such
term is used for the purpose of determining the date on which the
Eurocurrency Base Rate is determined under this Agreement for any Loan
denominated in euro for any Interest Period therefor and for purposes
of determining the first and last day of any such Interest Period,
references in this Agreement to Business Days shall be deemed to be
references to Target Operating Days.
"CAPITAL EXPENDITURES": for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by Holdings or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements) during such period,
computed in accordance with GAAP, but excluding (a) repairs in respect
of any such assets and (b) the amount of any such asset (i) to the
extent such asset is acquired with, or the acquisition cost thereof is
reimbursed with, the Net Cash Proceeds of Recovery Events, (ii) to the
extent such asset is acquired with or the acquisition cost thereof is
reimbursed with, the Net Cash Proceeds of any Disposition permitted
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<PAGE>
hereunder, (iii) acquired pursuant to an Acquisition permitted
hereunder or (iv) acquired with the Unused Equity Proceeds Amount.
"CAPITAL EXPENDITURES (DISCRETIONARY)": any Capital
Expenditures which do not constitute Capital Expenditures (Sustaining).
"CAPITAL EXPENDITURES (SUSTAINING)": any Capital Expenditures
made in the ordinary course of business for maintenance or upkeep of
the assets of Holdings or any of its Subsidiaries or required, in the
reasonable judgment of Holdings, to maintain the entertainment value of
any Park at the level existing on the last Business Day of the fiscal
year of Holdings immediately preceding the date of such expenditure.
"CAPITAL LEASE OBLIGATIONS": for any Person, all obligations
of such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"C/D ASSESSMENT RATE": for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance
Fund maintained by the Federal Deposit Insurance Corporation (the
"FDIC") classified as well-capitalized and within supervisory subgroup
"B" (or a comparable successor assessment risk classification) within
the meaning of 12 C.F.R. ss. 327.4 (or any successor provision) to the
FDIC (or any successor) for the FDIC's (or such successor's) insuring
time deposits at offices of such institution in the United States.
"C/D RESERVE PERCENTAGE": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed
by the Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board as in
effect from time to time) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"CLOSING DATE": the date on which the conditions precedent set
forth in Section 8.1 shall have been satisfied, which date shall be not
later than November 15, 1999.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
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<PAGE>
"COLLATERAL": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"COMMITMENT": with respect to any Lender, each of the Tranche
B Term Loan Commitment, the Revolving Credit Commitment and the
Multicurrency Commitment of such Lender.
"COMMITMENT FEE RATE": .50% per annum; PROVIDED, that on and
after the first Adjustment Date occurring after December 31, 1999, the
Commitment Fee Rate will be determined pursuant to the Pricing Grid.
"COMPLIANCE CERTIFICATE": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"CONFIDENTIAL INFORMATION MEMORANDUM": the Confidential
Information Memorandum dated September 1999 and furnished to the
initial Lenders in connection with the syndication of the Facilities.
"CONSOLIDATED CURRENT ASSETS": at any date, all amounts (other
than cash and Permitted Investments) that would, in conformity with
GAAP, be set forth opposite the caption "total current assets" (or any
like caption) on a consolidated balance sheet of Holdings and its
Subsidiaries at such date.
"CONSOLIDATED CURRENT LIABILITIES": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated
balance sheet of Holdings and its Subsidiaries at such date, but
excluding (a) the current portion of any Funded Debt of Holdings and
its Subsidiaries and (b), without duplication, all Indebtedness
consisting of Revolving Credit Loans, Multicurrency Loans or Swing Line
Loans, to the extent otherwise included therein.
"CONSOLIDATED DEBT SERVICE": for any period, the sum, for
Holdings and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of (a) all regularly
scheduled payments of principal of any Indebtedness during such period,
including the principal component of any payments in respect of Capital
Lease Obligations, but excluding in any event (i) any prepayments made
pursuant to Section 6.4 or 6.5 during such period, (ii) for any period
including any portion of the period from September 30, 2004 through
September 30, 2005, the amount of principal payments scheduled to be
made during such period in respect of the Tranche B Term Loans and
(iii) for any period including any portion of the period from December
31, 2004 through March 31, 2005, the amount of the scheduled reductions
of the Multicurrency Commitments during such period, plus (b)
Consolidated Interest Expense for such period.
7
<PAGE>
"CONSOLIDATED DEBT SERVICE COVERAGE RATIO": for any period,
the ratio of (a) Consolidated EBITDA for such period to (b)
Consolidated Debt Service for such period.
"CONSOLIDATED EBITDA": for any period, the sum, for Holdings
and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following, in each case
determined before interest income or expense and extraordinary or
unusual items (and excluding all barter and trade transactions): (a)
operating income (or loss) for such period (plus cash received for such
period from investments of Holdings or any of its Subsidiaries in
partnerships or any Person for which the investment is accounted for by
the equity method), plus (b) depreciation, amortization and other
non-cash charges (to the extent deducted in determining operating
income, but excluding any such charge that constitutes an accrual of or
a reserve for cash charges for any future period) for such period.
Notwithstanding the foregoing, (i) if during any period for which
Consolidated EBITDA is being determined Holdings and its Subsidiaries
shall have consummated any Acquisition or Disposition then, for all
purposes of this Agreement (other than for purposes of the definition
of Excess Cash Flow), Consolidated EBITDA shall be determined on a pro
forma basis as if such Acquisition or Disposition had been made or
consummated on the first day of such period and (ii) when determining
Consolidated EBITDA for any period on a pro forma basis as provided in
the preceding clause (i) ending after the consummation of any
Acquisition, there shall be added (or subtracted) the respective
amounts for such Acquisition (and any other Acquisitions consummated
prior to the last day of such period) as agreed by Holdings and the
Required Lenders.
"CONSOLIDATED FIXED CHARGES": for any period, the sum of (a)
Consolidated Debt Service for such period plus (b) the aggregate amount
of all Capital Expenditures (Sustaining) made during such period plus
(c) the aggregate amount paid, or required to be paid, in cash in
respect of income taxes of Holdings and its Subsidiaries for such
fiscal period or (without duplication) paid by Holdings pursuant to the
Tax Sharing Agreement, plus (d) the amount of Restricted Payments for
such period.
"CONSOLIDATED FIXED CHARGES COVERAGE RATIO": as at any date,
the ratio of (a) Consolidated EBITDA for the period of four consecutive
fiscal quarters ending on or most recently ended prior to such date to
(b) Consolidated Fixed Charges for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO": as at any date, the
ratio of (a) Consolidated EBITDA for the period of four consecutive
fiscal quarters ending on or most recently ended prior to such date to
(b) Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE": for any period, the sum, for
Holdings and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all
interest in respect of Indebtedness (including, without limitation, the
interest component of any payments in respect of Capital Lease
8
<PAGE>
Obligations but excluding any capitalized financing fees paid during
such period that are to be charged to future periods) accrued or
capitalized during such period (whether or not actually paid during
such period) plus (b) the net amount payable (or minus the net amount
receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period) minus (c) (to the extent
not already deducted in computing Consolidated Interest Expense) the
aggregate amount of interest income for such period minus (d) interest
expense in respect of the 12% Senior Notes of PPO, and the 12 1/4%
Senior Discount Notes of the Primary Borrower, in each case to the
extent such notes were purchased by Holdings and its Subsidiaries on
June 30, 1999 pursuant to a tender offer or on September 24, 1999
pursuant to a redemption. Notwithstanding the foregoing, if during any
period for which Consolidated Interest Expense is being determined
Holdings shall have consummated any Acquisition or Disposition then,
for all purposes of this Agreement (other than for purposes of the
definition of Excess Cash Flow), Consolidated Interest Expense shall be
determined on a pro forma basis as if such Acquisition or Disposition
(and any Indebtedness incurred by Holdings 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 Holdings
and its Subsidiaries is equal to the interest rate applicable to
Indebtedness of Holdings and its Subsidiaries in fact outstanding
during such period.
"CONSOLIDATED LEVERAGE RATIO": as at any date, the ratio of
(a) Consolidated Total Debt as at such date to (b) Consolidated EBITDA
for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date.
"CONSOLIDATED NET INCOME": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP; PROVIDED, that in calculating Consolidated Net Income of Holdings
and its consolidated Subsidiaries for any period, there shall be
excluded (a) the income (or deficit) of any Person accrued prior to
the date it becomes a Subsidiary of Holdings or is merged into or
consolidated with Holdings or any of its Subsidiaries, (b) the
income (or deficit) of any Person (other than a Subsidiary of Holdings)
in which Holdings or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by
Holdings or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary
of Holdings to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under
any Loan Document) or Requirement of Law applicable to such Subsidiary.
"CONSOLIDATED SECURED DEBT": as at any date, the aggregate
amount of all Indebtedness hereunder and all other secured Indebtedness
of Holdings and its Subsidiaries at such date (determined on a
consolidated basis without duplication in
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<PAGE>
accordance with GAAP), but excluding any Indebtedness which is not
secured by any security interest but benefits from an unsecured
guarantee.
"CONSOLIDATED SECURED DEBT RATIO": as at any date, the ratio
of (a) Consolidated Secured Debt as at such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on or
most recently ended prior to such date.
"CONSOLIDATED TOTAL DEBT": as at any date, the aggregate
amount of all Indebtedness of Holdings and its Subsidiaries at such
date (determined on a consolidated basis without duplication in
accordance with GAAP).
"CONSOLIDATED WORKING CAPITAL": at any date, the difference of
(a) Consolidated Current Assets on such date less (b) Consolidated
Current Liabilities on such date.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its Property is bound.
"CONTRIBUTED ASSETS": the assets described on Schedule 1.1(b).
"CONTRIBUTION": as defined in the recitals hereto.
"CONTROL INVESTMENT AFFILIATE": as to any Person, any other
Person that (a) directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person and (b)
is organized by such Person primarily for the purpose of making equity
or debt investments in one or more companies. For purposes of this
definition, "CONTROL" of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"DEFAULT": any of the events specified in Section 11, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"DELIVERY DATE": as defined in Section 9.4.
"DISPOSITION": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "DISPOSE" and "DISPOSED OF" shall
have correlative meanings.
"DISPOSITION INVESTMENT": with respect to any Disposition, any
promissory notes or other evidences of indebtedness or Investments
received by Holdings or any of its Subsidiaries in connection with such
Disposition.
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"DOLLAR EQUIVALENT AMOUNT": on any date of determination
thereof, with respect to the principal amount of any Multicurrency Loan
denominated in euro, the amount of Dollars that may be purchased with
such amount of euro at the Spot Exchange Rate on the Applicable
Exchange Date.
"DOLLAR MULTICURRENCY COMMITMENT": as defined in Section
4.5(a).
"DOLLAR MULTICURRENCY LENDER": as defined in Section 4.5(a).
"DOLLARS" and "$": lawful currency of the United States of
America.
"DOMESTIC SUBSIDIARY": any Subsidiary of Holdings or Parent,
as applicable, organized under the laws of any jurisdiction within the
United States of America.
"EMU": Economic and Monetary Union as contemplated in the
Treaty on European Union.
"EMU LEGISLATION": legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in one
or more member states.
"ENVIRONMENTAL CLAIM": with respect to any Person, any written
notice, claim, demand or other communication (collectively, a "CLAIM")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs,
damages to natural resources or other Property, personal injuries,
fines or penalties arising out of, based on or resulting from (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": any and all present and future Federal,
state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the
regulation or protection of human health, safety or the environment or
to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or toxic or hazardous substances or
wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands,
land or subsurface strata, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or
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<PAGE>
handling of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes.
"ENVIRONMENTAL PERMITS": any and all permits, licenses,
approvals, registrations, notifications, exemptions and other
authorizations required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE": any corporation or trade or business that
is a member of any group of organizations (i) described in Section
414(b) or (c) of the Code of which Parent 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 Parent is a member.
"ERISA EVENT": any of the following events or conditions:
(a) any Reportable Event and any request for a waiver under
Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by Parent or an
ERISA Affiliate to terminate any Plan;
(c) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or the receipt by Parent or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer
Plan by Parent or any ERISA Affiliate that results in any withdrawal
liability under Section 4201 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the
receipt by Parent or any ERISA Affiliate of notice from a Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA or that it intends to terminate or has terminated
under Section 4041 A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against Parent or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 60 days;
or
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result in
the loss of tax-exempt status of the
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trust of which such Plan is a part if Parent or an ERISA Affiliate
fails to timely provide security to the Plan in accordance with the
provisions of such Sections.
"EURO" and [euro]: the single currency of the EMU as
constituted by the Treaty on European Union and as referred to in
EMU Legislation.
"EURO UNIT": the currency unit of the euro as defined in the
EMU Legislation.
"EUROCURRENCY BASE RATE": with respect to each day during each
Interest Period pertaining to a Loan under any Facility, the rate per
annum determined on the basis of the rate for deposits in the currency
of such Loan for a period equal to such Interest Period commencing on
the first day of such Interest Period appearing on the applicable Page
of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such
rate does not appear on the Telerate screen, the "Eurocurrency Base
Rate" for purposes of this definition shall be determined by reference
to such other comparable publicly available service for displaying
eurocurrency rates as may be selected by the Administrative Agent.
"EUROCURRENCY LOANS": Loans under any Facility for which the
applicable rate of interest is based upon the Eurocurrency Rate.
"EUROCURRENCY RATE": with respect to each day during each
Interest Period, a rate per annum determined for such day in accordance
with the following formula (rounded upward to the nearest 1/100th of
1%):
EUROCURRENCY BASE RATE
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EUROCURRENCY RESERVE REQUIREMENTS": for any day, the
aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board) maintained by a member bank of the Federal Reserve System.
"EUROCURRENCY TRANCHE": the collective reference to
Eurocurrency Loans of the same currency under any Facility, the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"EVENT OF DEFAULT": any of the events specified in Section 11,
PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
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"EXCESS CASH FLOW": for any fiscal year of Holdings, the
difference, if any, of (a) the sum, without duplication, of (i)
Consolidated Net Income for such fiscal year, (ii) the amount of all
non-cash charges (including depreciation and amortization) deducted in
arriving at such Consolidated Net Income, (iii) the amount of the
decrease, if any, in Consolidated Working Capital for such fiscal year,
(iv) the aggregate net amount of non-cash loss on the Disposition of
Property by Holdings and its Subsidiaries during such fiscal year
(other than sales of inventory in the ordinary course of business), to
the extent deducted in arriving at such Consolidated Net Income and
(v) the net increase during such fiscal year (if any) in deferred
tax accounts of Holdings minus (b) the sum, without duplication, of
(i) the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by
Holdings and its Subsidiaries in cash during such fiscal year on
account of Capital Expenditures (minus the principal amount of
Indebtedness incurred in connection with such expenditures, and
excluding any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount and any such expenditures financed with
the Unused Equity Proceeds Amount), (iii) the aggregate amount of all
prepayments or repayments of Revolving Credit Loans, Swing Line Loans
and Multicurrency Loans during such fiscal year to the extent
accompanying permanent optional reductions of the Revolving Credit
Commitments or Multicurrency Commitments, as the case may be, and all
optional prepayments of the Tranche B Term Loans and other Funded Debt
during such fiscal year, (iv) the aggregate amount of all regularly
scheduled principal payments of Funded Debt (including, without
limitation, the Tranche B Term Loans) of Holdings and its Subsidiaries
made during such fiscal year (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (v) the amount of the
increase, if any, in Consolidated Working Capital for such fiscal year,
(vi) the aggregate net amount of non-cash gain on the Disposition of
Property by Holdings and its Subsidiaries during such fiscal year
(other than sales of inventory in the ordinary course of business), to
the extent included in arriving at such Consolidated Net Income,
(vii) the net decrease during such fiscal year (if any) in deferred
tax accounts of Holdings, (viii) the aggregate amount of Restricted
Payments made in cash during such fiscal year (to the extent permitted
under Section 10.6), and (ix) the aggregate amount of Investments
made in cash during such fiscal year (to the extent permitted under
clauses (h), (j), (l), (m) and (n) of Section 10.8) except to the
extent such investments are financed with (A) the Unused Equity
Proceeds Amount or (B) the proceeds of any Indebtedness of Holdings or
any Subsidiary.
"EXCESS CASH FLOW APPLICATION DATE": as defined in Section
6.5(c).
"EXCLUDED FOREIGN SUBSIDIARIES": any Foreign Subsidiary in
respect of which either (i) the pledge of all of the Capital Stock
of, or any Property of, such Subsidiary as Collateral or (ii) the
guaranteeing by such Subsidiary of the Obligations, would, in the good
faith judgment of Holdings, result in adverse tax consequences to
Holdings or Parent. Any Subsidiary that Guarantees Indebtedness under
any Indenture shall not be an Excluded Foreign Subsidiary.
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"EXISTING CREDIT AGREEMENTS": the collective reference to: (a)
the Credit Agreement, dated as of March 13, 1998, as amended, among
PPO, the lenders parties thereto, The Bank of New York (as successor
administrative agent to Lehman Commercial Paper Inc.), as
administrative agent, Lehman Brothers Inc., as advisor, arranger and
syndication agent, and others, and (b) the Credit Agreement, dated as
of April 1, 1998, as amended, among the Primary Borrower, certain of
its Affiliates, The Bank of New York, as administrative agent, Lehman
Brothers Inc., as advisor, arranger and syndication agent, and others.
"EXISTING ISSUING LENDER": The Bank of New York, as issuer of
the Existing Letters of Credit.
"EXISTING LETTERS OF CREDIT": the letters of credit described
on Annex B.
"EXISTING PARKS": those amusement and attraction parks listed
on Schedule 1.1(c).
"FACILITY": each of (a) the Tranche B Term Loan
Commitments and the Tranche B Term Loans made thereunder (the "TRANCHE
B TERM LOAN FACILITY"), (b) the Multicurrency Commitments and the
extensions of credit made thereunder (the "MULTICURRENCY FACILITY") and
(c) the Revolving Credit Commitments and the extensions of credit
made thereunder (the "REVOLVING CREDIT FACILITY").
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Reference Lender from
three federal funds brokers of recognized standing selected by it.
"FOREIGN SECURITY DOCUMENTS": the collective reference to the
Foreign Subsidiary Pledge Agreements and any other Security Documents
delivered pursuant to Section 9.6(e).
"FOREIGN SUBSIDIARY": any Subsidiary of Holdings or Parent, as
applicable, that is not a Domestic Subsidiary.
"FOREIGN SUBSIDIARY BORROWER": any Foreign Subsidiary of
Holdings that becomes a Foreign Subsidiary Borrower on the Closing
Date, or after the Closing Date pursuant to Section 13.1(b).
"FOREIGN SUBSIDIARY OPINION": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign
Subsidiary Borrower addressed to the Administrative Agent and the
Lenders concluding that such Foreign Subsidiary Borrower
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and the Loan Documents to which it is a party substantially comply with
the matters listed on Exhibit L, with such assumptions, qualifications
and deviations therefrom as the Administrative Agent shall approve
(such approval not to be unreasonably withheld).
"FOREIGN SUBSIDIARY PLEDGE AGREEMENTS": the collective
reference to (a) the Pledge Agreements delivered in connection with the
Closing Date pledging not more than 65% of the shares of Capital Stock
of Foreign Subsidiaries held by any Domestic Subsidiary and (b) any
Pledge Agreements delivered pursuant to Section 9.6(d).
"FQ1", "FQ2", "FQ3", and "FQ4": when used with a numerical
year designation, means the first, second, third or fourth fiscal
quarters, respectively, of such fiscal year of Holdings, (e.g., FQ4
1999 means the fourth fiscal quarter of Holdings' 1999 fiscal year,
which ends December 31, 1999).
"FUNDED DEBT": with respect to any Person, all Indebtedness of
such Person of the types described in clauses (a) through (e) of the
definition of "Indebtedness" in this Section.
"FUNDING OFFICE": with respect to Loans in any currency, the
office specified from time to time by the Administrative Agent as its
funding office for such currency by notice to Holdings and the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time.
"GENERAL MULTICURRENCY COMMITMENT": as defined in Section
4.5(a).
"GENERAL MULTICURRENCY LENDER": as defined in Section 4.5(a).
"GERMAN WB ACQUISITION": the acquisition of the sole issued
and outstanding share of stock of Warner Bros. Movie World Beteiligungs
GmbH, the sole general partner of Warner Bros. Movie World GmbH & Co.
KG, a German limited partnership, and of all the limited partnership
interests of said partnership and related transactions (including,
without limitation, the acquisition of debt of such partnership)
contemplated by the Purchase and Sale Agreement dated as of October 6,
1999 by and among Parent, a newly established Subsidiary thereof, the
limited partners of said partnership and the holder of said share of
stock in the general partner and the documents and agreements relating
thereto, as said Purchase and Sale Agreement and related documents and
agreements are now or hereafter amended.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities
exchange and any
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self-regulatory organization (including the National Association of
Insurance Commissioners) having jurisdiction over the Business or the
Property of Holdings and its Subsidiaries.
"GUARANTEE": a guarantee, an indorsement, a contingent
agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under
or with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any Person, or a guarantee of the
payment of dividends or other distributions upon the stock or equity
interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services
primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss,
and including, without limitation, causing a bank or other financial
institution to issue a letter of credit or other similar instrument for
the benefit of another Person, but excluding endorsements for
collection or deposit in the ordinary course of business. The terms
"GUARANTEE" and "GUARANTEED" used as verbs have the correlative
meanings.
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and
Collateral Agreement to be executed and delivered by Parent, Holdings,
the Primary Borrower and each Subsidiary Guarantor, substantially in
the form of Exhibit A, as the same may be amended, supplemented or
otherwise modified from time to time.
"GUARANTORS": the collective reference to Parent, Holdings,
the Primary Borrower (in its capacity as a guarantor) and the
Subsidiary Guarantors.
"HAZARDOUS MATERIAL": any chemical or other material or
substance which is now or hereafter prohibited, limited or otherwise
regulated in any way under any Environmental Law.
"HEDGING AGREEMENT": any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity
price hedging arrangement. 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": any Subsidiary of Holdings or Parent,
as applicable, that (a) has aggregate assets with a value not in excess
of $5,000, (b) conducts no Business and (c) does not Guarantee any
Indebtedness under any Indenture.
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"INDEBTEDNESS": for any Person, without duplication: (a)
obligations created, issued or incurred by such Person for borrowed
money (whether by loan, the issuance and sale of debt securities or the
sale of Property to another Person subject to an understanding or
agreement, contingent or otherwise, to repurchase such Property from
such Person); (b) obligations of such Person to pay the deferred
purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business so long as such
trade accounts payable are payable within 180 days (365 days in the
case of payables arising out of the purchase of inventory or Capital
Expenditures determined without regard to the exclusion contained in
the definition of Capital Expenditures in this Section 1.1) of the date
the respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a Lien on the Property
of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (d) obligations of such Person in
respect of letters of credit or similar instruments (including
negotiable instruments) issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations
of such Person; (f) the liquidation value of all redeemable preferred
Capital Stock of such Person to the extent redeemable prior to the date
which is 91 days after the latest of (i) Revolving Credit Termination
Date, (ii) Multicurrency Termination Date and (iii) the maturity date
of the Tranche B Term Loans, and (g) Indebtedness of others Guaranteed
by such Person. The Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a general
partner to the extent such Indebtedness is recourse, PROVIDED that if
such Person's liability for such Indebtedness is contractually limited,
only such Person's share thereof shall be so included. Anything herein
to the contrary notwithstanding, the following shall not constitute
Indebtedness: (i) obligations under Hedging Agreements, (ii)
obligations with respect to the payment of taxes, fees, costs and
expenses, Capital Expenditures and other payments required to be made
pursuant to the Marine World Agreements, (iii) obligations in respect
of the Zero Coupon Bonds, (iv) obligations in respect of any other
Indebtedness that has been defeased (either covenant or legal) pursuant
to the terms of the instrument creating or governing such Indebtedness
and (v) obligations under the Subordinated Indemnity Agreement or the
Partnership Parks Agreements; PROVIDED, that obligations described in
the foregoing clause (v) shall constitute Indebtedness for purposes of
Section 11(e).
"INDEMNIFIED LIABILITIES": as defined in Section 13.5.
"INDEMNITEE": as defined in Section 13.5.
"INDENTURES": collectively, (a) Parent Indentures, (b) the PPO
Indenture and (c) the SFEC Indenture.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
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"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to sue at law or in
equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the
last day of each March, June, September and December to occur while
such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurocurrency Loan having an Interest Period of three
months or shorter, the last day of such Interest Period, (c) as to
any Eurocurrency Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan (other than any Revolving
Credit Loan or Multicurrency Loan that is a Base Rate Loan and any
Swing Line Loan), the date of any repayment or prepayment made in
respect thereof.
"INTEREST PERIOD": as to any Eurocurrency Loan, (a)
initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period
applicable to such Eurocurrency Loan and ending one, two, three or six
months thereafter, as selected by the relevant Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect
thereto; PROVIDED that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Revolving Credit Termination Date, the
Multicurrency Termination Date or beyond the date final
payment is due on the Tranche B Term Loans, as the case may
be, shall end on the Revolving Credit Termination Date, the
Multicurrency Termination Date or such due date, as
applicable; and
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(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period.
"INVESTMENT": for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any
sale of any securities at a time when such securities are not owned by
the Person entering into such sale); (b) the making of any deposit
with, or advance, loan or other extension of credit to, any other
Person (including the purchase of Property from another Person subject
to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance, loan or
extension of credit having a stated term not exceeding 180 days arising
in connection with the sale of inventory, supplies or patron services
by such Person in the ordinary course of business, and excluding also
any deposit made by such Person in the ordinary course of business of
such Person or as an advance payment in respect of a Capital
Expenditure (to the extent the making of such Capital Expenditure will
not result in a violation of any of the provisions of Section 10.1 or
10.7); (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be
advanced, lent or extended to such Person, other than any Guarantee
under the Partnership Parks Agreements or the Subordinated Indemnity
Agreement; or (d) the entering into of any Hedging Agreement.
"ISSUING LENDER": the Existing Issuing Lender, The Bank of New
York and any other Multicurrency Lender from time to time designated by
the Primary Borrower as an Issuing Lender with the consent of such
Multicurrency Lender and the Administrative Agent.
"JOINDER AGREEMENT": each Joinder Agreement, substantially in
the form of Exhibit K, entered into pursuant to Section 13.1(b).
"L/C COMMITMENT": $10,000,000.
"L/C FEE PAYMENT DATE": the last day of each March, June,
September and December and the last day of the Multicurrency Commitment
Period.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of
0.2.42. the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and 0.2.43. the aggregate amount of
drawings under Letters of Credit that have not then been reimbursed
pursuant to Section 5.5.
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"L/C PARTICIPANTS": with respect to any Letter of Credit, the
collective reference to all the Multicurrency Lenders other than the
Issuing Lender that issued such letter of Credit.
"LEHMAN ENTITY": any of Lehman Commercial Paper Inc. or any of
its affiliates (including Syndicated Loan Funding Trust).
"LENDER ADDENDUM": with respect to any initial Lender, a
Lender Addendum, substantially in the form of Exhibit J, to be executed
and delivered by such Lender on the Closing Date as provided in Section
13.17.
"LENDERS": as defined in the preamble hereto.
"LETTERS OF CREDIT": as defined in Section 5.1(a).
"LIEN": with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such Property. For purposes of this Agreement and the other Loan
Documents, a Person shall be deemed to own subject to a Lien any
Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or
other title retention agreement (other than an operating lease)
relating to such Property.
"LOAN": any loan made by any Lender pursuant to this
Agreement.
"LOAN DOCUMENTS": this Agreement, the Security Documents, the
Applications and the Notes.
"LOAN PARTIES": Parent, Holdings, the Borrowers and each
Subsidiary of Holdings that is a party to a Loan Document.
"MAJORITY FACILITY LENDERS": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of
the Tranche B Term Loans, the Total Revolving Extensions of Credit or
the Total Multicurrency Extensions of Credit, as the case may be,
outstanding under such Facility (or, (a) in the case of the Revolving
Credit Facility, prior to any termination of the Revolving Credit
Commitments, the holders of more than 50% of the Total Revolving Credit
Commitments and (b) in the case of the Multicurrency Facility, prior to
any termination of the Multicurrency Commitments, the holders of more
than 50% of the Total Multicurrency Commitments).
"MAJORITY MULTICURRENCY FACILITY LENDERS": the Majority
Facility Lenders in respect of the Multicurrency Facility.
"MAJORITY REVOLVING CREDIT FACILITY LENDERS": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
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"MARINE WORLD AGREEMENTS": collectively, (a) the Parcel Lease
dated as of November 7, 1997 between Marine World Joint Powers
Authority ("AUTHORITY"), as landlord, and Park Management Corp.
("TENANT"), as tenant, a Memorandum of which was recorded on November
10, 1997, Series No. 97-76697, official records as amended by Amendment
to Parcel Lease, dated as of May 18, 1999, between Authority and
Tenant; (b) Reciprocal Easement Agreement dated as of November 7, 1997
between Authority and Tenant; (c) Revenue Sharing Agreement dated as of
November 7, 1997 by and among Authority, Tenant and the Redevelopment
Agency of the City of Vallejo ("AGENCY"); (d) 1997 Management Agreement
Relating to Marine World entered into as of February 1, 1997 between
the Authority and Tenant, as amended by a side letter dated November 7,
1997; and (e) Purchase Option Agreement dated as of August 29, 1997
among the City of Vallejo, the Authority, the Agency and Tenant,
together with any and all documents delivered pursuant thereto or in
connection therewith, as the same shall, subject to Section 10.14, be
modified and supplemented and in effect from time to time.
"MARINE WORLD CONTRIBUTED CAPITAL EXPENDITURES": Capital
Expenditures made by Holdings consisting of items which are useful to
the business of Authority, and are, concurrently with the purchase
thereof, contributed by Holdings to Authority.
"MARGIN STOCK": "margin stock" within the meaning of
Regulations T, U and X.
"MATERIAL ADVERSE EFFECT": a material adverse effect on
0.2.44. the Business, Property, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries taken as a whole or Parent
and its Subsidiaries taken as a whole or 0.2.45. the validity or
enforceability of this Agreement or any of the other Loan Documents or
the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"MERGER": as defined in the recitals to this Agreement.
"MORTGAGED PROPERTIES": the Real Properties listed on Schedule
1.1(a), as to which the Administrative Agent for the benefit of the
Lenders shall be granted a Lien pursuant to the Mortgages.
"MORTGAGES": each of the mortgages and deeds of trust secured
by Real Properties made by any Loan Party in favor of, or for the
benefit of, the Administrative Agent for the benefit of the Lenders,
substantially in the form of Exhibit D (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such
mortgage or
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deed of trust is to be recorded), as the same may be amended,
supplemented, substituted or otherwise modified from time to time.
"MULTICURRENCY COMMITMENT": as to any Lender, the obligation
of such Lender, if any, to make Multicurrency Loans and participate in
Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "Multicurrency
Commitment" opposite such Lender's name on Schedule 1 to the Lender
Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the
terms hereof. The original aggregate amount of the Total Multicurrency
Commitments is $300,000,000.
"MULTICURRENCY COMMITMENT PERIOD": the period from and
including the Closing Date to the Multicurrency Termination Date.
"MULTICURRENCY EXTENSIONS OF CREDIT": as to any Multicurrency
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Multicurrency Loans denominated in Dollars made
by such Lender then outstanding, (b) the Dollar Equivalent Amount of
all Multicurrency Loans denominated in euro made by such Lender then
outstanding and (c) such Lender's Multicurrency Percentage of the L/C
Obligations then outstanding.
"MULTICURRENCY FACILITY": as defined in the definition of
"Facility" in this Section 1.1.
"MULTICURRENCY LENDER": each Lender that has a Multicurrency
Commitment or that is the holder of Multicurrency Loans.
"MULTICURRENCY LOANS": as defined in Section 4.1.
"MULTICURRENCY PERCENTAGE": as to any Multicurrency Lender at
any time, the percentage which such Lender's Multicurrency Commitment
then constitutes of the Total Multicurrency Commitments (or, at any
time after the Multicurrency Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's
Multicurrency Extensions of Credit then outstanding constitutes of the
amount of the Total Multicurrency Extensions of Credit then
outstanding).
"MULTICURRENCY SUBLIMIT": with respect to all Foreign
Subsidiary Borrowers organized under the laws of Mexico, an aggregate
amount of $40,000,000.
"MULTICURRENCY TERMINATION DATE": May 4, 2005.
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"MULTIEMPLOYER PLAN": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which contributions have been
made by Parent or any ERISA Affiliate and that is covered by Title IV
of ERISA.
"NET CASH PROCEEDS": (a) in connection with any Asset Sale
or any Recovery Event, the proceeds thereof received by Holdings or any
Subsidiary in the form of cash and Permitted Investments (including any
such proceeds received in such form by way of deferred payment of
principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on, or amount required to be paid under Capital
Lease Obligations relating to, any asset which is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements applicable to the transactions) and (b) in connection
with any issuance or sale of equity securities or debt securities or
instruments or the incurrence of loans, the cash proceeds received from
such issuance or incurrence, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and
other customary fees and expenses actually incurred in connection
therewith.
"NON-EXCLUDED TAXES": as defined in Section 6.13(a).
"NON-GUARANTOR SUBSIDIARY": any Subsidiary that is not a
Subsidiary Guarantor.
"NON-U.S. LENDER": as defined in Section 6.13(d).
"NOTE": any promissory note evidencing any Loan.
"OBLIGATIONS": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to any
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans, the Reimbursement
Obligations and all other obligations and liabilities of any Borrower
to the Administrative Agent or to any Lender (or, in the case of
Specified Hedge Agreements, any affiliate of any Lender or any Person
that was a Lender or an affiliate of a Lender at the time of entry into
a Specified Hedge Agreement), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any
Specified Hedge Agreement or any other document made, delivered or
given by any Loan Party in
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connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required
to be paid by any Borrower pursuant hereto) or otherwise; PROVIDED,
that (i) obligations of any Borrower or any Subsidiary under any
Specified Hedge Agreement shall be secured and guaranteed pursuant to
the Security Documents only to the extent that, and for so long as, the
other Obligations are so secured and guaranteed and (ii) any release of
Collateral or Guarantors effected in the manner permitted by this
Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements.
"OPERATED PROPERTIES": as defined in Section 7.17(a).
"OTHER TAXES": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"PARENT INDENTURES": collectively, the Indentures dated as of
June 30, 1999, April 1, 1998 and April 1, 1998, respectively, between
Parent and The Bank of New York, as trustee, as amended as permitted by
this Agreement.
"PARENT PREFERRED STOCK": 5,750,000 shares of Parent's Premium
Income Equity Securities representing interests in its 7 1/2%
Mandatorily Convertible Preferred Stock.
"PARK": collectively, the Existing Parks and any other
amusement or attraction park acquired by any of Holdings and its
Subsidiaries after the date hereof.
"PARTICIPANT": as defined in Section 13.6(b).
"PARTICIPATING MEMBER STATE": any member state of EMU which
has the euro as its lawful currency.
"PARTNERSHIP PARKS AGREEMENTS": (i) the Overall Agreement,
dated as of February 15, 1997, among Six Flags Fund, Ltd. (L.P.), Salkin Family
Trust, SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia, Ltd., SFOG
II, Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc., SFOG Acquisition B,
L.L.C., Six Flags Over Georgia, Inc., Six Flags Services of Georgia, Inc., Six
Flags Theme Parks Inc. and Six Flags Entertainment Corporation and the Related
Agreements (as defined therein) and (ii) the Overall Agreement dated as of
November 24, 1997 among Six Flags Over Texas Fund, Ltd., Flags' Directors,
L.L.C., FD-II, L.L.C., Texas Flags, Ltd., SFOT Employee, Inc., SFOT Acquisition
I, Inc., SFOT Acquisition II, Inc., Six Flags Over Texas, Inc., Six Flags Theme
Parks Inc. and Six Flags Entertainment Corporation and the Related Agreements
(as defined therein), in each case, as the same may be modified or amended
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at any time from time to time, PROVIDED such modification or amendment
does not violate Section 10.14.
"PAYMENT OFFICE": with respect to payments in any currency,
the office specified from time to time by the Administrative Agent as
its payment office for such currency by notice to the Primary Borrower
and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"PERIL": as defined in Section 9.4.
"PERMITTED INVESTMENTS": (a) direct obligations of the United
States of America, or of any agency thereof, or obligations guaranteed
as to principal and interest by the United States of America, or of any
agency thereof, in either case maturing, except in the case of
securities subject to repurchase agreements referred to in clause (d)
below, not more than one year from the date of acquisition thereof; (b)
certificates of deposit, time deposits and money market deposit
accounts issued by any bank or trust company organized under the laws
of the United States of America, any state thereof or any other country
which is a member of the Organization for Economic Cooperation and
Development, in each case having capital, surplus and undivided profits
of at least $500,000,000, maturing not more than one year from the date
of acquisition thereof; (c) securities either rated or issued by
corporations that have a rating of, A-1 or better or P-1 by Standard &
Poor's Ratings Services, or Moody's Investors Services, Inc.,
respectively, maturing, except in the case of securities subject to
repurchase agreements referred to in clause (d) below, not more than
one year from the date of acquisition thereof; and (d) fully
collateralized repurchase agreements with a term of not more than one
year for securities described in clause (a) or (c) above and entered
into with either financial institutions satisfying the criteria
described in clause (b) above or primary dealers in U.S. Government
securities; in each case so long as the same (x) provide for the
payment of principal and interest (and not principal alone or interest
alone) and (y) are not subject to any contingency regarding the payment
of principal or interest.
"PERMITTED LIENS": as defined in Section 10.3.
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"PLAN": an employee benefit plan (within the meaning of
Section 3(3) of ERISA) established or maintained by Parent or any ERISA
Affiliate and that is covered by ERISA, other than a Multiemployer
Plan.
"PPO": as defined in the recitals to the Agreement.
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"PPO INDENTURE": Indenture dated as of January 15, 1997 among
PPO, the Note Guarantors (as defined therein) and The Bank of New York,
as amended prior to the Closing Date, and as further amended as
permitted by this Agreement.
"PPO SENIOR NOTES": the 9 3/4% Senior Notes due 2007 of PPO
(or Holdings, after the Merger) in the aggregate principal amount of
$125,000,000, as amended as permitted by this Agreement.
"PREPAYMENT OPTION NOTICE": as defined in Section 6.11(d).
"PRICING GRID": the pricing grid attached hereto as Annex A.
"PRO FORMA BALANCE SHEET": as defined in Section 7.1(a).
"PROPERTY": any right or interest in or to property of any
kind whatsoever, whether Real Property, personal or mixed and whether
tangible or intangible, including, without limitation, Capital Stock.
"PURCHASE MONEY INDEBTEDNESS": Indebtedness (a) consisting of
the deferred purchase price of Property, conditional sale obligations
under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does
not exceed the anticipated useful life of the Property being financed,
and (b) incurred to finance the acquisition by Holdings or a Subsidiary
of such asset, including additions and improvements; PROVIDED, HOWEVER,
that any Lien arising in connection with any such Indebtedness shall be
limited to the specified asset being financed or, in the case of Real
Property, the Real Property on which such asset is attached; and
PROVIDED FURTHER, that such Indebtedness is incurred within 180 days
after such acquisition, addition or improvement by Holdings or a
Subsidiary of such asset.
"PURCHASE PRICE": with respect to any Acquisition, the sum
(without duplication) of (a) the amount of cash paid by Holdings and
its Subsidiaries in connection with such Acquisition, (b) the sum of
(i) the value (as determined for purposes of such Acquisition in
accordance with the applicable acquisition agreement) of all Capital
Stock of Holdings or any of its Subsidiaries issued or given as
consideration in connection with such Acquisition and (ii) the
Qualified Net Cash Equity Proceeds applied to finance such Acquisition,
(c) the principal amount (or, if less, the accreted value) at the time
of such Acquisition of all Indebtedness incurred, assumed or acquired
by Holdings and its Subsidiaries in connection with such Acquisition,
(d) all additional purchase price amounts in connection with such
Acquisition in the form of earnouts, deferred purchase price and other
contingent obligations that are required to be recorded as a liability
on the balance sheet of Holdings and its Subsidiaries in accordance
with GAAP, Regulation S-X under the Securities Act of 1933, as amended,
or any other rule or regulation of the United States Securities and
Exchange Commission, (e) all amounts paid by Holdings and its
Subsidiaries in respect of covenants not to compete, consulting
agreements and
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other affiliated contracts in connection with such Acquisition, and (f)
the aggregate fair market value of all other consideration given by
Holdings and its Subsidiaries in connection with such Acquisition.
"QUALIFIED NET CASH EQUITY PROCEEDS": the Net Cash Proceeds of
any offering of Capital Stock of Holdings or any of its Subsidiaries so
long as (a) such offering was made in express contemplation of an
Acquisition, (b) such Capital Stock is not mandatorily redeemable and
(c) such Acquisition is consummated within 90 days after receipt by
Holdings or such Subsidiary of such Net Cash Proceeds.
"REAL PROPERTIES": all real property, including the
improvements thereon, owned by, or leased by, Parent, Holdings or its
Subsidiaries.
"RECOVERY EVENT": any settlement of or payment in excess of
$1,000,000 in respect of any Property or casualty insurance claim or
any condemnation proceeding relating to any Property of Holdings or any
of its Subsidiaries.
"REFERENCE LENDER": Deutsche Bank, New York Office.
"REFUNDED SWING LINE LOANS": as defined in Section 3.4.
"REFUNDING DATE": as defined in Section 3.4.
"REGISTER": as defined in Section 13.6(d).
"REGULATION H": Regulation H of the Board as in effect from
time to time.
"REGULATION U": Regulation U of the Board as in effect from
time to time.
"REIMBURSEMENT OBLIGATION": the obligation of the relevant
Borrower to reimburse each Issuing Lender pursuant to Section 5.5 for
amounts drawn under Letters of Credit issued by such Issuing Lender for
the account of such Borrower.
"REINVESTMENT DEFERRED AMOUNT": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by
Holdings or any of its Subsidiaries in connection therewith that are
not applied to prepay the Tranche B Term Loans or reduce the
Multicurrency Commitments pursuant to Section 6.5(b) as a result of the
delivery of a Reinvestment Notice.
"REINVESTMENT EVENT": any Asset Sale or Recovery Event in
respect of which Holdings or the Primary Borrower has delivered a
Reinvestment Notice.
"REINVESTMENT NOTICE": a written notice executed by a
Responsible Officer of Holdings stating that no Default or Event of
Default has occurred and is continuing and
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that Holdings (directly or indirectly through a Subsidiary) intends and
expects to use all or a specified portion of the Net Cash Proceeds of
an Asset Sale or Recovery Event to acquire, restore or reconstruct
assets useful in its business or reimburse amounts spent in
anticipation of the receipt of such Net Cash Proceeds.
"REINVESTMENT PREPAYMENT AMOUNT": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire, restore, or reconstruct assets useful in business of
Holdings and its Subsidiaries.
"REINVESTMENT PREPAYMENT DATE": with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year
after such Reinvestment Event and (b) the date on which Holdings
shall have determined not to, or shall have otherwise ceased to,
acquire, restore or reconstruct assets useful in the business of
Holdings and its Subsidiaries with all or any portion of the relevant
Reinvestment Deferred Amount.
"RELATED DOLLAR AMOUNT": at any time, an amount equal to the
product of (a) a fraction, the numerator of which is the aggregate
Dollar Multicurrency Commitments of all Dollar Multicurrency Lenders
and the denominator of which is the aggregate Multicurrency Commitments
of all Multicurrency Lenders, multiplied by (b) the Dollar Equivalent
Amount of all Multicurrency Loans made by all Multicurrency Lenders,
determined at the Spot Rate of Exchange used for determining the amount
of the Available Multicurrency Commitments as of the beginning of the
Interest Period in respect of which the determination of the Related
Dollar Amount is made.
"RELATED FUND": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by
an affiliate of such investment advisor.
"RELEASE": any release, threatened release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the indoor or outdoor environment,
including, without limitation, the movement of Hazardous Materials
through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata that violates or creates any liability under any
Environmental Law.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(c) of ERISA and the regulations issued thereunder, with respect to
a Single Employer Plan, as to which the PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (PROVIDED that a failure
of any Single Employer Plan to meet the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA, including, without
limitation, the failure to make on or before
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its due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of the Code).
"REQUIRED LENDERS": at any time, the holders of more than 50%
of (a) until the Closing Date, the Commitments and (b) thereafter,
the sum of (i) the aggregate unpaid principal amount of the
Tranche B Term Loans then outstanding, (ii) the Total Revolving
Credit Commitments then in effect or, if the Revolving Credit
Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding and (iii) the Total Multicurrency Commitments
then in effect or, if the Multicurrency Commitments have been
terminated, the Total Multicurrency Extensions of Credit then
outstanding.
"REQUIRED PREPAYMENT LENDERS": the Majority Facility Lenders
in respect of the Tranche B Term Loan Facility and the Multicurrency
Facility.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
"RESPONSIBLE OFFICER": as to any Person, the chief executive
officer, president or chief financial officer of such Person, but in
any event, with respect to financial matters, the chief financial
officer of such Person.
"RESTRICTED PAYMENT": dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or
the setting apart of money for a sinking or other analogous fund for,
or the purchase, redemption, retirement or other acquisition of, any
shares of any Capital Stock of Holdings or of any warrants, options or
other rights to acquire the same (or to make any payments to any Person
(except "earn-out" payments or similar payments in connection with an
Acquisition or pursuant to any agreement entered into in connection
therewith, in each case where such obligation does not constitute
Indebtedness) such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market or equity value
of Holdings or any of its Subsidiaries), but excluding dividends
payable solely in shares of common stock of Holdings.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Swing Line Loans in an aggregate principal amount not to
exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1 to the Lender
Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the
terms hereof. The original aggregate amount of the Total Revolving
Credit Commitments is $300,000,000.
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"REVOLVING CREDIT COMMITMENT PERIOD": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"REVOLVING CREDIT FACILITY": as defined in the definition of
"Facility" in this Section 1.1
"REVOLVING CREDIT LENDER": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"REVOLVING CREDIT LOANS": as defined in Section 3.1.
"REVOLVING CREDIT PERCENTAGE": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments
(or, at any time after the Revolving Credit Commitments shall have
expired or terminated, the percentage which the aggregate amount of
such Lender's Revolving Extensions of Credit then outstanding
constitutes of the amount of the Total Revolving Extensions of Credit
then outstanding).
"REVOLVING CREDIT TERMINATION DATE": November 4, 2004.
"REVOLVING EXTENSIONS OF CREDIT": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding and (b) such Lender's Revolving Credit Percentage of the
aggregate principal amount of Swing Line Loans then outstanding.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous federal Governmental Authority).
"SECURITY DOCUMENTS": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other
security documents hereafter delivered to the Administrative Agent
granting a Lien on any Property of any Person to secure the obligations
and liabilities of any Loan Party under any Loan Document.
"SFEC": as defined in the recitals to this Agreement.
"SFEC INDENTURE": the Indenture dated as of April 1, 1998
between SFEC (or Holdings, after the Merger) and the Bank of New York,
as amended as permitted pursuant to this Agreement.
"SFEC NOTES": the 8 7/8% Senior Notes Due 2006 of SFEC (or
Holdings, after the Merger) in the aggregate principal amount of $170,000,000,
as amended as permitted pursuant to this Agreement.
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"SFHI": as defined in the recitals to this Agreement.
"SHARED SERVICES AGREEMENT": the Shared Services Agreement,
dated as of April 1, 1998, among Parent, PPO, SFEC and the Primary
Borrower, as amended by that certain Amendment to Shared Services
Agreement dated as of June 30, 1999 among Parent, PPO, SFEC, Primary
Borrower and PP Data Services Inc., a Subsidiary of Parent, and as the
same may be further amended in a manner not materially adverse to the
interests of the Lenders.
"SINGLE EMPLOYER PLAN": any Plan that is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SOLVENT": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount
of all "liabilities of such Person, contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the
assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts
as such debts become absolute and matured, (c) such Person will not
have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to
pay its debts as they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", (ii) "claim" means any (x)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured and (iii) assets
shall include insurance coverage and/or indemnification available with
respect to any liability.
"SPANISH WB ACQUISITION": the joint venture and related
arrangements contemplated by the October 6, 1999 Assignment and
Contribution Agreement between Parent and Warner Bros. International
Recreation Enterprises, a division of Time Warner Entertainment Company
L.P., with respect to the development and operation of a movie related
theme park, water park and other leisure facilities with Parque
Tematico de Madrid, S.A. in the municipality of San Martin de la Vega
on the outskirts of Madrid, Spain and the documents and agreements
relating thereto, as said Assignment and Contribution Agreement and
related documents and agreements are now or hereafter amended.
"SPECIFIED HEDGE AGREEMENT": any Hedging Agreement entered
into by (i) Holdings or any of its Subsidiaries and (ii) any
Lender or any affiliate thereof, as counterparty.
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"SPOT EXCHANGE RATE": with respect to any exchange of euro for
Dollars, at any date of determination thereof, the spot rate of
exchange in London that appears on the display page applicable to euro
on the Reuters System (or such other page as may replace such page on
such service for the purpose of displaying the spot rate of exchange in
London) for the conversion of euro into Dollars; PROVIDED that (i) if
there shall at any time no longer exist such a page on such service,
the spot rate of exchange shall be determined by reference to another
similar rate publishing service selected by the Administrative Agent
and if no such similar rate publishing service is available, by
reference to the published rate of the Reference Lender in effect at
such date for similar commercial transactions, (ii) with respect to any
determination of the Available Multicurrency Commitment hereunder, such
determination shall be based on the Spot Rate of Exchange in effect on
the Business Day immediately preceding the date of determination of the
Available Multicurrency Commitment and (iii) with respect to any
determination of fees payable under Section 6.2(b), such determination
shall be based on the Spot Rate of Exchange in effect on the Business
Day immediately preceding the last Business Day of the quarter in
respect of which such payment is being made.
"SUBORDINATED INDEMNITY AGREEMENT": the Subordinated Indemnity
Agreement, dated as of April 1, 1998, among Parent, GP Holdings Inc.,
Time Warner Inc., Time Warner Entertainment Company, L.P., TW-SPV Co.,
SFEC, the Primary Borrower, SFOG II, Inc. and SFT Holdings, Inc., as
the same shall be amended on or prior to the Closing Date, and as the
same may be further amended from time to time in a manner not
materially adverse to the interests of the Lenders.
"SUBSIDIARY": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership,
limited liability company or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of Holdings, except that such reference shall not include
the joint venture established pursuant to the Spanish WB Acquisition or
any Inactive Subsidiary.
"SUBSIDIARY GUARANTOR": each Subsidiary of Holdings other than
(a) the Primary Borrower, (b) any Excluded Foreign Subsidiary, (c)
Flags Beverages, Inc., Fiesta Texas Hospitality LLC and any other
Subsidiary whose only material asset is a liquor license and (d) any
Inactive Subsidiary.
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"SWING LINE COMMITMENT": the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 3.3 in an aggregate
principal amount at any one time outstanding not to exceed $10,000,000.
"SWING LINE LENDER": Lehman Commercial Paper Inc., in its
capacity as the lender of Swing Line Loans.
"SWING LINE LOANS": as defined in Section 3.3.
"SWING LINE PARTICIPATION AMOUNT": as defined in Section 3.4.
"TARGET OPERATING DAY": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined by
the Administrative Agent).
"TAX SHARING AGREEMENT": that certain Tax Sharing Agreement
among Parent, PPO, and those Subsidiaries which are parties thereto, to
be entered into on or prior to the Closing Date, as the same may be
amended in a manner not materially adverse to the interests of the
Lenders.
"TOTAL MULTICURRENCY COMMITMENTS": at any time, the aggregate
amount of the Multicurrency Commitments then in effect.
"TOTAL MULTICURRENCY EXTENSIONS OF CREDIT": at any time, the
aggregate amount of the Multicurrency Extensions of Credit of the
Multicurrency Lenders outstanding at such time.
"TOTAL REVOLVING CREDIT COMMITMENTS": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders outstanding at such time.
"TRANCHE B TERM LOAN": as defined in Section 2.1.
"TRANCHE B TERM LOAN COMMITMENT": as to any Lender, the
obligation of such Lender, if any, to make a Tranche B Term Loan to the
Primary Borrower hereunder in a principal amount not to exceed the
amount set forth under the heading "Tranche B Term Loan Commitment"
opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the
same may be changed from
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time to time pursuant to the terms hereof. The original aggregate
amount of the Tranche B Term Loan Commitments is $600,000,000.
"TRANCHE B TERM LOAN FACILITY": as defined in the definition
of "Facility" in this Section 1.1.
"TRANCHE B TERM LOAN LENDER": each Lender that has a Tranche B
Term Loan Commitment or is the holder of a Tranche B Term Loan.
"TRANCHE B TERM LOAN PERCENTAGE": as to any Lender at any
time, the percentage which such Lender's Tranche B Term Loan Commitment
then constitutes of the aggregate Tranche B Term Loan Commitments (or,
at any time after the Closing Date, the percentage which the principal
amount of such Lender's Tranche B Term Loan then outstanding
constitutes of the aggregate principal amount of all Tranche B Term
Loans then outstanding).
"TRANSACTIONS": the collective reference to the Merger, the
Contribution and the repayment of all Indebtedness under, and the
termination of, the Existing Credit Agreements.
"TRANSFEREE": as defined in Section 13.14.
"TREATY ON EUROPEAN UNION": the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
"TYPE": as to any Loan, its nature as a Base Rate Loan or a
Eurocurrency Loan.
"UNUSED EQUITY PROCEEDS AMOUNT": on any date, the difference
of (a) the amount of cash equity contributed by Parent to Holdings
during the period between the Closing Date and such date, minus (b) the
amount expended by Holdings and its Subsidiaries during such period in
respect of (i) expenditures which would otherwise be Capital
Expenditures but for the exclusion set forth in clause (b)(iv) of the
definition thereof in this Section 1.1, (ii) Investments made pursuant
to Section 10.4(e)(iii) (other than any such Investments made with
existing cash, cash flow generated by operations and/or the proceeds of
Loans hereunder to the extent permitted under this Agreement), and
(iii) the purchase, redemption, retirement or acquisition of
Indebtedness pursuant to Section 10.9(b).
"WHOLLY OWNED SUBSIDIARY": with respect to any Person, any
corporation, partnership, limited liability company or other entity of
which all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares or
equity interests held by foreign nationals, in each case to the extent
mandated by
35
<PAGE>
applicable law) are directly or indirectly owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person;
PROVIDED that for all purposes of this Agreement, Walibi S.A., a
Belgian corporation, shall be deemed to be a Wholly Owned Subsidiary of
Holdings, so long as Holdings does not reduce its equity interest
therein.
"WHOLLY OWNED SUBSIDIARY GUARANTOR": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of Holdings.
"ZERO COUPON BONDS": the Zero Coupon Notes due 1999 of SFEC
(or Holdings, after the Merger) in the principal amount at maturity of
$192,250,000, as amended as permitted by this Agreement.
1.2 Other Definitional Provisions . (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate
or other document made or delivered pursuant hereto or thereto, accounting terms
relating to Parent, Holdings and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) Except as specifically provided herein, the meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms
of such terms.
SECTION 2. AMOUNT AND TERMS OF TRANCHE B
TERM LOAN COMMITMENTS
2.1 TRANCHE B TERM LOAN COMMITMENTS. Subject to the terms and
conditions hereof, the Tranche B Term Loan Lenders severally agree to make term
loans denominated in Dollars (each, a "TRANCHE B TERM LOAN") to the Primary
Borrower on the Closing Date in an amount for each Tranche B Term Loan Lender
not to exceed the amount of the Tranche B Term Loan Commitment of such Lender.
The Tranche B Term Loans may from time to time be Eurocurrency Loans or Base
Rate Loans, as determined by the Primary Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 6.6.
2.2 PROCEDURE FOR TRANCHE B TERM LOAN BORROWING. The Primary Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the
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<PAGE>
Administrative Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Tranche B Term Loan
Lenders make the Tranche B Term Loans on the Closing Date and specifying the
amount to be borrowed. The Tranche B Term Loans shall initially be Base Rate
Loans. Upon receipt of such notice the Administrative Agent shall promptly
notify each Tranche B Term Loan Lender thereof. Not later than 12:00 Noon, New
York City time, on the Closing Date each Tranche B Term Loan Lender shall make
available to the Administrative Agent at the relevant Funding Office an amount
in immediately available funds equal to the Tranche B Term Loan to be made by
such Lender. The Administrative Agent shall make available to the Primary
Borrower the aggregate of the amounts made available to the Administrative Agent
by the Tranche B Term Loan Lenders, in like funds as received by the
Administrative Agent.
2.3 REPAYMENT OF TRANCHE B TERM LOANS. (a) The Tranche B Term Loan of
each Tranche B Term Loan Lender shall mature in 16 consecutive quarterly
installments, commencing on December 31, 2001, each of which shall be in an
amount equal to such Lender's Tranche B Term Loan Percentage multiplied by the
percentage set forth below opposite such installment of the aggregate principal
amount of Tranche B Term Loans made on the Closing Date:
<TABLE>
<CAPTION>
INSTALLMENT PERCENTAGE
----------- ----------
<S> <C>
December 31, 2001 .25%
March 31, 2002 .25%
June 30, 2002 .25%
September 30, 2002 .25%
December 31, 2002 .25%
March 31, 2003 .25%
June 30, 2003 .25%
September 30, 2003 .25%
December 31, 2003 .25%
March 31, 2004 .25%
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 24.25%
March 31, 2005 24.25%
June 30, 2005 24.25%
September 30, 2005 24.25%
</TABLE>
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDITCOMMITMENTS AND SWING
LINE COMMITMENT
3.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans denominated
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in Dollars ("REVOLVING CREDIT LOANS") to the Primary Borrower from time to time
during the Revolving Credit Commitment Period in an aggregate principal amount
at any one time outstanding for each Revolving Credit Lender which, when added
to such Lender's Revolving Credit Percentage of the aggregate principal amount
of the Swing Line Loans then outstanding, does not exceed the amount of such
Lender's Revolving Credit Commitment. During the Revolving Credit Commitment
Period the Primary Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurocurrency Loans or Base Rate
Loans, as determined by the Primary Borrower and notified to the Administrative
Agent in accordance with Sections 3.2 and 6.6, PROVIDED that no Revolving Credit
Loan shall be made as a Eurocurrency Loan after the day that is one month prior
to the Revolving Credit Termination Date.
(b) The Primary Borrower shall repay all outstanding Revolving Credit
Loans on or before the Revolving Credit Termination Date.
3.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Primary Borrower may
borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, PROVIDED that the Primary Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a)
three Business Days prior to the requested Borrowing Date, in the case of
Eurocurrency Loans, or (b) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans), specifying (i) the amount and Type of
Revolving Credit Loans to be borrowed, (ii) the requested Borrowing Date and
(iii) in the case of Eurocurrency Loans, the length of the initial Interest
Period therefor. Any Revolving Credit Loans made on the Closing Date shall
initially be Base Rate Loans. Each borrowing of Revolving Credit Loans under the
Revolving Credit Commitments shall be in an amount equal to (x) in the case of
Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then
aggregate Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (y) in the case of Eurocurrency Loans, $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; PROVIDED, that the Swing Line Lender
may request, on behalf of the Primary Borrower, borrowings of Base Rate Loans
under the Revolving Credit Commitments in other amounts pursuant to Section 3.4.
Upon receipt of any such notice from the Primary Borrower, the Administrative
Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving
Credit Lender will make its Revolving Credit Percentage of the amount of each
borrowing of Revolving Credit Loans available to the Administrative Agent for
the account of the Primary Borrower at the relevant Funding Office prior to
12:00 Noon, New York City time, on the Borrowing Date requested by the Primary
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Primary Borrower by the
Administrative Agent in like funds as received by the Administrative Agent.
3.3 SWING LINE COMMITMENT. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees that, during the Revolving Credit
Commitment Period, it will make available to the Primary Borrower in the form of
swing line loans denominated in Dollars
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<PAGE>
("SWING LINE LOANS") a portion of the credit otherwise available to the Primary
Borrower under the Revolving Credit Commitments; PROVIDED that (i) the aggregate
principal amount of Swing Line Loans outstanding at any time shall not exceed
the Swing Line Commitment then in effect (notwithstanding that the Swing Line
Loans outstanding at any time, when aggregated with the Swing Line Lender's
other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line
Commitment then in effect or such Swing Line Lender's Revolving Credit
Commitment then in effect) and (ii) the Primary Borrower shall not request, and
the Swing Line Lender shall not make, any Swing Line Loan if, after giving
effect to the making of such Swing Line Loan, the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. During the
Revolving Credit Commitment Period, the Primary Borrower may use the Swing Line
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only.
(b) The Primary Borrower shall repay all outstanding Swing Line Loans
on or before the Revolving Credit Termination Date.
3.4 PROCEDURE FOR SWING LINE BORROWING; REFUNDING OF SWING LINE LOANS.
(a) The Primary Borrower may borrow under the Swing Line Commitment on any
Business Day during the Revolving Credit Commitment Period, PROVIDED, such
Borrower shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date. Each borrowing under the Swing Line Commitment shall
be in an amount equal to $500,000 or a whole multiple of $100,000 in excess
thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in the borrowing notice in respect of any Swing Line Loan, the Swing
Line Lender shall make available to the Administrative Agent at the relevant
Funding Office an amount in immediately available funds equal to the amount of
such Swing Line Loan. The Administrative Agent shall make the proceeds of such
Swing Line Loan available to the Primary Borrower on such Borrowing Date in like
funds as received by the Administrative Agent.
(b) The Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Primary Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York City time, request each Revolving Credit Lender to make, and each
Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan to the
Primary Borrower, in an amount equal to such Revolving Credit Lender's Revolving
Credit Percentage of the aggregate amount of the Swing Line Loans (the "REFUNDED
SWING LINE LOANS") outstanding on the date of such notice, to repay the Swing
Line Lender. Each Revolving Credit Lender shall make the amount of such
Revolving Credit Loan available to the Administrative Agent at the relevant
Funding Office in immediately available funds, not later than 10:00 A.M., New
York City time, one Business Day after the date of such notice. The proceeds of
such Revolving Credit Loans shall be made immediately available by the
39
<PAGE>
Administrative Agent to the Swing Line Lender for application by the Swing Line
Lender to the repayment of the Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have otherwise
been made pursuant to Section 3.4(b), one of the events described in Section
11(g), (h) or (i) shall have occurred and be continuing with respect to the
Primary Borrower, or if for any other reason, as determined by the Swing Line
Lender in its sole discretion, Revolving Credit Loans may not be made as
contemplated by Section 3.4(b), each Revolving Credit Lender shall, on the date
such Revolving Credit Loan was to have been made pursuant to the notice referred
to in Section 3.4(b) (the "REFUNDING DATE"), purchase for cash an undivided
participating interest in the then outstanding Swing Line Loans by paying to the
Swing Line Lender an amount (the "SWING LINE PARTICIPATION AMOUNT") equal to
1.1.14. such Revolving Credit Lender's Revolving Credit Percentage times 1.1.15.
the sum of the aggregate principal amount of Swing Line Loans then outstanding
which were to have been repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has received from
any Revolving Credit Lender such Lender's Swing Line Participation Amount, the
Swing Line Lender receives any payment on account of the Swing Line Loans, the
Swing Line Lender will distribute to such Lender its Swing Line Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swing Line Loans then due); PROVIDED,
HOWEVER, that in the event that such payment received by the Swing Line Lender
is required to be returned, such Revolving Credit Lender will return to the
Swing Line Lender any portion thereof previously distributed to it by the Swing
Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Revolving
Credit Loans referred to in Section 3.4(b) and to purchase participating
interests pursuant to Section 3.4(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any setoff, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender or any Borrower may have against the Swing Line Lender,
any Borrower or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 8; (iii) any adverse change in the
condition (financial or otherwise) of Parent, Holdings or any Borrower; (iv) any
breach of this Agreement or any other Loan Document by Parent, Holdings or any
Borrower, any other Loan Party or any other Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENTS
4.1 MULTICURRENCY COMMITMENTS . Subject to the terms and conditions
hereof, the Multicurrency Lenders severally agree to make revolving credit loans
denominated in Dollars or
40
<PAGE>
euro ("MULTICURRENCY LOANS") to any Borrower from time to time during the
Multicurrency Commitment Period; PROVIDED, that (i) after giving effect to the
Multicurrency Loans made on any Borrowing Date, the Available Multicurrency
Commitment shall not be less than zero and (ii) no Multicurrency Loans shall be
made to any Foreign Subsidiary Borrower if, after giving effect thereto, the
amount of the Multicurrency Extensions of Credit outstanding to such Foreign
Subsidiary Borrower would exceed the Multicurrency Sublimit of such Foreign
Subsidiary Borrower. During the Multicurrency Commitment Period the Borrowers
may use the Multicurrency Commitments by borrowing, prepaying the Multicurrency
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Multicurrency Loans may from time to time be Eurocurrency
Loans or (in the case only of Multicurrency Loans denominated in Dollars) Base
Rate Loans, as determined by the relevant Borrower and notified to the
Administrative Agent in accordance with Sections 4.2 and 6.6; PROVIDED that no
Multicurrency Loan shall be made as a Eurocurrency Loan after the day that is
one month prior to the Multicurrency Termination Date.
4.2 PROCEDURE FOR MULTICURRENCY BORROWING. Any Borrower may borrow
under the Multicurrency Commitments on any Business Day during the Multicurrency
Commitment Period, PROVIDED that the relevant Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) four Business
Days prior to the requested Borrowing Date, in the case of Eurocurrency Loans,
or (b) one Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans), specifying (i) the amount, Type and currency of the
Multicurrency Loans to be borrowed, (ii) the requested Borrowing Date and (iii)
in the case of Eurocurrency Loans, the length of the initial Interest Period
therefor. Any Multicurrency Loans made on the Closing Date in Dollars shall
initially be Base Rate Loans and no Multicurrency Loans may be made in euro
prior to the date which is three Business Days following the Closing Date. Each
borrowing of Multicurrency Loans under the Multicurrency Commitments shall be in
an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple thereof (or, if the then aggregate Available Multicurrency Commitments
are less than $1,000,000, such lesser amount), (y) in the case of Eurocurrency
Loans denominated in Dollars, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (z) in the case of Eurocurrency Loans denominated in euro,
5,000,000 or a whole multiple of 1,000,000 in excess thereof. Upon receipt of
any such notice from a Borrower, the Administrative Agent shall promptly notify
each Multicurrency Lender thereof. Each Multicurrency Lender will make its
Multicurrency Percentage of the amount of each borrowing of Multicurrency Credit
Loans available to the Administrative Agent for the account of the relevant
Borrower at the relevant Funding Office prior to 12:00 Noon, New York City time
(in the case of Multicurrency Loans denominated in Dollars), or prior to 12:00
Noon, Frankfurt time (in the case of Multicurrency Loans denominated in euro),
on the Borrowing Date requested by the relevant Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the relevant Borrower by the Administrative Agent in like funds as
received by the Administrative Agent.
4.3 AUTOMATIC REDUCTION OF MULTICURRENCY COMMITMENT. The Total
Multicurrency Commitments shall be automatically reduced in 14 consecutive
quarterly
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<PAGE>
installments, commencing on December 31, 2001, each of which shall be
in an amount equal to the percentage set forth below opposite such installment
of the initial amount of the Total Multicurrency Commitments:
<TABLE>
<CAPTION>
INSTALLMENT PERCENTAGE
----------- ----------
<S> <C>
December 31, 2001 2.5%
March 31, 2002 2.5%
June 30, 2002 2.5%
September 30, 2002 2.5%
December 31, 2002 5.0%
March 31, 2003 5.0%
June 30, 2003 5.0%
September 30, 2003 5.0%
December 31, 2003 7.5%
March 31, 2004 7.5%
June 30, 2004 7.5%
September 30, 2004 7.5%
December 31, 2004 20.0%
May 4, 2005 20.0%
</TABLE>
Any such reduction of the Multicurrency Commitments shall be accompanied by
prepayment of the Multicurrency Loans to the extent, if any, that the Total
Multicurrency Extensions of Credit exceed the amount of the Total Multicurrency
Credit Commitments as so reduced, PROVIDED that if the aggregate principal
amount of Multicurrency Loans then outstanding is less than the amount of such
excess (because L/C Obligations constitute a portion thereof), the relevant
Borrower shall, to the extent of the balance of such excess, replace outstanding
Letters of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions satisfactory to the Administrative Agent. The application
of any prepayment of Multicurrency Loans pursuant to this Section shall be made,
first, to Base Rate Loans and, second, to Eurocurrency Loans. Each prepayment of
the Multicurrency Loans under this Section (except in the case of Multicurrency
Loans that are Base Rate Loans) shall be accompanied by accrued interest to the
date of such prepayment on the amount prepaid.
4.4 CERTAIN PREPAYMENTS. If, on the date on which the interest rate is
to be determined for any Interest Period in respect of a Eurocurrency Loan under
the Multicurrency Facility, the amount of the Total Multicurrency Extensions of
Credit exceeds the Total Multicurrency Commitments, the Primary Borrower shall,
or shall cause the relevant Borrower to, on the first day of such Interest
Period, prepay outstanding Multicurrency Loans in an amount so that after giving
effect to any such prepayments, the amount of the Total Multicurrency Extensions
of Credit does not exceed the Total Multicurrency Commitments.
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<PAGE>
4.5 CERTAIN ADDITIONAL PROVISIONS RELATING TO MULTICURRENCY LOANS. (a)
Each Multicurrency Lender will be designated as either a "GENERAL MULTICURRENCY
LENDER" or a "DOLLAR MULTICURRENCY LENDER" in Schedule 1 of the Lender Addendum
delivered by such Multicurrency Lender on the Closing Date or, as the case may
be, in Schedule 1 to the Assignment and Acceptance pursuant to which such
Multicurrency Lender acquires its Multicurrency Commitment; and the
Multicurrency Commitment of each such Multicurrency Lender shall be deemed to be
a "GENERAL MULTICURRENCY COMMITMENT" or a "DOLLAR MULTICURRENCY COMMITMENT",
respectively. Multicurrency Loans denominated in euro will be made only by
General Multicurrency Lenders. Notwithstanding any provision of this Agreement
to the contrary, all Multicurrency Loans made by Dollar Multicurrency Lenders
shall be denominated in Dollars.
(b) Each borrowing by any Borrower of Multicurrency Loans shall be
comprised of simultaneous borrowings from each of the General Multicurrency
Lenders and the Dollar Multicurrency Lenders, with such borrowings to be ratable
according to the respective General Multicurrency Commitments of all of the
General Multicurrency Lenders and the Dollar Multicurrency Commitments of all of
the Dollar Multicurrency Lenders. In determining the ratable amounts of Loans to
be made by the General Multicurrency Lenders and Dollar Multicurrency Lenders,
respectively, pursuant to the preceding sentence when such determination must be
made with respect to Multicurrency Loans denominated in euro, the principal
amount of such euro-denominated Multicurrency Loans shall be deemed to be the
Dollar Equivalent Amount of such euro-denominated Multicurrency Loans (using the
Spot Rate of Exchange applicable as of the Business Day on which the relevant
borrowing notice is furnished to the Administrative Agent pursuant to Section
4.2). In the case of a borrowing from the General Multicurrency Lenders of
Multicurrency Loans denominated in Dollars, the Multicurrency Loans made
simultaneously by the Dollar Multicurrency Lenders shall be Multicurrency Loans
of the same Type and, in the event such Multicurrency Loans are Eurocurrency
Loans, all such Multicurrency Loans shall have the same initial Interest
Periods. In the case of a borrowing from the General Multicurrency Lenders of
Multicurrency Loans denominated in euro, the Multicurrency Loans made
simultaneously by the Dollar Multicurrency Lenders shall be Multicurrency Loans
denominated in Dollars having the same initial Interest Period as the related
euro-denominated Multicurrency Loans made by the General Multicurrency Lenders.
(c) Each payment (including optional and mandatory prepayments) by any
Borrower of principal of, or interest on, any Multicurrency Loans shall be made
simultaneously in respect of Multicurrency Loans made to such Borrower by the
General Multicurrency Lenders and the related Multicurrency Loans made to such
Borrower by the Dollar Multicurrency Lenders, ratably according to the
respective principal amounts of Multicurrency Loans held by the General
Multicurrency Lenders and the Dollar Multicurrency Lenders (and, if such
prepayment is in respect of Dollar-denominated Multicurrency Loans made by the
General Multicurrency Lenders, such prepayment in respect of Multicurrency Loans
made by the Dollar Multicurrency Lenders shall be made in respect of
Multicurrency Loans of the same Type and, in the case of Eurocurrency Loans,
having the same Interest Periods). In determining the ratable amounts owing to
the General Multicurrency Lenders and Dollar Multicurrency Lenders,
43
<PAGE>
respectively, pursuant to the preceding sentence when such determination must be
made with respect to Multicurrency Loans denominated in euro, the principal
amount of such euro-denominated Multicurrency Loans shall be deemed to be the
Dollar Equivalent Amount of such euro-denominated Multicurrency Loans (using the
Spot Rate of Exchange applicable on the date on which the interest rate was most
recently determined with respect thereto).
(d) If, on the last day of any Interest Period applicable to
Multicurrency Loans denominated in euro, the aggregate outstanding principal
amount of the related Multicurrency Loans made by the Dollar Multicurrency
Lenders does not equal the Related Dollar Amount, the relevant Borrower shall
prepay Multicurrency Loans denominated in euro or Dollars, as the case may be,
to the extent necessary such that, after giving effect to such prepayment, the
aggregate outstanding principal amount of such Dollar-denominated Multicurrency
Loans is equal to such Related Dollar Amount.
SECTION 5. LETTERS OF CREDIT
5.1 L/C COMMITMENT. (a) Prior to the Closing Date, the Existing Issuing
Lender has issued the Existing Letters of Credit which, from and after the
Closing Date, shall constitute Letters of Credit hereunder. Subject to the terms
and conditions hereof, each Issuing Lender, in reliance on the agreements of the
other Multicurrency Lenders set forth in Section 5.4(a), agrees to issue letters
of credit (the letters of credit issued on and after the Closing Date pursuant
to this Section 5, together with the Existing Letters of Credit, collectively,
the "LETTERS OF CREDIT") for the account of any Borrower on any Business Day
during the Multicurrency Commitment Period in such form as may be approved from
time to time by such Issuing Lender; PROVIDED, that no Issuing Lender shall have
any obligation to issue any Letter of Credit if, after giving effect to such
issuance, 3. the L/C Obligations would exceed the L/C Commitment or 4. the
aggregate amount of the Available Multicurrency Commitments would be less than
zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire
no later than the earlier of (x) the first anniversary of its date of issuance
and (y) the date which is five Business Days prior to the Multicurrency
Termination Date, PROVIDED that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
5.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. Any Borrower may from
time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and
44
<PAGE>
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such Issuing Lender and the relevant
Borrower (but in no event shall any Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto). Promptly after issuance by an Issuing Lender
of a Letter of Credit, such Issuing Lender shall furnish a copy of such Letter
of Credit to the relevant Borrower. Each Issuing Lender shall promptly furnish
to the Administrative Agent, notice of the issuance of each Letter of Credit
issued by it (including the amount thereof).
5.3 FEES AND OTHER CHARGES. (a) Each Borrower will pay a fee
on the aggregate daily average drawable amount of all outstanding Letters of
Credit issued for such Borrower's account at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurocurrency Loans under the
Multicurrency Facility, shared ratably among the Multicurrency Lenders in
accordance with their respective Multicurrency Percentages and payable quarterly
in arrears on each L/C Fee Payment Date after the issuance date of any such
Letter of Credit. In addition, each Borrower shall pay to the relevant Issuing
Lender for its own account a fronting fee on the aggregate daily average
drawable amount of all outstanding Letters of Credit issued for such Borrower's
account by such Issuing Lender of 1/4 of 1% per annum, payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date of any such Letter
of Credit.
(b) In addition to the foregoing fees, each Borrower shall pay
or reimburse each Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit issued for such Borrower's account.
5.4 L/C PARTICIPATIONS. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce each
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
each Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to such L/C
Participant's Multicurrency Percentage in each Issuing Lender's obligations and
rights under each Letter of Credit issued by such Issuing Lender hereunder and
the amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the relevant
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Lender upon demand at such Issuing Lender's address
for notices specified herein an amount equal to such L/C Participant's
Multicurrency Percentage of the amount of such draft, or any part thereof, that
is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to an Issuing Lender pursuant to Section 5.4(a) in respect of any unreimbursed
portion of any payment made by such
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Issuing Lender under any Letter of Credit is not paid to such Issuing Lender
within three Business Days after the date such payment is due, such L/C
Participant shall pay to such Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
Rate during the period from and including the date such payment is required to
the date on which such payment is immediately available to such Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any such amount
required to be paid by any L/C Participant pursuant to Section 5.4(a) is not
made available to such Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, such Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Base Rate Loans under the Multicurrency Facility. A certificate of such
Issuing Lender submitted to any L/C Participant with respect to any such amounts
owing under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 5.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from a Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; PROVIDED, HOWEVER, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
5.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS. Each Borrower
agrees to reimburse each Issuing Lender on each date on which such Issuing
Lender notifies such Borrower of the date and amount of a draft presented under
any Letter of Credit issued for such Borrower's account and paid by such Issuing
Lender for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by such Issuing Lender in connection with
such payment (the amounts described in the foregoing clauses (a) and (b) in
respect of any drawing, collectively, the "PAYMENT AMOUNT"). Each such payment
shall be made to such Issuing Lender at its address for notices specified herein
in lawful money of the United States of America and in immediately available
funds. Interest shall be payable on each Payment Amount from the date of the
applicable drawing until payment in full at the rate set forth in (i) until the
second Business Day following the date of the applicable drawing, Section 6.8(b)
and (ii) thereafter, Section 6.8(c). Each drawing under any Letter of Credit
shall (unless an event of the type described in Section 11(g), (h) or (i) shall
have occurred and be continuing with respect to the Borrower for whose account
such Letter of Credit was issued, in which case the procedures specified in
Section 5.4 for funding by L/C Participants shall apply) constitute a request by
such Borrower to the Administrative Agent for a borrowing pursuant to Section
4.2 of Base Rate Loans in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of
Multicurrency Loans could be made, pursuant to Section 4.2, if the
Administrative Agent had received a notice of such borrowing at the time the
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Administrative Agent receives notice from the relevant Issuing Lender of such
drawing under such Letter of Credit.
5.6 OBLIGATIONS ABSOLUTE. Each Borrower's obligations under
this Section 5 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that any Borrower may have or have had against any Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. Each Borrower also agrees
with each Issuing Lender that such Issuing Lender shall not be responsible for,
and such Borrower's Reimbursement Obligations under Section 5.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among any Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of any Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Lender. Each Borrower agrees that any action taken or omitted by an
Issuing Lender under or in connection with any Letter of Credit issued by it for
such Borrower's account, or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on such Borrower and shall not result in any liability of
such Issuing Lender to such Borrower.
5.7 LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify the relevant Borrower of the date and amount thereof. The
responsibility of the relevant Issuing Lender to the relevant Borrower in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit issued by such Issuing Lender, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
5.8 APPLICATIONS. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 5, the provisions of this Section 5 shall apply.
SECTION 6. CERTAIN PROVISIONS APPLICABLE TO
THE LOANS AND THE LETTERS OF CREDIT
6.1 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Lender (i) the then unpaid principal amount of each
Revolving Credit Loan made by such Lender
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to such Borrower, on the Revolving Credit Termination Date (or on such earlier
date on which the Loans become due and payable pursuant to Section 11), (ii) the
then unpaid principal amount of each Multicurrency Loan made by such Lender to
such Borrower, on the dates required by Section 4.3 and Section 6.5 and on the
Multicurrency Termination Date (or on such earlier date on which the Loans
become due and payable pursuant to Section 11) and (iii) the principal amount of
the Tranche B Term Loan made by such Lender to such Borrower, in installments
according to the amortization schedule set forth in Section 2.3 (or on such
earlier date on which the Loans become due and payable pursuant to Section 11).
Each Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans made to it from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 6.8.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of such Lender to such Borrower from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Administrative Agent, on behalf of each Borrower, shall
maintain the Register pursuant to Section 13.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from each Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 6.1(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of any Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) Each Borrower agrees that, upon the request to the Administrative
Agent by any Lender, such Borrower will execute and deliver to such Lender a
promissory note of such Borrower evidencing any Tranche B Term Loans or
Revolving Credit Loans, as the case may be, of such Lender, substantially in the
forms of Exhibit G-1 or G-2, respectively, with appropriate insertions as to
date and principal amount.
6.2 COMMITMENT FEES, ETC. (a) The Primary Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and
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on the Revolving Credit Termination Date, commencing on the first of such dates
to occur after the date hereof.
(b) The Primary Borrower agrees to pay to the Administrative Agent for
the account of each Multicurrency Lender a commitment fee for the period from
and including the Closing Date to the last day of the Multicurrency Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Multicurrency Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Multicurrency Termination Date,
commencing on the first of such dates to occur after the date hereof.
(c) The Primary Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Primary Borrower and the Administrative Agent.
6.3 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS;
MULTICURRENCY COMMITMENTS. (a) The Primary Borrower shall have the right, upon
not less than three Business Days' notice to the Administrative Agent, to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
aggregate amount of the Revolving Credit Commitments; PROVIDED that such
termination or reduction of Revolving Credit Commitments shall be permitted only
to the extent that, after giving effect thereto and to any prepayments of the
Revolving Credit Loans or Swing Line Loans made on the effective date thereof,
the Total Revolving Extensions of Credit do not exceed the Total Revolving
Credit Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Credit Commitments then in effect.
(b) The Primary Borrower shall have the right, upon not less
than three Business Days' notice to the Administrative Agent, to terminate the
Multicurrency Commitments or, from time to time, to reduce the aggregate amount
of the Multicurrency Commitments; PROVIDED that such termination or reduction of
Multicurrency Commitments shall be permitted only to the extent that, after
giving effect thereto and to any prepayments of the Multicurrency Loans made on
the effective date thereof, the Total Multicurrency Extensions of Credit do not
exceed the Total Multicurrency Commitments. Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Multicurrency Commitments then in effect.
6.4 OPTIONAL PREPAYMENTS. Any Borrower may at any time and
from time to time prepay the Loans made to it, in whole or in part, without
premium or penalty, upon irrevocable notice delivered to the Administrative
Agent at least three Business Days prior thereto in the case of Eurocurrency
Loans and at least one Business Day prior thereto in the case of Base Rate
Loans, which notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurocurrency Loans or Base Rate Loans; PROVIDED, that (i)
if a Eurocurrency Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the relevant Borrower shall also pay any
amounts owing pursuant to Section 6.14 and (ii) no prior notice is required for
the prepayment of Swing Line Loans. Upon receipt of any such
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notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of Revolving Credit Loans that are Base Rate Loans, Multicurrency Loans
that are Base Rate Loans and Swing Line Loans) accrued interest to such date on
the amount prepaid. Partial prepayments of Loans (other than Swing Line Loans)
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof (in the case of Loans denominated in Dollars) or 1,000,000 or a whole
multiple thereof (in the case of Loans denominated in euro). Partial prepayments
of Swing Line Loans shall be in an aggregate principal amount of $100,000 or a
whole multiple thereof.
6.5 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS. (a)
Unless the Required Prepayment Lenders shall otherwise agree, if any
Indebtedness shall be incurred by Holdings or any of its Subsidiaries (excluding
any Indebtedness incurred in accordance with Section 10.2), then, on the date of
such incurrence the Tranche B Term Loans shall be prepaid, and/or the
Multicurrency Commitments shall be reduced, by an amount equal to the amount of
the Net Cash Proceeds of such incurrence, as set forth in Section 6.5(d).
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date Holdings or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event, then, unless a Reinvestment
Notice shall be delivered in respect thereof, the Tranche B Term Loans shall be
prepaid, and/or the Multicurrency Commitments shall be reduced, on or before the
date which is thirty days following the date of receipt of such Net Cash
Proceeds, by an amount equal to the amount of such Net Cash Proceeds, as set
forth in Section 6.5(d); PROVIDED, that, notwithstanding the foregoing, (i) the
aggregate amount of Net Cash Proceeds of Asset Sales that may be excluded from
the foregoing requirement pursuant to a Reinvestment Notice shall not exceed
$10,000,000 in any fiscal year of Holdings and (ii) on each Reinvestment
Prepayment Date the Tranche B Term Loans shall be prepaid, and/or the
Multicurrency Commitments shall be reduced, by an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event,
as set forth in Section 6.5(d).
(c) Subject to the last sentence of this paragraph, unless the
Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of
Holdings commencing with the fiscal year ending December 31, 2001, there shall
be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date,
the Tranche B Term Loans shall be prepaid, and/or the Multicurrency Commitments
shall be reduced, by an amount equal to 50% of such Excess Cash Flow, as set
forth in Section 6.5(d). Each such prepayment and commitment reduction shall be
made on a date (an "EXCESS CASH FLOW APPLICATION DATE") no later than ten days
after the earlier of (i) the date on which the financial statements of Holdings
referred to in Section 9.1, for the fiscal year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered. No prepayment shall be
required pursuant to this paragraph (c) in respect of any fiscal year if the
Consolidated Leverage Ratio at the end of such fiscal year was less than or
equal to 2.5 to 1.0.
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(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section shall be applied, first, to
the prepayment of the Tranche B Term Loans and, second, after the Tranche B Term
Loans have been prepaid in full, to reduce permanently the Multicurrency
Commitments; PROVIDED, that the Multicurrency Commitments shall not be so
reduced to an amount less than the amount of the L/C Commitment. Any such
reduction of the Multicurrency Commitments shall be accompanied by prepayment of
the Multicurrency Loans to the extent, if any, that the Total Multicurrency
Extensions of Credit exceed the amount of the Total Multicurrency Credit
Commitments as so reduced, PROVIDED that if the aggregate principal amount of
Multicurrency Loans then outstanding is less than the amount of such excess
(because L/C Obligations constitute a portion thereof), the relevant Borrower
shall, to the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions satisfactory to the Administrative Agent. The application
of any prepayment of Loans under any Facility pursuant to this Section shall be
made, first, to Base Rate Loans under such Facility and, second, to Eurocurrency
Loans under such Facility. Each prepayment of the Loans under this Section
(except in the case of Multicurrency Loans that are Base Rate Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
6.6 CONVERSION AND CONTINUATION OPTIONS. (a) Any Borrower may
elect from time to time to convert Eurocurrency Loans of such Borrower under any
Facility denominated in Dollars to Base Rate Loans under such Facility by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, PROVIDED that any such conversion of Eurocurrency Loans may be
made only on the last day of an Interest Period with respect thereto. Any
Borrower may elect from time to time to convert Base Rate Loans under any
Facility to Eurocurrency Loans in Dollars under such Facility by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election (which notice shall specify the length of the initial Interest
Period therefor), PROVIDED that no Base Rate Loan under a particular Facility
may be converted into a Eurocurrency Loan (i) when any Event of Default has
occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Borrower may elect to continue any Eurocurrency Loan
under any Facility as Eurocurrency Loans in the same currency under such
Facility upon the expiration of the then current Interest Period with respect
thereto by giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, PROVIDED that no Eurocurrency Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has, or the Majority Facility Lenders in respect of
such Facility have, determined in its or their sole discretion not to permit
such continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and PROVIDED, FURTHER,
that if the
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relevant Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the
preceding proviso, such Loans (A) in the case of Loans in Dollars, shall be
converted automatically to Base Rate Loans on the last day of such then expiring
Interest Period and (B) in the case of Loans in euro, shall be continued for
Interest Periods of one month or such shorter duration as the Administrative
Agent shall select. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof.
6.7 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF EUROCURRENCY
TRANCHES. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of
Eurocurrency Loans and all selections of Interest Periods shall be in such
amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurocurrency Loans
comprising each Eurocurrency Tranche shall be equal to$5,000,000 or a whole
multiple of $1,000,000 in excess thereof, in the case of Eurocurrency Loans
denominated in Dollars, or [euro]5,000,000 or a whole multiple of
[euro]1,000,000 in excess thereof, in the case of Eurocurrency Loans denominated
in euro, and (b) no more than ten Eurocurrency Tranches shall be outstanding at
any one time.
6.8 INTEREST RATES AND PAYMENT DATES. (a) Each Eurocurrency
Loan under each Facility shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurocurrency Rate
determined for such day plus the Applicable Margin for such Facility.
(b) Each Base Rate Loan under each Facility shall bear
interest at a rate per annum equal to the Base Rate plus the Applicable Margin
for such Facility.
(c)(i) If all or a portion of the principal amount of any Loan
or Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
that is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus 2%
or (y) in the case of Reimbursement Obligations, the rate applicable to Base
Rate Loans under the Multicurrency Facility plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or Reimbursement Obligation or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to Base Rate Loans under the relevant Facility plus 2% (or, in the case of any
such other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility plus 2%), in
each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (after as well as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
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6.9 COMPUTATION OF INTEREST AND FEES. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the relevant Borrower and the relevant
Lenders of each determination of a Eurocurrency Rate. Any change in the interest
rate on a Loan resulting from a change in the Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the relevant Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on each Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the relevant
Borrower, deliver to such Borrower a statement showing the quotations used by
the Administrative Agent in determining any interest rate pursuant to Section
6.8(a).
6.10 INABILITY TO DETERMINE INTEREST RATE. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the relevant
Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurocurrency Rate for the relevant currency for such Interest Period,
or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurocurrency Rate for the relevant currency determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
relevant Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x)(i) any Eurocurrency Loans denominated in Dollars under
the relevant Facility requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, and (ii) any Eurocurrency Loans
denominated in euro under the relevant Facility requested to be made on the
first day of such Interest Period shall be made at the rate determined by the
Administrative Agent as its cost of funding such Loans plus the Applicable
Margin for Eurocurrency Loans under such Facility, (y) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurocurrency Loans shall be continued as Base Rate Loans and
(z)(i) any outstanding Eurocurrency Loans denominated in Dollars under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans and (ii) any
Eurocurrency Loans denominated in euro shall be repaid on the last day of the
current Interest Period and may be reborrowed in Dollars in accordance with the
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provisions of Section 4.2. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans under the relevant Facility
shall be made or continued as such, nor shall any Borrower have the right to
convert Loans under the relevant Facility to Eurocurrency Loans.
6.11 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by
any Borrower from the Lenders hereunder, each payment by any Borrower on account
of any commitment fee or Letter of Credit fee, and any reduction of the
Commitments of the Lenders, shall be made pro rata according to the respective
Tranche B Term Loan Percentages, Multicurrency Percentages or Revolving Credit
Percentages, as the case may be, of the relevant Lenders. Each reduction of the
Total Multicurrency Commitments shall be applied to the amounts of the scheduled
reductions of the Total Multicurrency Commitments pursuant to Section 4.3 pro
rata according to the outstanding amounts thereof.
(b) Except as provided in Section 6.11(d), each payment
(including each prepayment) of the Tranche B Term Loans shall be allocated among
the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata based
on the principal amount of Tranche B Term Loans held by such Tranche B Term Loan
Lenders, and shall be applied to the installments of such Tranche B Term Loans
pro rata based on the remaining outstanding principal amount of such
installments. Amounts prepaid on account of the Tranche B Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by any Borrower
on account of principal of and interest on the Revolving Credit Loans or the
Multicurrency Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans or Multicurrency
Loans, as the case may be, then held by the Lenders. Each payment in respect of
Reimbursement Obligations in respect of any Letter of Credit shall be made to
the Issuing Lender that issued such Letters of Credit. In relation to the
payment of any amount of euro, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany as the
Administrative Agent shall from time to time nominate for this purpose.
(d) Notwithstanding anything to the contrary in Sections 6.4,
6.5 or 6.11, so long as any Multicurrency Commitment is in effect, each Tranche
B Term Loan Lender may, at its option, decline all or any portion of any
optional prepayment or mandatory payment applicable to the Tranche B Term Loan
of such Lender; accordingly, with respect to the amount of any optional
prepayment described in Section 6.4 or mandatory prepayment described in Section
6.5 that is allocated to Tranche B Term Loans (such amount, the "TRANCHE B
PREPAYMENT AMOUNT"), at any time when any Multicurrency Commitments are in
effect, Holdings will, (i) in the case of any optional prepayment which the
Primary Borrower wishes to make, not later than 5 Business Days prior to the
date on which the Primary Borrower wishes to make such optional prepayment, and
(ii) in the case of any mandatory prepayment required to be made pursuant to
Section 6.5, in lieu of applying such amount to the prepayment of Tranche B Term
Loans, as provided in paragraph Section 6.5(d), on the date specified in Section
6.5 for such prepayment, give the Administrative Agent telephonic notice
(promptly confirmed in writing) requesting that the
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Administrative Agent prepare and provide to each Tranche B Term Loan Lender a
notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as
practicable after receiving such notice from Holdings, the Administrative Agent
will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which
shall be in the form of Exhibit H, and shall include an offer by Holdings to
cause the Primary Borrower to prepay on the date (each a "PREPAYMENT DATE") that
is 2 Business Days after the date of the Prepayment Option Notice, the Tranche B
Term Loan of such Lender by an amount equal to the portion of the Prepayment
Amount indicated in such Lender's Prepayment Option Notice as being applicable
to such Lender's Tranche B Term Loan. On the Prepayment Date, (i) the Primary
Borrower shall pay to the Administrative Agent the aggregate amount necessary to
prepay that portion of the outstanding Tranche B Term Loans in respect of which
Tranche B Term Loan Lenders have accepted prepayment as described above (such
Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce
the Tranche B Prepayment Amounts, as applicable, with respect to each Accepting
Lender, (ii) the Primary Borrower shall pay to the Administrative Agent an
amount equal to 50% of the portion of the Tranche B Prepayment Amount not
accepted by the Tranche B Term Loan Lenders (or, if the aggregate outstanding
principal amount of Multicurrency Loans is less than such portion, such lesser
amount), and the Multicurrency Commitments shall be automatically reduced by
such amount, and (iii) the Primary Borrower shall be entitled to retain the
remaining portion of the Tranche B Prepayment Amount not accepted by the Tranche
B Term Loan Lenders.
(e) All payments (including prepayments) to be made by any
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, local time in the city of the relevant Payment Office, on the due
date thereof to the Administrative Agent, for the account of the Lenders, at the
relevant Payment Office, in Dollars (or in euro, in the case of payments of
principal or interest in respect of Loans denominated in euro) and in
immediately available funds. Any payment made by the Borrower after 12:00 Noon,
local time in the city of the relevant Payment Office, on any Business Day shall
be deemed to have been on the next following Business Day. The Administrative
Agent shall distribute such payments to the Lenders entitled thereto promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurocurrency Loans) becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurocurrency Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
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Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate (in the case of amounts in Dollars) or at the rate determined by the
Administrative Agent as its cost of funding such amounts (in the case of amounts
in euro), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount (but only to the extent theretofore made available by it to the relevant
Borrower) with interest thereon at the rate per annum applicable to Base Rate
Loans under the relevant Facility (in the case of Loans denominated in Dollars)
or the rate determined by the Administrative Agent as its cost of funding such
amounts, plus the Applicable Margin for Eurocurrency Loans under such Facility
(in the case of Loans denominated in euro) on demand, from the relevant
Borrower.
(g) Unless the Administrative Agent shall have been notified
in writing by the relevant Borrower prior to the date of any payment due to be
made by such Borrower hereunder that the Borrower will not make such payment to
the Administrative Agent, the Administrative Agent may assume that such Borrower
is making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders
their respective pro rata shares of a corresponding amount. If such payment is
not made to the Administrative Agent by such Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate (in the case of Loans
denominated in Dollars) or the rate determined by the Administrative Agent as
its cost of funding such amounts, plus the Applicable Margin for Eurocurrency
Loans under such Facility (in the case of Loans denominated in euro). Nothing
herein shall be deemed to limit the rights of the Administrative Agent or any
Lender against any Borrower.
(h) In the event that (i) a Borrower gives notice to the
Administrative Agent that (A) such Borrower intends to make a borrowing under
Section 4.2 of Multicurrency Loans denominated in euro, (B) such Borrower
intends, on the requested Borrowing Date for such Eurocurrency Loans, to prepay
under Section 6.4 Multicurrency Loans denominated in Dollars and (C) after
giving effect to such borrowing and prepayment, the Available Multicurrency
Commitment shall not be less than zero, and (ii) if (after giving effect to such
requested Multicurrency Loans, but before giving effect to such prepayment) the
Available Multicurrency Commitment shall be less than zero, the Administrative
Agent may, in reliance on the foregoing notice, make available to such Borrower
the amount of such requested Multicurrency Loans; PROVIDED, HOWEVER, that, in
the event that such Borrower fails to make such prepayment on the requested
Borrowing Date, such Borrower shall, without notice or demand, immediately
prepay the Multicurrency Loans made to it in an aggregate principal amount equal
to the amount by which the aggregate Multicurrency Extensions of Credit exceeds
the aggregate Multicurrency
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Commitments then in effect, together with interest accrued to the date of such
prepayment and any amounts payable under Section 6.14.
(i) A payment shall be deemed to have been made by the
Administrative Agent on the date on which it is required to be made under this
Agreement if the Administrative Agent has, on or before that date, taken all
relevant steps to make that payment. With respect to the payment of any amount
denominated in euro, the Administrative Agent shall not be liable to any
Borrower or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds in the euro unit to the account with the bank
in the principal financial center in the Participating Member State which the
relevant Borrower or, as the case may be, any Lender shall have specified for
such purpose. In this paragraph (i), "all relevant steps" means all such steps
as may be prescribed from time to time by the regulations or operating
procedures of such clearing or settlement system as the Administrative Agent may
from time to time determine for the purpose of clearing or settling payments of
euro.
6.12 REQUIREMENTS OF LAW. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurocurrency Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 6.13 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurocurrency Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Primary Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this Section, it
shall promptly notify the
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Primary Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Primary Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Primary Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Primary Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. The obligations of the Primary Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
6.13 TAXES. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") or any Other
Taxes are required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement; PROVIDED, HOWEVER, that
no Borrower shall be required to increase any such amounts payable to any Lender
with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e) of this
Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time
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of assignment, to receive additional amounts from the relevant Borrower with
respect to such Non-Excluded Taxes pursuant to Section 6.13(a).
(b) In addition, each Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by any Borrower, as promptly as possible thereafter such Borrower shall send to
the Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by such
Borrower showing payment thereof. If the relevant Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, such Borrower shall indemnify the Agents and the
Lenders for any incremental taxes, interest or penalties that may become payable
by any Agent or any Lender as a result of any such failure. The agreements in
this Section 6.13 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "NON-U.S. LENDER")
shall deliver to the Primary Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest" a statement substantially in
the form of Exhibit I and a Form W-8, or any subsequent versions thereof or
successors thereto properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by any Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Primary
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to the Primary Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
a Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times reasonably
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requested by such Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, PROVIDED that such Borrower furnishes such
documentation to such Lender, such Lender is legally entitled to complete,
execute and deliver such documentation and in such Lender's reasonable judgment
such completion, execution or submission would not materially prejudice the
legal position of such Lender.
6.14 INDEMNITY. Each Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such Lender
may sustain or incur as a consequence of (a) default by such Borrower in making
a borrowing of, conversion into or continuation of Eurocurrency Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making by such Borrower of a prepayment
or conversion of Eurocurrency Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurocurrency market. A certificate as to any amounts payable
pursuant to this Section submitted to the Primary Borrower, on behalf of the
relevant Borrower, by any Lender shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
6.15 ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurocurrency Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurocurrency Loans, continue
Eurocurrency Loans as such and convert Base Rate Loans to Eurocurrency Loans
shall forthwith be canceled and (b) such Lender's Loans then outstanding as
Eurocurrency Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law (such conversion to
be effected at the Spot Exchange Rate in effect on such conversion date, in the
case of conversion of Loans in euro to Base Rate Loans). If any such conversion
of a Eurocurrency Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower in respect of such
Eurocurrency Loans shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 6.14.
6.16 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 6.12,
6.13(a) or 6.15 with respect to such
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Lender, it will, if requested by the Primary Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event with the object of avoiding
the consequences of such event; PROVIDED, that such designation is made on terms
that, in the sole judgment of such Lender, cause such Lender and its lending
office(s) to suffer no economic, legal or regulatory disadvantage, and PROVIDED,
FURTHER, that nothing in this Section shall affect or postpone any of the
obligations of any Borrower or the rights of any Lender pursuant to Section
6.12, 6.13(a) or 6.15.
6.17 REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES. The
Primary Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 6.12 or 6.13, or gives a
notice of illegality pursuant to Section 6.15, or (b) defaults in its obligation
to make Loans hereunder, with a replacement financial institution; PROVIDED that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Default or Event of Default shall have occurred and be continuing at the time of
such replacement, (iii) prior to any such replacement, such Lender shall not
have taken all actions under Section 6.16 so as to eliminate the continued need
for payment of amounts owing pursuant to Section 6.12 or 6.13 or to eliminate
any illegality described in a notice of illegality under Section 6.15, (iv) if
applicable, the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) if applicable, the Primary Borrower shall be liable to such
replaced Lender under Section 6.14 (as though Section 6.14 were applicable) if
any Eurocurrency Loan owing to such replaced Lender shall be purchased other
than on the last day of the Interest Period relating thereto, (vi) if
applicable, the replacement financial institution, if not already a Lender,
shall be reasonably satisfactory to the Administrative Agent, (vii) if
applicable, the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 13.6 (provided that the Primary
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) the Primary Borrower shall pay all additional amounts (if
any) required pursuant to Section 6.12 or 6.13, as the case may be, in respect
of any period prior to the date on which such replacement shall be consummated,
and (ix) any such replacement shall not be deemed to be a waiver of any rights
that any Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, Parent, Holdings and each Borrower hereby jointly and severally
represent and warrant to each Agent and each Lender that:
7.1 FINANCIAL CONDITION. (a) The unaudited pro forma
consolidated balance sheet of Parent and its consolidated Subsidiaries as at
June 30, 1999 (including the notes thereto) (the "PRO FORMA BALANCE SHEET"),
copies of which have heretofore been furnished to each Lender, has been prepared
giving effect (as if such events had occurred on such date) to (i) the
consummation of the Merger and the Contribution, (ii) the Loans to be made on
the Closing Date and the use of proceeds thereof (including to repay amounts
outstanding under the Existing Credit Agreements)
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and (iii) the payment of fees and expenses in connection with the foregoing. The
Pro Forma Balance Sheet has been prepared based on the best information
available to Parent as of the date of delivery thereof, and presents fairly on a
pro forma basis the estimated financial position of Parent and its consolidated
Subsidiaries as at June 30, 1999, assuming that the events specified in the
preceding sentence had actually occurred at such date and giving effect to the
other assumptions set forth therein.
(b) The audited consolidated balance sheets of Parent as at
December 31, 1998 and December 31, 1997, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report from KPMG LLP, present fairly in
all material respects the consolidated financial condition of Parent as at such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The audited consolidated
balance sheets of PPO as at December 31, 1998 and December 31, 1997, and of the
Primary Borrower as of January 3, 1999, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report from KPMG LLP, present fairly in
all material respects the consolidated financial condition of PPO and the
Primary Borrower, respectively, as at such dates, and the consolidated results
of their operations and their consolidated cash flows for the respective fiscal
years then ended.
(c) The unaudited consolidated balance sheets of each of
Parent, PPO and the Primary Borrower as at June 30, 1999 (July 4, 1999 in the
case of the Primary Borrower), and the related unaudited consolidated statements
of income and cash flows for the six-month period ended on such date, present
fairly in all material respects the consolidated financial condition of Parent,
PPO and the Primary Borrower, respectively, as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the six-month period then ended (subject to normal year-end audit adjustments).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). Parent and its Subsidiaries do not have
any material Guarantee, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected or disclosed in the
notes in the most recent financial statements of Parent referred to in this
paragraph. Other than the Contribution, during the period from December 31, 1998
to and including the date hereof there has been no Disposition by Parent or any
of its Subsidiaries of any material part of its Business or Property.
7.2 NO CHANGE. Since December 31, 1998 there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
7.3 EXISTENCE; COMPLIANCE WITH LAW. Each of Parent, Holdings
and its Subsidiaries (other than the Inactive Subsidiaries) (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate (or equivalent) power
and authority, and the legal right, to own and operate its Property, to lease
the
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Property it operates as lessee and to conduct the Business in which it is
currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its Business requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Loan Party has the corporate (or equivalent) power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party and to consummate the Transactions and, in the case of the Borrowers, to
borrow hereunder. Each Loan Party has taken all necessary corporate (or
equivalent) action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and the consummation of the Transactions
and, in the case of the Borrowers, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required to be obtained by any Loan Party in connection with the
Transactions and the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 7.4, which consents, authorizations, filings and notices (except in the
case of consents under the Existing Credit Agreements to certain of the
Transactions) have been obtained or made and are in full force and effect and
(ii) the filings referred to in Schedule 7.19(a)-1. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party that is a party
thereto. This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan Party that
is a party thereto, enforceable against each such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
7.5 NO LEGAL BAR. The execution, delivery and performance of
this Agreement and the other Loan Documents by the Loan Parties, the issuance of
Letters of Credit, the borrowings hereunder, the use of the proceeds thereof and
the consummation of the Transactions will not violate any Requirement of Law
applicable to, or any Contractual Obligation (other than the Existing Credit
Agreements) of, Parent, Holdings or any of its Subsidiaries and will not result
in, or require, the creation or imposition of any Lien on any of their
respective Properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
No Requirement of Law or Contractual Obligation applicable to Parent, Holdings
or any of its Subsidiaries could reasonably be expected to have a Material
Adverse Effect.
7.6 LITIGATION. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of Parent, Holdings or the Primary Borrower, threatened by or against
Parent, Holdings or any of its Subsidiaries or against
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any of their respective properties or revenues (a) with respect to the
Transactions, (b) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (c) that could reasonably be
expected to have a Material Adverse Effect.
7.7 NO DEFAULT. Neither Parent, Holdings, nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
7.8 OWNERSHIP OF PROPERTY; LIENS. Each of Parent, Holdings and
its Subsidiaries has title in fee simple to, or a valid leasehold interest in,
all its material Real Property, and good title to, or a valid leasehold interest
in, all its other material Property, and none of such Property (including the
Real Property) is subject to any Lien except a Permitted Lien. Attached as
Schedule 7.8 is a list of all Real Property owned, leased or operated by, and
which is material to the operation of the Business of, Parent, Holdings or its
Subsidiaries.
7.9 INTELLECTUAL PROPERTY. Parent, Holdings and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property material to
the conduct of its business as currently conducted. No claim has been asserted
and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does Parent, Holdings or the Primary Borrower know of any valid
basis for any such claim except for claims which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
The use of Intellectual Property by Parent, Holdings and its Subsidiaries does
not infringe on the rights of any Person to an extent which could reasonably be
expected to have a Material Adverse Effect.
7.10 TAXES. Each of Parent, Holdings and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its Property and all other material taxes, fees or other charges imposed
on it or any of its Property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves (to the extent
required by GAAP) have been provided on the books of Parent, Holdings or its
Subsidiaries, as the case may be, and those which, with respect to taxes or
other assessments on Real Properties, can be contested without payment under
applicable law); no material tax Lien has been filed, and, to the knowledge of
Parent, Holdings and the Primary Borrower, no claim is being asserted with
respect to any such tax, fee or other charge except claims that individually or
in the aggregate could not possibly be expected to have a Material Adverse
Effect.
7.11 FEDERAL REGULATIONS. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any Margin Stock within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrowers will furnish to the Administrative Agent and each Lender a
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statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
7.12 LABOR MATTERS. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against Parent, Holdings or any of its
Subsidiaries pending or, to the knowledge of Parent, Holdings or the Primary
Borrower, threatened; (b) hours worked by and payment made to employees of
Parent, Holdings and its Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Requirement of Law dealing with such
matters; and (c) all payments due from Parent, Holdings or any of its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of Parent, Holdings or the relevant
Subsidiary.
7.13 ERISA. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect, (a) no ERISA Event has occurred
during the three-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied with
its terms and the applicable provisions of ERISA and the Code, (b) no
termination of a Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such three-year period, (c) the present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
and (d) neither Parent, Holdings, nor any ERISA Affiliate would become subject
to any withdrawal liability under Section 4201 of ERISA if Parent, Holdings, or
any ERISA Affiliate were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made.
7.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
7.15 SUBSIDIARIES. Except as disclosed to the Administrative
Agent by the Primary Borrower in writing from time to time after the Closing
Date, Schedule 7.15 sets forth the name and jurisdiction of incorporation of
each Subsidiary (other than Inactive Subsidiaries and other than Subsidiaries
that are included in Excluded Assets (as defined in the Guarantee and Collateral
Agreement)) of the Parent and, as to each such Subsidiary, the percentage of
each class of Capital Stock owned by any Loan Party and, except as so disclosed,
there are no outstanding subscriptions, options, warrants, calls, rights or
other agreements or commitments (other than stock options granted to employees
or directors and directors' qualifying shares) of any nature relating to any
Capital Stock of Holdings, the Primary Borrower or any such Subsidiary, except
as created by the Loan Documents.
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7.16 USE OF PROCEEDS. The proceeds of the Tranche B Term Loans
shall be used to repay amounts outstanding under the Existing Credit Agreements
and to pay related fees and expenses. The proceeds of the Revolving Credit
Loans, the Multicurrency Loans and the Swingline Loans, and the Letters of
Credit, shall be used to repay amounts outstanding under the Existing Credit
Agreements and to pay related fees and expenses and for general corporate
purposes, including Acquisitions and Capital Expenditures permitted hereunder.
7.17 ENVIRONMENTAL MATTERS. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) the Real Properties, and other amusement parks,
attractions or real properties operated solely by Parent, Holdings or
its Subsidiaries, or in respect of which Parent, Holdings or any of its
Subsidiaries would be liable as an owner, operator or other occupant
under any Environmental Law (collectively, together with the Real
Properties, the "OPERATED PROPERTIES"), do not contain, and, to their
knowledge, have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
(b) neither Parent, Holdings nor any of its Subsidiaries has
received or is aware of any notice of violation or alleged violation
of, non-compliance with, or liability or potential liability under,
Environmental Laws with regard to any of the Operated Properties or the
business operated by Parent, Holdings or any of its Subsidiaries (the
"BUSINESS"), nor does Parent, Holdings or the Primary Borrower have
knowledge or reason to believe that any such notice will be received or
is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Operated Properties in violation
of, or in a manner or to a location that could give rise to liability
under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under
any of the Operated Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law;
(d) no Environmental Claim is pending or, to the knowledge of
Parent, Holdings and the Primary Borrower, threatened, under any
Environmental Law to which Parent, Holdings or any Subsidiary is or
will be named as a party with respect to the Operated Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other requirements of
any Governmental Authority outstanding under any Environmental Law with
respect to the Operated Properties or the Business;
(e) there has been no Release or threat of Release of
Materials of Environmental Concern at or from the Operated Properties,
or arising from or related to the operations of Parent, Holdings or any
Subsidiary in connection with the Operated Properties or
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otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws;
(f) the Operated Properties and the Business are in
compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or about the Operated Properties or violation of any
Environmental Law with respect to the Operated Properties or the
Business; and
(g) neither Parent, Holdings nor any Subsidiary has assumed or
retained any liability of any other Person under Environmental Laws
(other than assumptions by operation of law in connection with
Acquisitions).
7.18 ACCURACY OF INFORMATION, ETC. No statement or information
(other than projections and pro forma financial information) contained in this
Agreement, any other Loan Document, the Confidential Information Memorandum or
any other document, certificate or statement furnished by or on behalf of any
Loan Party to the Administrative Agent or the Lenders, or any of them, for use
in connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances in which
they were made not misleading. The projections and pro forma financial
information contained in the materials referenced above were based upon good
faith estimates and assumptions believed by management of Holdings to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected or pro forma results set forth therein
by a material amount. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and written
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
7.19 SECURITY DOCUMENTS. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral (other than the Mortgaged Properties) described therein and proceeds
thereof. In the case of the Pledged Stock described in the Guarantee and
Collateral Agreement, when any stock certificates representing such Pledged
Stock are delivered to the Administrative Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement, when financing
statements in appropriate form are filed in the offices specified on Schedule
7.19(a)-1 (which financing statements have been duly completed and executed and
delivered to the Administrative Agent) and such other filings as are specified
on Schedule 3 to the Guarantee and Collateral Agreement (all documentation in
respect of which other filings will have been duly completed and executed and
delivered to the
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Administrative Agent on or prior to the Closing Date), the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person (except, in the case of Collateral other than Pledged
Stock, Liens permitted by Section 10.3). Schedule 7.19(a)-2 lists each UCC
Financing Statement that (i) names any Loan Party as debtor and (ii) will remain
on file after the Closing Date. Schedule 7.19(a)-3 lists each UCC Financing
Statement that (i) names any Loan Party as debtor and (ii) will be terminated on
or prior to the Closing Date; and on or prior to the Closing Date, the Primary
Borrower will have delivered to the Administrative Agent, or caused to be filed,
duly completed UCC termination statements, signed by the relevant secured party,
in respect of each UCC Financing Statement listed in Schedule 7.19(a)-3.
(b) Each of the Mortgages, when filed in the offices specified
on Schedule 7.19(b) (in the case of the Mortgages to be executed and delivered
on the Closing Date) or in the appropriate recording office in the jurisdiction
where the Mortgaged Property is located (in the case of any Mortgage to be
executed and delivered pursuant to Section 9.6 (b)), will be effective to create
in favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable Lien on the Mortgaged Properties described therein and
proceeds thereof; and shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the Mortgaged
Properties described therein and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person (other than Persons holding Liens or other
encumbrances or rights permitted hereunder or by the relevant Mortgage).
(c) Each Foreign Security Document, when executed and
delivered hereunder, will be effective to create in favor of the Administrative
Agent, for the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. When the
actions specified in such Foreign Security Document for the perfection of the
security interest created thereby have been taken, such Foreign Security
Document will constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for (i) in the case of Foreign Subsidiary Pledge
Agreements, the Obligations (as defined in the Guarantee and Collateral
Agreement) and (ii) in the case of any other Foreign Security Document, as
security for the obligations specified therein, prior and superior in right to
any other Person (except, in the case of Collateral other than Pledged Stock,
Liens permitted by Section 10.3).
7.20 SOLVENCY. Each of Parent, Holdings and the Primary
Borrower is, and after giving effect to the Transactions and the incurrence of
all Indebtedness and obligations being incurred in connection herewith and
therewith will be and will continue to be, Solvent.
7.21 YEAR 2000 MATTERS. Parent and its Subsidiaries have
initiated a review of their operations with a view to assessing whether their
business or operations will, in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of data,
be vulnerable to any significant risk that computer hardware or software used in
their
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Business will not, in the case of dates or time periods occurring after December
31, 1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000. Based on such review, as of the date
hereof, Parent, Holdings and the Primary Borrower have no reason to believe that
a Material Adverse Effect, a Default or an Event of Default will occur with
respect to such Business resulting from any such risk.
7.22 REGULATION H. Except as set forth on Schedule 7.22, no
Mortgage shall encumber improved Real Property that is located in an area that
has been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.
7.23 PARKS. Set forth on Schedule 1.1(c) is a complete and
correct list of all of the amusement and attraction parks owned by Holdings or
its Subsidiaries on the date hereof.
SECTION 8. CONDITIONS PRECEDENT
8.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT. The agreement
of each Lender to make the initial extension of credit requested to be made by
it hereunder is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of Parent, Holdings, each Domestic Subsidiary
Borrower and each Foreign Subsidiary Borrower, if any, that is to
become a party hereto on the Closing Date, (ii) the Guarantee and
Collateral Agreement, executed and delivered by a duly authorized
officer of Parent, Holdings, the Primary Borrower and each Subsidiary
Guarantor, (iii) a Mortgage covering each of the Mortgaged Properties,
executed and delivered by a duly authorized officer of each party
thereto, (iv) Foreign Subsidiary Pledge Agreements in respect of the
stock of Walibi S.A., Reino Aventura, S.A. de C.V. and Ventas y
Servicios al Consumidor, S.A. de C.V. and (v) for the account of each
relevant Lender, Notes conforming to the requirements hereof and
executed and delivered by a duly authorized officer of each relevant
Borrower.
(b) MERGER; CONTRIBUTION. The Merger and the Contribution
shall have been consummated.
(c) PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) the audited
consolidated financial statements described in Section 7.1(b) and (iii)
the unaudited interim consolidated financial statements described in
Section 7.1(c).
(d) APPROVALS. All material Governmental Authority and third
party approvals necessary to be obtained by Holdings or any of its
Subsidiaries (other than approvals
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under the Existing Credit Agreements) in connection with the
Transactions and the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(e) RELATED AGREEMENTS. The Administrative Agent shall have
received (in a form reasonably satisfactory to the Administrative
Agent) true and correct copies, certified as to authenticity by Parent
or Holdings, of the Indentures, the Partnership Parks Agreements, the
Marine World Agreements, the Shared Services Agreement and such other
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any
other debt instrument, security agreement or other material contract to
which the Loan Parties may be a party.
(f) TERMINATION OF EXISTING CREDIT FACILITIES. The
Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that the Existing Credit Agreements shall be
simultaneously terminated, all amounts thereunder shall be
simultaneously paid in full on the Closing Date and arrangements
reasonably satisfactory to the Administrative Agent shall have been
made for the termination (or assignment) of Liens and security
interests granted in connection therewith.
(g) FEES. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which
invoices have been presented (including reasonable fees, disbursements
and other charges of counsel to the Agents), on or before the Closing
Date. All such amounts will be paid with proceeds of Loans made on the
Closing Date and will be reflected in the funding instructions given by
Holdings to the Administrative Agent on or before the Closing Date.
(h) BUSINESS PLAN. The Lenders shall have received a
satisfactory business plan for fiscal years 1999-2006 and a
satisfactory written analysis of the business and prospects of Holdings
and its Subsidiaries for the period from the Closing Date through final
maturity of the Loans and the Commitments, in each case covering such
matters and in such level of detail as is customary in comparable
financing transactions.
(i) APPRAISAL. The Lenders shall have received such appraisals
of Properties of Holdings and its Subsidiaries as shall be required by
any Indenture in order to permit the borrowings and the creation of the
Liens contemplated hereby.
(j) LIEN SEARCHES. The Administrative Agent shall have
received the results of a recent lien search in each of the
jurisdictions in which Uniform Commercial Code financing statement or
other filings or recordations should be made to evidence or perfect
security interests in all Property of the Loan Parties, and such search
shall reveal no Liens on any of the Property of the Loan Parties,
except for Liens permitted by Section 10.3 or Liens to be discharged
prior to or at Closing.
(k) ENVIRONMENTAL MATTERS. The environmental reports described
in Schedule 8.1(k) shall have been received by the Administrative
Agent.
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(l) TAX SHARING AGREEMENT. Parent and Holdings shall have
entered into, and the Lenders shall have received a copy of, the Tax
Sharing Agreement.
(m) CLOSING CERTIFICATE. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments.
(n) LEGAL OPINIONS. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of Baer Marks & Upham LLP,
special counsel to Parent, Holdings and its Subsidiaries,
substantially in the form of Exhibit F-1;
(ii) the legal opinion of James Coughlin, Esq.,
general counsel of Parent, Holdings and its Subsidiaries,
substantially in the form of Exhibit F-2;
(iii) the legal opinions of counsel to Parent and its
Subsidiaries in Belgium and Mexico in respect of the pledge of
the Capital Stock of Subsidiaries of Holdings incorporated in
such jurisdictions, in form and substance reasonably
satisfactory to the Administrative Agent; and
(iv) the legal opinion of Richards, Layton & Finger,
P.A., special Delaware counsel to the Parent, Holdings and its
Subsidiaries, delivered in connection with the Contribution,
accompanied by a reliance letter in favor of the
Administrative Agent and the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(o) PLEDGED STOCK; STOCK POWERS; ACKNOWLEDGMENT AND CONSENT;
PLEDGED NOTES. The Administrative Agent shall have received (i) the
certificates representing the Capital Stock pledged pursuant to the
Guarantee and Collateral Agreement, together with an undated stock
power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof, (ii) an Acknowledgment and Consent,
substantially in the form of Annex II to the Guarantee and Collateral
Agreement, duly executed by any issuer of Capital Stock pledged
pursuant to the Guarantee and Collateral Agreement that is not itself a
party to the Guarantee and Collateral Agreement and (iii) each
promissory note, if any, pledged pursuant to the Guarantee and
Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(p) FILINGS, REGISTRATIONS AND RECORDINGS. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under any Requirement
of Law or reasonably requested by the
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Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior
and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 10.3), shall have been filed,
registered or recorded or shall have been delivered to the
Administrative Agent in proper form for filing, registration or
recordation.
(q) TITLE INSURANCE, SURVEYS AND FLOOD INSURANCE. (i) The
Administrative Agent shall have received, with respect to each parcel
of Real Property listed on Schedule 8.1(q)(i), a mortgagee's title
insurance policy or binding marked up title commitment issued by First
American Title Insurance Company of New York (either directly or
through authorized agents). Each such policy or commitment shall (A)
insure that the Mortgage insured thereby creates a valid first Lien on
the Mortgaged Property described in such Mortgage, subject only to
Permitted Liens and such exceptions as are disclosed in such policy or
commitment; (B) name the Administrative Agent for the benefit of the
Lenders as the insured; (C) be in the amounts listed on Schedule
8.1(q)(i); (D) be in the form of ALTA Loan Policy (1970) (Amended
10/17/70 and 10/17/84) (or equivalent policies); and (E) contain such
endorsements and affirmative coverage as the Administrative Agent shall
request (excluding zoning endorsements and other endorsements not
readily obtainable). The Administrative Agent shall have received
evidence that all title insurance premiums have been paid.
(ii) The Administrative Agent shall have received the surveys,
maps or plot plans of the Real Properties listed on Schedule
8.1(q)(ii).
(iii) If requested by the Administrative Agent, the
Administrative Agent shall have received (A) written confirmation that
a policy of flood insurance that (1) covers any parcel of improved Real
Property that is encumbered by any Mortgage and (2) is written in an
amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage that is reasonably allocable to
such Real Property or the maximum limit of coverage made available with
respect to the particular type of Real Property under the National
Flood Insurance Act of 1968, whichever is less and (B) confirmation
that the Borrower has received the notice required pursuant to Section
208(e)(3) of Regulation H of the Board.
(iv) The Administrative Agent shall have received a copy of
all recorded documents referred to, or listed as exceptions to title
in, the title policy or policies referred to in clause (i) above and a
copy of all other material documents affecting the Mortgaged
Properties.
(r) INSURANCE. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 9.4.
8.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of
each Lender to make any extension of credit requested to be made by it
hereunder on any date (including,
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without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date.
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) FOREIGN SUBSIDIARY OPINION. If such extension of credit is
the initial extension of credit to a Foreign Subsidiary Borrower, (i)
such Foreign Subsidiary Borrower shall have become a party hereto on
the Closing Date, or after the Closing Date pursuant to Section
13.1(b), (ii) the Administrative Agent shall have received a Foreign
Subsidiary Opinion in respect of such Foreign Subsidiary Borrower and
(iii) if by reason of the incurrence of Indebtedness by such Foreign
Subsidiary Borrower hereunder such Foreign Subsidiary Borrower shall be
required to Guarantee Indebtedness under any Indenture, such Foreign
Subsidiary Borrower shall have become a Guarantor party to the
Guarantee and Collateral Agreement.
Each borrowing by, and issuance of a Letter of Credit on behalf of, a Borrower
hereunder shall constitute a representation and warranty by Parent, Holdings and
such Borrower as of the date of such extension of credit that the conditions
contained in this Section 8.2 have been satisfied.
SECTION 9. AFFIRMATIVE COVENANTS
Parent, Holdings and the Borrowers hereby jointly and
severally agree that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or
any Agent hereunder, each of Parent (with respect to Sections 9.1, 9.2, 9.3,
9.4, 9.5, 9.6, 9.7, 9.8 and 9.10 only), Holdings and each of the Borrowers shall
and shall cause each of their respective Subsidiaries to:
9.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. Deliver to
each Agent and each of the Lenders:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of Parent, consolidated statements of
operations, shareholders' equity and cash flows of Parent and its
Subsidiaries for such fiscal year and the related consolidated balance
sheets of Parent and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the corresponding
consolidated figures for the preceding fiscal year, accompanied by an
opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such
consolidated
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financial statements fairly present in all material respects the
consolidated financial condition and results of operations of Parent
and its Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP, and
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of Holdings, consolidated statements of
operations, shareholders' equity and cash flows of Holdings and its
Subsidiaries for such fiscal year and the related consolidated balance
sheets of Holdings and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the corresponding
consolidated figures for the preceding fiscal year, accompanied by an
opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such
consolidated financial statements fairly present in all material
respects the consolidated financial condition and results of operations
of Holdings and its Subsidiaries as at the end of, and for, such fiscal
year in accordance with GAAP, and a statement of such accountants to
the effect that, in making the examination necessary for their opinion,
nothing came to their attention that caused them to believe that
Holdings was not in compliance with Section 10.1 or Section 10.7, in
each case insofar as such Section relates to accounting matters;
(c) as soon as available and in any event within 90 days after
the end of each fiscal year of each of Texas Flags, Ltd. and Six Flags
Over Georgia II, L.P., consolidated statements of operations, partners'
equity and cash flows of each of Texas Flags, Ltd. and Six Flags Over
Georgia II, L.P. and its Subsidiaries for such fiscal year and the
related consolidated balance sheets of each of Texas Flags, Ltd. and
Six Flags Over Georgia II, L.P. and its Subsidiaries as at the end of
such fiscal year, setting forth in each case in comparative form the
corresponding consolidated figures for the preceding fiscal year,
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that such consolidated financial statements fairly present in all
material respects the consolidated financial condition and results of
operations of each of Texas Flags, Ltd. and Six Flags Over Georgia II,
L.P. and its Subsidiaries as at the end of, and for, such fiscal year
in accordance with GAAP;
(d) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of Parent,
consolidated statements of operations, shareholders' equity and cash
flows of Parent and its Subsidiaries for such period and for the period
from the beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheets of Parent and its
Subsidiaries, as at the end of such period, setting forth in each case
in comparative form the corresponding consolidated figures for the
corresponding periods in the preceding fiscal year (except that, in the
case of balance sheets, such comparison shall be to the last day of the
prior fiscal year), accompanied by a certificate of a Responsible
Officer of Parent, which certificate shall state that such consolidated
financial statements fairly present in all material respects the
consolidated financial condition and results of operations of Parent
and its Subsidiaries, in each case in accordance with GAAP,
consistently applied, as at the end of, and for, such period (subject
to normal year-end audit adjustments);
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(e) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of
Holdings: consolidated statements of operations, shareholders' equity
and cash flows of Holdings and its Subsidiaries for such period and for
the period from the beginning of the respective fiscal year to the end
of such period, and the related consolidated balance sheets of Holdings
and its Subsidiaries, as at the end of such period, setting forth in
each case in comparative form the corresponding consolidated figures
for the corresponding periods in the preceding fiscal year (except
that, in the case of balance sheets, such comparison shall be to the
last day of the prior fiscal year), accompanied by a certificate of a
Responsible Officer of Holdings, which certificate shall state that
such consolidated financial statements fairly present in all material
respects the consolidated financial condition and results of operations
of Holdings and its Subsidiaries, in each case in accordance with GAAP,
consistently applied, as at the end of, and for, such period (subject
to normal year-end audit adjustments);
(f) concurrently with any delivery of financial statements
under clause (a), (b), (c) or (d) of this Section 9.1, a certificate of
a Responsible Officer of Parent or Holdings, as the case may be, (i) to
the effect that no Default or Event of Default has occurred and is
continuing (or, if any Default or Event of Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action that Holdings has taken or proposes to take with respect
thereto) and (ii) setting forth in reasonable detail the computations
necessary to determine whether Holdings and the Primary Borrower were
in compliance with Sections 10.1, 10.6, 10.8(j) and 10.8(m) as of the
end of the respective quarterly fiscal period or fiscal year;
(g) as soon as available, and in any event no later than 45
days after the end of each fiscal year of Holdings, a detailed
consolidated budget for the following fiscal year;
(h) within 45 days after the end of each of the first three
fiscal quarters of Holdings and within 90 days after each fiscal year
of Holdings, a narrative discussion and analysis of the financial
condition and results of operations of Holdings and its Subsidiaries
for such fiscal period and, if applicable, for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the comparable periods of the previous year;
(i) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that
Parent or Holdings shall have filed with the Securities and Exchange
Commission (or any governmental agency substituted therefor) or any
national securities exchange;
(j) promptly upon receipt thereof, copies of any management
letters prepared by Parent's or Holdings' independent public
accountants with respect to the audit of the financial statements of
Parent and its Subsidiaries or Holdings and its Subsidiaries;
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(k) within 15 Business Days after the end of each of the
months of June, July, August, September and October, a performance
report in respect of the Parks detailing on a Park-by-Park basis
attendance and revenue for the preceding month and showing a comparison
to budget and to the same period in the prior year; and
(l) from time to time such other information regarding the
financial condition, operations, business or prospects of Parent or any
of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA), or compliance with the terms of this Agreement, as
any Lender or the Administrative Agent may reasonably request.
9.2 NOTICES OF MATERIAL EVENTS. Furnish the following to the
Administrative Agent in writing:
(a) promptly after any executive officer of Parent, Holdings
or the Primary Borrower has actual knowledge of facts that would give
him or her reason to believe that any Default or Event of Default has
occurred, notice of such Default or Event of Default;
(b) as soon as any executive officer of Parent, Holdings or
the Primary Borrower has actual knowledge of the facts that would give
him or her reason to know of the occurrence thereof, prompt notice of
all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and of any material
development in respect of such legal or other proceedings, affecting
Parent or any of its Subsidiaries that, if adversely determined, could
reasonably be expected to result in aggregate liabilities or damages in
excess of $2,500,000 over available insurance or indemnification by
creditworthy third parties;
(c) as soon as possible, and in any event within ten days
after Parent, Holdings or the Primary Borrower knows or has reason to
believe that any ERISA Event has occurred or exists, notice of the
occurrence of such ERISA Event (and as soon as practicable thereafter,
a copy of any report or notice required to be filed with or given to
the PBGC by Parent, Holdings or an ERISA Affiliate with respect to such
ERISA Event), if such ERISA Event could reasonably be expected to
result in aggregate liabilities in excess of $2,500,000;
(d) prompt notice of the assertion of any Environmental Claim
by any Person against, or with respect to the activities of, Parent or
any of its Subsidiaries and notice of any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation
that, if adversely determined, could (either individually or in the
aggregate) reasonably be expected to result in remediation costs of
more than $2,500,000 or materially adversely affect the operation of
any Park; and
(e) prompt notice of any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section 9.2 shall be accompanied by a statement
of a Responsible Officer of Parent, Holdings or the Primary Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
9.3 EXISTENCE, ETC. (a) Preserve and maintain its legal
existence (except in the case of Inactive Subsidiaries) and all material
permits, licenses and other Governmental Authority authorizations necessary to
enable it to operate each of its Parks (other than seasonal permits and liquor
licenses, which it anticipates will be obtained in the normal course); PROVIDED
that nothing in this Section 9.3 shall prohibit any transaction expressly
permitted under Section 10.4; PROVIDED, FURTHER, that any direct Subsidiary of
Parent may be merged or consolidated with or into: (i) Parent, if Parent shall
be the continuing or surviving corporation or (ii) any other Subsidiary of
Parent which is a Domestic Subsidiary, provided that if any such transaction
shall be between a Subsidiary of Parent and a Subsidiary Guarantor, such
Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) pay and discharge all Federal income taxes and all other
material taxes, assessments and governmental charges or levies imposed on it or
on its income or profits or on any of its Property prior to the date on which
penalties attach thereto, except for any such obligation, tax, assessment,
charge or levy the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained to
the extent required by GAAP; PROVIDED that, with respect to taxes assessed
against Real Properties, such taxes can be contested without payment under
applicable law;
(c) maintain and preserve all of its Properties material to
the conduct of the Business of Parent, Holdings and its Subsidiaries (taken as a
whole) in good working order and condition;
(d) keep adequate records and books of account, in which
complete entries will be made in accordance with GAAP consistently applied; and
(e) permit representatives of any Lender or the Administrative
Agent, upon reasonable notice and during normal business hours (and, except if a
Default shall have occurred and be continuing, not more frequently than once
each calendar quarter), to examine, copy and make extracts from its books and
records, to 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).
9.4 INSURANCE. Maintain insurance with financially sound and
reputable insurance companies, in amounts and against such losses and risks as
Parent or Holdings shall from time to time reasonably determine is sufficient
based upon its experience and industry practice to protect Parent, Holdings and
their respective Subsidiaries and their respective businesses, PROVIDED that
Parent and Holdings will in any event maintain (with respect to itself and each
of its Domestic Subsidiaries):
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(a) PROPERTY INSURANCE -- insurance against loss or damage
covering all of the tangible real and personal Property and
improvements of Parent, Holdings and each of its Subsidiaries by reason
of any Peril in such amounts (subject, in the case of Property
insurance (other than earthquake and flood insurance) to deductibles
not exceeding $1,000,000, in the case of earthquake insurance to
deductibles not exceeding 5% of the value of the insured Property, in
the case of flood insurance to deductibles not exceeding 3% of the
value of the insured Property, or, in any such case, such higher
deductible as shall be reasonably satisfactory to the Administrative
Agent) as shall be reasonable and customary and sufficient to avoid the
insured named therein from becoming a co-insurer of any loss under such
policy but in any event in an amount (A) in the case of fixed assets
and equipment (including, without limitation, vehicles), at least equal
to 75% of the actual replacement cost of such assets (including,
without limitation, foundation, footings but excluding excavation
costs), subject to deductibles as aforesaid and (B) in the case of
inventory, not less than the fair market value thereof, subject to
deductibles as aforesaid.
(b) AUTOMOBILE LIABILITY INSURANCE FOR BODILY INJURY AND
PROPERTY DAMAGE --insurance against liability for bodily injury and
Property damage in respect of all vehicles (whether owned, hired or
rented by Parent, Holdings or any of its Subsidiaries) in such amounts
as are then customary for vehicles used in connection with similar
businesses, but in any event to the extent required by applicable law
(subject to deductibles not exceeding $300,000 or such higher
deductibles or shall be reasonably satisfactory to the Administrative
Agent).
(c) COMMERCIAL GENERAL LIABILITY INSURANCE -- insurance
against liability for claims for bodily injury, death or Property
damage occurring on, in or about the Real Properties (and adjoining
streets, sidewalks and waterways, but only to the extent of the legal
liability of Parent, Holdings and its Subsidiaries therefor) of Parent,
Holdings and its Subsidiaries, in such amounts as are then customary
for similar businesses in the jurisdictions where such businesses are
located (subject to deductibles or self insurance retentions not
exceeding $1,000,000, or such higher deductible as shall be reasonably
satisfactory to the Administrative Agent).
(d) WORKERS' COMPENSATION INSURANCE -- workers' compensation
insurance (including, without limitation, Employers' Liability
Insurance) to the extent required by applicable law (subject to
deductibles not exceeding $300,000, or such higher deductible as shall
be reasonably satisfactory to the Administrative Agent).
(e) PRODUCT LIABILITY INSURANCE -- insurance against liability
for claims for bodily injury, death or Property damage resulting from
the use of products sold by Parent, Holdings or any of its Subsidiaries
in such amounts as are then customarily maintained by responsible
persons engaged in businesses similar to that of Parent, Holdings and
its Subsidiaries (subject to deductibles not exceeding $300,000, or
such higher deductible as shall be reasonably satisfactory to the
Administrative Agent).
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(f) BUSINESS INTERRUPTION INSURANCE -- insurance against loss
of operating income (in an aggregate amount not less than $40,000,000,
as to Parent, Holdings and its Subsidiaries as a whole, and subject to
a deductible, or self-insured amount, not in excess of $1,000,000, or
such higher deductible as shall be reasonably satisfactory to the
Administrative Agent) by reason of any Peril that causes direct damages
to any Property which results in an interruption of Business.
Such insurance shall be written by financially responsible companies
selected by Holdings and having an A. M. Best rating of "A-" or better
and being in a financial size category of VIII or larger, or by other
companies reasonably acceptable to the Required Lenders, and (other
than workers' compensation) shall name the Administrative Agent as loss
payee (to the extent covering risk of loss or damage to tangible
Property), as an additional insured as its interests may appear (with
respect to Commercial General Liability, Products Liability and
Automobile Policies), as mortgagee (on policies covering Real
Properties), and as an additional insured as its interests may appear
(to the extent covering any other risk). Each policy referred to in
this Section shall provide that it will not be canceled or reduced, or
allowed to lapse without renewal, except after not less than 30 days'
notice to the Administrative Agent and shall also provide that the
interests of the Administrative Agent and the Lenders shall not be
invalidated by any act or negligence of Parent, Holdings or any Person
having an interest in any Property covered by a Mortgage nor by
occupancy or use of any such Property for purposes more hazardous than
permitted by such policy nor by any foreclosure or other proceedings
relating to such Property. Parent or Holdings will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
On each date that is the day 3 days prior to the anniversary
date (the "DELIVERY DATE") of any insurance policy (including, without
limitation, any flood insurance policy obtained pursuant to Section 8.1(q)(iii))
of Parent, Holdings or any of its Subsidiaries (the "ANNIVERSARY DATE")
(commencing with the first Delivery Date after the date hereof), Parent or
Holdings will deliver to the Administrative Agent certificates or binders of
insurance evidencing that all insurance required to be maintained by Parent,
Holdings or any of its Subsidiaries hereunder will be in effect through the next
Anniversary Date in the calendar year following the current Delivery Date,
subject only to the payment of premiums as they become due, PROVIDED that not
less than 45 days prior to such Anniversary Date Parent or Holdings will provide
reasonable evidence to the Administrative Agent that it is in the process of
renewing such insurance policy for such period. In addition, neither Parent nor
Holdings will modify any of the provisions of any policy with respect to
Property insurance without delivering the original copy of the endorsement
reflecting such modification to the Administrative Agent accompanied by a
written report of AON Risk Services, Inc., or any other firm of independent
insurance brokers of nationally recognized standing, stating that, in their
opinion, such policy (as so modified) is in compliance with the provisions of
this Section. Neither Parent, Holdings nor any of its Subsidiaries (other than
Excluded Foreign Subsidiaries) will obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that required by
this Section unless the Administrative Agent is the named insured thereunder,
with loss payable as provided herein. Parent or Holdings will immediately notify
the Administrative Agent whenever any such
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separate insurance is obtained and shall deliver to the Administrative Agent the
certificates evidencing the same.
Without limiting the obligations of Parent or Holdings under
the foregoing provisions of this Section, in the event Parent, Holdings or any
of its Subsidiaries shall fail to maintain in full force and effect insurance as
required by the foregoing provisions of this Section, then the Administrative
Agent may, but shall have no obligation so to do, after prior written notice to
Holdings, procure insurance covering the interests of the Lenders and the
Administrative Agent in such amounts and against such risks as the
Administrative Agent (or the Required Lenders) shall deem appropriate, and
Parent or Holdings shall reimburse the Administrative Agent in respect of any
premiums paid by the Administrative Agent in respect thereof.
For purposes hereof, the term "PERIL", means, collectively,
fire, lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement in use when
such insurance is obtained in the jurisdictions where the Properties of Parent,
Holdings and its Subsidiaries are located.
9.5 COMPLIANCE WITH CONTRACTUAL OBLIGATIONS AND REQUIREMENTS
OF LAW. Comply with Contractual Obligations and Requirements of Laws, unless
failure to comply with such Contractual Obligations or Requirements of Law could
not (either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect.
9.6 ADDITIONAL COLLATERAL, ETC. (a) With respect to any
Property acquired after the Closing Date by Parent, Holdings or any of its
Subsidiaries (other than (w) any Property described in paragraph (b) or
paragraph (c) of this Section, (x) any Property subject to a Lien expressly
permitted by Section 10.3(h), (y) any Property acquired by an Excluded Foreign
Subsidiary and (z) any Property acquired after the date hereof to the extent
that the creation of a security interest therein would be prohibited by a
Contractual Obligation binding on Parent, Holdings or the Subsidiary that is the
owner of such Property, PROVIDED that such Contractual Obligation existed at the
time such Property was acquired and was not entered into in anticipation of such
acquisition) as to which the Administrative Agent, for the benefit of the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent reasonably deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a security interest in such Property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in such Property
(subject to Permitted Liens), including without limitation, the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent.
(b) With respect to any fee interest in any Real Property
having a value (together with improvements thereof) of at least $5,000,000
acquired after the Closing Date by Parent,
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Holdings or any of its Subsidiaries (other than any such Real Property owned by
an Excluded Foreign Subsidiary, Properties subject to the Spanish WB
Acquisition, Properties subject to the Partnership Parks Agreements or Marine
World Agreements or Properties subject to a Lien expressly permitted by Section
10.3(h), promptly (i) execute and deliver a first priority Mortgage (subject to
Permitted Liens) in favor of the Administrative Agent, for the benefit of the
Lenders, covering such Real Property, (ii) if requested by the Administrative
Agent, provide the Lenders with (x) title and extended coverage insurance
covering such Real Property in an amount at least equal to the purchase price of
such Real Property (or such lesser amount as shall be reasonably specified by
the Administrative Agent) as well as a current Survey thereof, together with a
surveyor's certificate and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent (PROVIDED, that Parent, Holdings and its Subsidiaries
shall only be required to use commercially reasonable good faith efforts to
obtain such consents and estoppels) and (iii) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary or an Inactive Subsidiary) created or acquired after the
Closing Date (which, for the purposes of this paragraph, shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary or an
Inactive Subsidiary), by Parent, Holdings or any of its Subsidiaries, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement as the Administrative Agent deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest (subject to Permitted
Liens) in the Capital Stock of such new Subsidiary that is owned by Parent,
Holdings or any of its Subsidiaries, (ii) deliver to the Administrative Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of Parent,
Holdings or such Subsidiary, as the case may be, (iii) with respect to any such
new Subsidiary which is a Subsidiary of Holdings or any of its Subsidiaries,
cause such new Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement and (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected first priority
security interest (subject to Permitted Liens) in the Collateral described in
the Guarantee and Collateral Agreement with respect to such new Subsidiary,
including, without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if reasonably requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) With respect to any new Foreign Subsidiary (other than the
joint venture created pursuant to the Spanish WB Acquisition) created or
acquired after the Closing Date by Parent, Holdings or any of its Subsidiaries
(other than any Excluded Foreign Subsidiaries), promptly (i) execute and deliver
to the Administrative Agent such amendments to the Guarantee
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and Collateral Agreement or such other documents as the Administrative Agent
deems necessary or advisable in order to grant to the Administrative Agent, for
the benefit of the Lenders, a perfected first priority security interest
(subject to Permitted Liens) in the Capital Stock of such new Subsidiary that is
owned by Parent, Holdings or any of its Subsidiaries (other than any Excluded
Foreign Subsidiaries), PROVIDED that in no event shall more than 65% of the
total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be
required to be so pledged, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of Parent,
Holdings or such Subsidiary, as the case may be, and take such other action as
may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Lien of the Administrative Agent thereon, and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(e) In the event any Foreign Subsidiary of Holdings shall
propose to become a Foreign Subsidiary Borrower, Holdings shall give notice of
such fact to the Administrative Agent, including a summary of the Properties
owned by such Foreign Subsidiary and its Subsidiaries; within 10 days after
receipt of such information, the Administrative Agent shall provide such
information to the Lenders; and if, within 10 days after such information is
provided to the Lenders, Lenders whose Aggregate Exposure Percentages equal or
exceed 25% shall so request by written notice to the Administrative Agent, the
Administrative Agent shall so advise Holdings, and Holdings shall (i) promptly
cause such Foreign Subsidiary and, if applicable, the Subsidiaries thereof, to
create in favor of the Administrative Agent, as security for all obligations of
such Foreign Subsidiary under this Agreement and the other Loan Documents, a
security interest in substantially all of the Property of such Foreign
Subsidiary and, if applicable, Subsidiaries thereof, except, in each case, with
respect to Property as to which the Administrative Agent determines, in its
reasonable discretion, that the cost or difficulty of obtaining a security
interest therein would be disproportionate to the value of such security
interest, (ii) cause each Subsidiary, if any, of such Foreign Subsidiary to
provide guarantees to the Administrative Agent in respect of the obligations of
such Foreign Subsidiary under this Agreement and the other Loan Documents and
(iii) provide to the Administrative Agent and the Lenders such legal opinions
with respect to such security interests and guarantees as the Administrative
Agent shall reasonably request.
(f) Notwithstanding the provisions of the foregoing paragraphs
(c) and (d), neither Parent nor Holdings shall be required to create, or to
cause their respective Subsidiaries to create, a security interest in the
Capital Stock of any Subsidiary acquired after the date hereof to the extent
that the creation of such a security interest would be prohibited by a
Contractual Obligation binding on Parent, Holdings or the Subsidiary that is the
owner of such Capital Stock; PROVIDED, that such Contractual Obligation either
(i) was negotiated in good faith in an arm's length transaction with a Person
that is not an Affiliate of Parent or Holdings or (ii) existed at the time such
Subsidiary was acquired and was not entered into in anticipation of such
acquisition.
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9.7 FURTHER ASSURANCES. From time to time execute and deliver,
or cause to be executed and delivered, such additional instruments, certificates
or documents, and take all such actions, as the Administrative Agent may
reasonably request for the purposes of implementing or effectuating the
provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Lenders
with respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other Property or assets
hereafter acquired by Parent, Holdings or any Subsidiary which may be deemed to
be part of the Collateral) pursuant hereto or thereto. Upon the exercise by the
Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental
Authority and Holdings will execute and deliver, or will cause the execution and
delivery of, all applications, certifications, instruments and other documents
and papers that the Administrative Agent or such Lender may be required to
obtain from Holdings or any of its Subsidiaries for such governmental consent,
approval, recording, qualification or authorization.
9.8 ENVIRONMENTAL LAWS. Except to the extent that, in the
aggregate, the failure to do so could not reasonably be expected to have a
Material Adverse Effect: (a) comply with, and ensure compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply with and maintain, and ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, and (b)
conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.
9.9 CLEAN DOWN. During each calendar year, cause the aggregate
outstanding principal amount of Revolving Credit Loans and Swing Line Loans not
to exceed $0 for at least 30 consecutive days during the period in such calendar
year beginning on June 1 and ending on November 1.
9.10 ADDITIONAL CONTRIBUTIONS. In connection with Parent's
annual meeting of shareholders to be held after the end of Parent's 1999 fiscal
year, request the approval of the shareholders of Parent to permit all material
assets of Holdings (other than the Capital Stock of the Primary Borrower) to be
contributed to the Primary Borrower; and if such approval is obtained,
consummate such contribution as promptly as practicable thereafter.
9.11 SURVEYS; LANDLORD CONSENTS. (a) Furnish to the
Administrative Agent, within 120 days after the Closing Date, boundary surveys
for each of the Real Properties listed on Schedule 9.11(a).
(b) Use reasonable efforts to obtain and deliver to the
Administrative Agent, within 60 days after the Closing Date, any landlord
consents or estoppels, in form and substance reasonably satisfactory to the
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Administrative Agent, deemed necessary or advisable by the Administrative Agent
in order to obtain leasehold mortgages on the leased Real Properties listed on
Schedule 9.11(b).
SECTION 10. NEGATIVE COVENANTS
Holdings and the Borrowers and, with respect to Section
10.15(a) only, Parent, hereby jointly and severally agree that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, each of
Holdings and each of the Borrowers and, with respect to Section 10.15(a) only,
Parent, shall not, and shall not permit any Subsidiary to, directly or
indirectly:
10.1 CERTAIN FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of Holdings ending with any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
CONSOLIDATED
FISCAL QUARTER LEVERAGE RATIO
-------------- --------------
<S> <C>
FQ4 1999 4.50
FQ1 2000 4.50
FQ2 2000 4.50
FQ3 2000 4.50
FQ4 2000 4.50
FQ1 2001 4.50
FQ2 2001 4.50
FQ3 2001 4.00
FQ4 2001 4.00
FQ1 2002 4.00
FQ2 2002 4.00
FQ3 2002 3.50
FQ4 2002 3.50
FQ1 2003 3.50
FQ2 2003 3.50
FQ3 2003 3.00
FQ4 2003 3.00
FQ1 2004 3.00
FQ2 2004 3.00
FQ3 2004 3.00
FQ4 2004 3.00
FQ1 2005 3.00
FQ2 2005 3.00
FQ3 2005 3.00
</TABLE>
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(b) CONSOLIDATED SECURED DEBT RATIO. Permit the Consolidated
Secured Debt Ratio as at the last day of any period of four consecutive fiscal
quarters of Holdings ending with any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
CONSOLIDATED
FISCAL QUARTER SECURED DEBT RATIO
-------------- ------------------
<S> <C>
FQ4 1999 3.50
FQ1 2000 3.50
FQ2 2000 3.50
FQ3 2000 3.50
FQ4 2000 3.50
FQ1 2001 3.50
FQ2 2001 3.50
FQ3 2001 3.00
FQ4 2001 3.00
FQ1 2002 3.00
FQ2 2002 3.00
FQ3 2002 2.50
FQ4 2002 2.50
FQ1 2003 2.50
FQ2 2003 2.50
FQ3 2003 2.00
FQ4 2003 2.00
FQ1 2004 2.00
FQ2 2004 2.00
FQ3 2004 2.00
FQ4 2004 2.00
FQ1 2005 2.00
FQ2 2005 2.00
FQ3 2005 2.00
</TABLE>
(c) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of Holdings ending with any fiscal quarter set forth below to be less
than the ratio set forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
-------------- -----------------------
<S> <C>
FQ4 1999 2.50
FQ1 2000 2.50
FQ2 2000 2.50
FQ3 2000 2.50
FQ4 2000 2.50
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
FQ1 2001 2.50
FQ2 2001 2.50
FQ3 2001 3.00
FQ4 2001 3.00
FQ1 2002 3.00
FQ2 2002 3.00
FQ3 2002 3.50
FQ4 2002 3.50
FQ1 2003 3.50
FQ2 2003 3.50
FQ3 2003 3.50
FQ4 2003 3.50
FQ1 2004 3.50
FQ2 2004 3.50
FQ3 2004 3.50
FQ4 2004 3.50
FQ1 2005 3.50
FQ2 2005 3.50
FQ3 2005 3.50
</TABLE>
(d) CONSOLIDATED DEBT SERVICE COVERAGE RATIO. Permit the
Consolidated Debt Service Coverage Ratio for any period of four consecutive
fiscal quarters of Holdings ending with any fiscal quarter set forth below to be
less than the ratio set forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
CONSOLIDATED DEBT
FISCAL QUARTER SERVICE COVERAGE RATIO
-------------- ----------------------
<S> <C>
FQ4 1999 2.50
FQ1 2000 2.50
FQ2 2000 2.50
FQ3 2000 2.50
FQ4 2000 2.50
FQ1 2001 2.50
FQ2 2001 2.50
FQ3 2001 3.00
FQ4 2001 3.00
FQ1 2002 3.00
FQ2 2002 3.00
FQ3 2002 3.50
FQ4 2002 3.50
FQ1 2003 3.50
FQ2 2003 3.50
FQ3 2003 3.50
FQ4 2003 3.50
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
FQ1 2004 3.50
FQ2 2004 3.50
FQ3 2004 3.50
FQ4 2004 3.50
FQ1 2005 3.50
FQ2 2005 3.50
FQ3 2005 3.50
</TABLE>
(e) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of Holdings ending with any fiscal quarter set forth below to be
less than the ratio set forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
CONSOLIDATED FIXED
FISCAL QUARTER CHARGE COVERAGE RATIO
-------------- ---------------------
<S> <C>
FQ4 1999 1.10
FQ1 2000 1.10
FQ2 2000 1.10
FQ3 2000 1.10
FQ4 2000 1.10
FQ1 2001 1.10
FQ2 2001 1.10
FQ3 2001 1.20
FQ4 2001 1.20
FQ1 2002 1.20
FQ2 2002 1.20
FQ3 2002 1.30
FQ4 2002 1.30
FQ1 2003 1.30
FQ2 2003 1.30
FQ3 2003 1.30
FQ4 2003 1.30
FQ1 2004 1.30
FQ2 2004 1.30
FQ3 2004 1.30
FQ4 2004 1.30
FQ1 2005 1.30
FQ2 2005 1.30
FQ3 2005 1.30
</TABLE>
10.2 INDEBTEDNESS. Create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
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(b) Indebtedness of any Person outstanding on the date hereof
and listed on Schedule 10.2(b), and any Indebtedness of such Person
incurred to refinance any such outstanding Indebtedness, PROVIDED that
the principal amount of such refinancing Indebtedness does not exceed
the amount of Indebtedness being so refinanced and any costs and
premiums associated with such refinancing;
(c) Indebtedness of Holdings or any Subsidiary Guarantor to
Holdings or to any Subsidiary, and Guarantees by Holdings or any of its
Subsidiaries of obligations of Holdings or any Subsidiary Guarantor;
(d) Indebtedness of Holdings or any Non-Guarantor Subsidiary
that is a Domestic Subsidiary to Holdings or to any Subsidiary, and
Guarantees by Holdings or any Subsidiary of Indebtedness of any such
Non-Guarantor Subsidiary, in an aggregate amount outstanding for all
such Indebtedness and Guarantees (without duplication) not exceeding at
any time $50,000,000;
(e) Indebtedness of any Non-Guarantor Subsidiary which is both
a Wholly Owned Subsidiary and a Foreign Subsidiary (a "WHOLLY OWNED
NON-GUARANTOR FOREIGN SUBSIDIARY") to any other Wholly Owned
Non-Guarantor Foreign Subsidiary, and Guarantees by any Wholly Owned
Non-Guarantor Foreign Subsidiary of obligations of any other Wholly
Owned Non-Guarantor Foreign Subsidiary;
(f) (i) Indebtedness consisting of Purchase Money Indebtedness
and Capital Lease Obligations incurred after the date hereof in an
aggregate principal amount not in excess of $85,000,000 at any one time
outstanding, and (ii) any Indebtedness incurred to refinance the
Indebtedness described in the foregoing clause (i), PROVIDED that the
principal amount of such refinancing Indebtedness does not exceed the
amount of the Indebtedness being so refinanced and any costs and
premiums associated therewith;
(g) (i) Indebtedness of any Person outstanding on the date on
which such Person becomes a Subsidiary of Holdings; PROVIDED, that (A)
such Indebtedness was not created in connection with, or in
anticipation of, such acquisition and (B) the amount of such
Indebtedness is not increased thereafter, and (ii) any Indebtedness
incurred to refinance the Indebtedness described in the foregoing
clause (i), PROVIDED that the principal amount of such refinancing
Indebtedness does not exceed the amount of the Indebtedness being so
refinanced and any costs and premiums associated therewith;
(h) Indebtedness of any Foreign Subsidiaries representing
Investments permitted by Section 10.8(m); and
(i) Indebtedness of the Primary Borrower or the Subsidiary
Guarantors under the Guarantee made by such Persons in respect of
Indebtedness under the PPO Indenture.
10.3 LIENS. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except the
following ("PERMITTED LIENS"):
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(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed on
Schedule 10.3(b) and any extension, renewal or replacement thereof;
PROVIDED that such extension renewal or replacement does not increase
the outstanding principal amount of the Indebtedness secured thereby
except by the amount of any costs associated therewith;
(c) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of Holdings or the affected
Subsidiaries, as the case may be, to the extent required by GAAP or, in
the case of any Foreign Subsidiary, generally accepted accounting
principles in effect from time to time in the jurisdiction of
organization of such Foreign Subsidiary;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's, brokers' or other like Liens arising in the
ordinary course of business that are not overdue for a period of more
than 30 days or that are being contested in good faith and by
appropriate proceedings, and Liens securing judgments but only to the
extent for an amount and for a period not resulting in an Event of
Default under clause (j) of Section 11;
(e) pledges or deposits under workers' compensation,
unemployment insurance and other social security legislation (other
than ERISA);
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (including any
precautionary Uniform Commercial Code financing statements filed by a
lessor with respect to any equipment lease), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially detract from the value of the Property
subject thereto or interfere in any material respect with the ordinary
conduct of the Business of Holdings or any of its Subsidiaries;
(h) Liens securing Purchase Money Indebtedness or Capital
Lease Obligations to the extent such Indebtedness is permitted to be
incurred under Section 10.2(f); PROVIDED, that such Liens shall
encumber only the Property that is the subject of such Purchase Money
Indebtedness or Capital Lease Obligations;
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<PAGE>
(i) Liens securing Indebtedness to the extent such
Indebtedness is permitted under Section 10.2(g); PROVIDED, that such
Liens shall encumber only the Property that is the subject of such
Indebtedness; and
(j) Liens pursuant to the Marine World Agreements or pursuant
to leases, concessions and similar arrangements, or other arrangements
entered into in the ordinary course of business by Holdings and its
Subsidiaries that could not reasonably be expected to have a Material
Adverse Effect.
10.4 PROHIBITION OF FUNDAMENTAL CHANGES.
(a) MERGERS. Enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), except that Holdings may liquidate or
dissolve any Inactive Subsidiary.
(b) RESTRICTIONS ON ACQUISITIONS. Acquire any business or
Property from, or Capital Stock of, or be a party to any acquisition of, any
Person except for (i) purchases of inventory and other Property to be sold or
used in the ordinary course of business, (ii) Investments permitted under
Sections 10.4(e) and 10.8, and (iii) Capital Expenditures (to the extent the
making of such Capital Expenditures will not result in a violation of any of the
provisions of Section 10.1 or Section 10.7).
(c) RESTRICTIONS ON DISPOSITIONS. Consummate any Disposition
other than (i) any Disposition of any inventory or other Property Disposed of in
the ordinary course of business, (ii) during any fiscal year, the first
$10,000,000 of sales of used equipment or other Property not used in the
business of Holdings and its Subsidiaries, (iii) any Disposition of any Property
to Holdings or a Wholly Owned Subsidiary of Holdings which is a Subsidiary
Guarantor or the Primary Borrower, (iv) any Disposition of any Property to a
Foreign Subsidiary, PROVIDED that the book value of the Property so Disposed of
shall be deemed to constitute an Investment under Section 10.8(m), (v) any
Property swap or exchange entered into pursuant to the Marine World Agreements,
(vi) the sale (whether through a sale, swap or exchange) of any timeshare in any
of the campground parks permitted under Section 10.4(e)(vi), and (vii) the sale
of other Property having a fair market value not to exceed $25,000,000 in the
aggregate for any fiscal year of Holdings.
(d) SALE AND LEASEBACK. Enter into any transaction pursuant to
which it shall convey, sell, transfer or otherwise dispose of any Property and,
as part of the same transaction or series of transactions, rent or lease as
lessee or similarly acquire the right to possession or use of, such Property, or
other Property which it intends to use for the same purpose or purposes as such
Property, to the extent such transaction gives rise to Indebtedness, unless any
Indebtedness arising in connection with such transaction shall be permitted
under Section 10.2(f).
(e) CERTAIN PERMITTED TRANSACTIONS. Notwithstanding the
foregoing provisions of this Section 10.4:
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<PAGE>
(i) INTERCOMPANY MERGERS. Any Subsidiary of Holdings may be
merged or consolidated: (A) with or into any other Subsidiary of
Holdings which is a Domestic Subsidiary, PROVIDED that if any such
transaction shall be between a Subsidiary and a Subsidiary Guarantor,
such Subsidiary Guarantor shall be the continuing or surviving
corporation, (B) in the case of any Excluded Foreign Subsidiary, with
or into any other Excluded Foreign Subsidiary, if the continuing or
surviving corporation is a Wholly Owned Subsidiary and (C) in the case
of any Non-Guarantor Subsidiary, with or into any other Non-Guarantor
Subsidiary, if the continuing or surviving corporation is a Wholly
Owned Subsidiary.
(ii) INTERCOMPANY DISPOSITIONS. Holdings, the Primary Borrower
or any Subsidiary of Holdings may sell, lease, transfer or otherwise
dispose of any or all of its Property (upon voluntary liquidation or
otherwise): (A) to the Primary Borrower or a Subsidiary Guarantor, (B)
to any Domestic Subsidiary of Holdings which is not a Subsidiary
Guarantor, PROVIDED that the aggregate book value of assets Disposed of
pursuant to this clause (B) shall not exceed $20,000,000 in any fiscal
year, (C) in the case of any Excluded Foreign Subsidiary, to any other
Excluded Foreign Subsidiary which is a Wholly Owned Subsidiary and (D)
in the case of any Non-Guarantor Subsidiary, to any other Non-Guarantor
Subsidiary which is a Wholly Owned Subsidiary.
(iii) SUBSEQUENT ACQUISITIONS. Holdings, the Primary Borrower,
any Subsidiary Guarantor or any Foreign Subsidiary may acquire any
amusement or attraction park, and the related assets (and the assets of
any related, ancillary or complementary business), of any other Person
(whether by way of purchase of assets or stock, by merger or
consolidation or otherwise) after the date hereof (each, a "SUBSEQUENT
ACQUISITION") with existing cash, cash flow generated by operations,
the Unused Equity Proceeds Amount and/or the proceeds of Loans
hereunder to the extent permitted under this Agreement so long as:
(A) (i) Holdings shall be in compliance with Section
10.1 at the time of and after giving pro forma effect to any
such Subsequent Acquisition, as if such Subsequent Acquisition
had occurred on the first day of the relevant calculation
period provided for in Section 10.1, PROVIDED, HOWEVER, that
(x) any capital expenditures made prior to such Subsequent
Acquisition by the Person that is the subject thereof shall
not constitute Capital Expenditures hereunder and (y) any
Indebtedness incurred or repaid in connection with such
Subsequent Acquisition shall be deemed to have be incurred or
repaid, as the case may be, on such first day, and (ii)
Holdings shall have delivered to the Administrative Agent, at
least ten Business Days prior to the date of any such
Subsequent Acquisition, a certificate of a Responsible Officer
of Holdings setting forth (A) computations in reasonable
detail demonstrating satisfaction of the foregoing conditions
as at the date of such certificate and (B) the respective
amounts of cash, cash flow generated by operations, the Unused
Equity Proceeds Amount and the proceeds of Loans hereunder
being used to effect such Subsequent Acquisition;
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<PAGE>
(B) such Subsequent Acquisition (if by purchase of
assets, merger or consolidation) shall be effected in such
manner so that the acquired business, and the related assets,
are owned either by Holdings, the Primary Borrower, a
Subsidiary Guarantor or a Foreign Subsidiary and, if effected
by merger or consolidation involving Holdings, the Primary
Borrower, a Subsidiary Guarantor or a Foreign Subsidiary, then
Holdings, the Primary Borrower, such Subsidiary Guarantor or
such Foreign Subsidiary shall be the continuing or surviving
entity and, if effected by merger or consolidation involving a
Wholly Owned Subsidiary of Holdings, a Wholly Owned Subsidiary
shall be the continuing or surviving entity; PROVIDED,
HOWEVER, that with respect to any Subsequent Acquisition
effected in such manner so that the acquired business, and the
related assets, are owned by a Foreign Subsidiary, such
acquired business, and the related assets, shall be located
outside of the United States of America;
(C) Holdings shall deliver to the Administrative
Agent (which shall promptly forward copies thereof to each
Lender) (i) as soon as possible and in any event no later than
ten days prior to the consummation of each such Subsequent
Acquisition (or such earlier date as shall be five Business
Days after the execution and delivery thereof), copies of the
respective agreements or instruments pursuant to which such
Subsequent Acquisition is to be consummated (including,
without limitation, any related management, non-compete,
employment, option or other material agreements), any
schedules to such agreements or instruments and all other
material ancillary documents to be executed or delivered in
connection therewith and (ii) promptly following request
therefor (but in any event within three Business Days
following such request), copies of such other information or
documents (including, without limitation, environmental risk
assessments) relating to such Subsequent Acquisition as the
Administrative Agent or the Required Lenders shall have
reasonably requested (and which is available, or obtainable
within such period by Holdings with reasonable efforts);
(D) to the extent applicable, Holdings shall have
complied with the provisions of Section 9.6, including,
without limitation, to the extent not theretofore delivered,
delivery to the Administrative Agent of (x) the certificates
evidencing 100% (or, in the case of any new Foreign Subsidiary
the Capital Stock of which is held by a Domestic Subsidiary,
65%) of the Capital Stock of any new Subsidiary formed or
acquired in connection with such Subsequent Acquisition,
accompanied by undated stock powers executed in blank, and (y)
the agreements, instruments, opinions of counsel and other
documents required under Section 9.6;
(E) the aggregate Purchase Price for each such
Subsequent Acquisition shall not exceed $175,000,000
(inclusive of the aggregate amount by which the Base Capital
Expenditure Amount is increased pursuant to Section 10.7 by
reason of such Subsequent Acquisition);
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<PAGE>
(F) to the extent requested by Holdings, Holdings and
the Required Lenders shall have agreed to pro forma
adjustments to be made in determining Consolidated EBITDA
after giving effect to such Subsequent Acquisition; and
(G) immediately prior to such Subsequent Acquisition
and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing.
(iv) MERGER AND CONTRIBUTION. The Merger and the Contribution
may be consummated.
(v) OTHER ACQUISITIONS. Holdings or any Subsidiary of Holdings
may (i) acquire (whether through an acquisition, swap or exchange) any
amusement or attraction park, and the related assets thereof, pursuant
to the Marine World Agreements and (ii) acquire shares of Capital Stock
of Walibi, S.A. not owned by Holdings and its Subsidiaries on the date
hereof.
(vi) OTHER DISPOSITIONS. Holdings or any Subsidiary of
Holdings may dispose of (whether through a sale, swap or exchange) any
timeshare in any of the campground parks.
(vii) PENDING ACQUISITIONS. Any Subsidiary of Holdings may
effect the Spanish WB Acquisition and the German WB Acquisition.
10.5 [RESERVED]
10.6 RESTRICTED PAYMENTS. Declare or make any Restricted
Payment, except that so long as at the time thereof and after giving effect
thereto no Default or Event of Default shall have occurred and be continuing,
Holdings may:
(a) make Restricted Payments to Parent in cash to enable
Parent to pay out-of-pocket accounting fees, legal fees and other
administrative expenses incurred in the ordinary course of business
pursuant to the Shared Services Agreement;
(b) make Restricted Payments to Parent in respect of income
tax liabilities of Holdings and its Subsidiaries in accordance with the
Tax Sharing Agreement; and
(c) make Restricted Payments to Parent in cash to enable
Parent to pay (i) cash interest payable in respect of Indebtedness
under the Parent Indentures outstanding on the date hereof , or any
Indebtedness that refinances the Indebtedness under the Parent
Indentures (PROVIDED, that (A) the cash interest expense under such
refinancing Indebtedness shall be no greater in any fiscal year than
the cash interest expense under the Parent Indenture so refinanced, (B)
the principal amount of such refinancing Indebtedness shall not be
scheduled to be amortized any faster than the principal amount of the
Parent Indenture so refinanced and (C) the terms of such refinancing
Indebtedness shall not
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<PAGE>
impose on Parent and its Subsidiaries covenants or events of default
that are in the aggregate materially more restrictive on Parent and its
Subsidiaries than those applicable under the Parent Indenture so
refinanced), (ii) distributions and other required payments under the
Partnership Parks Agreements as in effect on the date hereof as the
same may be amended in a manner not adverse to the interests of the
Lenders (PROVIDED, that any amendment that changes the financial
obligations of Parent and its Subsidiaries thereunder shall be approved
by the Required Lenders) and (iii) cash dividends payable on Parent
Preferred Stock.
Nothing herein shall be deemed to prohibit the payment of
Restricted Payments by any Subsidiary of Holdings to Holdings or to any other
Wholly Owned Subsidiary of Holdings which is a Subsidiary Guarantor or to the
Primary Borrower, or by an Excluded Foreign Subsidiary to any other Subsidiary
of Holdings.
10.7 CAPITAL EXPENDITURES. Make or commit to make any Capital
Expenditure (Discretionary), except Capital Expenditures (Discretionary) of
Holdings and its Subsidiaries not exceeding the Base Capital Expenditure Amount
during any fiscal year of Holdings; PROVIDED, that (i) any such amount referred
to above, if not so expended in the fiscal year for which it is permitted, may
be carried over for expenditure in the next succeeding fiscal year and (ii)
Capital Expenditures (Discretionary) made during any fiscal year shall be deemed
made, FIRST, in respect of amounts carried over from the prior fiscal year
pursuant to subclause (i) above and, SECOND, in respect of amounts permitted for
such fiscal year as provided above; PROVIDED, FURTHER, that the foregoing shall
not prohibit Holdings from making any Capital Expenditures constituting Marine
World Contributed Capital Expenditures to the extent permitted as an Investment
under Section 10.8(n). For purposes of the foregoing, the "BASE CAPITAL
EXPENDITURE AMOUNT" for any fiscal year shall be (a) in the case of fiscal year
2000, $285,000,000, (b) in the case of fiscal year 2001, $130,000,000 and (c) in
the case of any fiscal year thereafter, $85,000,000, plus, in each case, with
respect to each fiscal year in which a Subsequent Acquisition is consummated and
the immediately following fiscal year, an amount for each such fiscal year equal
to the lesser of (1) 25% of the aggregate Purchase Price of such Subsequent
Acquisition and (2) $175,000,000 less the aggregate Purchase Price of such
Subsequent Acquisition, in each case, for purposes of this clause (d), such
Purchase Price to be calculated without giving effect to the parenthetical in
Section 10.4(e)(iii)(E).
10.8 INVESTMENTS. Make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
on Schedule 10.8 (a);
(b) operating deposit accounts with banks;
(c) Permitted Investments;
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<PAGE>
(d) Investments by Holdings and its Subsidiaries in the
Primary Borrower and Subsidiary Guarantors, including Guarantees by
Holdings or any of its Subsidiaries of obligations of Holdings, the
Primary Borrower or any Subsidiary Guarantor;
(e) Investments by Foreign Subsidiaries in Wholly Owned
Subsidiaries which are Foreign Subsidiaries, including Guarantees by
Foreign Subsidiaries of obligations of other Wholly Owned Subsidiaries
which are Foreign Subsidiaries;
(f) 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 $5,000,000;
(g) Disposition Investments received in connection with any
Disposition permitted under Section 10.4 or any Disposition to which
the Required Lenders shall have consented in accordance with Section
13.1;
(h) any Acquisition permitted by Section 10.4(e);
(i) Investments in an aggregate amount of up to but not
exceeding $100,000 during any fiscal year in 229 East 79th Street
Associates L.P.;
(j) additional Investments up to but not exceeding $50,000,000
at any time outstanding;
(k) (i) loans to officers, directors and employees of Holdings
or any of its Subsidiaries in an aggregate amount (as to all such
officers, director and employees) up to $1,000,000 at any one time
outstanding and (ii) loans to employees of Holdings and its
Subsidiaries under any incentive stock option plan with terms no more
favorable to employees than those applicable under Parent's 1998 Stock
Option Plan; PROVIDED, that the proceeds of loans made pursuant to this
clause (ii) are received by Holdings as capital contributions;
(l) Investments constituting (i) contributions to the equity
of Parque Tematico de Madrid, S.A., whether directly or through the
joint venture contemplated by the Spanish WB Acquisition, in an
aggregate amount of up to but not exceeding $9,500,000 in the
aggregate, plus 5% of all contributions required by Holdings or any of
its Subsidiaries to be made to said entity in the event the manager
thereof elects to build a water park and (ii) contributions to such
Spanish joint venture as contemplated by the Spanish WB Acquisition and
additional Investments therein not exceeding $2,000,000 in the
aggregate at any time outstanding;
(m) Investments, including, without limitation, the aggregate
book value of Property transferred in transactions permitted by Section
10.4(c)(iv), by Holdings and its Domestic Subsidiaries in Holdings'
Wholly Owned Subsidiaries which are Foreign
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<PAGE>
Subsidiaries in an aggregate amount not exceeding $400,000,000 at any
time outstanding; and
(n) Investments by Holdings or any Domestic Subsidiary
constituting the contribution to Authority of the Marine World
Contributed Capital Expenditures in an aggregate amount of up to but
not exceeding $20,000,000.
10.9 PREPAYMENT OF CERTAIN INDEBTEDNESS. Purchase, redeem,
retire or otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for the purchase, redemption, retirement or
other acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of, or enter
into any derivative transaction or similar transaction obligating Holdings or
any of its Subsidiaries to make payments to any other Person as a result of a
change in market value of, Indebtedness outstanding under any Indenture, except
for regularly scheduled payments, prepayments or redemptions of principal and
interest in respect thereof required pursuant to the Indentures. Notwithstanding
the foregoing, (a) nothing herein shall be deemed to prohibit Holdings from
redeeming or retiring the Zero Coupon Bonds and (b) Holdings may purchase,
redeem, retire or otherwise acquire for value Indebtedness of Holdings for cash
consideration not exceeding $25,000,000 in any fiscal year and not exceeding
$50,000,000 while this Agreement is outstanding; PROVIDED, that such cash
consideration shall be derived from the Unused Equity Proceeds Amount.
10.10 TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate unless such transaction
is: (a) otherwise permitted under this Agreement, (b) in the ordinary course of
business of Holdings, such Borrower or such Subsidiary, as the case may be, and
(c) upon fair and reasonable terms no less favorable to Holdings, such Borrower
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person that is not an Affiliate. Notwithstanding
the foregoing, (i) any Affiliate who is an individual may serve as a director,
officer or employee of Holdings or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity, (ii) Holdings
and its Subsidiaries may enter into transactions (other than extensions of
credit by Holdings or any of its Subsidiaries to an Affiliate) providing for the
leasing of Property, the rendering or receipt of services or the purchase or
sale of inventory and other Property in the ordinary course of business if the
monetary or business consideration arising therefrom would be substantially as
advantageous to Holdings and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not an
Affiliate, (iii) Holdings or any of its Subsidiaries may make an Acquisition of
assets of any Person which is an Affiliate solely by reason of such Person being
controlled by Holdings or any of its Subsidiaries and may make Investments in
such Person, PROVIDED that such Acquisitions and Investments are (A) permitted
under Section 10.4(e)(iii) or 10.8 and (B) made upon fair and reasonable terms
no less favorable to Holdings or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate, (iv) Holdings or any of its Subsidiaries may enter into any
transaction required of it pursuant to the documents entered into in connection
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with the Spanish WB Acquisition or the Marine World Agreements and (v) Holdings
and its Subsidiaries may be parties to and may perform their respective
obligations under the Shared Services Agreement and the Tax Sharing Agreement.
10.11 CHANGES IN FISCAL PERIODS. Permit the fiscal year of
Holdings to end on a day other than December 31 or change Holdings' method of
determining fiscal quarters.
10.12 CERTAIN RESTRICTIONS. Enter into, after the date hereof,
any indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances or Investments or the sale, assignment,
transfer or other disposition of Property, other than any such prohibition or
restraint (a) set forth in any agreement providing for the disposition of
Property (so long as such prohibition or restraint relates only to the Property
to be disposed of), (b) set forth in any of the Loan Documents, the Indentures,
or any other document relating to any existing Indebtedness or any Indebtedness
referred to in Section 10.2(g)(i) (and any comparable prohibitions or restraints
in any document governing any Indebtedness incurred to refinance any of the
foregoing, so long as such prohibitions or restraints are no more restrictive
than those applicable to the Indebtedness being refinanced), (c) set forth in
any Real Property lease agreement, licenses, contracts entered into in the
ordinary course of business or the Marine World Agreements otherwise permitted
hereunder to the extent that such prohibition or restraint relates only to the
Property which is the subject of such instrument and could not reasonably be
expected to result in a Material Adverse Effect, (d) set forth in any instrument
relating to a Permitted Lien, so long as such prohibitions or restraints relate
only to the Property encumbered by such Permitted Lien and (e) set forth in the
documents relating to the Spanish WB Acquisition, so long as such prohibitions
or restraints relate only to the Property which is the subject of the Spanish WB
Acquisition.
10.13 LINES OF BUSINESS. Engage to any substantial extent in
any line or lines of business activity other than the business of owning and
operating amusement and attraction parks, and businesses related, ancillary or
complementary thereto.
10.14 MODIFICATIONS OF CERTAIN DOCUMENTS. Consent to any
modification, supplement or waiver of:
(a) any provision of the Indentures, the effect of which would
be materially adverse to the Lenders;
(b) its articles of incorporation or by-laws in any manner
adverse, in any material respects, to the Lenders; or
(c) any provision of the Marine World Agreements, the
Partnership Parks Agreements, the Tax Sharing Agreement or any
agreement relating to any Subsequent Acquisition or any lease of Real
Property with respect to any Park if such modification,
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supplement or waiver would have a material adverse effect upon the
Lenders or the Administrative Agent.
10.15 LIMITATION ON ACTIVITIES OF PARENT AND HOLDINGS. (a) In
the case of Parent and its Subsidiaries (other than Holdings and its
Subsidiaries), notwithstanding anything to the contrary in this Agreement or any
other Loan Document, (i) conduct, transact or otherwise engage in, or commit to
conduct, transact or otherwise engage in, any business or operations other than
those incidental or related to its ownership of the assets permitted to be owned
by it pursuant to clause (ii) of this paragraph (a) or (ii) own, lease, manage
or otherwise operate any properties or assets other than (A) restricted and
unrestricted cash and Permitted Investments, (B) the shares of Capital Stock of
Holdings and the Capital Stock of the entities that are Subsidiaries of Parent
(but not Subsidiaries of Holdings) on the Closing Date or that are subject to
the Partnership Parks Agreements or the Subordinated Indemnity Agreement on the
Closing Date and (C) assets used in the same line of business (or businesses
related, ancillary or complimentary thereto) as Parent and its Subsidiaries
operate on the date hereof, PROVIDED that the aggregate book value of the assets
referred to in this clause (C) shall not, at the time of acquisition of any such
asset, exceed an amount equal to the sum of (x) 10% of the consolidated assets
of Parent and its Subsidiaries (including Holdings and its Subsidiaries) at such
time plus (y) cash and Permitted Investments held on the Closing Date directly
by Parent (and not through any Subsidiary of Parent) and that are not being held
in connection with the defeasance of any securities or otherwise restricted in
any way, and PROVIDED, FURTHER, that (1) in no event shall Parent or any of its
Subsidiaries (other than Holdings and its Subsidiaries) make any Investment, or
series of related Investments, in an amount in excess of $175,000,000 and (2)
the limitation in clause (1) above shall not apply to (I) Investments in
Holdings and its Subsidiaries and (II) Capital Expenditures in respect of an
Investment that was previously made in a transaction otherwise permitted by this
paragraph (a).
(b) In the case of Holdings, notwithstanding anything to the
contrary in this Agreement or any other Loan Document, conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in, any
business or operations other than (A) those incidental or related to its
ownership of the Capital Stock owned by it on the Closing Date and any Capital
Stock acquired by it after the Closing Date in accordance with this Agreement
and (B) those incidental to the purchase and contribution of the Marine World
Contributed Capital Expenditures.
10.16 LIMITATION ON HEDGING AGREEMENTS. Enter into any Hedging
Agreement other than Hedging Agreements entered into in the ordinary course of
business, and not for speculative purposes, to protect against changes in
interest rates or foreign exchange rates.
SECTION 11. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) any Borrower shall default in the payment when due in
accordance with the terms hereof of any principal of any Loan or
Reimbursement Obligation, or shall default
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for three or more Business Days in the payment when due of any interest
on any Loan or Reimbursement Obligation or any fee or any other amount
payable by it hereunder or under any other Loan Document;
(b) any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any
modification or supplement hereto or thereto) by any Loan Party, or any
certificate furnished to any Lender or the Administrative Agent
pursuant to the provisions hereof or thereof, shall prove to have been
false or misleading as of the time made or furnished in any material
respect, in any such case that could reasonably be expected to (either
individually or in the aggregate) materially adversely affect the
operations of any material Park or have a Material Adverse Effect;
(c) (i) Parent, Holdings or the Primary Borrower shall default
in the performance of any of its obligations under (A) any of Section
9.2(a), Section 9.6 or Section 10 of this Agreement or Section 5.7(b)
of the Guarantee and Collateral Agreement or (B) Section 5.5 of the
Guarantee and Collateral Agreement and such default shall continue
unremedied for a period of 30 days or (ii) an "Event of Default" under
and as defined in any Mortgage shall have occurred and be continuing;
(d) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (c) of this Section 11) or
any other Loan Document and such failure shall continue unremedied for
a period of 30 days after notice thereof to the Primary Borrower by the
Administrative Agent or any Lender (through the Administrative Agent);
(e) Any Loan Party shall default in the payment when due of
any principal of or interest on any of its other Indebtedness
aggregating $10,000,000 or more or any Loan Party shall default in the
payment when due of any amount aggregating $10,000,000 or more under
any Hedging Agreement;
(f) any event specified in any note, agreement, indenture or
other document evidencing or relating to any other Indebtedness
aggregating $10,000,000 or more of any Loan Party shall occur if the
effect of such event is to cause, or (with the giving of any notice or
the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness trade at a
level specified in relation to the par value thereof; or any event
specified in any Hedging Agreement shall occur if the effect of such
event is to cause, or (with the giving of any notice or the lapse of
time or both) to permit, termination or liquidation payment or payments
aggregating $10,000,000 or more to become due;
(g) a proceeding or case shall be commenced, without the
application or consent of Parent, Holdings, the Primary Borrower or any
Subsidiary, in any court of competent
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jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its
debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of Parent, Holdings, the Primary
Borrower or such Subsidiary or of all or any substantial part of its
Property, or (iii) similar relief in respect of Parent, Holdings, the
Primary Borrower or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against Parent,
Holdings, the Primary Borrower or any Subsidiary shall be entered in an
involuntary case under the Bankruptcy Code or any other applicable
bankruptcy, insolvency or similar laws;
(h) Parent, Holdings, the Primary Borrower or any Subsidiary
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its Property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code or any other applicable
bankruptcy, insolvency or similar laws, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code or
any other applicable bankruptcy, insolvency or similar laws or take any
corporate action for the purpose of effecting any of the foregoing;
(i) Parent, Holdings, the Primary Borrower or any Subsidiary
shall admit in writing its inability to, or be generally unable to, pay
its debts as such debts become due;
(j) a final judgment or judgments for the payment of money of
$5,000,000 or more in the aggregate (exclusive of judgment amounts to
the extent covered by insurance or indemnification of creditworthy
third parties) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against Parent, Holdings,
the Primary Borrower or any Subsidiary and the same shall not be
discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 60 days from
the date of entry thereof and Parent, Holdings, the Primary Borrower or
the relevant Subsidiary shall not, within such period of 60 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal;
(k) an event or condition specified in Section 9.2(c) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, Parent, Holdings, the Primary Borrower or any Subsidiary
or any ERISA Affiliate shall incur or in the opinion of the Required
Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the foregoing)
that, in the determination of the
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Required Lenders, would (either individually or in the aggregate) have
a Material Adverse Effect;
(l) there shall have been asserted against Parent, Holdings,
the Primary Borrower or any Subsidiary a claim under any Environmental
Law that, in the judgment of the Required Lenders, is reasonably likely
to be determined adversely to Parent, Holdings, the Primary Borrower or
any Subsidiary, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect
(insofar as such amount is payable by Parent, Holdings, the Primary
Borrower or any Subsidiary but after deducting any portion thereof that
is reasonably expected to be paid by other creditworthy Persons liable
in whole or in part therefor);
(m) any one or more of the following shall occur and be
continuing:
(i) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "EXCHANGE ACT") is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more
than 35% of the voting stock of Parent;
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of Parent (together with any new
directors whose election by such Board of Directors or whose
nomination for election by Parent's shareholders was approved
by a vote of a majority of Parent's directors then still in
office who either were directors at the beginning of such
period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of Parent's directors then in office;
(iii) any change in control with respect to Parent
(or similar event, however denominated) shall occur under and
as defined in any Indenture or other agreement in respect of
Indebtedness in an aggregate principal amount of at least
$10,000,000 to which Parent, Holdings or any of its
Subsidiaries is a party; or
(iv) Parent shall cease to own directly or indirectly
100% of the Capital Stock of Holdings and each of the
Borrowers;
(n) (i) any of the Liens created by the Security Documents
shall at any time not constitute valid and perfected Liens on the
Collateral (other than immaterial items of Collateral) intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of
the Administrative Agent, free and clear of all other Liens (other than
Liens permitted under Section 10.3 or under the respective Security
Documents), or, except for expiration in accordance with its
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terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Loan Party or (ii) the
Guarantee contained in Section 2 of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in full force and effect
or any Loan Party or any Affiliate of any Loan Party shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g), (h) or (i) above with respect to any Borrower, automatically
the Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
then, any or all of the following actions may be taken: (i) with the consent of
the Majority Revolving Credit Facility Lenders, the Administrative Agent may, or
upon the request of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Primary Borrower, declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving
Credit Commitments shall immediately terminate; (ii) with the consent of the
Majority Multicurrency Facility Lenders, the Administrative Agent may, or upon
the request of the Majority Multicurrency Facility Lenders, the Administrative
Agent shall, by notice to the Primary Borrower, declare the Multicurrency
Commitments to be terminated forthwith, whereupon the Multicurrency Commitments
shall immediately terminate; and (iii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Primary Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the relevant Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrowers hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Primary Borrower (or such other Person as may be lawfully entitled
thereto).
SECTION 12. THE AGENTS
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12.1 APPOINTMENT. Each Lender hereby irrevocably designates
and appoints the Agents as the agents of such Lender under this Agreement and
the other Loan Documents, and each Lender irrevocably authorizes each Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.
12.2 DELEGATION OF DUTIES. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
12.3 EXCULPATORY PROVISIONS. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
12.4 RELIANCE BY AGENTS. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Loan Parties), independent accountants and
other experts selected by such Agent. The Agents may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.6 and all actions required by such
Section in connection with such transfer shall have been taken. Each Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any
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other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders or any
other instructing group of Lenders specified by this Agreement), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Loans.
12.5 NOTICE OF DEFAULT. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent shall have received notice from a Lender, Holdings
or a Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent shall receive such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement); PROVIDED that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
12.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender
expressly acknowledges that neither any of the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, Property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, Property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the Business, Property, condition (financial or otherwise), prospects
or creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the
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possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
12.7 INDEMNIFICATION. The Lenders agree to indemnify each
Agent in its capacity as such (to the extent not reimbursed by Holdings or the
Borrowers and without limiting the obligation of Holdings or the Borrowers to do
so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save each Agent harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; PROVIDED that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's gross
negligence or willful misconduct. The Administrative Agent shall have the right
to deduct any amount owed to it by any Lender under this Section from any
payment made by it to such Lender hereunder. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder.
12.8 AGENT IN ITS INDIVIDUAL CAPACITY. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
12.9 SUCCESSOR AGENTS. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders and Holdings. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 11(g), (h) or (i) with respect to
Holdings or a Borrower shall have occurred and be continuing) be subject to
approval by Holdings (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the
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Loans. If no successor agent has accepted appointment as Administrative Agent by
the date that is 10 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. The
Syndication Agent may, at any time, by notice to the Lenders and the
Administrative Agent, resign as Syndication Agent hereunder, whereupon the
duties, rights, obligations and responsibilities of the Syndication Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the
Administrative Agent, without any further act by the Syndication Agent, the
Administrative Agent or any Lender. After any retiring Agent's resignation as
Agent, the provisions of this Section 12 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents.
12.10 AUTHORIZATION TO RELEASE LIENS AND GUARANTEES. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations contemplated by Section
13.15.
12.11 THE ARRANGERS. Neither the Arrangers, the Syndication
Agent nor the Documentation Agents, in their respective capacities as such,
shall have any duties or responsibilities, and none of them shall incur any
liability, under this Agreement and the other Loan Documents.
SECTION 13. MISCELLANEOUS
13.1 AMENDMENTS AND WAIVERS. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 13.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or (with the written consent of the Required Lenders) the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (i) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents (including amendments and
restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (ii) waive, on
such terms and conditions as may be specified in the instrument of waiver, any
of the requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; PROVIDED, HOWEVER, that no such waiver
and no such amendment, supplement or modification shall:
(A) forgive the principal amount or extend the final scheduled
date of maturity of any Loan or Reimbursement Obligation, extend the
scheduled date or change the amount of any amortization payment in
respect of any Loan, reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof,
or increase the amount or extend the expiration date of any Commitment
of any Lender, in each case without the consent of each Lender directly
affected thereby;
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(B) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required Lenders
or Required Prepayment Lenders, consent to the assignment or transfer
by Parent, Holdings or any Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release
all or substantially all of the Collateral, release all or
substantially all of the Subsidiary Guarantors from their guarantee
obligations under the Guarantee and Collateral Agreement, release
Holdings from its guarantee obligations under the Guarantee and
Collateral Agreement or release the Primary Borrower from its guarantee
obligations under the Guarantee and Collateral Agreement, in each case
without the consent of all Lenders (except (i) as permitted by any Loan
Document or (ii) that such obligations of any Subsidiary Borrower may
be transferred to any other Subsidiary Borrower or the Primary Borrower
with the consent of the Required Lenders);
(C) change the percentage specified in the definition of
Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility;
(D) amend, modify or waive any provision of Section 12 without
the consent of any Agent or Arranger directly affected thereby;
(E) amend, modify or waive any provision of Section 3.3 or 3.4
without the written consent of the Swing Line Lender;
(F) amend, modify or waive any provision of Section 6.11
without the consent of each Lender directly affected thereby;
(G) amend, modify or waive any provision of Section 5 without
the consent of the Issuing Lender;
(H) amend, modify or waive any provision of Section 6.5(d)
without the consent of the Required Prepayment Lenders; or
(I) require any Lender to make Loans having an Interest Period
of longer than six months without the consent of such Lender.
(b) In addition to amendments effected pursuant to the
foregoing paragraph (a):
(i) this Agreement will be amended to add any Foreign
Subsidiary of the Primary Borrower as a Foreign Subsidiary Borrower
with respect to the Multicurrency Facility upon (A) execution and
delivery by the Primary Borrower, any such Foreign Subsidiary Borrower
and the Administrative Agent, of a Joinder Agreement providing for such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to
the Administrative Agent of (I) a Foreign Subsidiary Opinion in respect
of such additional
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Foreign Subsidiary Borrower and (II) such other documents with respect
thereto as the Administrative Agent shall reasonably request; and
(ii) this Agreement will be amended to remove any Subsidiary
as a Foreign Subsidiary Borrower upon (A) written notice by the Primary
Borrower to the Administrative Agent to such effect and (B) repayment
in full of all outstanding extensions of credit made to such Foreign
Subsidiary Borrower hereunder.
Any such waiver and any such amendment, supplement or modification effected
pursuant to the foregoing paragraphs (a) or (b) shall apply equally to each of
the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. Any
such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this Section; PROVIDED, that delivery of an executed
signature page of any such instrument by facsimile transmission shall be
effective as delivery of a manually executed counterpart thereof.
For the avoidance of doubt, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party to each relevant Loan Document (x) to
add one or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest, fees and other amounts in respect thereof (collectively, the
"ADDITIONAL EXTENSIONS OF CREDIT") to share ratably in the benefits of this
Agreement and the other Loan Documents with the Tranche B Term Loans,
Multicurrency Extensions of Credit and Revolving Extensions of Credit and the
accrued interest and fees in respect thereof and (y) to include appropriately
the Lenders holding such credit facilities in any determination of the Required
Lenders, Required Prepayment Lenders, Majority Multicurrency Facility Lenders
and Majority Revolving Credit Facility Lenders; PROVIDED, HOWEVER, that no such
amendment shall permit the Additional Extensions of Credit to share ratably with
or with preference to the Loans in the application of prepayments without the
consent of the Required Prepayment Lenders, and no such amendment shall, without
the consent of all Lenders, subordinate any of the Loans, or any of the rights
in the Collateral of any Lenders, to any such Additional Extension of Credit.
13.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of Parent, Holdings, the Borrowers, the
Agents and the Issuing Lenders as follows and (b) in the case of the Lenders, as
set forth in an administrative questionnaire delivered to the Administrative
Agent or on Schedule I to the Lender Addendum to which such Lender is a party
or, in the case of a Lender which becomes a
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party to this Agreement pursuant to an Assignment and Acceptance, in such
Assignment and Acceptance or (c) in the case of any party, to such other address
as such party may hereafter notify to the other parties hereto:
Parent or Holdings: c/o Premier Parks Operations Inc.
122 East 42nd Street, 49th Floor
New York, New York 10168
Attention: Chief Financial Officer
Telecopy: (212) 949-6203
Telephone: (212) 599-4693
with a copy to: Premier Parks Operations Inc.
122 East 42nd Street, 49th Floor
New York, New York 10168
Attention: General Counsel
Telecopy: (212) 949-6203
Telephone: (212) 599-4690
The Primary Borrower: Six Flags Theme Parks Inc.
c/o Holdings, as set forth above
The Subsidiary Borrowers: c/o Holdings, as set forth above.
The Syndication Agent: The Bank of New York
One Wall Street
New York, New York 10286
Attention: Trisha Hardy/ Torry Berntsen
Telecopy: (212) 635-8268
Telephone: (212) 635-8473
The Documentation Agents: Bank of America, N.A.
335 Madison Avenue
New York, New York 10017-4698
Attention: Thomas J. Kane
Telecopy: (212) 503-7173
Telephone: (212) 503-7980
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: Brenda Insull
Telecopy: (212) 225-5090
Telephone: (212) 225-5043
The Administrative Agent: Lehman Commercial Paper Inc.
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3 World Financial Center
New York, New York 10285
Attention: Michael O'Brien
Telecopy: (212) 526-7691
Telephone: (212) 526-0437
Issuing Lender: As notified by such Issuing Lender to the
Administrative Agent and the Primary Borrower
PROVIDED that any notice, request or demand to or upon the any Agent, the
Issuing Lender or any Lender shall not be effective until received.
13.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the any Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
13.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
13.5 PAYMENT OF EXPENSES. The Primary Borrower agrees (a) to
pay or reimburse the Agents for all their reasonable out-of-pocket costs and
expenses incurred in connection with the syndication of the Facilities (other
than fees payable to syndicate members) and the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements and other charges of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Agents for all
their costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel to the Lenders and the Agents, (c) to pay, indemnify,
or reimburse each Lender and the Agents for, and hold each Lender and the Agents
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify or
reimburse each Lender, each Agent, their respective affiliates, and their
respective officers, directors, trustees, employees, advisors, agents and
controlling persons
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(each, an "INDEMNITEE") for, and hold each Indemnitee harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of Holdings
or any of its Subsidiaries or any of the Properties and the fees and
disbursements and other charges of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party hereunder (all
the foregoing in this clause (d), collectively, the "INDEMNIFIED LIABILITIES"),
PROVIDED, that the Primary Borrower shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, Holdings agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries so to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements payable
by the Primary Borrower pursuant to this Section shall be submitted to the
attention of the Chief Financial Officer (Telephone No. 212-599-4693) (Fax No.
212-949-6203), at the address of the Primary Borrower set forth in Section 13.2,
or to such other Person or address as may be hereafter designated by the Primary
Borrower in a written notice to the Administrative Agent. The agreements in this
Section shall survive repayment of the Loans and all other amounts payable
hereunder.
13.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of Parent,
Holdings, the Borrowers, the Lenders, the Agents, all future holders of the
Loans and their respective successors and assigns, except that neither Parent,
nor Holdings nor (except as set forth in Section 13.1(a)) any Borrower may
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of any Loan Party or
any Agent, in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a "PARTICIPANT")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Loan Parties and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any
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Participant under any such participation have any right to approve any amendment
or waiver of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would require the consent of all Lenders pursuant to Section 13.1. Each
of Parent, Holdings and each Borrower agrees that if amounts outstanding under
this Agreement and the Loans are due or unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, PROVIDED that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 13.7(a) as fully as if such Participant
were a Lender hereunder. Each of Parent, Holdings and each Borrower also agrees
that each Participant shall be entitled to the benefits of Sections 6.12, 6.13,
6.14 and 13.5 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if such Participant were a Lender; PROVIDED
that, in the case of Section 6.13, such Participant shall have complied with the
requirements of said Section, and PROVIDED, FURTHER, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "ASSIGNOR") may, in accordance with
applicable law and upon written notice to the Administrative Agent, at any time
and from time to time assign to any Lender or any affiliate, Control Investment
Affiliate or Related Fund thereof or, with the consent of the Primary Borrower
and the Administrative Agent and, in the case of any assignment of Revolving
Credit Commitments, the written consent of the Swing Line Lender and, in the
case of any assignment of Multicurrency Commitments, the written consent of each
Issuing Lender (which, in each case, shall not be unreasonably withheld or
delayed) (PROVIDED that, unless the assignee cannot deliver the exemption
certificate annexed hereto as Exhibit I, (x) no such consent need be obtained by
any Lehman Entity for a period of 180 days following the Closing Date and (y)
the consent of the Primary Borrower need not be obtained with respect to any
assignment of Tranche B Term Loans), to an additional bank, financial
institution or other entity (an "ASSIGNEE") all or any part of its rights and
obligations under this Agreement pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit E (an "ASSIGNMENT AND ACCEPTANCE"),
executed by such Assignee and such Assignor (and, where the consent of the
Primary Borrower, the Administrative Agent, the Issuing Lender or the Swing Line
Lender is required pursuant to the foregoing provisions, by the Primary Borrower
and such other Persons) and delivered to the Administrative Agent for its
acceptance and recording in the Register; PROVIDED that no such assignment to an
Assignee (other than any Lender or any affiliate, Control Investment Affiliate
or Related Fund thereof) shall be in an aggregate principal amount of less than
$5,000,000 (other than in the case of an assignment of all of a Lender's
interests under this Agreement), unless otherwise agreed by the Primary Borrower
and the Administrative Agent. Any such assignment need not be ratable as among
the Facilities. Upon such execution, delivery, acceptance and recording, from
and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
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extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments and/or Loans as set forth
therein, and (y) the Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an Assignor's
rights and obligations under this Agreement, such Assignor shall cease to be a
party hereto, except as to Section 6.12, 6.13 and 13.5 in respect of the period
prior to such effective date). Notwithstanding any provision of this Section,
the consent of the Primary Borrower shall not be required for any assignment
that occurs at any time when any Event of Default shall have occurred and be
continuing. In the event that any Dollar Multicurrency Commitment or General
Multicurrency Commitment, as the case may be, shall be assigned pursuant to this
Section 13.6, such Multicurrency Commitment shall continue to be a Dollar
Multicurrency Commitment or General Multicurrency Commitment, as the case may
be; and the Assignee Lender in respect thereof shall be a Dollar Multicurrency
Lender or a General Multicurrency Lender, respectively.
(d) The Administrative Agent shall, on behalf of the
Borrowers, maintain a copy of each Assignment and Acceptance delivered to it and
a register (the "REGISTER") for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrowers, each Agent and the Lenders
shall treat each Person whose name is recorded in the Register as the owner of
the Loans and any Notes evidencing such Loans recorded therein for all purposes
of this Agreement. Any assignment of any Loan, whether or not evidenced by a
Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance; thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the designated Assignee, and the old Notes
shall be returned by the Administrative Agent to the relevant Borrower marked
"canceled". The Register shall be available for inspection by the Primary
Borrower or any Lender (with respect to any entry relating to such Lender's
Loans) at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 13.6(c), by each such other Person) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 (except that no such registration and processing fee shall be payable (y)
in connection with an assignment by or to any Lehman Entity or (z) in the case
of an Assignee which is already a Lender or is an affiliate or a Related Fund of
a Lender or a Person under common management with a Lender), the Administrative
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders, the Agents and the Primary Borrower. On or prior to such effective
date, each relevant Borrower, at its own expense, upon request, shall execute
and deliver to the Administrative Agent (in exchange for the applicable Notes of
the assigning Lender) a new applicable Note or Notes, as the case may be, to the
order of such Assignee in an
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amount equal to the relevant Commitment and/or applicable Tranche B Term Loans,
as the case may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the Assignor has retained a Commitment and/or Tranche B Term
Loans, as the case may be, upon request, a new applicable Note or Notes, as the
case may be, to the order of the Assignor in an amount equal to the applicable
Commitment and/or Tranche B Term Loans, as the case may be, retained by it
hereunder. Such new Note or Notes shall be dated the Closing Date and shall
otherwise be in the form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable Requirements of Law.
13.7 ADJUSTMENTS; SET-OFF. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, (i) except to the extent that the Loan
Documents provide that only the Tranche B Term Loans shall be secured by the
Mortgaged Property of the Primary Borrower or any Subsidiary thereof located in
the State of New York (the "NEW YORK COLLATERAL"), if any Lender shall at any
time receive any payment of all or part of the Obligations owing to it, or
receive any Collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 11(g), (h) or (i), or otherwise), in a greater proportion than any such
payment to or Collateral received by any other Lender, if any, in respect of the
Obligations owing to such other Lender, or (ii) if, as a result of any exercise
of rights and remedies with respect to the New York Collateral, any Lender
holding a Tranche B Term Loan shall at any time receive any payment of all or
part of the Obligations owing to it (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
11(g), (h) or (i), or otherwise), in a greater proportion than any such payment
to any other Lender, if any, in respect of the Obligations owing to such other
Lender, such benefitted Lender (each benefitted Lender referred to in clauses
(i) and (ii) above, a "BENEFITTED LENDER") shall purchase for cash from the
other Lenders a participating interest in such portion of the Obligations owing
to each such other Lender, or shall provide such other Lenders with the benefits
of any such Collateral, or the proceeds thereof, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such
Collateral, or the proceeds thereof, ratably with each of the Lenders; PROVIDED,
HOWEVER, that if all or any portion of such excess payment, benefits or proceeds
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
Parent, Holdings or any Borrower, any such notice being expressly waived by
Parent, Holdings and each Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by any Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise), to set off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each
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case whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency thereof to or
for the credit or the account of Parent, Holdings or any Borrower, as the case
may be. Each Lender agrees promptly to notify Parent and the Administrative
Agent after any such setoff and application made by such Lender, PROVIDED that
the failure to give such notice shall not affect the validity of such setoff and
application.
13.8 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement or of a Lender Addendum by facsimile transmission shall be effective
as delivery of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all the parties shall be lodged with Holdings and the
Administrative Agent.
13.9 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.10 INTEGRATION. This Agreement and the other Loan Documents
represent the entire agreement of the parties hereto with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Arranger, any Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
13.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.12 SUBMISSION TO JURISDICTION; WAIVERS. Each of Parent,
Holdings and each Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
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(c) in the case of each Foreign Subsidiary Borrower, such
Foreign Subsidiary Borrower hereby irrevocably designates Holdings (and
Holdings hereby irrevocably accepts such designation) as its agent to
receive service of process in any such action or proceeding, and agrees
that such service upon Holdings shall be effective whether or not
Holdings shall inform such Foreign Subsidiary Borrower thereof;
(d) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Parent or Holdings, as the case may be, (and, in the case
of any Foreign Subsidiary Borrower, to such Foreign Subsidiary Borrower
c/o Holdings) at its address set forth in Section 13.2 or at such other
address of which the Administrative Agent shall have been notified
pursuant thereto;
(e) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(f) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
13.13 ACKNOWLEDGMENTS. Each of Parent, Holdings and each
Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Arrangers, any Agent nor any Lender has any
fiduciary relationship with or duty to Parent, Holdings or any Borrower
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Arrangers, the Agents
and the Lenders, on one hand, and Parent, Holdings and the Borrowers,
on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Arranger, the Agents and the Lenders or
among Parent, Holdings, the Borrowers and the Lenders.
13.14 CONFIDENTIALITY. Each of the Agents and the Lenders
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; PROVIDED that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Arranger, any Agent, any other
Lender or any affiliate of any thereof, (b) to any Participant or Assignee
(each, a "TRANSFEREE") or prospective Transferee that agrees to comply with the
provisions of this Section, (c) to any of its employees, directors, agents,
attorneys, accountants and other
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professional advisors, (d) to any financial institution that is a direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section), (e) upon the request or demand of any Governmental
Authority having jurisdiction over it, (f) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (g) in connection with any litigation or similar proceeding,
(h) that has been publicly disclosed other than in breach of this Section, (i)
to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (j) in connection with the exercise of any
remedy hereunder or under any other Loan Document.
13.15 RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon request of Holdings in connection
with any Disposition of Property permitted by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of,
any Lender, or any affiliate of any Lender that is a party to any
Specified Hedge Agreement) take such actions as shall be required to
release its security interest in any Collateral being Disposed of in
such Disposition, and to release any guarantee obligations under any
Loan Document of any Person being Disposed of in such Disposition, to
the extent necessary to permit consummation of such Disposition in
accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations (other than
obligations in respect of any Specified Hedge Agreement) have been paid
in full, all Commitments have terminated or expired and no Letter of
Credit shall be outstanding, upon request of Holdings, the
Administrative Agent shall (without notice to, or vote or consent of,
any Lender, or any affiliate of any Lender that is a party to any
Specified Hedge Agreement) take such actions as shall be required to
release its security interest in all Collateral, and to release all
guarantee obligations under any Loan Document, whether or not on the
date of such release there may be outstanding Obligations in respect of
Specified Hedge Agreements. Any such release of guarantee obligations
shall be deemed subject to the provision that such guarantee
obligations shall be reinstated if after such release any portion of
any payment in respect of the Obligations guaranteed thereby shall be
rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, any Borrower or any Guarantor or any substantial
part of its Property, or otherwise, all as though such payment had not
been made.
13.16 ACCOUNTING CHANGES. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of
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<PAGE>
financial covenants, standards or terms in this Agreement, then Holdings, the
Borrowers and the Administrative Agent agree to enter into negotiations in order
to amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating the
financial condition of Holdings and the Borrowers shall be the same after such
Accounting Changes as if such Accounting Changes had not been made. Until such
time as such an amendment shall have been executed and delivered by Parent,
Holdings, the Borrowers, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Changes had not occurred.
"ACCOUNTING CHANGES" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.
13.17 DELIVERY OF LENDER ADDENDA. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Primary Borrower and the
Administrative Agent.
13.18 WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PREMIER PARKS INC.
By: ______________________________________
Name:
Title:
PREMIER PARKS OPERATIONS INC.
By: ______________________________________
Name:
Title:
SIX FLAGS THEME PARKS INC.,
as Primary Borrower
By: ______________________________________
Name:
Title:
LEHMAN BROTHERS INC.,
as an Arranger
By: ______________________________________
Name:
Title:
LEHMAN BROTHERS INTERNATIONAL
(EUROPE) INC., as an Arranger
By: ______________________________________
Name:
Title:
119
<PAGE>
THE BANK OF NEW YORK, as Syndication
Agent
By: ______________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Documentation
Agent
By: ______________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Documentation Agent
By: ______________________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent
By: ______________________________________
Name:
Title:
120
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<PAGE>
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0
12
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