Exhibit (10)(ar)
[Conformed Copy]
28490-04002
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CREDIT AGREEMENT
dated as of
April 1, 1998
SIX FLAGS THEME PARKS INC.,
SIX FLAGS ENTERTAINMENT CORPORATION,
S.F. HOLDINGS, INC.,
THE SUBSIDIARY GUARANTORS THEREOF,
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK,
as Administrative Agent
LEHMAN BROTHERS INC.,
as Advisor, Arranger,
and Syndication Agent
$472,000,000
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[Exhibits B and C have been conformed to
appear as delivered and Exhibits E-1, E-2 and F
are photocopies of the Opinions as delivered.]
TABLE OF CONTENTS
Page
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Section 1. Definitions and Accounting Matters............................2
1.01. Certain Defined Terms.....................................2
1.02. Accounting Terms and Determinations......................24
1.03. Classes and Types of Loans...............................24
1.04. Terms Generally..........................................25
Section 2. Commitments, Loans, Notes and Prepayments....................25
2.01. Loans....................................................25
2.02. Borrowings...............................................26
2.03. Letters of Credit........................................26
2.04. Changes of Commitments...................................31
2.05. Commitment Fee...........................................31
2.06. Lending Offices..........................................31
2.07. Several Obligations; Remedies Independent................32
2.08. Notes....................................................32
2.09. Optional Prepayments and Conversions or
Continuations of Loans...................................32
2.10. Mandatory Prepayments and Reductions of
Commitments..............................................33
Section 3. Payments of Principal and Interest...........................36
3.01. Repayment of Loans.......................................36
3.02. Interest.................................................37
Section 4. Payments; Pro Rata Treatment; Computations, Etc..............38
4.01. Payments.................................................38
4.02. Pro Rata Treatment.......................................39
4.03. Computations.............................................39
4.04. Minimum Amounts..........................................39
4.05. Certain Notices..........................................40
4.06. Non-Receipt of Funds by the Administrative Agent.........40
4.07. Sharing of Payments, Etc.................................41
Section 5. Yield Protection, Etc........................................42
5.01. Additional Costs.........................................42
5.02. Limitation on Types of Loans.............................44
5.03. Illegality...............................................45
5.04. Treatment of Affected Loans..............................45
5.05. Compensation.............................................46
5.06. Additional Costs in Respect of Letters of Credit.........46
5.07. U.S. Taxes...............................................47
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5.08. Replacement of Lenders...................................48
Section 6. Guarantee....................................................49
6.01. The Guarantee............................................49
6.02. Obligations Unconditional................................49
6.03. Reinstatement............................................50
6.04. Subrogation..............................................50
6.05. Remedies.................................................50
6.06. Instrument for the Payment of Money......................51
6.07. Continuing Guarantee.....................................51
6.08. Rights of Contribution...................................51
6.09. General Limitation on Guarantee Obligations..............52
Section 7. Conditions...................................................52
7.01. Initial Extension of Credit of any Class.................52
7.02. Initial and Subsequent Extensions of Credit..............55
Section 8. Representations and Warranties...............................56
8.01. Organization; Powers.....................................56
8.02. Financial Condition......................................56
8.03. Litigation...............................................57
8.04. No Breach................................................57
8.05. Action...................................................57
8.06. Approvals................................................58
8.07. Properties and Permits, Etc..............................58
8.08. Environmental Matters....................................59
8.09. Compliance with Laws and Agreements......................61
8.10. Investment Company Act...................................61
8.11. Public Utility Holding Company Act.......................61
8.12. Taxes....................................................61
8.13. ERISA....................................................61
8.14. True and Complete Disclosure.............................61
8.15. Use of Credit............................................62
8.16. Debt Agreements and Liens................................62
8.17. Capitalization...........................................62
8.18. Subsidiaries and Investments.............................63
8.19. Parks; Real Property.....................................63
8.20. Insurance................................................64
8.21. Labor Matters............................................64
8.22. Solvency...............................................64
8.23. Year 2000 Issues.......................................65
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Section 9. Covenants of the Borrower....................................65
9.01. Financial Statements and Other Information...............65
9.02. Notices of Material Events...............................68
9.03. Existence, Etc...........................................69
9.04. Insurance................................................70
9.05. Prohibition of Fundamental Changes.......................72
9.06. Negative Pledge..........................................74
9.07. Indebtedness.............................................75
9.08. Investments..............................................76
9.10. Certain Financial Covenants..............................78
9.11. Subordinated Indebtedness................................80
9.12. Lines of Business........................................80
9.13. Transactions with Affiliates.............................80
9.14. Use of Proceeds, Etc.....................................80
9.15. Certain Further Assurances...............................81
9.16. Modifications of Certain Documents.......................83
Section 10. Events of Default...........................................83
Section 11. The Administrative Agent and Arranger.......................87
11.01. Appointment, Powers and Immunities......................87
11.02. Reliance by Administrative Agent........................88
11.03. Defaults................................................89
11.04. Rights as a Lender......................................89
11.05. Indemnification.........................................89
11.06. Non-Reliance on Administrative Agent, the Arranger
and Other Lenders.......................................90
11.07. Failure to Act..........................................90
11.08. Resignation or Removal of Administrative Agent..........90
11.09. Consents under Other Loan Documents.....................91
11.10. Arranger................................................91
Section 12. Other Provisions............................................91
12.01. Notices.................................................91
12.02. Waiver..................................................91
12.03. Amendments, Etc.........................................92
12.04. Expenses, Etc...........................................92
12.05. Successors and Assigns..................................94
12.06. Assignments and Participations..........................94
12.07. Survival................................................96
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12.08. Counterparts............................................96
12.09. Governing Law; Submission to Jurisdiction...............97
12.10. WAIVER OF JURY TRIAL....................................97
12.11. Captions................................................97
12.12. Confidentiality.........................................97
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EXHIBITS
Exhibit A-1 - Form of Facility A Revolving Credit Note
Exhibit A-2 - Form of Facility B Term Loan Note
Exhibit B - Form of Security Agreement
Exhibit C - Form of Pledge Agreement
Exhibit D - Form of Guarantee Assumption Agreement
Exhibit E-1 - Form of Opinion of Baer Marks & Upham LLP
Counsel to the Obligors
Exhibit E-2 - Form of Opinion of Weil, Gotshal and Manges LLP,
Counsel to the Obligors
Exhibit F - Form of Opinion of Special New York Counsel to
the Arranger
Exhibit G - Form of Assignment and Acceptance
SCHEDULES
Schedule I - Commitments
Schedule II - Debt Agreements and Liens
Schedule III - Environmental Matters
Schedule IV - Subsidiaries and Investments
Schedule V - Existing Parks and Real Property
Schedule VI - Certain Litigation
Schedule VII - Insurance
Schedule VIII - Certain EBITDA Adjustments
Schedule IX - Labor Matters
CREDIT AGREEMENT dated as of April 1, 1998, between: SIX FLAGS
THEME PARKS INC., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Borrower"); SIX FLAGS ENTERTAINMENT
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CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware ("SFEC"); S. F. HOLDINGS, INC., a corporation duly
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organized and validly existing under the laws of the State of Delaware ("SFH");
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each of the Subsidiaries of the Borrower identified under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereto and each Subsidiary of the
Borrower that becomes a "Subsidiary Guarantor" after the date hereof pursuant to
--------------------
Section 9.15(a) (individually, a "Subsidiary Guarantor" and, collectively, the
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"Subsidiary Guarantors" and, together with the Borrower, SFEC and SFH, the
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"Obligors"); each of the lenders that is a signatory hereto identified under the
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caption "LENDERS" on the signature pages hereto and each lender that becomes a
"Lender" after the date hereof pursuant to Section 12.06(b) (individually, a
"Lender" and, collectively, the "Lenders"); THE BANK OF NEW YORK, as
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administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Administrative Agent"); and LEHMAN BROTHERS
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INC., a Delaware corporation, as advisor, arranger and syndication agent (the
"Arranger").
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Pursuant to the Merger Agreement (defined below) Premier Parks
Inc (which has been renamed "Premier Parks Operations Inc.") has merged with
Premier Parks Merger Corporation, a Delaware corporation (the "Premier Merger")
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and a direct wholly owned subsidiary of Premier Parks Holdings Corporation
(which has been renamed "Premier Parks Inc.") and has thereby become a direct
wholly owned subsidiary of Premier Parks Inc. and following the Premier Merger,
SFEC and its Subsidiaries (including the Borrower) will merge with PPStar I,
Inc., a Delaware corporation (the "Six Flags Merger") and a direct wholly owned
----------------
subsidiary of Premier Parks Inc. and thereby become a direct wholly owned
subsidiary of Premier Parks Inc. In addition, in connection with the Six Flags
Merger, the ownership interests of the Borrower in the Georgia Partnership
Entities (defined below) and the Texas Partnership Entities (defined below)
shall be transferred to TWE (defined below) or Holdings (defined below), as the
case may be, pursuant to the Indemnity Agreement (defined below) and the Georgia
Partnership Entities and the Texas Partnership Entities will have no liabilities
or obligations under this Agreement.
In connection with the Six Flags Merger, the Borrower has
requested that the Lenders extend credit to it, under the guarantee of SFEC, SFH
and the Subsidiary Guarantors, in an aggregate principle amount of up to
$472,000,000 to refinance existing indebtedness, to enable the payment of
certain dividends to SFH and to provide funds for the working capital and other
general corporate needs of the Borrower and its Subsidiaries, and the Lenders
are prepared to extend such credit upon the terms and conditions hereof,
accordingly, the parties hereto agree as follows:
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Section 1. Definitions and Accounting Matters.
1.01. Certain Defined Terms.
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As used herein, the following terms shall have the following
meanings (all terms defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in the plural and
vice versa and all references herein to Sections, Exhibits and Schedules shall
be construed to refer to Sections of, and Exhibits and Schedules to, this
Agreement):
"Additional Costs" has the meaning set forth in Section 5.01.
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"Administrative Agent" has the meaning set forth in the
--------------------
preamble.
"Administrative Questionnaire" means an Administrative
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Questionnaire in a form supplied by the Administrative Agent.
"Advance Date" has the meaning set forth in Section 4.06.
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"Affiliate" means any Person that directly or indirectly
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controls, or is under common control with, or is controlled by, the Borrower
and, if such Person is an individual, any member of the immediate family
(including parents, spouse, children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise), provided that, in any event, any Person
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that owns directly or indirectly securities having 10% or more of the voting
power for the election of directors or other governing body of a corporation or
10% or more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to control
such corporation or other Person. Notwithstanding the foregoing, (a) no
individual shall be an Affiliate solely by reason of his or her being a
director, officer or employee of the Borrower or any of its Subsidiaries, (b)
none of the Wholly Owned Subsidiaries of the Borrower shall be Affiliates and
(c) none of the Georgia Partnership Entities or the Texas Partnership Entities
shall be Affiliates.
"ANIC" means American National Indemnity Co., a Vermont
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corporation.
"Anniversary Date" has the meaning set forth in Section 9.04.
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"Applicable Lending Office" means, for each Lender and for
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each Type of Loan, the "Lending Office" of such Lender (or of an affiliate of
such Lender) designated for such Type of Loan in such Lender's Administrative
Questionnaire or such other office of such Lender (or of an affiliate of such
Lender) as such Lender may from time to time specify to the Administrative Agent
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and the Borrower as the office by which its Loans of such Type are to be made
and maintained.
"Applicable Rate" means for any day, with respect to any Base
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Rate Loan or Eurodollar Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Base Rate Loans", "Eurodollar Loans" or "Commitment Fee", as
the case may be, based upon the Leverage Ratio as at the last day of the fiscal
quarter most recently ended as to which the Borrower has delivered financial
statements pursuant to Section 9.01:
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LEVERAGE FACILITY A FACILITY B
RATIO: REVOLVING LOAN TERM LOAN COMMITMENT FEE:
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BASE RATE EURODOLLAR BASE RATE EURODOLLAR
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Greater than 1.25% 2.50% 1.50% 2.75% 0.50%
5.00 to 1
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Greater than 1.00% 2.25% 1.50% 2.75% 0.375%
4.00 to 1
but less than
or equal to
5.00 to 1
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Greater than 0.50% 1.75% 1.25% 2.50% 0.375%
3.00 to 1 but
less than or
equal to 4.00
to 1
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Less than or 0.00% 1.25% 1.25% 2.50% 0.25%
equal to 3.00
to 1
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Notwithstanding the foregoing, for the period beginning on the
Closing Date to the date that is six months after the Closing Date, (a) the
Applicable Rate for (i) Facility A Revolving Credit Loans shall be 1.25% in the
case of Base Rate Loans and 2.50% in the case of Eurodollar Loans and (ii)
Facility B Term Loans shall be 1.50% in the case of Base Rate Loans and 2.75% in
the case of Eurodollar Loans and (b) the Commitment Fee shall be 0.50%.
Subject to the last sentence of the immediately preceding
paragraph, each change in the "Applicable Rate" based upon any change in the
Leverage Ratio shall become effective for purposes of the accrual of interest
and commitment fees hereunder on the date three Business Days after the delivery
to the Administrative Agent and each Lender of the financial statements of the
Borrower and its Subsidiaries for the most recently ended fiscal quarter
pursuant to Section 9.01, and shall remain effective for such purpose until
three Business Days after the next delivery of such financial statements to the
Administrative Agent and each Lender hereunder, provided that, notwithstanding
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the foregoing, the Applicable Rate shall be the highest rates provided for in
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the above schedule for any period during which either (i) an Event of Default
shall have occurred and be continuing or (ii) the Borrower shall be in default
of its obligation to deliver financial statements for any fiscal quarter by the
times specified in Section 9.01 (but upon the cure or waiver of any such Event
of Default or default, this proviso shall no longer be applicable until another
such Event of Default or default shall occur).
"Approved Fund" means, with respect to any Lender that is a
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fund that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment adviser as such Lender or
by an Affiliate of such investment adviser.
"Assignment and Acceptance" means an assignment and acceptance
-------------------------
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 12.06(b)), and accepted by the Administrative
Agent, in the form of Exhibit G or any other form approved by the Administrative
Agent.
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978,
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as amended from time to time.
"Base Rate" means, for any day, a rate per annum equal to the
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higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" means Loans that bear interest at rates
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based upon the Base Rate.
"Basic Documents" means the Loan Documents, the Merger
---------------
Agreement, the Indemnity Agreement and the License Agreement.
"Basle Accord" means the proposals for risk-based capital
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framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Borrower" has the meaning set forth in the preamble.
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"Business Day" means any day (a) on which commercial banks are
------------
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" means, for any period, expenditures
--------------------
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Borrower or any of its
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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 (i) repairs in respect of any such assets
and (ii) the amount of any assets acquired (x) with the proceeds of any Casualty
Event (or reimbursement in whole or in part with the Net Available Proceeds
thereof) and (y) with the cash proceeds of any Disposition permitted hereunder
(or reimbursement in whole or in part with the Net Available Proceeds thereof)
and (z) pursuant to a Subsequent Acquisition; provided that, prior to SFF
becoming a Wholly Owned Subsidiary of the Borrower, the amount of its Capital
Expenditures included in calculating Capital Expenditures for the Borrower and
its Subsidiaries shall be limited to the Capital Expenditures of SFF for the
relevant period multiplied by the percentage of the aggregate ownership
interests of the Borrower and its Subsidiaries (other than SFF) in SFF.
"Capital Lease Obligations" means, for any Person, all
-------------------------
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Casualty Event" means, with respect to any Property of any
--------------
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Class" has the meaning assigned to such term in Section 1.03.
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"Closing Date" means the date upon which the initial extension
------------
of credit hereunder is made.
"Code" means the Internal Revenue Code of 1986, as amended
----
from time to time.
"Collateral Account" has the meaning assigned to such term in
------------------
the Security Agreement.
"Commitment Percentage" means, with respect to any Lender, the
---------------------
ratio of (a) the aggregate amount of the Facility A Revolving Credit Commitments
of such Lender to (b) the aggregate amount of the Facility A Revolving Credit
Commitments of all of the Lenders.
"Commitments" means, collectively, the Facility A Revolving
-----------
Credit Commitments and the Facility B Term Loan Commitments.
"Common Stock Issuance" means the issuance by Holdings of
---------------------
common stock, par value $0.05 per share, in connection with the consummation of
the Merger Transactions.
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"Continue", "Continuation" and "Continued" refer to the
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continuation pursuant to Section 2.09 of a Eurodollar Loan from one Interest
Period to the next Interest Period for such Loan.
"Convert", "Conversion" and "Converted" refer to a conversion
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pursuant to Section 2.09 of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Current Disposition" has the meaning set forth in Section
-------------------
2.10(d).
"Debt Issuance" means any issuance or sale by the Borrower or
-------------
any of its Subsidiaries after the date hereof of any debt securities other than
as permitted under Section 9.07.
"Debt Service" means, for any period, the sum, for the
------------
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of (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
any prepayments made pursuant to Section 2.10 during such period (provided that,
prior to SFF becoming a Wholly Owned Subsidiary of the Borrower, the amount of
principal payments of SFF included in calculating Debt Service shall be limited
to the principal payments of SFF for the relevant period multiplied by the
percentage of the aggregate ownership interests of the Borrower and its
Subsidiaries (other than SFF) in SFF) plus (b) all Interest Expense for such
period.
"Default" means an Event of Default or an event that with
-------
notice or lapse of time or both would become an Event of Default.
"Discount Notes" means the 12-1/4% Senior Subordinated
--------------
Discount Notes due 2005 of the Borrower, issued pursuant to the Discount Notes
Indenture.
"Discount Notes Indenture" means the Indenture dated as of
------------------------
June 23, 1995, between the Borrower and United States Trust Company of New York,
as Trustee.
"Disposition" means any sale, assignment, transfer or other
-----------
disposition of any Property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person, excluding (a) any sale,
assignment, transfer or other disposition of any inventory or other Property
sold or disposed of in the ordinary course of business, (b) during any fiscal
year, the first $10,000,000 of sales of used equipment or other Property not
used in the business of the Borrower and its Subsidiaries, and (c) any sale,
assignment, transfer or other disposition of any Property to the Borrower or
Wholly owned Subsidiary of the Borrower. Notwithstanding the foregoing, the
consummation of the Partnership Transfers shall not constitute a "Disposition"
-----------
for purposes of Section 2.10(d) and prior to SFF becoming a Wholly Owned
Subsidiary of the Borrower the net available proceeds in respect of any
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Disposition affecting SFF shall be limited to the actual cash amounts (if any)
in respect of such Disposition distributed to the Borrower and its Subsidiaries
(other than SFF).
"Disposition Investment" means, with respect to any
----------------------
Disposition, any promissory notes or other evidences of indebtedness or
Investments received by the Borrower or any of its Subsidiaries in connection
with such Disposition.
"Dollars" and "$" means lawful money of the United States of
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America.
"EBITDA" means, for any period, the sum, for the Borrower and
------
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following, in each case determined before interest
income or expense and extraordinary or unusual items (and excluding all barter
and trade transactions): (a) operating income (or loss) for such period (plus
----
cash received for such period from investments of the Borrower or any of its
Subsidiaries (other than SFF) in SFF or in any other partnership or 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) for such period. Notwithstanding the foregoing,
(i) if during any period for which EBITDA is being determined the Borrower and
its Subsidiaries shall have consummated any acquisition (including the Six Flags
Merger) or Disposition then, for all purposes of this Agreement (other than for
purposes of the definition of Excess Cash Flow), EBITDA shall be determined on a
pro forma basis as if such acquisition or Disposition had been made or
consummated on the first day of such period and (ii) when determining EBITDA for
any period on a pro forma basis as provided in the preceding clause (i) ending
after the consummation of any acquisition, there shall be added (or subtracted)
the respective amounts for such acquisition (and any other acquisitions
consummated prior to the last day of such period) set forth, in the case of the
Six Flags Merger, in Schedule VIII or, in the case of any Subsequent
Acquisition, in a supplement to Schedule VIII agreed to at the time of such
Subsequent Acquisition pursuant to Section 9.05(e)(iii)(D).
"Environmental Claim" means, with respect to any Person, any
-------------------
written notice, claim, demand or other communication (collectively, a "claim")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment, as
a result of any of the foregoing.
"Environmental Laws" means any and all present and future
------------------
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
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or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Rights" means, with respect to any Person, any
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subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
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1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
---------------
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which the Borrower is a member and (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the code, described in Section 414(m) or (o) of the Code of
which the Borrower is a member.
"ERISA Event" means any of the following events or conditions:
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(a) any reportable event, as defined in Section 4043(c) of
ERISA and the regulations issued thereunder, with respect to a Plan, as to which
the PBGC has not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section 412 of
the Code or Section 302 of ERISA, including, without limitation, the failure to
make on or before its due date a required installment under Section 412(m) of
the Code or Section 302(e) of ERISA, shall be a reportable event regardless of
the issuance of any waivers in accordance with Section 412(d) of the Code); and
any request for a waiver under Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Borrower or an ERISA
Affiliate to terminate any Plan;
(c) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan;
<PLAN>
-9-
(d) the complete or partial withdrawal from a Multiemployer
Plan by the Borrower or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by the Borrower or
any ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result in the loss
of tax-exempt status of the trust of which such Plan is a part if the Borrower
or an ERISA Affiliate fails to timely provide security to the Plan in accordance
with the provisions of such Sections.
"Eurodollar Base Rate" means, with respect to any Eurodollar
--------------------
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) reported on the date two Business Days
prior to the first day of such Interest Period on the Dow Jones Markets Service
Page 3750 as the London Interbank Offered Rate for Dollar deposits having a term
comparable to such Interest Period and in an amount of $1,000,000 or more (or,
if said Page shall cease to be publicly available or if the information
contained on said Page, in the sole judgment of the Administrative Agent, shall
cease to accurately reflect such London Interbank Offered Rate, the Eurodollar
Base Rate means the rate reported by any publicly available source of similar
market data selected by the Administrative Agent that, in the sole judgment of
the Administrative Agent, accurately reflects such London Interbank Offered
Rate).
"Eurodollar Loans" means Loans that bear interest at rates
----------------
based on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"Eurodollar Rate" means, for any Interest Period for any
---------------
Eurodollar Loan, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Interest Period divided by 1 minus the Reserve
----------
Requirement (if any) for such Interest Period.
"Event of Default" has the meaning assigned to such term in
----------------
Section 10.
"Excess Cash Flow" means, for any period, the excess of (a)
----------------
EBITDA for such period over (b) the sum of (i) the aggregate amount of Debt
----
Service for such period plus (ii) Capital Expenditures made during such period
----
(except for any such Capital Expenditures to the extent financed with the
proceeds of the capital contributions or advances to the Borrower from SFEC
after the date hereof) plus (iii) the aggregate amount paid, or required to be
----
paid, in cash in respect of income taxes for such period plus (iv) the amount
----
paid in dividends or other Restricted Payments for such period (including,
without limitation, dividends paid in respect of the SFEC Senior Notes in
accordance with Section 9.09(a) plus (v) the aggregate amount of Investments
----
-10-
after the date hereof in connection with the acquisition of the ownership of
Property and/or interests of SFF and San Antonio Park GP not owned by the
Borrower and its Subsidiaries (other than SFF).
"Excess Payment" has the meaning set forth in Section 6.08.
--------------
"Excess Funding Guarantor" has the meaning set forth in
------------------------
Section 6.08.
"Existing Credit Agreement" means the Credit Agreement dated
-------------------------
June 23, 1995 among the Borrower, SFEC, S.F. Holdings, Inc., the lenders named
therein and Chemical Bank (predecessor to The Chase Manhattan Bank) as Agent and
Fronting Bank.
"Existing Parks" means those amusement and attraction parks
--------------
(excluding the parks known as Six Flags Over Georgia and Six Flags Over Texas)
listed in Part A of Schedule V.
"Facility A Revolving Credit Commitment" means, as to each
--------------------------------------
Revolving Credit Lender, the obligation of such Lender to make Revolving Credit
Loans, and to issue or participate in Letters of Credit pursuant to Section
2.03, in an aggregate principal or face amount at any one time outstanding up to
but not exceeding the amount set forth opposite the name of such Lender on
Schedule I under the caption "Revolving Credit Commitment" or, in the case of a
Person that becomes a Revolving Credit Lender pursuant to an assignment
permitted under Section 12.06(b), as specified in the respective instrument of
assignment pursuant to which such assignment is effected (in each case as the
same may be reduced or increased pursuant to an assignment permitted under
Section 12.06(b), or reduced from time to time pursuant to Section 2.04 or
2.10). The original aggregate principal amount of the Facility A Revolving
Credit Commitments is $100,000,000.
"Facility A Revolving Credit Commitment Termination Date"
-------------------------------------------------------
means the fifth anniversary of the first Quarterly Date after the Closing Date.
"Facility A Revolving Credit Loans" means the loans provided
---------------------------------
for in Section 2.01(a), which may be Base Rate Loans and/or Eurodollar Loans.
"Facility B Term Loans" means the loans provided for in
---------------------
Section 2.01(b), which may be Base Rate Loans and/or Eurodollar Loans.
"Facility B Term Loan Commitment" means, as to each Facility B
-------------------------------
Term Loan Lender, the obligation of such Lender to make Facility B Term Loans in
an aggregate principal amount up to but not exceeding the amount set opposite
the name of such Lender on Schedule I under the caption "Facility B Term Loan
Commitment" or, in the case of a Person that becomes a Facility B Term Loan
Lender pursuant to an assignment permitted under Section 12.06(b), as specified
in the respective instrument of assignment pursuant to which such assignment is
effected (as the same may be reduced from time to time pursuant to Section 2.04
or 2.10 or increased or reduced from time to time pursuant to assignments
11
permitted under Section 12.06(b)). The original aggregate principal amount of
the Facility B Term Loan Commitments is $372,000,000.
"Facility B Term Loan Commitment Termination Date" means the
------------------------------------------------
Closing Date.
"Federal Funds Rate" means, for any day, the rate per annum
------------------
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
--------
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to the Administrative Agent on such Business
Day on such transactions as determined by the Administrative Agent.
"Fixed Charges" means, for any period, the sum of (a) Debt
-------------
Service for such period plus (b) the aggregate amount of all Capital
----
Expenditures made during such period (excluding (i) any Capital Expenditures to
the extent financed with the proceeds of capital contributions or advances to
the Borrower from SFEC or SFH after the consummation of the Premier Merger and
(ii) any Capital Expenditures made (x) during the period from and after
September 30, 1997 to and including September 29, 1998 in an aggregate amount up
to $50,000,000,), (y) during the period from and after September 30, 1998 to and
including September 29, 1999 in an aggregate amount up to $50,000,000 and (z)
during the period from and including the Closing Date to and including the first
anniversary thereof in an aggregate amount up to the amount of proceeds received
by the Borrower and its Subsidiaries from the Partnership Transfers) plus (c)
----
the aggregate amount paid, or required to be paid, in cash in respect of income
taxes during such period plus (d) the amount paid in dividends or other
----
Restricted Payments for such period (other than the dividend permitted under
Section 9.09(d)).
"Fixed Charges Coverage Ratio" means, as at any date, the
----------------------------
ratio of (a) EBITDA for the period of four consecutive fiscal quarters ending on
or most recently ended prior to such date to (b) the amount of Fixed Charges for
such period.
"GAAP" means generally accepted accounting principles applied
----
on a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a), are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Georgia Partnership Entities" mean Six Flags Over Georgia,
----------------------------
Inc., SFOG Acquisition A Holdings, Inc., SFOG Acquisition A, Inc., SFOG
Acquisition B Holdings, Inc., SFOG Acquisition B LLC, SFOG II Employee Inc. and
SFOG II Inc.
"Guarantee" means a guarantee, an endorsement, a contingent
---------
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
-12-
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 Assumption Agreement" means a Guarantee Assumption
------------------------------
Agreement substantially in the form of Exhibit D by an entity that, pursuant to
Section 9.15(a), is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agent.
"Hazardous Material" means, 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" means any interest rate protection
-----------------
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement. For purposes hereof, the "credit exposure" at any time of any
Person under an Hedging Agreement to which such Person is a party shall be
determined at such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as prescribed from time to time by
the Administrative Agent, taking into account potential interest rate movements
and the respective termination provisions and notional principal amount and term
of such Hedging Agreement.
"Holdings" means Premier Parks Holdings Corporation, a
--------
Delaware corporation (to be renamed "Premier Parks Inc." upon consummation of
the Premier Merger).
"Holdings Senior Discount Notes" means the 10% Senior Discount
------------------------------
Notes due 2008 of Holdings.
"Holdings Senior Discount Notes Indenture" means the Indenture
----------------------------------------
dated as of April 1, 1998 between Holdings and The Bank of New York, as Trustee.
"Holdings Senior Notes" means the 9 1/4% Senior Notes due 2006
---------------------
of Holdings.
"Holdings Senior Notes Indenture" means the Indenture dated as
-------------------------------
of April 1, 1998 between Holdings and The Bank of New York, as Trustee.
"Inactive Subsidiary" means any Subsidiary of the Borrower
-------------------
that (a) has aggregate assets with a value not in excess of $10,000 and (b)
conducts no business or other operations.
-13-
"Indebtedness" means, 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 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; and (f) Indebtedness of others Guaranteed by such
Person. The Indebtedness of any Person shall include the Indebtedness of any
partnership in which such Person is a general partner to the extent such
Indebtedness is recourse, provided that if such Person's liability for such
Indebtedness is contractually limited, only such Person's share thereof shall be
so included. Anything herein to the contrary notwithstanding, obligations under
Hedging Agreements shall not constitute Indebtedness.
"Indemnity Agreement" means the Subordinated Indemnity
-------------------
Agreement dated as of April 1, 1998 among Premier Parks Inc., GP Holdings, Time
Warner Inc., Time Warner Entertainment Company, L.P., TW-SPV Co., SFEC, the
Borrower, SFOG II, Inc., and SFT Holdings, Inc., as the same shall, subject to
Section 9.16, be modified and supplemented and in effect from time to time.
"Information Memorandum" means the Confidential Information
----------------------
Memorandum dated March 1998 prepared by the Borrower in connection with the
syndication of the credit facilities provided for in this Agreement.
"Interest Coverage Ratio" means, as at any date, the ratio of
-----------------------
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Interest Expense for such period.
"Interest Expense" means, for any period, the sum, for the
----------------
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations but excluding any
capitalized financing fees paid during such period that are to be charged to
future periods) accrued or capitalized during 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 Interest Expense) the aggregate amount of interest
income for such period; provided that, prior to SFF becoming a Wholly Owned
--------
Subsidiary of the Borrower, the amount of Interest Expense of SFF included in
calculating Interest Expense of the Borrower and its Subsidiaries shall be
limited to the Interest Expense of SFF for the relevant period multiplied by the
-14-
percentage of the aggregate ownership interests of the Borrower and its
Subsidiaries (other than SFF) in SFF. Notwithstanding the foregoing, if during
any period for which Interest Expense is being determined the Borrower shall
have consummated any acquisition or Disposition then, for all purposes of this
Agreement (other than for purposes of the definition of Excess Cash Flow),
Interest Expense shall be determined on a pro forma basis as if such acquisition
or Disposition (and any Indebtedness incurred by the Borrower or any of its
Subsidiaries in connection with such acquisition or repaid as a result of such
Disposition) had been made or consummated (and such Indebtedness incurred or
repaid) on the first day of such period and as if the interest rate applicable
to any incremental Indebtedness of the Borrower and its Subsidiaries is equal to
the interest rate applicable to Indebtedness of the Borrower and its
Subsidiaries in fact outstanding during such period.
"Interest Period" means, for any Eurodollar Loan, each period
---------------
commencing on the date such Eurodollar Loan is made or Converted from a Loan of
another Type or (in the event of a Continuation) the last day of the next
preceding Interest Period for such Loan and (subject to the provisions of
Section 2.01(c)) ending on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter (or such shorter periods as,
prior to the date referred to in Section 2.01(c), shall be agreed to by each
Lender), as the Borrower may select as provided in Section 4.05, except that
each Interest Period that commences on the last Business Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall (unless each of the Lenders shall
otherwise agree) end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (i) each Interest Period that
would otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (ii)
notwithstanding clause (i) above, no Interest Period shall (except as otherwise
provided in the first sentence of this definition) have a duration of less than
one month and, if the Interest Period for any Eurodollar Loan would otherwise be
a shorter period, such Loan shall not be available hereunder for such period.
"Investment" means, for any Person: (a) the acquisition
----------
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such deposit with, or advance, loan or other extension of
credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a stated term not exceeding 90 days arising in
connection with the sale of inventory, supplies or patron services by such
Person in the ordinary course of business, and excluding also any deposit made
by such Person as an advance payment in respect of a Capital Expenditure (to the
extent the making of such Capital Expenditure will not result in a violation of
-15-
any of the provisions of Section 9.10); (c) the entering into of any Guarantee
of, or other contingent obligation with respect to, Indebtedness or other
liability of any other Person and (without duplication) any amount committed to
be advanced, lent or extended to such Person; or (d) the entering into of any
Hedging Agreement.
"Issuing Lender" means The Bank of New York as the issuer of
--------------
Letters of Credit under Section 2.03, together with its successors and assigns
in such capacity.
"LCPI" means Lehman Commercial Paper Inc., a Delaware
----
corporation.
"Letter of Credit" has the meaning assigned to such term in
----------------
Section 2.03.
"Letter of Credit Documents" means, with respect to any Letter
--------------------------
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Letter of Credit Interest" means, for each Lender, such
-------------------------
Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" means, without duplication, at
--------------------------
any time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Issuing Lender) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest in
the related Letter of Credit under Section 2.03, and the Issuing Lender shall be
deemed to hold a Letter of Credit Liability in an amount equal to its retained
interest in the related Letter of Credit after giving effect to the acquisition
by the Lenders other than the Issuing Lender of their participation interests
under said Section 2.03.
"Leverage Ratio" means, as at any date, the ratio of (a) Total
--------------
Debt as at such date to (b) EBITDA for the period of four consecutive fiscal
quarters ending on or most recently ended prior to such date.
"License Agreement" means the Amended and Restated License
-----------------
Agreement dated as of April 1, 1998 by and between Warner Bros. Consumer
Products Division, DC Comics, Premier Parks Inc. and Six Flags Theme Parks Inc.,
as the same shall, subject to Section 9.16, be amended and supplemented and in
effect from time to time.
-16-
"Lien" means, with respect to any Property, any mortgage,
----
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Loan Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Loan Documents" means, collectively, this Agreement, the
--------------
Notes, the Letter of Credit Documents and the Security Documents.
"Loans" means, collectively, the Facility A Revolving Credit
-----
Loans and the Facility B Term Loans.
"Majority Facility A Revolving Credit Loan Lenders" means, at
-------------------------------------------------
any time, Lenders having Facility A Revolving Credit Loans, Letter of Credit
Interests and unused Facility A Revolving Credit Commitments representing at
least 51% of the sum of the total Facility A Revolving Credit Loans, Letter of
Credit Interests and unused Facility A Revolving Credit Commitments at such
time.
"Majority Facility B Term Loan Lenders" means, at any time,
-------------------------------------
Lenders having Facility B Term Loans and unused Facility B Term Loan Commitments
representing at least 51% of the sum of the total Facility B Term Loans and
unused Facility B Term Loan Commitments at such time.
"Majority Lenders" means, at any time, Lenders having at least
----------------
51% of the sum of (a) the aggregate amount of the Facility A Revolving Credit
Commitments at such time (or, if the Facility A Revolving Credit Commitments
shall have terminated, the sum of (i) the aggregate unpaid principal amount of
the Facility A Revolving Credit Loans at such time plus (ii) the aggregate
----
amount of all Letter of Credit Liabilities at such time) and (b) the aggregate
amount of the Facility B Term Loan Commitments at such time (or, if the Facility
B Term Loan Commitments shall have terminated, the aggregate outstanding
principal amount of the Facility B Term Loans at such time).
"Margin Stock" means "margin stock" within the meaning of
------------
Regulations G, T, U and X.
"Material Adverse Effect" means a material adverse effect on
-----------------------
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Borrower and its Subsidiaries taken as a
whole, (b) the validity or enforceability of any of the Loan Documents, (c) the
rights and remedies of the Lenders and the Administrative Agent under any of the
Loan Documents or (d) the timely payment of the principal of or interest on the
Loans, Reimbursement Obligations or other amounts payable in connection
therewith.
"Merger Agreement" means the Agreement and Plan of Merger
----------------
dated as of February 9, 1998, by and among Premier Parks Inc., Premier Parks
-17-
Holdings Corporation, Premier Parks Merger Corporation, PPSTAR I, Inc., the
holders of capital stock of SFEC, and SFEC, as the same shall, subject to
Section 9.16, be amended and supplemented and in effect from time to time.
"Merger Transactions" means the Premier Merger and the Six
-------------------
Flags Merger.
"Mortgage(s)" means, collectively, one or more mortgages,
-----------
deeds of trust, deeds to secure debt or similar instruments executed by the
Borrower and/or one or more of its Subsidiaries in favor of the Administrative
Agent (or a trustee, for the benefit of the Administrative Agent), covering real
Property interests of the Borrower and its Subsidiaries, in each case as the
same shall be modified and supplemented and in effect from time to time.
"Multiemployer Plan" means a multiemployer plan defined as
------------------
such in Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" means:
----------------------
(i) in the case of any Disposition, the amount of Net
Cash Payments received by the Borrower or any Subsidiary in
connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate
amount of proceeds of insurance, condemnation awards and other
compensation received by the Borrower and its Subsidiaries in
respect of such Casualty Event net of (A) reasonable expenses
incurred by the Borrower and its Subsidiaries in connection
therewith and (B) contractually required repayments of
Indebtedness consisting of Capital Lease Obligations or
Purchase Money Indebtedness permitted hereunder and covering
the respective Property that is the subject of such Casualty
Event, and any income and transfer taxes payable by the
Borrower or any of its Subsidiaries in respect of such
Casualty Event; and
(iii) in the case of any Debt Issuance, the aggregate
amount of all cash received by the Borrower and its
Subsidiaries in respect of such Debt Issuance net of
reasonable expenses incurred by the Borrower and its
Subsidiaries in connection therewith.
Notwithstanding the foregoing, prior to SFF becoming a Wholly Owned Subsidiary
of the Borrower, the Net Available Proceeds in respect of any Disposition,
Casualty Event or Debt Issuance by or affecting SFF shall be limited to the
actual cash amounts (if any) in respect thereof distributed to the Borrower and
its Subsidiaries.
"Net Cash Payments" means, with respect to any Disposition,
-----------------
the aggregate amount of all cash payments received by the Borrower and its
Subsidiaries directly or indirectly in connection with such Disposition, whether
at the time of such Disposition or after such Disposition under deferred payment
arrangements or Investments entered into or received in connection with such
-18-
Disposition (including, without limitation, Disposition Investments); provided
that (a) Net Cash Payments shall be net of (i) the amount of any legal, title,
transfer and recording tax expenses, commissions and other fees and expenses
payable by the Borrower and its Subsidiaries in connection with such Disposition
and (ii) any Federal, state and local income or other taxes estimated to be
payable by the Borrower and its Subsidiaries as a result of such Disposition,
but only to the extent that on the date of such Disposition the Borrower
delivers a certificate of a Responsible Officer of the Borrower setting forth a
calculation of the amount of such estimated taxes; and (b) Net Cash Payments
shall be net of any contractually-required repayments of Indebtedness consisting
of Capital Lease Obligations or Purchase Money Indebtedness permitted hereunder
and covering the respective Property that is the subject of such Disposition.
Notwithstanding the foregoing, prior to SFF becoming a Wholly Owned Subsidiary
of the Borrower, the Net Cash Payments with respect to any Disposition by SFF
shall be limited to the actual cash amounts (if any) in respect of such
Disposition distributed to the Borrower and its Subsidiaries.
"Notes" means the promissory notes provided for by Section
-----
2.08 and all promissory notes delivered in substitution or exchange therefor, in
each case as the same shall be modified and supplemented and in effect from time
to time.
"Obligors" has the meaning set forth in the preamble.
--------
"Park" means, collectively, the Existing Parks and any other
----
amusement or attraction park acquired by any of the Obligors after the date
hereof.
"Partnership Transfers" means the transfer of the Georgia
---------------------
Partnership Entities and the Texas Partnership Entities to TWE or Holdings, as
the case may be, pursuant to the Indemnity Agreement, or otherwise.
"Payor" has the meaning set forth in the Section 4.06.
-----
"PBGC" means the Pension Benefit Guaranty Corporation or any
----
entity succeeding to any or all of its functions under ERISA.
"Peril" has the meaning set forth in Section 9.04.
-----
"Permitted Investments" means: (a) direct obligations of the
---------------------
United States of America, or of any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than one year from the date of
acquisition thereof; (b) certificates of deposit, time deposits and money market
deposit accounts issued by any bank or trust company organized under the laws of
the United States of America or any state thereof and having capital, surplus
and undivided profits of at least $500,000,000, maturing not more than one year
from the date of acquisition thereof; (c) 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, a division of The McGraw Hill Companies, Inc., or Moody's
Investors Services, Inc., respectively, maturing not more than one year from the
-19-
date of acquisition thereof; and (d) fully collateralized repurchase agreements
with a term of not more than one year for securities described in clause (a)
above and entered into with 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 Reinvestment Transaction" means either (a) a
----------------------------------
Subsequent Acquisition permitted under Section 9.05(e)(iii) or a Capital
Expenditure permitted under Section 9.05(b), or (b) a reimbursement of the
Borrower or any Subsidiary for monies expended by the Borrower or a Subsidiary
within the previous 180 days with respect to any such acquisition or Capital
Expenditure.
"Person" means any individual, corporation, company, voluntary
------
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" means an employee benefit or other plan established or
----
maintained by the Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Pledge Agreement" means a Pledge Agreement substantially in
----------------
the form of Exhibit C between SFH and the Administrative Agent, as the same
shall be modified and supplemented and in effect from time to time.
"Post-Default Rate" means a rate per annum equal to 2% plus
-----------------
the Base Rate as in effect from time to time plus the Applicable Rate for Base
Rate Loans, provided that, with respect to principal of a Eurodollar Loan that
--------
shall become due (whether at stated maturity, by acceleration, by optional or
mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" shall be, for the period from
and including such due date to but excluding the last day of such Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02(b)
and, thereafter, the rate provided for above in this definition.
"Prime Rate" means a rate of interest per annum equal to the
----------
rate of interest publicly announced in New York City by Citibank, N.A., as
published in the Wall Street Journal, from time to time as its prime commercial
lending rate, such rate to be adjusted automatically (without notice) on the
effective date of any change in such publicly announced rate.
"Principal Office" means, initially, the office of the
----------------
Administrative Agent set forth on the signature pages hereof or such other
office that the Administrative Agent may specify to the Lenders and the Borrower
from time to time.
"Principal Payment Dates" shall mean, with respect to the
-----------------------
Facility B Term Loans, each Quarterly Date during the period from and including
the Quarterly Date falling on or nearest to November 30, 1998, through and
including the Quarterly Date falling on or nearest to November 30, 2004.
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"Pro Rata Share" has the meaning set forth in Section 6.08.
--------------
"Property" means any right or interest in or to property of
--------
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Public Preferred Stock Issuance" means the issuance by
-------------------------------
Holdings of mandatorily convertible preferred stock in connection with the
consummation of the Merger Transactions.
"Purchase Money Indebtedness" means Indebtedness (i)
---------------------------
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 asset being financed, and (ii)
incurred to finance the acquisition by the Borrower 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 and fixtures,
including additions and improvements, 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 the Borrower or
Subsidiary of such asset.
"Quarterly Dates" means the last Business Day of February,
---------------
May, August and November in each year, the first of which shall be the first
such day after the date hereof.
"Refinancing Notes" means one or more series of subordinated
-----------------
notes issued by the Borrower, the Net Proceeds of which are used by the Borrower
to redeem, repay or repurchase Senior Subordinated Notes.
"Refinancing Notes Indenture" means one or more indentures
---------------------------
pursuant to which the Refinancing Notes are issued.
"Register" has the meaning set forth in Section 12.06
--------
"Regulations A, D, G, T, U and X" means, respectively,
-------------------------------
Regulations A, D, G, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" means, with respect to any Lender, any
-----------------
change after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
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"Reimbursement Obligations" means, at any date, the
-------------------------
obligations of the Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
the Issuing Lender in respect of any drawings under a Letter of Credit.
"Release" means any release, 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.
"Required Payment" has the meaning set forth in Section 4.06.
----------------
"Reserved Commitment Amount" has the meaning assigned to such
--------------------------
term in the second paragraph of Section 2.01(a).
"Reserve Requirement" means, for any Interest Period for any
-------------------
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate for any
Interest Period for any Eurodollar Loans is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or (ii) any category
of extensions of credit or other assets that includes Eurodollar Loans.
"Responsible Officer" means, as to any Person, the chief
-------------------
executive officer, president, any vice president, chief financial officer or
secretary of such person.
"Restricted Payment" means dividends (in cash, Property or
------------------
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Borrower or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Borrower or any of its Subsidiaries), but
excluding dividends payable solely in shares of common stock of the Borrower.
"San Antonio Parks GP" means San Antonio Parks GP, LLC, a
--------------------
Delaware limited liability company and, as of the date hereof, a 1% general
partner of SFF.
"Security Agreement" means a Security Agreement substantially
------------------
in the form of Exhibit B between the Borrower, the Subsidiaries of the Borrower
-22-
party thereto and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Security Documents" means, collectively, the Pledge
------------------
Agreement, the Security Agreement, the Mortgages and all Uniform Commercial Code
financing statements required by any of such instruments to be filed with
respect to the security interests in personal Property and fixtures created
pursuant thereto.
"Senior Secured Debt" means, as at any date, the aggregate
-------------------
amount of Indebtedness of the Borrower and its Subsidiaries at such date
(determined on a consolidated basis without duplication in accordance with GAAP)
that is not Subordinated Indebtedness and is secured by the Property of the
Borrower and/or its Subsidiaries.
"Senior Secured Debt Ratio" means, at any date, the ratio of
-------------------------
(a) Senior Secured Debt as at such date to (b) EBITDA for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to such
date.
"Senior Subordinated Notes" means the Discount Notes and any
-------------------------
Refinancing Notes.
"Senior Subordinated Notes Indentures" means the Discount
------------------------------------
Notes Indenture and any Refinancing Notes Indenture.
"SFEC Indentures" means the SFEC Zero Coupon Notes Indenture
---------------
and the SFEC Senior Notes Indenture.
"SFEC Notes" means the SFEC Zero Coupon Notes and the SFEC
----------
Senior Notes.
"SFEC Senior Notes" means the 8 7/8% Senior Notes due 2006 of
-----------------
SFEC, issued pursuant to the SFEC Senior Notes Indenture.
"SFEC Senior Notes Indenture" means the Indenture dated as of
---------------------------
April 1, 1998 between SFEC and The Bank of New York, as Trustee.
"SFEC Zero Coupon Notes" means the Zero Coupon Notes due 1999
----------------------
of SFEC.
"SFEC Zero Coupon Notes Indenture" means the Indenture dated
--------------------------------
as of December 16, 1992 between SFEC, Time Warner Entertainment Company, L.P.
and United States Trust Company of New York, as Trustee.
"SFF" means San Antonio Theme Park, L.P., a Delaware limited
---
partnership, which operates the Park known as Six Flags Fiesta Texas.
"SFOG" Means Six Flags Over Georgia, Ltd., a Georgia limited
----
partnership.
"SFOT" means Texas Flags, Ltd., a Texas limited partnership.
----
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"Six Flags San Antonio" means Six Flags San Antonio, L.P., a
---------------------
Delaware limited partnership and an indirect Wholly Owned Subsidiary of the
Borrower and, as of the date hereof, a 59% general partner of SFF.
"Subordinated Indebtedness" means Indebtedness of the Borrower
-------------------------
incurred in accordance with Section 9.07(e).
"Subsequent Acquisition" means any acquisition permitted under
----------------------
Section 9.05(e)(iii).
"Subsequent Acquisition Agreements" means each agreement
---------------------------------
pursuant to which a Subsequent Acquisition shall be consummated, as the same
shall, subject to Section 9.16, be modified and supplemented and in effect from
time to time.
"Subsidiary" means, with respect to any Person, any
----------
corporation, partnership, limited liability company or other entity domestic or
foreign of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
Notwithstanding anything herein to the contrary, neither the Georgia Partnership
Entities nor the Texas Partnership Entities shall be "Subsidiaries" for purposes
of this Agreement.
"Subsidiary Guarantor" has the meaning set forth in the
--------------------
preamble.
"Texas Partnership Entities" means Six Flags Over Texas, Ltd.,
--------------------------
SFOT Acquisition I Holdings, Inc., SFOT Acquisition I, Inc., SFT Holdings Inc.,
SFOT Acquisition II Holdings Inc., SFOT Acquisition II Inc. and SFOT Employee
Inc.
"TWE" means Time Warner Entertainment Company, L.P., a
---
Delaware limited partnership.
"Total Debt" means, as at any date, the aggregate amount of
----------
all Indebtedness of the Borrower and its Subsidiaries at such date (determined
on a consolidated basis without duplication in accordance with GAAP).
"Type" has the meaning assigned to such term in Section 1.03.
----
"U.S. Person" has the meaning set forth in Section 5.07.
-----------
"Wholly Owned Subsidiary" means, with respect to any Person,
any corporation, partnership, limited liability company or other entity of which
all of the equity securities or other ownership interests (other than, in the
case of a corporation, directors' qualifying shares) are directly or indirectly
-24-
owned or controlled by such Person or one or more Wholly Owned Subsidiaries of
such Person.
1.02. Accounting Terms and Determinations.
-----------------------------------
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in paragraph (b)
of this Section 1.02) be prepared, in accordance with generally accepted
accounting principles applied on a basis consistent with those used in the
preparation of the latest financial statements furnished to the Lenders
hereunder (which, prior to the delivery of the first financial statements under
Section 9.01, means the audited financial statements as at December 31, 1997
referred to in Section 8.02). All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest annual or quarterly financial statements furnished to the Lenders
pursuant to Section 9.01 (or, prior to the delivery of the first financial
statements under Section 9.01, used in the preparation of the audited financial
statements as at December 31, 1997 referred to in Section 8.02) unless (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements or (ii) the Majority Lenders shall
so object in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01, means
the audited financial statements referred to in Section 8.02).
(b) The Borrower shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
9.01 (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) of this Section 1.02 and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9, the Borrower will not
change the last day of its fiscal year or fiscal quarter from that in effect on
the date hereof, except that the Borrower may change the last day of its fiscal
year or fiscal quarter to the last day of the calendar year or to the last day
of each calendar quarter, as the case may be.
1.03. Classes and Types of Loans.Loans hereunder are
--------------------------
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Facility A Revolving
Credit Loan or a Facility B Term Loan, each of which constitutes a Class. The
-25-
"Type" of a Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar
Loan, each of which constitutes a Type. Loans may be identified by both Class
and Type.
1.04. Terms Generally.The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Sections, Exhibits
and Schedules shall be construed to refer to Sections of, and Exhibits and
Schedules to, this Agreement and (e) the word "asset" shall be construed to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts, contract rights and real property.
Section 2. Commitments, Loans, Notes and Prepayments.
-----------------------------------------
2.01. Loans.
-----
(a) Facility A Revolving Credit Loans. Each Facility A
---------------------------------
Revolving Credit Loan Lender severally agrees, on the terms and conditions of
this Agreement, to make loans to the Borrower in Dollars during the period from
and including the Closing Date to but not including the Facility A Revolving
Credit Commitment Termination Date in an aggregate principal amount at any one
time outstanding up to but not exceeding the amount of the Facility A Revolving
Credit Commitment of such Lender as in effect from time to time (such Loans
being herein called "Facility A Revolving Credit Loans"), provided that in no
--------------------------------- --------
event shall the aggregate outstanding principal amount of all Facility A
Revolving Credit Loans, together with the aggregate outstanding amount of all
Letter of Credit Liabilities, exceed the aggregate amount of the Facility A
Revolving Credit Commitments as in effect from time to time. Subject to the
terms and conditions of this Agreement, during such period the Borrower may
borrow, repay and reborrow the amount of the Facility A Revolving Credit
Commitments by means of Base Rate Loans and Eurodollar Loans and may Convert
Facility A Revolving Credit Loans of one Type into Facility A Revolving Credit
Loans of another Type (as provided in Section 2.09) or Continue Facility A
Revolving Credit Loans of one Type as Facility A Revolving Credit Loans of the
same Type (as provided in Section 2.09). Anything herein to the contrary
notwithstanding, upon unanimous consent of the Lenders, the Borrower may request
and the Lenders may make Facility A Revolving Credit Loans to the Borrower on
the Closing Date regardless of whether any Facility B Term Loan shall have been
made on the Closing Date.
-26-
If in the event that, as contemplated by Section 2.10(e), the
Borrower shall prepay Facility A Revolving Credit Loans from the proceeds of a
Disposition, then an amount of Facility A Revolving Credit Commitments equal to
the amount of such prepayment (herein the "Reserved Commitment Amount") shall be
--------------------------
reserved and shall not be available for borrowings hereunder except and to the
extent that the proceeds of such borrowings are to be applied to a Permitted
Reinvestment Transaction. The Borrower agrees, upon the occasion of any
borrowing of Facility A Revolving Credit Loans hereunder that is to constitute a
utilization of any Reserved Commitment Amount, to advise the Administrative
Agent in writing of such fact at the time of such borrowing, identifying the
portion of such borrowing that is to constitute such utilization and the reduced
Reserved Commitment Amount to be in effect after giving effect to such borrowing
(and the Reserved Commitment Amount shall be automatically reduced at the time
of such borrowing by an amount equal to such portion of such borrowing).
(b) Facility B Term Loans. Each Facility B Term Loan Lender
---------------------
severally agrees, on the terms and conditions of this Agreement, to make a term
loan to the Borrower in Dollars on the Closing Date in an aggregate principal
amount up to but not exceeding the amount of the Facility B Term Loan Commitment
of such Lender (such Loans being herein called the "Facility B Term Loans").
---------------------
(c) Limit on Eurodollar Loans. No more than ten separate
-------------------------
Interest Periods in respect of Eurodollar Loans of a Class from each Lender may
be outstanding at any one time.
2.02. Borrowings.The Borrower shall give the Administrative
----------
Agent notice of each borrowing hereunder as provided in Section 4.05. Not later
than 1:00 p.m. New York time on the date specified for each borrowing hereunder,
each Lender shall make available its Commitment Percentage of the amount of the
Loan or Loans to be made on such date to the Administrative Agent at the
Principal Office in Dollars in immediately available funds, for account of the
Borrower. The amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to the Borrower by
depositing the same, in immediately available funds, in an account of the
Borrower at a bank in New York designated by the Borrower from time to time.
2.03. Letters of Credit.Subject to the terms and conditions of
-----------------
this Agreement, the Facility A Revolving Credit Commitments may be utilized,
upon the request of the Borrower in addition to the Facility A Revolving Credit
Loans provided for by Section 2.01(a), by the issuance by the Issuing Lender of
letters of credit (collectively, "Letters of Credit") for account of the
-----------------
Borrower and in support of an obligation of the Borrower or any of its
Subsidiaries (as specified by the Borrower), provided that in no event shall (i)
--------
the aggregate outstanding amount of all Letter of Credit Liabilities, together
with the aggregate outstanding principal amount of the Facility A Revolving
Credit Loans, exceed the aggregate amount of the Facility A Revolving Credit
Commitments as in effect from time to time, (ii) the outstanding aggregate
amount of all Letter of Credit Liabilities exceed $25,000,000 and (iii) the
expiration date of any Letter of Credit extend beyond the earlier of the
Facility A Revolving Credit Commitment Termination Date and the date fifteen
months following the issuance of such Letter of Credit, except that an automatic
renewal provision in a Letter of Credit extending such Letter of Credit (unless
-27-
notice by the Issuing Lender is otherwise given) to a date not later than the
date fifteen months following the date of such extension (but not in any event
to a date later than the Facility A Revolving Credit Commitment Termination
Date), shall be permitted. The following additional provisions shall apply to
Letters of Credit:
(a) The Borrower shall give the Administrative Agent
at least five Business Days' irrevocable prior notice
(effective upon receipt) specifying the Business Day (which
shall be no later than 30 days preceding the Facility A
Revolving Credit Commitment Termination Date) each Letter of
Credit is to be issued and describing in reasonable detail the
proposed terms of such Letter of Credit (including the
beneficiary thereof) and the nature of the transactions or
obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of
credit or a standby letter of credit). Upon receipt of any
such notice, the Administrative Agent shall advise the Issuing
Lender of the contents thereof.
(b) On each day during the period commencing with the
issuance by the Issuing Lender of any Letter of Credit and
until such Letter of Credit shall have expired or been
terminated, the Facility A Revolving Credit Commitment of each
Lender shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Lender's Commitment
Percentage of the then undrawn face amount of such Letter of
Credit. Each Lender (other than the Issuing Lender) agrees
that, upon the issuance of any Letter of Credit hereunder, it
shall automatically acquire a participation in the Issuing
Lender's liability under such Letter of Credit in an amount
equal to such Lender's Commitment Percentage of such
liability, and each Lender (other than the Issuing Lender)
thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Lender to pay and
discharge when due, its Commitment Percentage of the Issuing
Lender's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter
of Credit of any demand for payment under such Letter of
Credit, the Issuing Lender shall promptly notify the Borrower
(through the Administrative Agent) of the amount to be paid by
the Issuing Lender as a result of such demand and the date on
which payment is to be made by the Issuing Lender to such
beneficiary in respect of such demand. Notwithstanding the
identity of the account party of any Letter of Credit, the
Borrower hereby unconditionally agrees to pay and reimburse
the Administrative Agent for account of the Issuing Lender for
the amount of each demand for payment under such Letter of
Credit that is in substantial compliance with the provisions
of such Letter of Credit at or prior to the date on which
payment is to be made by the Issuing Lender to the beneficiary
thereunder, without presentment, demand, protest or other
formalities of any kind.
-28-
(d) Forthwith upon its receipt of a notice referred
to in paragraph (c) of this Section 2.03, the Borrower shall
advise the Administrative Agent whether or not the Borrower
intends to borrow hereunder to finance its obligation to
reimburse the Issuing Lender for the amount of the related
demand for payment and, if it does, the Borrower shall submit
a notice of such borrowing as provided in Section 4.05.
(e) Each Lender (other than the Issuing Lender) shall
pay to the Administrative Agent for account of the Issuing
Lender at the Principal Office in Dollars and in immediately
available funds, the amount of such Lender's Commitment
Percentage of any payment under a Letter of Credit upon notice
by the Issuing Lender (through the Administrative Agent) to
such Lender requesting such payment and specifying such
amount. Each such Lender's obligation to make such payment to
the Administrative Agent for account of the Issuing Lender
under this paragraph (e), and the Issuing Lender's right to
receive the same, shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Lender
to make its payment under this paragraph (e), the financial
condition of the Borrower (or any other account party), the
existence of any Default or the termination of the
Commitments. Each such payment to the Issuing Lender shall be
made without any offset, abatement, withholding or reduction
whatsoever. If any Lender shall default in its obligation to
make any such payment to the Administrative Agent for account
of the Issuing Lender, for so long as such default shall
continue the Administrative Agent may at the request of the
Issuing Lender withhold from any payments received by the
Administrative Agent under this Agreement or any Note for
account of such Lender the amount so in default and, to the
extent so withheld, pay the same to the Issuing Lender in
satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Lender to
the Issuing Lender pursuant to paragraph (e) above in respect
of any Letter of Credit, such Lender shall, automatically and
without any further action on the part of the Administrative
Agent, the Issuing Lender or such Lender, acquire (i) a
participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Lender by the
Borrower hereunder and under the Letter of Credit Documents
relating to such Letter of Credit and (ii) a participation in
a percentage equal to such Lender's Commitment Percentage in
any interest or other amounts payable by the Borrower
hereunder and under such Letter of Credit Documents in respect
of such Reimbursement Obligation (other than the commissions,
charges, costs and expenses payable to the Issuing Lender
pursuant to paragraph (g) of this Section 2.03). Upon receipt
by the Issuing Lender from or for account of the Borrower of
any payment in respect of any Reimbursement Obligation or any
such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) the
-29-
Issuing Lender shall promptly pay to the Administrative Agent
for account of each Lender entitled thereto, such Lender's
Commitment Percentage of such payment, each such payment by
the Issuing Lender to be made in the same money and funds in
which received by the Issuing Lender. In the event any payment
received by the Issuing Lender and so paid to the Lenders
hereunder is rescinded or must otherwise be returned by the
Issuing Lender, each Lender shall, upon the request of the
Issuing Lender (through the Administrative Agent), repay to
the Issuing Lender (through the Administrative Agent) the
amount of such payment paid to such Lender, with interest at
the rate specified in paragraph (j) of this Section 2.03.
(g) The Borrower shall pay to the Administrative
Agent for account of each Lender (ratably in accordance with
their respective Commitment Percentages) a letter of credit
fee in respect of each Letter of Credit in an amount per annum
equal to the Applicable Rate then in effect in respect of
Eurodollar Loans minus 1/4 of 1% of the daily average undrawn
face amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (i) in
the case of a Letter of Credit that expires in accordance with
its terms, to and including such expiration date and (ii) in
the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date
of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee
to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Facility A Revolving Credit Commitment
Termination Date and to be calculated for any day after giving
effect to any payments made under such Letter of Credit on
such day).
In addition, the Borrower shall pay to the
Administrative Agent for account of the Issuing Lender a
fronting fee in respect of each Letter of Credit in an amount
equal to 1/4 of 1% per annum of the daily average undrawn face
amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (i) in
the case of a Letter of Credit that expires in accordance with
its terms, to and including such expiration date and (ii) in
the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date
of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee
to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Commitment Termination Date and to be
calculated for any day after giving effect to any payments
made under such Letter of Credit on such day) plus all
commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in
like circumstances with respect to the issuance of each Letter
of Credit and drawings and other transactions relating
thereto.
(h) Promptly following the end of each calendar
month, the Issuing Lender shall deliver (through the
Administrative Agent) to each Lender and the Borrower a notice
describing the aggregate amount of all Letters of Credit
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outstanding at the end of such month. Upon the request of any
Lender from time to time, the Issuing Lender shall deliver any
other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter
of Credit shall, in addition to the conditions precedent set
forth in Section 7, be subject to the conditions precedent
that (i) such Letter of Credit shall be in such form, contain
such terms and support such transactions as shall be
satisfactory to the Issuing Lender consistent with its then
current practices and procedures with respect to letters of
credit of the same type (except that in no event shall any
Letter of Credit provide support for obligations that would
constitute "Indebtedness" under and as defined in the Senior
Subordinated Notes Indentures in an amount in excess of the
amount thereof permitted by Section 4.03(b)(ix) of the
Discount Notes Indenture and any comparable provision of any
indenture or other agreement relating to any Refinancing
Notes) and (ii) the Borrower shall have executed and delivered
such applications, agreements and other instruments relating
to such Letter of Credit as the Issuing Lender shall have
reasonably requested consistent with its then current
practices and procedures with respect to letters of credit of
the same type, provided that in the event of any conflict
--------
between any such application, agreement or other instrument
and the provisions of this Agreement or any Security Document,
the provisions of this Agreement and the Security Documents
shall control.
(j) To the extent that any Lender shall fail to pay
any amount required to be paid pursuant to paragraph (e) or
(f) of this Section 2.03 on the due date therefor, such Lender
shall pay interest to the Issuing Lender (through the
Administrative Agent) on such amount from and including such
due date to but excluding the date such payment is made at a
rate per annum equal to the Federal Funds Rate, provided that
--------
if such Lender shall fail to make such payment to the Issuing
Lender within three Business Days of such due date, then,
retroactively to the due date, such Lender shall be obligated
to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Lender of any
modification or supplement to any Letter of Credit hereunder
shall be subject to the same conditions applicable under this
Section 2.03 to the issuance of new Letters of Credit, and no
such modification or supplement shall be issued hereunder
unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it
originally been issued hereunder in such modified or
supplemented form or (ii) each Lender shall have consented
thereto.
The Borrower hereby indemnifies and holds harmless each Lender and the
Administrative Agent from and against any and all claims and damages, losses,
liabilities, costs or expenses that such Lender or the Administrative Agent may
incur (or that may be claimed against such Lender or the Administrative Agent by
any Person whatsoever) by reason of or in connection with the execution and
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delivery or transfer of or payment or refusal to pay by the Issuing Lender under
any Letter of Credit; provided that the Borrower shall not be required to
--------
indemnify any Lender or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the Issuing Lender
in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (ii) in the case of the Issuing
Lender, such Lender's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing in this Section 2.03 is intended to limit the
other obligations of the Borrower, any Lender or the Administrative Agent under
this Agreement.
2.04. Changes of Commitments.
----------------------
(a) The aggregate amount of the Facility A Revolving Credit
Commitments shall be automatically reduced to zero on the Facility A Revolving
Credit Commitment Termination Date.
(b) The Borrower shall have the right at any time or from time
to time (i) so long as no Facility A Revolving Credit Loans or Letter of Credit
Liabilities are outstanding, to terminate the Facility A Revolving Credit
Commitments, and (ii) to reduce permanently the aggregate unutilized amount of
the Facility A Revolving Credit Commitments (for which purpose utilization of
the Facility A Revolving Credit Commitments shall be deemed to include the
aggregate amount of Letter of Credit Liabilities); provided that (x) the
--------
Borrower shall give notice of each such termination or permanent reduction as
provided in Section 4.05 and (y) each partial permanent reduction shall be in an
aggregate amount at least equal to $5,000,000 (or a larger multiple of
$1,000,000).
(c) Any portion of the Facility B Term Loan Commitment not
used on the Closing Date shall be automatically terminated on the Closing Date.
(d) The Commitments once terminated or permanently reduced may
not be reinstated.
2.05. Commitment Fee. The Borrower shall pay to the
--------------
Administrative Agent for account of each Lender a commitment fee on the daily
average unused amount of the respective Commitments of such Lender (for which
purpose the aggregate amount of any Letter of Credit Liabilities shall be deemed
to be a pro rata (based on the Facility A Revolving Credit Commitments) use of
each Lender's Facility A Revolving Credit Commitments) for the period from and
including the date hereof to but not including the date such Commitment is
terminated, at a rate per annum equal to the Applicable Rate. Any Reserved
Commitment Amount hereunder shall not be deemed a utilization of any Commitment.
Accrued commitment fees shall be payable on each Quarterly Date and on the date
the relevant Commitments are terminated.
2.06. Lending Offices. The Loans of each Type made by each
---------------
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
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2.07. Several Obligations; Remedies Independent.The failure of
-----------------------------------------
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but neither any Lender nor the Administrative Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender, and (except as otherwise provided in Section 4.06) no Lender shall have
any obligation to the Administrative Agent or any other Lender for the failure
by such Lender to make any Loan required to be made by such Lender. The amounts
payable by the Borrower at any time hereunder and under the Notes to each Lender
shall be a separate and independent debt and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and the Notes, and
it shall not be necessary for any other Lender or the Administrative Agent to
consent to, or be joined as an additional party in, any proceedings for such
purposes.
2.08. Notes.
-----
(a) The Facility A Revolving Credit Loans made by each Lender
shall be evidenced by a single promissory note of the Borrower substantially in
the form of Exhibit A-1, dated the date hereof, payable to such Lender in a
principal amount equal to the amount of its Facility A Revolving Credit
Commitment as originally in effect and otherwise duly completed.
(b) The Facility B Term Loans made by each Lender shall be
evidenced by a single promissory note of the Borrower substantially in the form
of Exhibit A-2, dated the date hereof, payable to such lender in a principal
amount equal to its Facility B Term Loan Commitment as originally in effect and
otherwise duly completed.
(c) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan of each Class made by each Lender
to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and, prior to any transfer of the
Note evidencing the Loans of such Class held by it, endorsed by such Lender on
the schedule attached to such Note or any continuation thereof; provided that
--------
the failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing hereunder or under such Note in respect of such Loans.
(d) No Lender shall be entitled to have its Notes substituted
or exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's relevant Commitment, Loans and Notes pursuant to
Section 12.06 (and, if requested by any Lender, the Borrower agrees to so
exchange any Note).
2.09. Optional Prepayments and Conversions or Continuations of
--------------------------------------------------------
Loans.Subject to Section 4.04, the Borrower shall have the right to prepay
- -----
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time,
provided that:
- --------
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(a) the Borrower shall give the Administrative Agent
notice of each such prepayment, Conversion or Continuation as
provided in Section 4.05 (and, upon the date specified in any
such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder);
(b) upon any prepayment of Eurodollar Loans other
than on the last day of an Interest Period for such Loans, the
Borrower shall pay any amounts owing under Section 5.05 as a
result of such prepayment; and
(c) any Conversion into or Continuation of Eurodollar
Loans shall be subject to the provisions of Section 2.01(d).
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10, in the event that any Event of Default shall have
occurred and be continuing, the Administrative Agent may (and at the request of
the Majority Lenders shall) suspend the right of the Borrower to Convert any
Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar Loan, in
which event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) into, or Continued as, the case may be, Base Rate
Loans.
2.10. Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Excess Cash Flow. Not later than the date 90 days after
----------------
the end of each fiscal year of the Borrower commencing with the fiscal year
ending on December 31, 1999, the Borrower shall prepay the Loans (and/or provide
cover for Letter of Credit Liabilities), and the Facility A Revolving Credit
Commitment shall be subject to automatic reduction, in an aggregate amount equal
to the excess of (A) 50% of Excess Cash Flow for such fiscal year over (B) the
aggregate amount of prepayments of Loans made during such fiscal year pursuant
to Section 2.09, such prepayment and reduction to be applied in accordance with
paragraph (e) below; provided that no such prepayment shall be required for any
--------
fiscal year to the extent that the Leverage Ratio as at the last day of such
fiscal year shall be less than 3.5 to 1.
(b) Debt Issuance. Upon any Debt Issuance, the Borrower shall
-------------
prepay the Loans (and/or provide cover for Letter of Credit Liabilities), and
the Facility A Revolving Credit Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of
such Debt Issuance, such prepayment and reduction to be applied in accordance
with paragraph (e) below.
(c) Casualty Events. Upon the date 180 days following the
---------------
receipt by the Borrower or any of its Subsidiaries of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any Property of the Borrower or any of its Subsidiaries (or upon such
earlier date as the Borrower or such Subsidiary, as the case may be, shall have
determined not to repair or replace the Property affected by such Casualty
Event), the Borrower shall prepay the Loans (and/or provide cover for Letter of
Credit Liabilities), and the Facility A Revolving Credit Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds of such Casualty Event not theretofore applied to the repair
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or replacement of such Property (or to reimburse the Borrower or respective
Subsidiary for repairing or replacing such Property), such prepayment and
reduction to be applied in accordance with paragraph (e) below. Notwithstanding
the foregoing, the Borrower shall not be required to make any prepayment under
this Section 2.10(c) unless the Net Available Proceeds of a Casualty Event shall
be greater than or equal to $1,000,000.
Nothing in this paragraph (c) shall be deemed to limit any
obligation of the Borrower or any of its Subsidiaries pursuant to any of the
Security Documents to remit to a collateral or similar account maintained by the
Administrative Agent pursuant to any of the Security Documents the proceeds of
insurance, condemnation award or other compensation received in respect of any
Casualty Event or to obligate the Administrative Agent to release any of such
proceeds from such account to the Borrower for purposes of repair, replacement
or reinvestment as aforesaid upon the occurrence and during the continuance of
an Event of Default.
(d) Sale of Assets. Without limiting the obligation of the
--------------
Borrower to obtain the consent of the Majority Lenders to any Disposition not
otherwise permitted hereunder, the Borrower agrees, on or prior to the
occurrence of any Disposition (herein, the "Current Disposition"), to deliver to
the Administrative Agent a statement certified by a Responsible Officer of the
Borrower, in form and detail reasonably satisfactory to the Administrative
Agent, of the estimated amount of the Net Available Proceeds of the Current
Disposition that will (on the date of the Current Disposition) be received in
cash and, to the extent that the Net Available Proceeds of the Current
Disposition, and of all prior Dispositions as to which a prepayment has not yet
been made under this Section 2.10(d), shall exceed $1,000,000, the Borrower will
prepay the Loans (and/or provide cover for Letter of Credit Liabilities), and
the Facility A Revolving Credit Commitment shall be subject to automatic
reduction, such prepayment and deduction to be applied in accordance with
paragraph (e) below, as follows:
(i) within two days of the Current Disposition, in an
aggregate amount equal to 100% of such estimated amount of the
Net Available Proceeds of the Current Disposition to the
extent received in cash on the date of the Current
Disposition, together with 100% of the Net Available Proceeds
of all such prior Dispositions, provided that if the amount of
--------
such required prepayment (and reduction of Commitments) shall
exceed $5,000,000, then such prepayment shall be made on the
date of the Current Disposition;
(ii) thereafter, quarterly, on the date of the
delivery by the Borrower to the Administrative Agent pursuant
to Section 9.01(b) of the financial statements for each
quarterly fiscal period or (if earlier) the date 60 days after
the end of such quarterly fiscal period, to the extent the
Borrower or any of its Subsidiaries shall receive Net
Available Proceeds during such quarterly fiscal period in cash
under deferred payment arrangements or Disposition Investments
entered into or received in connection with any Disposition,
an amount equal to (A) 100% of the aggregate amount of such
Net Available Proceeds minus (B) any transaction expenses
-----
associated with Dispositions and not previously deducted in
-35-
the determination of Net Available Proceeds plus (or minus, as
---- -----
the case may be) (C) any other adjustment received or paid by
the Obligors pursuant to the respective agreements giving rise
to Dispositions and not previously taken into account in the
determination of the Net Available Proceeds of Dispositions,
provided that if prior to the date upon which the Borrower
--------
would otherwise be required to make a prepayment under this
clause (ii) with respect to any quarterly fiscal period the
aggregate amount of such Net Available Proceeds (after giving
effect to the adjustments provided for in this clause (ii))
shall exceed $1,000,000, then the Borrower shall within five
Business Days make a prepayment under this clause (ii) in an
amount equal to such required prepayment.
Notwithstanding the foregoing, the Borrower shall not
be required to make a prepayment pursuant to this paragraph
(d) with respect to the Net Available Proceeds from any
Disposition in the event that the Borrower advises the
Administrative Agent at the time the Net Available Proceeds
from such Disposition are received that the Borrower or one or
more of its Subsidiaries intends to reinvest such Net
Available Proceeds pursuant to a Permitted Reinvestment
Transaction, so long as the Net Available Proceeds from any
Disposition are in fact so reinvested within twelve months of
such Disposition, it being understood that any such Net
Available Proceeds not so reinvested shall be forthwith
applied to the prepayment of Loans and reductions of
Commitments as provided above, and any Reserved Commitment
Amount that remains unutilized for more than twelve months
shall be applied to the permanent reduction of the Facility A
Revolving Credit Commitments, and the aggregate amount of Net
Available Proceeds (together with investment earnings thereon)
pending reinvestment as contemplated by this paragraph shall
not at any time exceed $10,000,000. As contemplated by Section
4.01 of the Security Agreement, nothing in this paragraph (d)
shall be deemed to obligate the Administrative Agent to
release any of such proceeds from the Collateral Account to
the Borrower for purposes of reinvestment as aforesaid upon
the occurrence and during the continuance of any Event of
Default.
(e) Application. Prepayments and reductions of Commitments
-----------
pursuant to paragraphs (a), (b), (c) and (d) of this Section 2.10 shall be
effected as follows:
(i) first, the amount of any such prepayment shall be
-----
applied to the prepayment of outstanding Facility B Term Loans
ratably to the installments thereof in accordance with the
respective principal amounts thereof;
(ii) second, following the prepayment in full of all
------
outstanding amounts of the Facility B Term Loans the amount of
any such prepayment shall be applied to the permanent
reduction of the Facility A Revolving Credit Commitments and
to the extent that the aggregate amount of the Facility A
Revolving Credit Loans together with the aggregate amount of
all Letter of Credit Liabilities shall exceed the amount of
the then existing Facility A Revolving Credit Commitments, the
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Borrower shall prepay the outstanding Facility A Revolving
Credit Loans in an amount equal to such excess.
(f) Cover for Letter of Credit Liabilities. In the event that
--------------------------------------
the Borrower shall be required pursuant to this Section 2.10, or pursuant to
Section 3.01(a), to provide cover for Letter of Credit Liabilities, the Borrower
shall effect the same by paying to the Administrative Agent in immediately
available funds an amount equal to the required amount, which funds shall be
retained by the Administrative Agent in the Collateral Account (as provided
therein as collateral security in the first instance for the Letter of Credit
Liabilities) until such time as the Letters of Credit shall have been terminated
and all of the Letter of Credit Liabilities paid in full.
(g) Change of Control. In the event that SFEC or the Borrower
-----------------
shall be required pursuant to the provisions of any instrument evidencing or
governing the SFEC Senior Notes or the Discount Notes or any Refinancing,
respectively, to redeem, or make an offer to redeem or repurchase, all or any
portion thereof (excluding any offer to redeem or repurchase the SFEC Zero
Coupon Notes or the Discount Notes as a result of the consummation of the Six
Flags Merger) as a result of a change of control (however defined), then,
concurrently with the occurrence of the event giving rise to such change of
control, the Borrower shall prepay the Loans (and/or provide cover for Letter of
Credit Liabilities as specified in paragraph (f) above) in full, and the
Commitments shall automatically terminate.
Section 3. Payments of Principal and Interest.
----------------------------------
3.01. Repayment of Loans.
------------------
(a) Facility A Revolving Credit Loan. The Borrower hereby
--------------------------------
promises to pay to the Administrative Agent for account of each Lender the
entire outstanding principal amount of such Lender's Facility A Revolving Credit
Loans, and each Facility A Revolving Credit Loan shall mature, on the Facility A
Revolving Credit Commitment Termination Date.
(b) Facility B Term Loan. The Borrower hereby promises to pay
--------------------
to the Administrative Agent for account of the Facility B Term Loan Lenders the
aggregate outstanding principal of the Facility B Term Loans in twenty-five
installments payable on the Principal Payment Dates as follows:
Principal Payment Date
Falling on or Nearest to: Amount of Installment ($)
------------------------ -------------------------
November 30, 1998 250,000
February 28, 1999 250,000
May 30, 1999 250,000
August 31, 1999 250,000
-37-
November 30, 1999 250,000
February 29, 2000 250,000
May 30, 2000 250,000
August 31, 2000 250,000
November 30, 2000 250,000
February 28, 2001 250,000
May 30, 2001 250,000
August 31, 2001 250,000
November 30, 2001 250,000
February 28, 2002 250,000
May 30, 2002 250,000
August 31, 2002 250,000
November 30, 2002 6,250,000
February 28, 2003 6,250,000
May 30, 2003 6,250,000
August 31, 2003 6,250,000
November 30, 2003 10,000,000
February 29, 2004 10,000,000
May 30, 2004 10,000,000
August 31, 2004 10,000,000
November 30, 2004 303,000,000
3.02. Interest. The Borrower hereby promises to pay to the
--------
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender to the Borrower for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Rate;
----
and
(b) during each Interest Period for such Loan during which
such Loan is a Eurodollar Loan, the Eurodollar Rate for such Interest
Period plus the Applicable Rate.
----
Notwithstanding the foregoing, the Borrower hereby promises to
pay to the Administrative Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such Lender,
on any Reimbursement Obligation held by such Lender and on any other amount
payable by the Borrower hereunder or under the Notes held by such Lender to or
for account of such Lender, that shall not be paid in full when due (whether at
stated maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the due date thereof to but excluding the date the
same is paid in full.
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Accrued interest on each Loan shall be payable (i) in the case
of a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the case of a
Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, and (iii) in the case of any Loan, upon
the payment or prepayment thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid or Converted),
except that interest payable at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrower.
Section 4. Payments; Pro Rata Treatment; Computations, Etc.
-----------------------------------------------
4.01. Payments.
--------
(a) Except to the extent otherwise provided herein, all
payments of principal, interest, Reimbursement Obligations and other amounts to
be made by the Borrower under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the Obligors under
any other Loan Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent,
at the Principal Office, in immediately available funds, not later than 12:00
p.m. New York time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of the Borrower
with such Lender (with notice to the Borrower and the Administrative Agent),
provided that such Lender's failure to give such notice shall not affect the
- --------
validity thereof.
(c) The Borrower shall, at the time of making each payment
under this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that the
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.03(e), each payment received by the Administrative Agent
under this Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
-39-
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02. Pro Rata Treatment. Except to the extent otherwise
------------------
provided herein: (a) each borrowing of Loans of a particular Class from the
Lenders under Section 2.01 shall be made from the relevant Lenders, each payment
of commitment fee under Section 2.05 in respect of Commitments of a particular
Class shall be made for account of the relevant Lenders, and each termination or
reduction of the amount of the Commitments of a particular Class under Section
2.04 shall be applied to the respective Commitments of such Class of the
relevant Lenders, pro rata according to the amounts of their respective
Commitments of such Class; (b) except as otherwise provided in Section 5.04,
Eurodollar Loans of any Class having the same Interest Period shall be allocated
pro rata among the relevant Lenders according to the amounts of their respective
Commitments (in the case of the making of Loans) or their respective Loans (in
the case of Conversions and Continuations of Loans); (c) each payment of
principal of Loans by the Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Loans of such Class held by them; (d) each optional prepayment of principal
of Loans by the Borrower shall be applied to the prepayment of outstanding
Facility B Term Loans, ratably in accordance with the respective principal
amounts thereof, and in each case to the installments thereof ratably in
accordance with the respective principal amounts thereof; and (e) each payment
of interest on Loans by the Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the amounts of interest on such Loans then
due and payable to the respective Lenders.
4.03. Computations. Interest on Eurodollar Loans and
------------
commitment fee and letter of credit fees shall be computed on the basis of a
year of 360 days and actual days elapsed (including the first day but, except as
otherwise provided in Section 2.03(g), excluding the last day) occurring in the
period for which payable and interest on Base Rate Loans and Reimbursement
Obligations shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable. Notwithstanding the
foregoing, for each day that the Base Rate is calculated by reference to the
Federal Funds Rate, interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.04. Minimum Amounts. Except for mandatory prepayments made
---------------
pursuant to Section 2.10 and Conversions or prepayments made pursuant to Section
5.04, each borrowing, Conversion and partial prepayment of principal of Base
Rate Loans shall be in an amount at least equal to $500,000 and multiples of
$100,000 and each borrowing, Conversion and partial prepayment of principal of
Eurodollar Loans shall be in an aggregate amount at least equal to $5,000,000
and multiples of $1,000,000 (borrowings, Conversions or prepayments of or into
Loans of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period), provided that if any Eurodollar Loans would otherwise be in a
--------
-40-
lesser principal amount for any period, such Loans shall be Base Rate Loans
during such period.
4.05. Certain Notices. Notices by the Borrower to the
---------------
Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans, of
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day). Each such notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the Borrower fails to
select the Type of Loan, or the duration of any Interest Period for any
Eurodollar Loan, within the time period and otherwise as provided in this
Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06. Non-Receipt of Funds by the Administrative Agent. Unless
------------------------------------------------
the Administrative Agent shall have been notified by a Lender or the Borrower
(the "Payor") prior to the date on which the Payor is to make payment to the
-----
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrower) a payment to the
-41-
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
----------------
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
------------
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day (it
being understood that, in the event the Borrower is the recipient of such
payment, such interest shall be in lieu of any interest otherwise payable under
Section 3.02) and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover such amount, on
demand, from the Payor, together with interest as aforesaid, provided that if
--------
neither the recipient(s) nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment
to be made by the Borrower to the Lenders, the Borrower and
the recipient(s) shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required
Payment at the Post-Default Rate (without duplication of the
obligation of the Borrower under Section 3.02 to pay interest
on the Required Payment at the Post-Default Rate), it being
understood that the return by the recipient(s) of the Required
Payment to the Administrative Agent shall not limit such
obligation of the Borrower under Section 3.02 to pay interest
at the Post-Default Rate in respect of the Required Payment,
and
(ii) if the Required Payment shall represent proceeds
of a Loan to be made by the Lenders to the Borrower, the Payor
and the Borrower shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required
Payment pursuant to whichever of the rates specified in
Section 3.02 is applicable to the Type of such Loan, it being
understood that the return by the Borrower of the Required
Payment to the Administrative Agent shall not limit any claim
the Borrower may have against the Payor in respect of such
Required Payment.
4.07. Sharing of Payments, Etc.
------------------------
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
-42-
credit or account of such Obligor at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Lender's
Loans, Reimbursement Obligations or any other amount payable to such Lender
hereunder, that is not paid when due (regardless of whether such deposit or
other indebtedness is then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, provided that such
--------
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or payment of any other amount under this Agreement or any other
Loan Document through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the Administrative
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
of any Class or Letter of Credit Liabilities or any other amounts then due
hereunder or thereunder by such Obligor to such Lender than the percentage
received by any other Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans or Letter of Credit Liabilities or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or Letter of Credit Liabilities
or such other amounts, respectively, owing to each of the Lenders. To such end
all the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
---------------------
5.01. Additional Costs.
----------------
(a) The Borrower shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
-43-
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
----------------
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of
such Loans or its Notes or changes the basis of taxation of any amounts
payable to such Lender under this Agreement or its Notes in respect of
any of such Loans (excluding changes in the rate of tax on the overall
net income of such Lender or of such Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement used in the
determination of the Eurodollar Rate for any Interest Period for such
Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01), or any
commitment of such Lender (including, without limitation, the
Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Borrower under this paragraph, the
Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Loans of any other Type into Eurodollar Loans,
until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 shall be applicable), provided
--------
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Borrower shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
that it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the national
level the Basle Accord, of capital in respect of its Commitments or Loans (such
-44-
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such Lender (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrower of any event
occurring after the date hereof entitling such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 45 days, after such Lender obtains actual knowledge thereof;
provided that (i) if any Lender fails to give such notice within 45 days after
- --------
it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 45 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America.
Each Lender will furnish to the Borrower a certificate setting
forth the basis and amount of each request by such Lender for compensation under
paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any
Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (b) of this Section 5.01 on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.01, shall be conclusive, provided that such
--------
determinations and allocations are made on a reasonable basis.
5.02. Limitation on Types of Loans. Anything herein to the
----------------------------
contrary notwithstanding, if, on or prior to the determination of the Eurodollar
Base Rate for any Interest Period for any Eurodollar Loan;
(a) the Administrative Agent determines, which determination
shall be conclusive absent manifest error, that quotations of interest
rates for the relevant deposits referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining rates of interest for Eurodollar Loans as provided herein;
or
(b) the Majority Lenders determine, which determination shall
be conclusive absent manifest error, and notify the Administrative
Agent that the relevant rates of interest referred to in the definition
of "Eurodollar Base Rate" in Section 1.01 upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely to cover adequately the cost to such Lenders
of making or maintaining Eurodollar Loans for such Interest Period;
-45-
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans,
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or
Convert such Loans into another Type of Loan in accordance with Section 2.10.
5.03. Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Borrower thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
shall be applicable).
5.04. Treatment of Affected Loans. If the obligation of any
---------------------------
Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03, such
Lender's Eurodollar Loans shall be automatically Converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for Eurodollar Loans
(or, in the case of a Conversion resulting from a circumstance described in
Section 5.03, on such earlier date as such Lender may specify to the Borrower
with a copy to the Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 5.01 or
5.03 that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 that gave rise to
the Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans of the same Class made by
other Lenders are outstanding, such Lender's Base Rate Loans of such Class shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Base Rate Loans and Eurodollar Loans of
such Class are allocated among the Lenders ratably (as to principal amounts,
-46-
Types and Interest Periods) in accordance with their respective Commitments of
such Class.
5.05. Compensation. The Borrower shall pay to the
------------
Administrative Agent for account of each Lender, upon the request of such Lender
through the Administrative Agent, such amount or amounts as shall be sufficient
(in the reasonable opinion of such Lender) to compensate it for any loss, cost
or expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason
(including, without limitation, the acceleration of the Loans pursuant
to Section 10) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 to be satisfied) to borrow a Eurodollar Loan
from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Dow Jones Markets Service
Page 3750 (British Bankers Association Settlement Rate) or other publicly
available source as described in the definition of "Eurodollar Base Rate" in
Section 1.01.
5.06. Additional Costs in Respect of Letters of Credit.
------------------------------------------------
Without limiting the obligations of the Borrower under Section 5.01 (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders, reasonable
-47-
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrower shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrower shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07. U.S. Taxes.
----------
(a) The Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender
is, on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 12.06(b)) and on the date of any change in the
Applicable Lending office of such Lender, either entitled to submit (A)
a Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans) or (B) in the case of a Lender not treated as a bank for
regulatory, tax or other legal purposes in any jurisdiction, (1) a
certificate under penalties of perjury that such Lender is not a bank,
a holder of equity of the Borrower or a controlled foreign corporation
related to the Borrower for purposes of section 881(c)(3) of the Code
or a conduit entity within the meaning of United States Treasury
Regulations section 1.881-3 and (2) a duly completed Internal Revenue
Service Form W-8; or
(ii) to any U.S. Taxes imposed solely by reason of the failure
by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity or connections with the United
States of America of such non-U.S. Person if such compliance is
required by statute or regulation of the United States of America as a
precondition to relief or exemption from such U.S. Taxes.
For the purposes of this paragraph, (A) "U.S. Person" means a citizen, national
or resident of the United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United States of America
or any State thereof, or any estate or trust that is subject to Federal income
taxation regardless of the source of its income, (B) "U.S. Taxes" means any
present or future tax, assessment or other charge or levy imposed by or on
-48-
behalf of the United States of America or any taxing authority thereof or
therein, (C) "Form 1001" means Form 1001 (Ownership, Exemption, or Reduced Rate
Certificate) of the Department of the Treasury of the United States of America,
(D) "Form 4224" means Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business in the United
States) of the Department of the Treasury of the United States of America and
(E) "Form W-8 (Certificate of Foreign Status of the Department of Treasury of
the United States of America). Each of the Forms referred to in the foregoing
clauses (C), (D), and (E) shall include such successor and related forms as may
from time to time be adopted by the relevant taxing authorities of the United
States of America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant taxing or other authority,
the Borrower shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence reasonably satisfactory to such Person of such
deduction, withholding or payment (as the case may be).
5.08. Replacement of Lenders. If any of the following shall
----------------------
occur with respect to any Lender (any such Lender being herein called an
"Affected Lender"):
(a) any Lender shall request compensation pursuant to Section
5.01, 5.06 or 5.07,
(b) any Lender's obligation to make or Continue Loans of any
Type, or to Convert Loans of any Type into the other Type of Loan,
shall be suspended pursuant to Section 5.01 or 5.03 or
(c) any Lender shall default in the making of any Loan
required to be made by it pursuant to Section 2.01,
the Borrower, upon three Business Days' notice, may require that such Affected
Lender transfer all of its right, title and interest under this Agreement and
such Affected Lender's Notes to any bank or other financial institution (a
"Proposed Lender") identified by the Borrower that is reasonably satisfactory to
the Administrative Agent and the Issuing Lender (i) if such Proposed Lender
agrees to assume all of the obligations of such Affected Lender hereunder, and
to purchase all of such Affected Lender's Loans hereunder for a consideration
equal to the aggregate outstanding principal amount of such Affected Lender's
Loans, together with interest thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Affected Lender of all
other amounts payable hereunder to such Affected Lender on or prior to the date
of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 as if all of such Affected Lender's Loans
were being prepaid in full on such date) and (ii) if such Affected Lender has
requested compensation pursuant to Section 5.01, 5.06 or 5.07, such Proposed
Lender's aggregate requested compensation, if any, pursuant to Section 5.01,
5.06 or 5.07 with respect to such Affected Lender's Loans is lower than that of
the Affected Lender. Subject to the provisions of Section 12.06(b), such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
-49-
agreements of the Borrower contained in Sections 5.01, 5.06, 5.07 and 12.04
(without duplication of any payments made to such Affected Lender by the
Borrower or the Proposed Lender) shall survive for the benefit of such Affected
Lender under this Section 5.08 with respect to the time prior to such
replacement.
Section 6. Guarantee.
---------
6.01. The Guarantee. SFEC, SFH and the Subsidiary Guarantors
-------------
(namely all of the Borrower's existing and future Subsidiaries (other than ANIC,
SFF, the Texas Partnership Entities, the Georgia Partnership Entities and any
Inactive Subsidiary) and collectively with SFEC and SFH referred to in this
Section 6 as the "Guarantors") hereby jointly and severally guarantee to each
Lender and the Administrative Agent and their respective successors and assigns
the prompt payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the principal of and interest on the Loans made by the Lenders
to, and the Note held by each Lender of, the Borrower and all other amounts from
time to time owing to the Lenders or the Administrative Agent by the Borrower
under this Agreement and under the Notes and by any Obligor under any of the
other Loan Documents, and all obligations of the Borrower or any of its
Subsidiaries to any Lender (or any affiliate of any Lender) in respect of any
Hedging Agreement, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantors hereby further jointly and severally agree that if
the Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors
will promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
6.02. Obligations Unconditional. The obligations of the
-------------------------
Guarantors under Section 6.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Borrower under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor
(other than payment in full), it being the intent of this Section 6.02 that the
obligations of the Guarantors hereunder shall be absolute and unconditional,
joint and several, under any and all circumstances. Without limiting the
generality of the foregoing it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantors
hereunder, which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
-50-
(ii) any of the acts mentioned in any of the provisions of
this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other Guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any Lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any
of the Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under this Agreement or the Notes or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
6.03. Reinstatement. The obligations of the Guarantors under
-------------
this Section 6 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantors jointly and
severally agree that they will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6.04. Subrogation. Each Guarantor hereby waives all rights of
-----------
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Bankruptcy
Code) or otherwise by reason of any payment by it pursuant to the provisions of
this Section 6 and further agrees with the Borrower for the benefit of its
creditors (including, without limitation, each Lender and the Administrative
Agent) that any such payment by it shall constitute a contribution of capital by
such Guarantor to the Borrower (or an investment in the equity capital of the
Borrower by such Guarantor).
6.05. Remedies. The Guarantors jointly and severally agree
--------
that, as between the Guarantors and the Lenders, the obligations of the Borrower
under this Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 10) for
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purposes of Section 6.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Guarantors for purposes
of Section 6.01.
6.06. Instrument for the Payment of Money. Each Guarantor
-----------------------------------
hereby acknowledges that the guarantee in this Section 6 constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
6.07. Continuing Guarantee. The guarantee in this Section 6 is
--------------------
a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08. Rights of Contribution. The Guarantors hereby agree, as
----------------------
between themselves, that if any Guarantor shall become an Excess Funding
Guarantor (as defined below) by reason of the payment by such Guarantor of any
Guaranteed Obligations, each other Guarantor shall, on demand of such Excess
Funding Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the Properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Guarantor to any Excess Funding Guarantor under this Section 6.08 shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Guarantor under the other provisions of this Section 6 and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations.
For purposes of this Section 6.08, (i) "Excess Funding
--------------
Guarantor" means, in respect of any Guaranteed Obligations, a Guarantor that has
- ---------
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
--------------
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Guarantor,
--------------
the ratio (expressed as a percentage) of (x) the amount by which the aggregate
present fair saleable value of all Properties of such Guarantor (excluding any
shares of stock of, or ownership interest in, any other Guarantor) exceeds the
amount of all the debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been Guaranteed by such Guarantor) to (y) the amount by
which the aggregate fair saleable value of all Properties of all of the Obligors
exceeds the amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of the Borrower and the Guarantors hereunder and under the other
Loan Documents) of all of the Obligors, determined (A) with respect to any
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Guarantor that is a party hereto on the Closing Date, as of the Closing Date,
and (B) with respect to any other Guarantor, as of the date such Guarantor
becomes a Guarantor hereunder.
6.09. General Limitation on Guarantee Obligations. In any
-------------------------------------------
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 6.01
would otherwise, taking into account the provisions of Section 6.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under Section
6.01, then, notwithstanding any other provision hereof to the contrary, the
amount of such liability shall, without any further action by such Guarantor,
any Lender, the Administrative Agent or any other Person, be automatically
limited and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
Section 7. Conditions.
----------
7.01. Initial Extension of Credit of any Class. The obligation
----------------------------------------
of any Lender to make its initial extension of credit hereunder (whether by
making a Loan or issuing a Letter of Credit) is subject to the conditions
precedent that (i) there shall have been no material adverse change in
financial, banking and capital market conditions and (ii) the Arranger shall
have received the following documents, each of which shall be reasonably
satisfactory to the Arranger (and to the extent specified below, to each Lender)
in form and substance, it being understood that, to the extent a form of a
particular document is specified below, such form shall be deemed to be
satisfactory to the Arranger and the Lenders:
(a) Corporate Documents. Certified copies of the charter and
-------------------
by-laws (or equivalent documents) of each Obligor and of all corporate
or other authority for each Obligor (including, without limitation, in
the case of any corporate Obligor, board of director resolutions and
evidence of the incumbency, including specimen signatures, of officers)
with respect to the execution, delivery and performance of such of the
Basic Documents to which such Obligor is intended to be a party and
each other document to be delivered by such Obligor from time to time
in connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Obligor to
the contrary).
(b) Officer's Certificate. A certificate of a Responsible
---------------------
Officer of the Borrower, dated the Closing Date, to the effect set
forth in the lettered clauses of the first sentence of Section 7.02.
(c) Business Plan. A business plan, prepared by a Responsible
-------------
Officer of the Borrower, in form and substance satisfactory to the
Arranger, consisting of financial projections for the fiscal years
ending December 31, 1998 through December 31, 2005, together with a
written analysis based thereon of the business and prospects of the
Borrower and its Subsidiaries for such fiscal years; provided that the
-53-
business plan delivered in connection with the Information Memorandum
is hereby deemed satisfactory for purposes of this Section 7.01(c).
(d) Opinion of Counsel to the Obligors. An opinion, dated the
----------------------------------
Closing Date, of (i) Baer Marks & Upham LLP, counsel to the Obligors,
substantially in the form of Exhibit E-1 and (ii) Weil, Gotshal and
Manges LLP, counsel to the Obligors, substantially in the form of
Exhibit E-2, and in each case covering such other matters as the
Arranger or any Lender may reasonably request (and each Obligor hereby
instructs each counsel to deliver such opinion to the Lender and the
Arranger).
(e) Opinion of Special New York Counsel to the Arranger. An
---------------------------------------------------
opinion, dated the Closing Date, of Milbank, Tweed, Hadley & McCloy,
special New York counsel to the Arranger, substantially in the form of
Exhibit F (and the Arranger hereby instructs such counsel to deliver
such opinion to the Lenders).
(f) Notes. The Notes, duly completed and executed for each
-----
Lender.
(g) Pledge Agreement. The Pledge Agreement, duly executed and
----------------
delivered by SFH and the Administrative Agent together with the
certificates and other securities and instruments identified therein
that are to be delivered on the Closing Date, in each case endorsed in
blank or accompanied by undated stock powers executed in blank. In
addition, SFH shall have taken such other action (including, without
limitation, delivering to the Arranger, for filing, appropriately
completed and duly executed Uniform Commercial Code Financing
Statements) as the Arranger shall have requested in order to protect
the security interests created pursuant to the Pledge Agreement.
(h) Security Agreement. The Security Agreement, duly executed
------------------
and delivered by the Borrower, the Subsidiary Guarantors and the
Administrative Agent, together with the certificates and other
securities and instruments identified in Annex 1 thereto that are to be
delivered on the Closing Date, in each case endorsed in blank or
accompanied by undated stock powers executed in blank. In addition, the
Borrower and each Subsidiary Guarantor shall have taken such other
action (including, without limitation, delivering to the Arranger, for
filing, appropriately completed and duly executed Uniform Commercial
Code financing statements) as the Arranger shall have requested in
order to perfect the security interests created pursuant to the
Security Agreement.
(i) Insurance. Certificates of insurance evidencing the
---------
existence of all insurance required to be maintained by the Obligors
pursuant to Section 9.04 and the designation of the Arranger as the
loss payee or additional named insured, as the case my be, thereunder
to the extent required by Section 9.04, with respect to all tangible
real or personal Property of the Obligors, such certificates to be in
such form and contain such information as is specified in Section 9.04.
In addition, the Borrower shall have delivered a certificate of a
Responsible Officer of the Borrower setting forth the insurance
obtained by it in accordance with the requirements of Section 9.04 and
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stating that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid.
(j) Environmental Surveys. Copies of existing environmental
---------------------
surveys and assessments in the possession of the Borrower and its
Subsidiaries with respect to the Existing Parks.
(k) Solvency Analysis. A certificate of a Responsible Officer
-----------------
of the Borrower to the effect that, as of the Closing Date and after
giving effect to the initial Loans hereunder and to the other
transactions contemplated hereby:
(i) the aggregate value of all Properties of the
Borrower and its Subsidiaries at their present fair saleable
value (i.e., the amount that may be realized within a
reasonable time, considered to be six months to one year,
either through collection or sale at the regular market value,
conceiving the latter as the amount that could be obtained for
the Property in question within such period by a capable and
diligent businessman from an interested buyer who is willing
to purchase under ordinary selling conditions), exceed the
amount of all debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the
Borrower and its Subsidiaries;
(ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with
which to conduct their business operations as heretofore
conducted; and
(iii) the Borrower and its Subsidiaries will have, on
a consolidated basis, sufficient cash flow to enable them to
pay their debts as they mature.
Such certificate shall include a statement to the effect that
the financial projections and underlying assumptions contained
in such analysis are fair and reasonable and accurately
computed.
(l) Existing Credit Agreement. Evidence that all principal of
-------------------------
and interest on the extensions of credits outstanding under, and all
other amounts owing under, the Existing Credit Agreement shall have
been (or shall be simultaneously) paid in full, and that any
commitments to extend credit under the Existing Credit Agreement shall
have been (or shall be simultaneously) canceled or terminated and that
all Guarantees in respect of, and all Liens securing, such Indebtedness
shall have been released (or arrangements for such release reasonably
satisfactory to the Arranger shall have been made).
(m) Effective Defeasance of SFEC Zero Coupon Notes. Evidence
----------------------------------------------
that all principal of and interest on, and all other amounts owing with
respect to the SFEC Zero Coupon Notes shall have been (or shall be
simultaneously) paid into an escrow account pursuant to a pledge and
escrow agreement between SFEC and the Bank of new York as Trustee
-55-
executed and delivered in connection with the issuance of the SFEC
Senior Notes.
(n) Formation and Capitalization of Holdings. Evidence that
----------------------------------------
Holdings shall have been formed to consummate the Merger Transactions
and shall have received at least $1,430,000,000 in gross proceeds from
the following sources: (i) the Common Stock Issuance, (ii) the Public
Preferred Stock Issuance and (iii) the issuance of the Holdings Senior
Discount Notes and the Holdings Senior Notes, each in accordance with
and in the manner set forth in the respective, prospectus, indenture or
other agreement relating to the issuance of the foregoing equity or
debt securities.
(o) Consummation of the Merger Transactions. Evidence the
---------------------------------------
Merger Transactions shall have been consummated in all material
respects in accordance with the terms of the Merger Agreement (except
for any modifications, supplements or waivers thereof, or written
consents or determinations made by the parties thereto, that shall be
satisfactory to the Majority Lenders or that shall not result in a
Material Adverse Effect) and the Arranger shall have received a
certificate of a Responsible Officer of the Borrower to such effect and
to the effect that attached thereto are true and complete copies of the
documents delivered in connection with the closing of the Merger
Transactions pursuant to the Merger Agreement. In addition, the
Arranger shall have received copies of the legal opinions delivered to
the Borrower pursuant to the Merger Agreement in connection with the
Merger Transactions, together with a letter from each Person delivering
such opinion (or authorization within such opinion) authorizing
reliance thereon by the Administrative Agent and the Lenders and shall
be satisfied that all necessary approvals have been obtained and all
applicable waitings periods have expired.
(p) Other Documents. Such other documents as the
---------------
Administrative Agent, the Arranger or any Lender or special New York
counsel to the Arranger may reasonably request.
The obligation of any Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender, the Administrative Agent or
the Arranger in connection herewith, including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to the Arranger, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and the
extensions of credit hereunder (to the extent that statements for such fees and
expenses have been delivered to the Borrower).
7.02. Initial and Subsequent Extensions of Credit. The
-------------------------------------------
obligation of the Lenders to make any Loan to the Borrower upon the occasion of
each extension of credit hereunder (including the initial extension of credit,
but excluding any Continuations or Conversion of Loans) is subject to the
conditions precedent that, both immediately prior to the making of such
extension of credit and also after giving effect thereto and to the intended use
thereof:
-56-
(a) the representations and warranties made by the Borrower
SFEC and SFH in Section 8, and by each Obligor in each of the other
Loan Documents to which it is a party, shall be true and complete on
and as of the date of the making of such extension of credit with the
same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date);
(b) no Default shall have occurred and be continuing; and
(c) the Borrower shall have delivered to the Administrative
Agent a certificate of a Responsible Officer of the Borrower, in form
and substance reasonably satisfactory to the Administrative Agent and
accompanied by such appraisals, if necessary, and other showings that
shall demonstrate to the reasonable satisfaction of the Administrative
Agent that such Loans may be permissibly incurred and secured under any
tests therefor set forth in the Senior Subordinated Notes Indentures
and the SFEC Indentures.
Each notice of borrowing, or request for issuance of a Letter of Credit, by the
Borrower hereunder shall constitute a certification by the Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. The Borrower and,
------------------------------
to the extent expressly stated below, each of SFEC and SFH represent and warrant
to the Administrative Agent and the Lenders that:
8.01. Organization; Powers. Each of the Borrower and its
--------------------
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; and (b) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
8.02. Financial Condition. SFEC or the Borrower has
-------------------
heretofore furnished to each of the Lenders the following financial statements:
(i) the consolidated balance sheets of (a) SFEC and its
Subsidiaries, (b) SFOT and (c) SFOG (in the case of SFOT and SFOG, to
the extent available) as at December 31, 1997 and the related
consolidated statements of operations, shareholders, equity and cash
flows of (a) SFEC and its Subsidiaries, (b) SFOT and (c) SFOG (in the
case of SFOT and SFOG, to the extent available) for the fiscal year
ended December 31, 1997, with the opinion thereon of Ernst & Young LLP;
and
57
(ii) the unaudited interim consolidated financial statements
of SFEC and its Subsidiaries (to the extent available) for each fiscal
month and quarter since December 31, 1997.
All such financial statements are complete and fairly present in all material
respects the consolidated financial condition of the Borrower and its
Subsidiaries, as at said respective dates and the consolidated results of their
operations for the applicable periods ended on said respective dates, all in
accordance with generally accepted accounting principles and practices (or, in
the case of the financial statements of SFOT only, based upon Federal income tax
accounting, as the case may be) applied on a consistent basis. None of the
Borrower nor any of its Subsidiaries has on the date hereof any material
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the balance
sheet of the Borrower and its Subsidiaries as at December 31, 1997. Since
December 31, 1997, there has been no material adverse change in the consolidated
financial condition, operations, business or prospects taken as a whole of (i)
the Borrower and its Subsidiaries, (ii) Premier Parks Inc. and (iii) Holdings,
in each case, from that set forth in respective audited financial statements for
the fiscal year ended December 31, 1997.
8.03. Litigation. Except as set forth in Schedule VI, there
----------
are no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Borrower) threatened against the Borrower or any of its Subsidiaries
that, if adversely determined, could (either individually or in the aggregate)
have a Material Adverse Effect.
8.04. No Breach. The Borrower, SFEC and SFH represent and
---------
warrant to the Administrative Agent and the Lenders that none of the execution
and delivery of this Agreement and the Notes and the other Basic Documents, the
consummation of the transactions herein and therein contemplated or compliance
with the terms and provisions hereof and thereof will conflict with or result in
a breach of, or require any consent under, the charter, by-laws or other
organizational documents of any Obligor, or any applicable material law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any material agreement or instrument to
which any Obligor is a party (including the Senior Subordinated Notes or the
SFEC Senior Notes) or by which any of them or any of their Property is bound or
to which any of them is subject, or constitute a default under any such
agreement or instrument, or (except for the Liens created pursuant to the
Security Documents) result in the creation or imposition of any Lien upon any
Property of any Obligor pursuant to the terms of any such agreement or
instrument, except that the granting of a Lien upon contracts entered into in
the ordinary course of business by any Obligor (which contracts are not,
individually or in the aggregate, material to the operations of any Park) may
conflict with restrictions upon assignments contained in such contracts.
8.05. Action. The Borrower, SFEC and SFH represent and warrant
------
that each Obligor has all necessary corporate or other power, authority and
legal right to execute, deliver and perform its obligations under each of the
Basic Documents to which it is a party; the execution, delivery and performance
-58-
by any Obligor of each of the Basic Documents to which it is a party have been
duly authorized by all necessary corporate or other action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by each Obligor and
constitutes, and each of the Notes and the other Basic Documents to which it is
a party when executed and delivered by any Obligor (and in the case of the
Notes, for value) will constitute, its legal, valid and binding obligation,
enforceable against each Obligor in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors, rights and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
8.06. Approvals. The Borrower, SFEC and SFH represent and
---------
warrant that no authorizations, approvals or consents of, and no filings or
registrations with, any governmental or regulatory authority or agency, or any
securities exchange, are necessary for the execution, delivery or performance by
any Obligor of this Agreement or any of the other Basic Documents to which it is
a party or for the legality, validity or enforceability hereof or thereof,
except for filings and recordings in respect of the Liens created pursuant to
the Security Documents.
8.07. Properties and Permits, Etc.
---------------------------
(a) Each of the Borrower and its Subsidiaries has good and
insurable title to, or valid leasehold interests in, all of its material
Properties, except for Liens permitted under Section 9.06 and defects in title
that do not materially interfere with its ability to conduct its business as
currently conducted or to utilize such Properties and assets for their intended
purposes. All such material Properties are free and clear of Liens, other than
Liens permitted by Section 9.06.
(b) Each of the Borrower and its Subsidiaries has complied
with all material obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual Property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(d) Each of the Borrower and its Subsidiaries holds all
material permits, licenses and other governmental authorizations necessary to
enable it to operate as heretofore conducted (other than seasonal permits or
liquor licenses, which it anticipates will be obtained in the normal course),
and will, upon the consummation of any acquisition, hold all material permits,
licenses and other governmental authorizations necessary to enable it to operate
(other than seasonal permits or liquor licenses, which it anticipates will be
obtained in the normal course).
-59-
8.08. Environmental Matters. Each of the Borrower and its
---------------------
Subsidiaries has obtained all environmental, health and safety permits,
licenses, registrations and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license,
registration or authorization would not (either individually or in the
aggregate) have a Material Adverse Effect. Each of such permits, licenses,
registrations and authorizations is in full force and effect and each of the
Borrower and its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any regulation,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply therewith would not (either individually or in the aggregate) have a
Material Adverse Effect.
In addition, except as set forth in Schedule III:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint is pending, no
penalty has been assessed and no investigation or review is pending or,
to the Borrower's knowledge, threatened by any governmental entity (or
other entity with jurisdiction over the parties) with respect to any
alleged failure by the Borrower or any of its Subsidiaries to have any
environmental, health or safety permit, license, registration or other
authorization required under any Environmental Law in connection with
the conduct of the business of the Borrower or any of its Subsidiaries
or with respect to any generation, treatment, storage, recycling,
transportation, discharge or disposal, or any Release of any Hazardous
Materials generated by the Borrower or any of its Subsidiaries in each
case that (either individually or in the aggregate) which would
materially adversely affect the operations of any Park.
(b) Neither the Borrower nor any of its Subsidiaries owns,
operates or leases on the date hereof a treatment, storage or disposal
facility requiring a permit under the Resource Conservation and
Recovery Act of 1976, as amended, or under any comparable state or
local statute; and none of the conditions set forth below exists that
would (either individually or in the aggregate) materially adversely
affect the operations of any Park or have a Material Adverse Effect:
(i) no polychlorinated biphenyls (PCB's) are or have
been present at any site or facility now or previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is
or has been present at any domestic site or facility now or
previously owned, operated or leased by the Borrower or any of
its Subsidiaries;
-60-
(iii) there are no underground storage tanks or
surface impoundments for Hazardous Materials, active or
abandoned, at any site or facility or previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
(iv) no Hazardous Materials have been Released at, on
or under any site or facility now owned, operated or leased by
the Borrower or any of its Subsidiaries in a reportable
quantity established by statute, ordinance, rule, regulation
or order; and
(v) no Hazardous Materials have been otherwise
Released at, on or under any site or facility now owned,
operated or leased by the Borrower or any of its Subsidiaries
that would (either individually or in the aggregate) have a
Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous
Material to any location that is listed on the National Priorities List
("NPL") under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"), listed for possible
inclusion on the NPL by the Environmental Protection Agency Credit
Agreement in the Comprehensive Environmental Response and Liability
Information System, as provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"),
or on any similar state or local list or that is the subject of
Federal, state or local enforcement actions or other investigations
that may lead to Environmental Claims against the Borrower or any of
its Subsidiaries, in any such case that would (either individually or
in the aggregate) materially adversely affect the operations of any
Park or have a Material Adverse Effect.
(d) As of the date hereof, no Hazardous Material generated by
the Borrower or any of its Subsidiaries has been recycled, treated,
stored, disposed of or Released by the Borrower or any of its
Subsidiaries at any location other than those listed in Schedule III,
Part 2.
(e) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Borrower or
any of its Subsidiaries and no site or facility now or previously
owned, operated or leased by the Borrower or any of its Subsidiaries is
listed or to the Borrower's knowledge, proposed for listing on the NPL,
CERCLIS or any similar state list of sites requiring investigation or
clean-up, in any such case that would (either individually or in the
aggregate) materially adversely affect the operations of any Park or
have a Material Adverse Effect.
(f) No Liens have arisen under or pursuant to any
Environmental Laws on any site or facility owned, operated or leased by
the Borrower or any of its Subsidiaries, and no government action has
been taken or is in process that could subject any such site or
facility to such Liens in any case to the extent such Lien secured
obligations (or would secure obligations) in an amount in excess of
$500,000 and neither the Borrower nor any of its Subsidiaries would be
required to place any notice or restriction relating to the presence of
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Hazardous Materials at any site or facility owned by it in any deed to
the real Property on which such site or facility is located, which
would adversely affect the operation of any Park.
(g) All environmental investigations, studies, audits, tests,
reviews or other similar analyses conducted by or that are in the
possession of the Borrower or any of its Subsidiaries in relation to
facts, circumstances or conditions at or affecting any site or facility
now or previously owned, operated or leased by the Borrower or any of
its Subsidiaries and that could result in a Material Adverse Effect
have been made available to the Lenders, including the environmental
surveys and assessments set forth in Schedule III, Part 1.
8.09. Compliance with Laws and Agreements. The Borrower, SFEC
-----------------------------------
and SFH represent and warrant that each Obligor in compliance with all laws,
regulations and orders of any governmental authority applicable to it or its
Property and all indentures, agreements and other instruments binding upon it or
its Property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
8.10. Investment Company Act. The Borrower, SFEC and SFH
----------------------
represent and warrant that no Obligor is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
8.11. Public Utility Holding Company Act. The Borrower, SFEC
----------------------------------
and SFH represent and warrant that no Obligor is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
8.12. Taxes. The Borrower, SFEC and SFH represent and warrant
-----
that the Obligors are members of an affiliated group of corporations filing
consolidated returns for Federal income tax purposes, of which the Holdings is
the "common parent" (within the meaning of Section 1504 of the Code) of such
group. Each Obligor has filed all Federal income tax returns and all other
material tax returns that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by any
Obligor. The charges, accruals and reserves on-the books of each Obligor in
respect of taxes and other governmental charges are, in the opinion of the
Borrower, SFEC and SFH, adequate.
8.13. ERISA. Each Plan, and, to the knowledge of the Borrower,
-----
each Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no ERISA
Event has occurred and is continuing as to which the Borrower would be under an
obligation to furnish a report to the Lenders under Section 9.02(c).
8.14. True and Complete Disclosure. The Borrower, SFEC and SFH
----------------------------
represent and warrant that the information, reports, financial statements,
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exhibits and schedules furnished in writing by or on behalf of the Obligors to
the Administrative Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Loan Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole (including the Information Memorandum) do not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they
were made, not misleading, provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time. All
written information furnished after the date hereof by any Obligor to the
Administrative Agent and the Lenders in connection with this Agreement and the
other Loan Documents and the transactions contemplated hereby and thereby will
be true, complete and accurate in every material respect, or (in the case of
projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the Borrower, SFEC
or SFH that could have a Material Adverse Effect that has not been disclosed
herein, in the other Loan Documents or in a report, financial statement,
exhibit, schedule, disclosure letter or other writing furnished to the Lenders
for use in connection with the transactions contemplated hereby or thereby.
8.15. Use of Credit. The Borrower, SFEC and SFH represent and
-------------
warrant that no Obligor is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying Margin Stock, and
no part of the proceeds of any Loan hereunder will be used to purchase or carry
any Margin Stock.
8.16. Debt Agreements and Liens.
-------------------------
(a) Part A of Schedule II is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness to, or guarantee of Indebtedness by, the Borrower or any of its
Subsidiaries outstanding on the date hereof, the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $100,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of Schedule II; the
aggregate of all such Indebtedness, the principal or face amount of which is
under $100,000 and which is accordingly not so listed does not exceed $250,000.
(b) Part B of Schedule II is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof,
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $100,000 and covering any Property of the Borrower or any of its
Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by
each such Lien and the Property covered by each such Lien is correctly described
in Part B of Schedule II.
8.17. Capitalization. The authorized capital stock of the
--------------
Borrower consists, on the date hereof, of an aggregate of 1,000 shares
consisting of (i) 1,000 shares of common stock, of which 755.2 shares were
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issued and outstanding as of December 31, 1997 each of which shares is fully
paid and nonassessable. As of the date hereof, (x) except for (i) warrants held
by the chief executive officer of the Borrower and (ii) options issued pursuant
to employee plans, there are no outstanding Equity Rights with respect to the
Borrower and (y) there are no outstanding obligations of the Borrower or any of
its Subsidiaries to repurchase, redeem, or otherwise acquire any shares of
capital stock of the Borrower nor are there any outstanding obligations of the
Borrower or any of its Subsidiaries to make payments to any Person, such as
"phantom stock" payments, where the amount thereof is calculated with reference
to the fair market value or equity value of the Borrower or any of its
Subsidiaries.
8.18. Subsidiaries and Investments.
----------------------------
(a) Set forth in Part A of Schedule IV is a complete and
correct list of all of the Subsidiaries of the Borrower as of the date hereof
(including Inactive Subsidiaries which are listed under the heading "Inactive
Subsidiaries" but as to which the Borrower makes no other representation or
warranty under any provision of this Section 8), together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding ownership interests in such Subsidiary and (iii) the nature of
the ownership interests held by each such Person and the percentage of ownership
of such Subsidiary represented by such ownership interests. Except as disclosed
in Part A of Schedule IV, as of the date hereof, (x) each of the Borrower and
its Subsidiaries owns, free and clear of Liens (other than Liens created
pursuant to the Security Documents), and has the unencumbered right to vote, all
outstanding ownership interests in each Person shown to be held by it in Part A
of Schedule IV, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
(b) Set forth in Part B of Schedule IV is a complete and
correct list of all Investments (other than Investments disclosed in Part A of
Schedule IV or of the type referred to in clauses (b), (c), (d) or (e) of
Section 9.08) held by the Borrower or any of its Subsidiaries in any Person on
the date hereof and, for each such Investment, (x) the identity of the Person or
Persons holding such Investment and (y) the nature of such Investment. Except as
disclosed in Part B of Schedule IV, each of the Borrower and its Subsidiaries
owns, free and clear of all Liens (other than Liens created pursuant to the
Security Documents), all such Investments.
(c) None of the Subsidiaries (other than Six Flags San
Antonio) of the Borrower is, on the date hereof, subject to any indenture,
agreement, instrument or other arrangement restricted in Section 9.15(c).
8.19. Parks; Real Property. Set forth in Part A of Schedule V
--------------------
is a complete and correct list of all of the amusement and attraction parks
owned by the Borrower and its Subsidiaries on the date hereof. Set forth in Part
B of Schedule V is a complete and correct list, as of the date hereof of all of
the real Property interests held by the Borrower and its Subsidiaries,
indicating in each case whether the respective Property is owned or leased, the
identity of the owner or lessee and the location of the respective Property.
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8.20. Insurance. Set forth on Schedule VII is a complete and
---------
correct description of all insurance maintained by the Borrower and its
Subsidiaries as of the date hereof. As of the date hereof, all of such insurance
is in full force and effect and no premiums are past due in respect thereof.
8.21. Labor Matters. There are no strikes pending or
-------------
threatened against the Borrower or any Subsidiary other than strikes that could
not reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Effect. Except as set forth on Schedule IX, the hours worked
and payment made to employees of the Borrower and each Subsidiary have not been
in violation in any respect of the Fair Labor Standards Act or any other similar
applicable law other than violations that could not reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect. All
material payments due from the Borrower or any Subsidiary, or for which any
material claim may be made against the Borrower or any Subsidiary, on account of
wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of the Borrower or such Subsidiary.
The consummation of the transactions contemplated hereunder will not give rise
to a right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Borrower or any
Subsidiary (or any predecessor) is a party or by which the Borrower or any
Subsidiary (or any predecessor) is bound, other than collective bargaining
agreements that, individually or in the aggregate, are not material to the
Borrower and the Subsidiaries taken as a whole.
8.22. Solvency. Immediately after the consummation of the
--------
transactions contemplated hereunder and immediately following the making of each
Loan made on the Closing Date and after giving effect to the application of the
proceeds of such Loans:
(i) the aggregate value of all Properties of the Borrower
and its Subsidiaries at their present fair saleable
value (i.e., the amount that may be realized within a
reasonable time, considered to be six months to one
year, either through collection or sale at the
regular market value, conceiving the latter as the
amount that could be obtained for the Property in
question within such period by a capable and diligent
businessman from an interested buyer who is willing
to purchase under ordinary selling conditions),
exceed the amount of all debts and liabilities
(including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its
Subsidiaries;
(ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small
capital with which to conduct their business
operations as heretofore conducted; and
(iii) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable
them to pay their debts as they mature.
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8.23. Year 2000 Issues. The Borrow 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 business or operations 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, the Borrower has no reason to believe that a
Material Adverse Effect will occur with respect to such business or operations
resulting from any such risk.
Section 9. Covenants of the Borrower. The Borrower and, to the
-------------------------
extent expressly stated below, SFEC and SFH covenant and agree with the Lenders
and the Administrative Agent that, so long as any Commitment, Loan or Letter of
Credit Liability is outstanding and until payment in full of all amounts payable
by the Borrower hereunder:
9.01. Financial Statements and Other Information. The Borrower
------------------------------------------
shall deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower:
(x) consolidated statements of operations,
shareholders' equity and cash flows of the Borrower and its
Subsidiaries for such fiscal year and the related consolidated
balance sheets of the Borrower and its Subsidiaries as at the
end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated figures for
the preceding fiscal year, accompanied by an opinion thereon
of independent certified public accountants of recognized
national standing, which opinion shall state that such
consolidated financial statements fairly present the
consolidated financial condition and results of operations of
the Borrower and its Subsidiaries as at the end of, and for,
such fiscal year in accordance with generally accepted
accounting principles, and a statement of such accountants to
the effect that, in making the examination necessary for their
opinion, nothing came to their attention that caused them to
believe that the Borrower was not in compliance with Section
9.10, insofar as such Section relates to accounting matters,
(y) consolidating statements of operations of the
Borrower and its Subsidiaries for such fiscal year,
accompanied by a certificate of a Responsible Officer of the
Borrower, which certificate shall state that such
consolidating financial statements fairly present the
respective individual unconsolidated financial condition and
results of operations of the Borrower and of each of its
Subsidiaries, in each case in accordance with generally
accepted accounting principles, consistently applied, as at
the end of, and for, such fiscal year, and
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(z) park-level statements of operating data
(including revenue and expense items and showing the
calculation of EBITDA, or equivalent, for the respective Park)
for such fiscal year for each of the Parks of the Borrower and
its Subsidiaries, in each case prepared in accordance with the
Borrower's internal accounting practices in form and detail
substantially similar to the corresponding statements set
forth in the Information Memorandum;
(b) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Borrower:
(x) consolidated statements of operations,
shareholders' equity and cash flows of the Borrower and its
Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheets of the
Borrower and its Subsidiaries, as at the end of such period,
setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding
periods in the preceding fiscal year (except that, in the case
of balance sheets, such comparison shall be to the last day of
the prior fiscal year), accompanied by a certificate of a
Responsible Officer of the Borrower, which certificate shall
state that such consolidated financial statements fairly
present the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries, in each case
in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments), and
(y) park-level statements of operating data
(including revenue and expense items and showing the
calculation of EBITDA, or equivalent, for the respective Park)
for the period from the beginning of such fiscal year to the
end of such fiscal quarter and setting forth in comparative
form the figures for the corresponding period in the preceding
fiscal year, in each case prepared in accordance with the
Borrower's internal accounting practices in form and detail
substantially similar to the corresponding statements set
forth in the Information Memorandum;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section 9.01, a certificate of a
Responsible Officer of the Borrower (i) to the effect that no Default
has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action that the Borrower has taken or proposes to take with respect
thereto) and (ii) setting forth in reasonable detail the computations
necessary to determine whether the Borrower was in compliance with
Sections 9.08(g), 9.08(i), 9.09 or 9.10 as of the end of the respective
quarterly fiscal period or fiscal year; provided that no such
--------
certificate shall be required to be delivered with the delivery of the
financial statements for the fiscal year and fiscal quarter ended
December 31, 1997;
-67-
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Borrower shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(e) promptly upon receipt thereof, copies of any management
letters prepared by the Borrower's independent public accountants with
respect to the audit of the financial statements of the Borrower and
its Subsidiaries;
(f) within 31 days after the beginning of each fiscal year, a
detailed pro forma annual operating budget for such fiscal year in form
and detail satisfactory to the Administrative Agent;
(g) within five Business Days after the end of each of the
months of June, July, August, September and October, a performance
report detailing on a park-by-park basis attendance and revenue for the
preceding month and showing a comparison to budget and to the same
period in the prior year; and
(h) so long as financial statements are being prepared in
connection with the SFEC Notes or with respect to any other
Indebtedness of SFEC, SFEC shall deliver to each of the Lenders as soon
as available and in any event within 90 days after the end of each
fiscal year of SFEC:
(x) consolidated statements of operations,
shareholders' equity and cash flows of SFEC and its
Subsidiaries for such fiscal year and the related consolidated
balance sheets of SFEC and its Subsidiaries as at the end of
such fiscal year, setting forth in each case in comparative
form the corresponding consolidated figures for the preceding
fiscal year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing,
which opinion shall state that such consolidated financial
statements fairly present the consolidated financial condition
and results of operations of SFEC and its Subsidiaries as at
the end of, and for, such fiscal year in accordance with
generally accepted accounting principles, and
(y) consolidating statements of operations of SFEC
and its Subsidiaries for such fiscal year, accompanied by a
certificate of a Responsible Officer of SFEC, which
certificate shall state that such consolidating financial
statements fairly present the respective individual
unconsolidated financial condition and results of operations
of SFEC and of each of its Subsidiaries, in each case in
accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal
year;
(i) so long as financial statements are being prepared in
connection with the SFEC Notes or with respect to any other
Indebtedness of SFEC, SFEC shall deliver to each of the Lenders as soon
as available and in any event within 45 days after the end of each
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quarterly fiscal period of each fiscal year of SFEC: consolidated
statements of operations, shareholders' equity and cash flows of SFEC
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 SFEC 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
SFEC, which certificate shall state that such consolidated financial
statements fairly present the consolidated financial condition and
results of operations of SFEC and its Subsidiaries, in each case in
accordance with generally accepted accounting principles, consistently
applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments) provided that no such certificate shall be
--------
required to be delivered with the delivery of the financial statements
for the fiscal year and fiscal quarter ended December 31, 1997;
(j) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA), or compliance with the terms of this Agreement, as
any Lender or the Administrative Agent may reasonably request.
9.02. Notices of Material Events. The Borrower will furnish
--------------------------
the following to the Administrative Agent and each Lender in writing:
(a) promptly after any executive officer of the Borrower has
actual knowledge of facts that would give him or her reason to believe
that any Default has occurred, notice of such Default;
(b) as soon as any executive officer of the 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 the Borrower 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.
(c) as soon as possible, and in any event within ten days
after the Borrower knows or has reason to believe that any ERISA Event
has occurred or exists, notice of the occurrence of such ERISA Event
and a copy of any report or notice required to be filed with or given
to the PBGC by the Borrower or an ERISA Affiliate with respect to such
ERISA Event, could reasonably be expected to result in aggregate
liabilities or damages in excess of $2,500,000.
-69-
(d) prompt notice of the assertion of any Environmental Claim
by any Person against, or with respect to the activities of, the
Borrower or any of its Subsidiaries and notice of any alleged violation
of or non-compliance with any Environmental Laws or any permits,
licenses or authorizations, other than any Environmental Claim or
alleged violation that, if adversely determined, would not (either
individually or in the aggregate) result in remediation costs of less
than $500,000 or adversely affect the operation of any Park; and
(e) prompt notice of any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 9.02 shall be accompanied by a
statement of a Responsible Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
9.03. Existence, Etc. The Borrower will, and will cause each
--------------
of its Subsidiaries to:
(a) preserve and maintain its legal existence and all material
permits, licenses and other governmental authorizations necessary to
enable it to operate each of its Parks (other than seasonal permits and
liquor licenses, which it anticipates will be obtained in the normal
course), provided that nothing in this Section 9.03 shall prohibit any
--------
transaction expressly permitted under Section 9.05;
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could (either individually
or in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all Federal income taxes and all other
material taxes, assessments and governmental charges or levies imposed
on it or on its income or profits or on any of its Property prior to
the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which adequate
reserves are being maintained;
(d) maintain and preserve all of its Properties material to
the conduct of the business and operations of the Borrower and its
Subsidiaries (taken as a whole) in good working order and condition;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
-70-
(f) permit representatives of any Lender or the Administrative
Agent, upon reasonable notice and during normal business hours, to
examine, copy and make extracts from its books and records, to inspect
any of its Properties, and to discuss its business and affairs with its
officers and the general managers of its Parks, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
9.04. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, in amounts and against such losses and risks as the
Borrower shall from time to time reasonably determine is sufficient based upon
its experience and industry practice to protect the Borrower and its
Subsidiaries and their respective businesses, provided that the Borrower will in
any event maintain (with respect to itself and each of its Subsidiaries):
(1) Casualty Insurance--insurance against loss or damage
------------------
covering all of the tangible real and personal Property and
improvements of the Borrower and each of its Subsidiaries by reason of
any Peril (as defined below) in such amounts (subject to (x) in the
case of general liability policies, per occurrence deductibles (or
self-insurance retentions) not exceeding $250,000, and (y) in the case
of Property insurance deductibles, not exceeding $300,000 or, in each
case, such higher deductible as shall be reasonably satisfactory to the
Majority Lenders) as shall be reasonable and customary and sufficient
to avoid the insured named therein from becoming a co-insurer of any
loss under such policy but in any event in an amount (i) in the case of
fixed assets and equipment (including, without limitation, vehicles),
at least equal to 75% of the actual replacement cost of such assets
(including, without limitation, foundation, footings but excluding
excavation costs), subject to deductibles as aforesaid and (ii) in the
case of inventory, not less than the fair market value thereof, subject
to deductibles as aforesaid.
(2) Automobile Liability Insurance for Bodily Injury and
----------------------------------------------------
Property Damage--insurance against liability for bodily injury and
---------------
Property damage in respect of all vehicles (whether owned, hired or
rented by the Borrower or any of its Subsidiaries) at any time located
at, or used in connection with, its Properties or operations in such
amounts as are then customary for vehicles used in connection with
similar Properties and businesses, but in any event to the extent
required by applicable law.
(3) Comprehensive General Liability Insurance--insurance
-----------------------------------------
against claims for bodily injury, death or Property damage occurring
on, in or about the Properties (and adjoining streets, sidewalks and
waterways, but only to the extent of the legal liability of the
Borrower and its Subsidiaries therefor) of the Borrower and its
Subsidiaries, in such amounts as are then customary for Property
similar in use in the jurisdictions where such Properties are located
(subject to deductibles not exceeding $300,000, or such higher
deductible as shall be reasonably satisfactory to the Majority
Lenders).
(4) Workers' Compensation Insurance--workers, compensation
-------------------------------
insurance (including, without limitation, Employers' Liability
Insurance) to the extent required by applicable law.
-71-
(5) Product Liability Insurance--insurance against claims for
---------------------------
bodily injury, death or Property damage resulting from the use of
products sold by the Borrower or any of its Subsidiaries in such
amounts as are then customarily maintained by responsible persons
engaged in businesses similar to that of the Borrower and its
Subsidiaries (subject to deductibles not exceeding $300,000, or such
higher deductible as shall be reasonably satisfactory to the Majority
Lenders).
(6) Business Interruption Insurance--insurance against loss of
-------------------------------
operating income (in an aggregate amount not less than $40,000,000, as
to the Borrower and its Subsidiaries as a whole, and subject to a
deductible, or self-insured amount, not in excess of $300,000, or such
higher deductible as shall be reasonably satisfactory to the Majority
Lenders) by reason of any Peril.
Such insurance shall be written by financially responsible companies selected by
the Borrower and having an A. M. Best rating of "A-" or better and being in a
financial size category of VIII or larger, or by other companies reasonably
acceptable to the Majority Lenders, and (other than workers' compensation) shall
name the Administrative Agent as loss payee (to the extent covering risk of loss
or damage to tangible Property) and as an additional named insured as its
interests may appear (to the extent covering any other risk). Each policy
referred to in this Section 9.04 shall provide that it will not be canceled or
reduced, or allowed to lapse without renewal, except after not less than 30
days' notice to the Administrative Agent and shall also provide that the
interests of the Administrative Agent and the Lenders shall not be invalidated
by any act or negligence of the Borrower or any Person having an interest in any
Property covered by a mortgage in favor of the Administrative Agent nor by
occupancy or use of any such Property for purposes more hazardous than permitted
by such policy nor by any foreclosure or other proceedings relating to such
Property. The Borrower will advise the Administrative Agent promptly of any
policy cancellation, reduction or amendment.
On each date that is 10 days prior to the anniversary date
(the "Delivery Date") of any insurance policy of the Borrower or any of its
-------------
Subsidiaries (the "Anniversary Date") (commencing with the first September 15
----------------
after the date hereof), the Borrower will deliver to the Administrative Agent
certificates of insurance evidencing that all insurance required to be
maintained by the Borrower hereunder will be in effect through the 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 the Borrower will provide
reasonable evidence to the Administrative Agent that it is in the process of
renewing such insurance policy for such period. In addition, the Borrower will
not modify any of the provisions of any policy with respect to casualty
insurance without delivering the original copy of the endorsement reflecting
such modification to the Administrative Agent accompanied by a written report of
AON Risk Services, Inc., or any other firm of independent insurance brokers of
nationally recognized standing, stating that, in their opinion, such policy (as
so modified) is in compliance with the provisions of this Section 9.04. The
Borrower will not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section 9.04 unless
the Administrative Agent is the named insured thereunder, with loss payable as
provided herein. The Borrower will immediately notify the Administrative Agent
-72-
whenever any such separate insurance is obtained and shall deliver to the
Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Borrower under the
foregoing provisions of this Section 9.04, in the event the Borrower shall fail
to maintain in full force and effect insurance as required by the foregoing
provisions of this Section 9.04, then the Administrative Agent may, but shall
have no obligation so to do, procure insurance covering the interests of the
Lenders and the Administrative Agent in such amounts and against such risks as
the Administrative Agent (or the Majority Lenders) shall deem appropriate, and
the Borrower shall reimburse the Administrative Agent in respect of any premiums
paid by the Administrative Agent in respect thereof.
For purposes hereof, the term "Peril", means, collectively,
fire, lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Properties of the Borrower and its Subsidiaries are
located.
Notwithstanding the foregoing, the insurance maintained by the
Borrower and its Subsidiaries on the date hereof (as described on Schedule VII),
is deemed to be satisfactory to the Lenders, the Administrative Agent and the
Arranger, provided that upon the expiration or termination of such existing
--------
insurance the Borrower will, and will cause each of its Subsidiaries to,
maintain insurance in compliance with this Section 9.04.
9.05. Prohibition of Fundamental Changes.
----------------------------------
(a) Mergers. Neither SFEC, SFH nor the Borrower will, and the
-------
Borrower will not permit any of its Subsidiaries to, enter into any transaction
of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution, except that the Borrower may
liquidate or dissolve any Inactive Subsidiary), other than the Merger
Transactions.
(b) Restrictions on Acquisitions. The Borrower will not, nor
----------------------------
will it permit any of its Subsidiaries to, acquire any business or Property
from, or capital stock of, or be a party to any acquisition of, any Person
except for (i) purchases of inventory and other Property to be sold or used in
the ordinary course of business, (ii) Investments permitted under Sections
9.05(e) and 9.08(g) 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 9.10).
(c) Restrictions on Sales. The Borrower will not, nor will it
---------------------
permit any of its Subsidiaries to consummate any Disposition.
(d) Sale and Leaseback. The Borrower will not, nor will it
------------------
permit any of its Subsidiaries to, 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
-73-
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 9.07(d).
(e) Certain Permitted Transactions. Notwithstanding the
------------------------------
foregoing provisions of this Section 9.05:
(i) Intercompany Mergers. The Borrower may be merged or
--------------------
consolidated with or into SFH if the Borrower shall be the continuing
or surviving corporation and the capital stock of the Borrower will be
pledged pursuant to a pledge agreement substantially in the form of the
Pledge Agreement entered into by SFH (or an amendment to the Pledge
Agreement in form and substance satisfactory to the Administrative
Agent), and any Subsidiary of the Borrower may be merged or
consolidated with or into: (i) the Borrower if the Borrower shall be
the continuing or surviving corporation or (ii) any other Subsidiary of
the Borrower; provided that if any such transaction shall be between a
--------
Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary
shall be the continuing or surviving corporation.
(ii) Intercompany Dispositions. The Borrower or any Subsidiary
-------------------------
of the Borrower may sell, lease, transfer or otherwise dispose of any
or all of its Property (upon voluntary liquidation or otherwise) to the
Borrower or a Wholly Owned Subsidiary of the Borrower.
(iii) Subsequent Acquisitions. The Borrower or any Wholly
-----------------------
Owned Subsidiary of the Borrower may acquire any amusement or
attraction park, and the related assets, of any other Person (whether
by way of purchase of assets or stock, by merger or consolidation or
otherwise) after the date hereof with the proceeds of issuances of
equity or equity contributions from SFEC or SFH (each, a "Subsequent
----------
Acquisition"), so long as:
-----------
(A) 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 the Borrower or a Wholly Owned Subsidiary
of the Borrower and, if effected by merger or consolidation
involving the Borrower, the Borrower shall be the continuing
or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Subsidiary of the
Borrower, a Wholly Owned Subsidiary shall be the continuing or
surviving entity;
(B) the Borrower 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,
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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 Majority Lenders shall have
reasonably requested (and which is available, or obtainable
within such period by the Borrower with reasonable efforts);
(C) to the extent applicable, the Borrower shall have
complied with the provisions of Section 9.15, including,
without limitation, to the extent not theretofore delivered,
delivery to the Administrative Agent of (x) the certificates
evidencing the capital stock of any new Subsidiary formed or
acquired in connection with such Subsequent Acquisition,
accompanied by undated stock powers executed in blank, and (y)
the agreements, instruments, opinions of counsel and other
documents required under Section 9.15;
(D) to the extent requested by the Borrower, the
Borrower and the Majority Lenders shall have agreed to a
supplement to Schedule VIII setting forth pro forma
adjustments to be made in determining EBITDA after giving
effect to such Subsequent Acquisition; and
(E) immediately prior to such Subsequent Acquisition
and after giving effect thereto, no Default shall have
occurred and be continuing.
(iv) Partnership Transfers. The Borrower may consummate any of
---------------------
the Partnership Transfers.
9.06. Negative Pledge. Neither SFEC nor the Borrower will and
---------------
the Borrower will not permit any of its Subsidiaries to, create, incur, assume
or suffer to exist any Lien upon any of their respective Property, or assets
(including stock or other securities of any person, including any subsidiary)
now owned or hereafter acquired by it or on any income or rights in respect of
any thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B
of Schedule II 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
-75-
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or the affected
Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than 30
days or that are being contested in good faith and by appropriate
proceedings, and Liens securing judgments but only to the extent for an
amount and for a period not resulting in an Event of Default under
clause (j) of Section 10;
(e) pledges or deposits under 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 the Borrower or any of its Subsidiaries; and
(h) Liens securing Purchase Money Indebtedness or Capital
Lease Obligations to the extent such Indebtedness is permitted to be
incurred under Section 9.07(d).
9.07. Indebtedness. The Borrower will not, nor will it
------------
permit any of its Subsidiaries to, create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in
Part A of Schedule II, and any Indebtedness incurred to refinance any
such outstanding Indebtedness, provided that such refinancing
--------
Indebtedness does not exceed the amount of Indebtedness being so
refinanced and any costs associated with such refinancing;
(c) Indebtedness of the Borrower or any Subsidiaries of the
Borrower to the Borrower or to other Subsidiaries of the Borrower, and
Guarantees by the Borrower or any of its Wholly Owned Subsidiaries of
obligations of the Borrower or any of its Wholly Owned Subsidiaries;
-76-
(d) Indebtedness consisting of Purchase Money Indebtedness and
Capital Lease Obligations incurred after the date hereof in an
aggregate amount not in excess of $35,000,000 at any time outstanding;
and
(e) Indebtedness under any Refinancing Notes in an aggregate
principal amount at any time outstanding not in excess of the aggregate
principal amount of Discount Notes outstanding on the Closing Date
(less principal repaid after the Closing Date) and costs, expenses or
premiums incurred in connection with such Refinancing Notes; so long as
(i) the effective interest rate in respect of the Refinancing Notes is
not greater than the effective interest rate in respect of the Discount
Notes, (ii) the covenants, events of default and mandatory redemption,
repurchase or prepayment provisions contained in the Refinancing Notes
Indenture are not materially more burdensome on the Borrower and its
Subsidiaries than those contained in the Discount Notes Indenture,
(iii) the Refinancing Notes are unsecured, (iv) the final maturity, and
weighted average life to maturity, of the Refinancing Notes are not
earlier than the corresponding maturity of the Discount Notes, (v) the
subordination terms applicable to such Refinancing Notes are not less
favorable to the Lenders than those contained in the Discount Notes
Indenture, (vi) none of the Subsidiaries of the Borrower are
contingently or otherwise obligated in respect thereof except to the
extent they were obligated on the original debt being refinanced, (vii)
the other provisions of the Refinancing Notes would not be materially
less favorable to the Lenders or the Administrative Agent than the
corresponding provisions of the Discount Notes, (viii) at the time of
issuance of such Refinancing Notes and after giving effect thereto and
to the application of the proceeds thereof, the Borrower shall be in
compliance with Section 9.10 (the determination of compliance with such
ratios to be calculated on a pro forma basis as if the Indebtedness
with respect to such Refinancing Notes were incurred and the proceeds
thereof were so applied, in each case, at the beginning of such period,
and the Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower to such effect setting forth in
reasonable detail the computations necessary to determine such
compliance) and (ix) immediately prior thereto and after giving effect
to the incurrence thereof, no Default shall have occurred and be
continuing, and the Administrative Agent shall have received a
certificate of a Responsible Officer of the Borrower to such effect.
9.08. Investments. The Borrower will not, nor will it permit
-----------
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the date hereof and identified
in Part B of Schedule IV;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Wholly Owned
Subsidiaries in the Borrower's Wholly Owned Subsidiaries, including
Guarantees by the Borrower or any of its Wholly Owned Subsidiaries of
-77-
obligations of the Borrower or any of its Wholly Owned Subsidiaries,
provided that the Borrower shall not form or acquire any Subsidiary
that is organized under the laws of a jurisdiction other than the
United States of America or any state thereof;
(e) Hedging Agreements, provided that when entering into any
--------
Hedging Agreement that at the time has, or at any time in the future
may give rise to, any credit exposure, the aggregate credit exposure
under all Hedging Agreements (including the Hedging Agreement being
entered into) shall not exceed $2,500,000;
(f) Disposition Investments received in connection with any
Disposition permitted under Section 9.05 or any Disposition to which
the Lenders shall have consented in accordance with Section 12.03;
(g) Investments consisting of acquisitions permitted under
Section 9.05(e)(iii), including, without limitation, investments in
connection with the acquisition of the Property and/or ownership
interests in SFF or San Antonio Park GP not owned by the Borrower or
any of its Subsidiaries (other than SFF); provided that, until SFF is
--------
wholly owned by the Borrower and its Subsidiaries (other than SFF),
Investments by the Borrower and its Subsidiaries (other than SFF) in
SFF and San Antonio Park GP shall not exceed $20,000,000 in the
aggregate;
(h) additional Investments up to but not exceeding $25,000,000
in the aggregate; provided that at the time of the making of such
--------
Investment, no Default shall have occurred or be continuing;
(i) loans to officers, directors and employees of the Borrower
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
(j) in connection with the Six Flags Merger, (i) a loan by the
Borrower to SFOG Acquisition A Holdings, Inc. and the dividend of such
loan receivable by the Borrower to SFH and (ii) a loan by the Borrower
to SFT Holdings Inc. and the dividend of such loan receivable to SFH.
9.09. Restricted Payments. The Borrower will not, nor will it
-------------------
permit any of its Subsidiaries to, declare or make any Restricted Payment after
the consummation of the Six Flags Merger, except that so long as at the time
thereof and after giving effect thereto no Default shall have occurred and be
continuing:
(a) the Borrower may make Restricted Payments to SFH (which in
turn shall make a dividend payment to SFEC) to enable SFEC to meet
scheduled cash interest obligations with respect to the SFEC Senior
Notes;
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(b) the Borrower may make Restricted Payments to Holdings or
to SFH in cash (which in turn shall make a dividend payment to SFEC,
which in turn shall make a dividend payment to Holdings) to enable
Holdings to pay out-of-pocket accounting fees, legal fees and other
administrative expenses incurred in the ordinary course of business
pursuant to any shared services allocation agreements;
(c) the Borrower may make Restricted Payments to Holdings or
to SFH (which in turn shall make a dividend payment to SFEC, which in
turn shall make a dividend payment to Holdings) in respect of income
tax liabilities of the Borrower and its Subsidiaries in accordance with
the tax sharing agreement entered into at the time of the Six Flags
Merger;
(d) the Borrower may make a one-time Restricted Payment to SFH
(which in turn shall make a dividend payment to SFEC, which in turn
shall make a dividend payment to Holdings) not to exceed $10,000,000 on
the date of the consummation of the Six Flags Merger; and
(e) the Borrower may make the Restricted Payments permitted
under Section 9.08(j).
9.10. Certain Financial Covenants.
---------------------------
(a) Leverage Ratio. The Borrower will not permit the Leverage
--------------
Ratio to exceed the following respective ratios as at the last day of any fiscal
quarter during any of the following respective periods:
Period Ratio
------ -----
From the Closing Date
through September 29, 1999 5.50 to 1
From September 30, 1999
through September 29, 2000 5.25 to 1
From September 30, 2000
through September 29, 2001 4.50 to 1
From September 30, 2001
and at all times thereafter 4.00 to 1
(b) Senior Secured Debt Ratio. The Borrower will not permit
-------------------------
the Senior Secured Debt Ratio to exceed the following respective ratios as at
the last day of any fiscal quarter during any of the following respective
periods:
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Period Ratio
------ -----
From the Closing Date
through September 29, 1999 3.75 to 1
From September 30, 1999
through September 29, 2000 3.25 to 1
From September 30, 2000
through September 29, 2001 2.75 to 1
From September 30, 2001
and at all times thereafter 2.50 to 1
(c) Interest Coverage Ratio. The Borrower will not permit the
-----------------------
Interest Coverage Ratio to be less than the following respective ratios as at
the last day of any fiscal quarter during any of the following respective
periods:
Period Ratio
------ -----
From the Closing Date
through September 29, 1999 2.00 to 1
From September 30, 1999
through September 29, 2000 2.25 to 1
From September 30, 2000
through September 29, 2001 2.50 to 1
From September 30, 2001
through September 29, 2002 2.75 to 1
From September 30, 2002
and at all times thereafter 3.00 to 1
(d) Fixed Charges Coverage Ratio. The Borrower will not permit
----------------------------
the Fixed Charges Ratio to be less than the following respective ratios as at
the last day of any fiscal quarter during any of the following respective
periods:
Period Ratio
------ -----
From the Closing Date
through September 29, 2000 1.00 to 1
From September 30, 2000
and at all times thereafter 1.10 to 1
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9.11. Subordinated Indebtedness. Neither SFEC nor the Borrower
-------------------------
will, nor will the Borrower permit any of its Subsidiaries to, purchase, redeem,
retire or otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for the purchase, redemption, retirement or
other acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of the SFEC
Senior Notes, the Discount Notes or the Refinancing Notes except for regularly
scheduled payments of principal and interest in respect thereof required
pursuant to the instruments evidencing the same (but in any event subject to any
applicable subordination terms set forth therein).
9.12. Lines of Business. Neither the Borrower nor SFEC will
-----------------
and the Borrower will not permit any of its Subsidiaries to, engage to any
substantial extent in any line or lines of business activity other than the
business of owning and operating amusement and attraction parks, and businesses
related, ancillary or complementary thereto.
9.13. Transactions with Affiliates. Except as expressly
----------------------------
permitted by this Agreement, the Borrower will not, nor will it permit any of
its Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate (other than Investments permitted under Sections 9.08(d) and 9.08(g));
(b) transfer, sell, lease, assign or otherwise dispose of any Property to an
Affiliate; (c) merge into or consolidate with or purchase or acquire Property
from an Affiliate; or (d) enter into any other transaction directly or
indirectly with or for the benefit of an Affiliate (including, without
limitation, Guarantees and assumptions of obligations of an Affiliate); provided
--------
that (w) any Affiliate who is an individual may serve as a director, officer or
employee of the Borrower or any of its Subsidiaries and receive reasonable
compensation for his or her services in such capacity , (x) the Borrower and its
Subsidiaries may enter into transactions (other than extensions of credit by the
Borrower or any of its Subsidiaries to an Affiliate) providing for the leasing
of Property, the rendering or receipt of services or the purchase or sale of
inventory and other Property in the ordinary course of business if the monetary
or business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not an
Affiliate, (y) the Borrower and its Subsidiaries may enter into shared services
allocation agreements and tax sharing agreements referred to in Section 9.09(c)
and 9.09(d) and (z) SFEC and its Subsidiaries may consummate the Six Flags
Merger and all related transactions (including, without limitation, the
Partnership Transfers).
9.14. Use of Proceeds, Etc. The Borrower will use the proceeds
--------------------
of the Loans hereunder to refinance existing indebtedness, to provide funds for
the payment of certain dividends permitted under Section 9.09, and to finance
general corporate purposes, including working capital and for Capital
Expenditures and acquisitions permitted hereunder (in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations G, T, U and X and the Securities Act of 1933 and the Securities
Exchange Act of 1934 and the regulations thereunder); provided that neither the
--------
Administrative Agent nor any Lender shall have any responsibility as to the use
of any of such proceeds.
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9.15. Certain Further Assurances.
--------------------------
(a) Subsidiary Guarantors. The Borrower will take such action,
---------------------
and will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all Subsidiaries of the Borrower (other
than ANIC, SFF and any Inactive Subsidiary) are "Subsidiary Guarantors"
----
hereunder. Without limiting the generality of the foregoing, in the event that
the Borrower or any of its Subsidiaries shall form or acquire any new Subsidiary
(other than any Inactive Subsidiary) that shall constitute a Subsidiary
hereunder or in the event that any Inactive Subsidiary shall cease to be an
Inactive Subsidiary or in the event that SFF shall become a Wholly Owned
Subsidiary, the Borrower and its Subsidiaries will, and will cause such new
Subsidiary or former Inactive Subsidiary or SFF, as the case may be, to:
(i) become a "Subsidiary Guarantor" hereunder, and a "Securing
Party" under the Security Agreement pursuant to a Guarantee Assumption
Agreement;
(ii) take such action (including, without limitation,
delivering such shares of stock, executing and delivering such Uniform
Commercial Code financing statements and executing and delivering
mortgages or deeds of trust covering the real Property (including
fixtures owned or leased) and fixtures owned or leased by such
Subsidiary) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the Property
of such Subsidiary as collateral security for the obligations of such
Subsidiary hereunder and on the capital stock or other ownership
interest of such Subsidiary under the Security Agreement; and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 7.01 or as the
Administrative Agent shall have reasonably requested.
In addition, upon the formation or acquisition of any new
Subsidiary, the Borrower and its Subsidiaries will take such action as shall be
necessary so that all shares of capital stock or other ownership interests in
such Subsidiary are pledged to the Administrative Agent under the Security
Agreement.
(b) Ownership of Subsidiaries. The Borrower will, and will
-------------------------
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that each of its Subsidiaries (other than ANIC, SFF or
----
any Inactive Subsidiary) is a Wholly Owned Subsidiary. Without limiting the
generality of the requirements of paragraph (a) above, in the event that any
additional shares of stock shall be issued by any Subsidiary, the respective
Obligor agrees forthwith to deliver to the Administrative Agent pursuant to the
Security Agreement the certificates evidencing such shares of stock, accompanied
by undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to the Security Agreement.
(c) Certain Restrictions. The Borrower will not permit any of
--------------------
its Subsidiaries to enter into, after the date hereof, any indenture, agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
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restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property, other than any such prohibition or restraint (i) set
forth in any agreement providing for the disposition of Property (so long as
such prohibition or restraint relates only to the Property to be disposed of),
(ii) set forth in any of the Loan Documents, (iii) set forth in the terms of the
Senior Subordinated Notes Indentures as in effect on the date hereof or in any
Refinancing Notes Indentures so long as the terms thereof are not more
restrictive than such Senior Subordinated Notes Indentures, (iv) upon the
granting of liens on the rights under the License Agreement or (v) set forth in
any real Property lease agreement, licenses or contracts entered into in the
ordinary course of business which by their terms prohibit an assignment to the
extent that such prohibition or restraint could not reasonably be expected to
result in a Material Adverse Effect.
(d) Mortgages and Title Insurance. The Borrower agrees and
-----------------------------
agrees to cause its Subsidiaries to deliver to the Administrative Agent the
following documents within 90 days after the Closing Date, each of which shall
be executed (and, where appropriate, acknowledged) by Persons satisfactory to
the Administrative Agent:
(i) Mortgages covering the real Property interests of the
Borrower and its Subsidiaries with respect to the Existing Parks (other
than the Park known as Six Flags Fiesta Texas) identified in Part B of
Schedule V, in each case duly executed and delivered by the respective
Obligor holding such interests in recordable form (in such number of
copies as the Administrative Agent shall have requested) and, to the
extent necessary with respect to any leasehold Property to be subjected
to a Mortgage, consents of the respective landlords with respect to
such Property;
(ii) one or more mortgagee policies of title insurance on
forms of and issued by First American Heritage Title Company (the
"Title Company"), insuring the validity and priority of the Liens
-------------
created under the Mortgages for and in amounts satisfactory to the
Administrative Agent, subject only to such exceptions as are
satisfactory to the Administrative Agent and, to the extent necessary
under applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed;
(iii) if requested by the Administrative Agent, as-built
surveys of recent date of each of the facilities to be covered by the
Mortgages, showing such matters as may be required by the
Administrative Agent, which surveys shall be in form and content
acceptable to the Administrative Agent, and certified to the
Administrative Agent and to each Lender and the Title Company, and
shall have been prepared by a registered surveyor acceptable to the
Administrative Agent;
(iv) if requested by the Administrative Agent, certified
copies of permanent and unconditional certificates of occupancy (or, if
it is not the practice to issue certificates of occupancy in the
jurisdiction in which the facilities to be covered by the Mortgages are
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located, then such other evidence reasonably satisfactory to the
Administrative Agent) permitting the fully functioning operation and
occupancy of the facility of the respective Obligor located on each
such real Property interest, and of such other permits necessary for
the use and operation of each such facility issued by the respective
governmental authorities having jurisdiction over each such facility;
and
(v) opinion(s), dated the date of the execution and delivery
of the relevant Mortgage, of local counsel in the respective states in
which the Properties covered by the Mortgages are located, in form and
substance satisfactory to the Administrative Agent, and covering such
matters as the Administrative Agent may reasonably request (and each
Obligor hereby instructs such counsel to deliver such opinion(s) to the
Lenders and the Administrative Agent).
In addition, the Borrower shall concurrently with the execution and delivery of
the Mortgages pay to the Title Company all expenses and premiums of the Title
Company in connection with the issuance of such policies and in addition shall
pay to the Title Company an amount equal to the recording and stamp taxes
payable in connection with recording the Mortgages in the appropriate county
land office(s).
9.16. Modifications of Certain Documents. Neither SFEC, SFH
----------------------------------
nor the Borrower will, without in each case the prior consent of the
Administrative Agent (with the approval of the Majority Lenders), consent to any
modification, supplement or waiver of:
(a) any of the provisions of any agreement,
instrument or other document evidencing or relating to Subordinated
Indebtedness;
(b) any provision of (i) the Senior Subordinated
Notes Indentures or (ii) the SFEC Senior Notes Indenture;
(c) its articles of incorporation or by-laws (other
than for purposes of reducing the authorized capital stock of
the Borrower);
(d) any provision of any real Property lease with
respect to any Park, the Merger Agreement, the Indemnity
Agreement, the License Agreement or any Subsequent Acquisition
Agreement, if (in the case of this clause (d)) such
modification, supplement or waiver would have a material
adverse effect upon the Lenders or the Administrative Agent.
Section 10. Events of Default. If one or more of the
-----------------
following events (herein called "Events of Default") shall occur and be
-----------------
continuing:
(a) the Borrower shall default in the payment when due
(whether at stated maturity or at mandatory or optional prepayment) of
any principal of any Loan or Reimbursement Obligation, or shall default
for three or more Business Days in the payment when due of any interest
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on any Loan or any fee or any other amount payable by it hereunder or
under any other Loan Document;
(b) any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any
modification or supplement hereto or thereto) by any Obligor, or any
certificate furnished to any Lender, the Administrative Agent or the
Arranger pursuant to the provisions hereof or thereof, shall prove to
have been false or misleading as of the time made or furnished in any
material respect; or any representation or warranty made in the Merger
Agreement shall prove to have been false or misleading as of the time
made or furnished, in any such case that would (either individually or
in the aggregate) materially adversely affect the operations of any
Park or have a Material Adverse Effect; provided that, to the extent
--------
that the Borrower or any of its Subsidiaries is indemnified against any
loss or liability incurred as a result of a representation or warranty
made in the Merger Agreement that proves to be false or misleading and
the party providing such indemnity agrees to indemnify the Borrower or
any of its Subsidiaries for such loss or liability, the effect of such
indemnity shall be considered in determining whether there has been a
Material Adverse Effect.
(c) the Borrower shall default in the performance of any of
its obligations under any of Sections 9.02(a), 9.05, 9.06, 9.07, 9.08,
9.09, 9.10, 9.11, 9.13, 9.14, 9.15 or 9.16 or any Obligor shall default
in the performance of any of its obligations under Section 4.02 of the
Security Agreement;
(d) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a) or (c) of this Section 10) or any other Loan
Document and such failure shall continue unremedied for a period of 30
days after notice thereof to the Borrower by the Administrative Agent
or any Lender (through the Administrative Agent);
(e) the Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating $5,000,000 or more; or any Obligor shall
default in the payment when due of any amount aggregating $5,000,000 or
more under any Hedging Agreement;
(f) any event specified in any note, agreement, indenture or
other document evidencing or relating to any other Indebtedness
aggregating $5,000,000 or more of any Obligor shall occur if the effect
of such event is to cause, or (with the giving of any notice or the
lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness trade at a
level specified in relation to the par value thereof; or any event
specified in any Hedging Agreement shall occur if the effect of such
event is to cause, or (with the giving of any notice or the lapse of
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time or both) to permit, termination or liquidation payment or payments
aggregating $5,000,000 or more to become due;
(g) a proceeding or case shall be commenced, without the
application or consent of SFEC, SFH or Borrower or any of its
Subsidiaries, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of the
Borrower or such Subsidiary or of all or any substantial part of its
Property, or (iii) similar relief in respect of SFEC, SFH or 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 SFEC, SFH or Borrower or any of
its Subsidiaries shall be entered in an involuntary case under the
Bankruptcy Code or any other applicable bankruptcy, insolvency or
similar laws;
(h) SFEC, SFH or Borrower or any of its Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, custodian, trustee, examiner or liquidator of itself or
of all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code 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) SFEC, SFH or Borrower or any of its Subsidiaries shall
admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due;
(j) a final judgment or judgments for the payment of money of
$5,000,000 or more in the aggregate (exclusive of judgment amounts
fully covered by insurance) or of $15,000,000 or more in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Borrower or any of its Subsidiaries and the same shall not
be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 60 days from
the date of entry thereof and the 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;
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(k) an event or condition specified in Section 9.02(c) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, the Borrower or any ERISA Affiliate shall incur or in
the opinion of the Majority Lenders shall be reasonably likely to incur
a liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the
Majority Lenders, would (either individually or in the aggregate) have
a Material Adverse Effect;
(l) there shall have been asserted against the Borrower or any
of its Subsidiaries an Environmental Claim that, in the judgment of the
Majority Lenders, is reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by the
Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons liable in whole or in part therefor);
(m) any one or more of the following shall occur and be
continuing:
(i) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act") is or becomes the beneficial owner (as
------------
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more
than 35% of the voting stock of the Borrower;
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Borrower (together with any new
directors whose election by such Board of Directors or whose
nomination for election by the Borrower's shareholders was
approved by a vote of a majority of the Borrower's directors
then still in office who either were directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the Borrower's directors then in
office;
(iii) any change in control with respect to the
Borrower (or similar event, however denominated) shall occur
under and as defined in any indenture or other agreement in
respect of Indebtedness in an aggregate principal amount of at
least $10,000,000 to which the Borrower is a party;
(iv) Kieran E. Burke and Gary Story shall cease to be
actively involved in the day-to-day management and operation
of the Borrower and its Subsidiaries (unless Persons with
substantial knowledge and experience in the amusement and
attraction park industry reasonably acceptable to the Majority
Lenders have been appointed to replace one or both of them
within 180 days thereof);
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(v) SFH or (if the Borrower shall be merged into SFH)
SFEC shall cease to own 100% of the capital stock of the
Borrower; or
(n) the Liens created by the Security Documents shall at any
time not constitute valid and perfected Liens on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein)
in favor of the Administrative Agent, free and clear of all other Liens
(other than Liens permitted under Section 9.06 or under the respective
Security Documents), or, except for expiration in accordance with its
terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Obligor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (g) or (h) of this Section 10 with respect to any Obligor, the
Administrative Agent may (and, if requested by the Majority Lenders, shall), by
notice to the Borrower, terminate the Commitments and/or declare the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.06) to be forthwith due and payable, whereupon
such amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor; and (2) in the case of the occurrence of an Event of
Default referred to in clause (g) or (h) of this Section 10 with respect to any
Obligor, the Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.06) shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of
any Event of Default, the Borrower agrees that it shall, if requested by the
Administrative Agent or the Majority Lenders through the Administrative Agent
(and, in the case of any Event of Default referred to in clause (g) or (h) of
this Section 10 with respect to any Obligor, forthwith, without any demand or
the taking of any other action by the Administrative Agent or any Lender)
provide cover for the Letter of Credit Liabilities by paying to the
Administrative Agent immediately available funds in an amount equal to the then
aggregate undrawn face amount of all Letters of Credit, which funds shall be
held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities and be
subject to withdrawal only as therein provided.
Section 11. The Administrative Agent and Arranger.
-------------------------------------
11.01. Appointment, Powers and Immunities. Each Lender hereby
----------------------------------
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
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other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 shall
include reference to its affiliates and its own and its affiliates', officers,
directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be
a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by the
Borrower or any other Person to perform any of its obligations
hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by
the Majority Lenders with respect to collateral security under the
Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Loan Document;
and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Loan Document or under
any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Borrower
to such assignment or transfer (to the extent required by Section 12.06(b)).
11.02. Reliance by Administrative Agent. The Administrative
--------------------------------
Agent shall be entitled to rely upon any certification, notice or other
communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) reasonably believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent with reasonable care. As to
any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Majority Lenders or all of the Lenders as is required
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in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders.
11.03. Defaults. The Administrative Agent shall not be deemed
--------
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section
11.07) take such action with respect to such Default as shall be directed by the
Majority Lenders, provided that, unless and until the Administrative Agent shall
--------
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Majority Lenders.
11.04. Rights as a Lender. With respect to its Commitments and
------------------
the Loans made by it, The Bank of New York (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Bank of New York (and any
successor acting as Administrative Agent) and its affiliates may (without having
to account therefor to any Lender) accept deposits from, lend money to, make
investments in and generally engage in any kind of banking, trust or other
business with the Obligors (and any of their Subsidiaries or Affiliates) as if
it were not acting as the Administrative Agent, and The Bank of New York and its
affiliates (and any such successor) and its affiliates may accept fees and other
consideration from the Obligors for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
11.05. Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent and the Arranger (to the extent not reimbursed under
Section 12.04, but without limiting the obligations of the Borrower under
Section 12.04) ratably in accordance with the aggregate principal amount of the
Loans and Reimbursement Obligations held by the Lenders (or, if no Loans or
Reimbursement Obligations are at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Administrative Agent or the Arranger (including by
any Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses that the Borrower is obligated to pay under Section 12.04,
but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
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any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
11.06. Non-Reliance on Administrative Agent, the Arranger and
------------------------------------------------------
Other Lenders. Each Lender agrees that it has, independently and without
- -------------
reliance on the Administrative Agent, the Arranger or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Administrative Agent, the Arranger or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement or under any other Loan Document. Neither the Administrative Agent nor
the Arranger shall be required to keep itself informed as to the performance or
observance by any obligor of this Agreement or any of the other Loan Documents
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Borrower or any of its Subsidiaries.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
under the Security Documents, neither the Administrative Agent nor the Arranger
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Administrative Agent, the Arranger or any of their
respective affiliates.
11.07. Failure to Act. Except for action expressly required of
--------------
the Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
11.08. Resignation or Removal of Administrative Agent. Subject
----------------------------------------------
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower, and the Administrative Agent may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall, after consultation with the
Borrower, have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders, removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, that shall be a financial institution that has an office
in New York, New York with a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
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hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section 11 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
11.09. Consents under Other Loan Documents. Except as
-----------------------------------
otherwise provided in Section 12.03 with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Loan Documents, provided that, without the prior consent of each Lender, the
--------
Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document providing for collateral security, agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Security Document, in which event the Administrative
Agent may consent to such junior Lien, provided that it obtains the consent of
--------
the Majority Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents,
except that at no such consent shall be required, and the Administrative Agent
is hereby authorized, to release any Lien covering Property that is the subject
of either a disposition of Property permitted hereunder or a disposition to
which the Majority Lenders have consented.
11.10. Arranger. Except as provided in this Section 11 and in
--------
Section 12.06(b), the Arranger shall not have any rights or obligations under
this Agreement or in connection with the syndication of the Commitments
hereunder, other than in its capacity as a "Lender" hereunder.
Section 12. Other Provisions.
----------------
12.01. Notices. All notices, requests and other communications
-------
provided for herein and in the Security Documents (including, without
limitation, any modifications of, or waivers or consents under, this Agreement)
shall be given or made in writing (including, without limitation, by telecopy),
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (below the name of the Borrower, in the
case of any Subsidiary Guarantor) or if to a Lender at its address set forth in
its Administrative Questionnaire, or, as to any party, at such other address as
shall be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
12.02. Waiver. No failure on the part of the Administrative
------
Agent or any Lender to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of any other
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right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
12.03. Amendments, Etc. Except as otherwise expressly provided
---------------
in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Borrower and the
Majority Lenders, or by the Borrower and the Administrative Agent acting with
the consent of the Majority Lenders, and any provision of this Agreement may be
waived by the Majority Lenders or by the Administrative Agent acting with the
consent of the Majority Lenders; provided that:
--------
(a) no modification, supplement or waiver shall,
unless by an instrument signed by all of the Lenders or by the
Administrative Agent acting with the consent of all of the
Lenders: (i) increase, or extend the term of any of the
Commitments, or extend the time or waive any requirement for
the reduction or termination of any of the Commitments, (ii)
extend the date fixed for the payment of principal of or
interest on any Loan or Reimbursement Obligation or any fee
hereunder, (iii) reduce the amount of any such payment of
principal or Reimbursement Obligation, (iv) reduce the rate at
which interest is payable thereon or any fee is payable
hereunder, (v) alter the manner in which payments or
prepayments of principal, interest or other amounts hereunder
shall be applied as between the Lenders or Types or Classes of
Loans, (vi) alter the terms of this Section 12.03, (vii)
modify the definition of the term "Majority Lenders", or
modify in any other manner the number or percentage of the
Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof or (viii)
release any Guarantor from any of its guarantee obligations
under Section 6;
(b) any modification or supplement of Section 11, or
of any of the rights or duties of the Administrative Agent
hereunder, shall require the consent of the Administrative
Agent; and
(c) any modification or supplement of Section 6 shall
require the consent of each Subsidiary Guarantor.
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class, unless the Majority Facility A Revolving
Credit Loan Lenders or Majority Facility B Term Loan Lenders (whichever of such
Class is so affected) shall have concurred with such waiver or modification.
12.04. Expenses, Etc. The Borrower agrees to pay or reimburse
-------------
each of the Lenders, the Administrative Agent and the Arranger for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent and the
Arranger, including the reasonable fees and expenses of special counsel to the
Arranger, in connection with (i) the negotiation, preparation, execution and
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delivery of this Agreement and the other Loan Documents and the extensions of
credit hereunder and (ii) the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any of the other
Loan Documents (whether or not consummated); (b) all reasonable out-of-pocket
costs and expenses of the Lenders and the Administrative Agent (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceedings
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 12.04; (c) all
transfer, stamp, mortgage recording, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein; and (d) all
costs, expenses and other charges in respect of title insurance procured with
respect to Liens created pursuant to any mortgages at any time securing any
obligations hereunder.
The Borrower hereby agrees to indemnify the Administrative
Agent, the Arranger and each Lender and their respective directors, officers,
employees, attorneys and agents (each, an "indemnified person") from, and hold
------------------
each of them harmless against, any and all losses, liabilities, claims, damages
or expenses incurred by any of them (including, without limitation, any and all
losses, liabilities, claims, damages or expenses incurred by the Administrative
Agent or the Arranger to any Lender, whether or not the Administrative Agent,
the Arranger or any Lender is a party thereto) arising out of or by reason of
any investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to the extensions of
credit hereunder or any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the extensions of credit hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
indemnified Person). In that connection, the Borrower will not be required to
reimburse the indemnified persons for more than one counsel in any jurisdiction,
except to the extent that a particular indemnified person may have defenses that
are distinct from, or in conflict with, the defenses of other indemnified
persons.
Without limiting the generality of the provisions of the
foregoing paragraph, the Borrower will indemnify the Administrative Agent, the
Arranger and each Lender from, and hold the Administrative Agent, the Arranger
and each Lender harmless against, any losses, liabilities, claims, damages or
expenses described in the preceding paragraph (including any Lien filed against
any Property covered by any mortgages in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
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damage or expense incurred by reason of the gross negligence or willful
misconduct of the indemnified Person) arising under any Environmental Law as a
result of the past, present or future operations of the Borrower or any of its
Subsidiaries (or any predecessor in interest to the Borrower or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Borrower or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened Release of
any Hazardous Materials at or from any such site or facility, excluding any such
Release or threatened Release that shall occur during any period when the
Administrative Agent or any Lender shall be in possession of any such site or
facility following the exercise by the Administrative Agent or any Lender of any
of its rights and remedies hereunder or under any of the Security Documents, but
including any such Release or threatened Release occurring during such period
that is a continuation of conditions previously in existence, or of practices
employed by the Borrower and its Subsidiaries, at such site or facility.
12.05. Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06. Assignments and Participations.
------------------------------
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Administrative Agent and the Arranger.
(b) Each Lender may assign any of its Loans, its Notes and its
Commitments and its Letter of Credit Interest (but only with the consent of the
Administrative Agent, the Arranger and the Borrower and, in the case of an
assignment of all or a portion of a Facility A Revolving Credit Commitment or
any Facility A Revolving Credit Loan Lender's obligations with respect to its
Letter of Credit Interest, the Issuing Lender, which consents shall not be
unreasonably withheld or delayed); provided that:
--------
(i) no such consent by the Borrower, the
Administrative Agent, the Arranger or the Issuing Lender shall
be required in the case of any assignment to another Lender or
an affiliate of a Lender or an Approved Fund;
(ii) no such consent by the Borrower shall be
required in the case of any assignment involving the Arranger
in its capacity as a "Lender" hereunder on or prior to the
date 120 days after the Closing Date;
(iii) except to the extent the Borrower and the
Administrative Agent shall otherwise consent, any such partial
assignment (other than to another Lender or an affiliate of a
Lender or an Approved Fund) shall be in an amount at least
equal to $5,000,000; and
(iv) any consent of the Borrower otherwise required
under this paragraph (b) shall not be required if an Event of
Default has occurred and is continuing.
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Upon execution and delivery by the parties to each such assignment of an
Assignment and Acceptance pursuant to which such assignee agrees to become a
"Lender" hereunder (if not already a Lender) having the Commitments, Loans and
Reimbursement obligations specified therein, and upon consent thereto by the
Borrower, the Administrative Agent, the Arranger and/or the Issuing Lender to
the extent required above and delivery of such assignment and acceptance to the
Administrative Agent, the assignee shall have, to the extent of such assignment
(unless otherwise consented to by the Borrower, the Administrative Agent, the
Arranger and the Issuing Lender, the obligations, rights and benefits of a
Lender hereunder holding the Commitments, Loans and Reimbursement Obligations
(or portions thereof) assigned to it (in addition to the Commitments, Loans and
Reimbursement obligations, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitments (or portions thereof) so assigned. Upon each such assignment (other
than an assignment contemplated by Section 12.06(b)(ii)) the assigning Lender
shall pay the Administrative Agent an assignment fee of (i) $2,000 if the
assignee is a Lender, an affiliate of a Lender or an Approved Fund or (ii)
$3,500 in the case of assignments to any other Person. If such assignee shall
not be a Lender it shall deliver to the Administrative Agent on Administrative
Questionnaire.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain a copy of each Assignment and Acceptance
delivered to it (and shall promptly deliver to the Borrower a copy of each such
Assignment and Acceptance) and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and Letter of Credit Interest owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
--------
conclusive subject to the requirements of Section 12.06, and the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, any
Issuing Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
or Letter of Credit Interest held by it, or in its Commitments, provided that
--------
such Participant shall not have any rights or obligations under this Agreement
or any Note or any other Loan Document (the Participant's rights against such
Lender in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant) except that such
Participant shall have the rights afforded to a Lender under Section 5 in
respect of the Loans, Letter of Credit Interest and Commitment(s) held by it as
if such Participant were a Lender hereunder. In no event shall a Lender that
sells a participation agree with the Participant to take or refrain from taking
any action hereunder or under any other Loan Document except that such Lender
may agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
commitment or extend the amount or date of any scheduled reduction of such
Commitment pursuant to Section 2.04, (ii) extend the date fixed for the payment
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of principal of or interest on the related Loan or Loans or Reimbursement
Obligation or any portion of any fee hereunder payable to the Participant, (iii)
reduce the amount of any such payment of principal or Reimbursement Obligation
or (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee.
(e) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
(without notice to the Borrower, the Administrative Agent, the Arranger or any
other Lender and without payment of any fee) assign and pledge all or any
portion of its Loans and its Notes to secure obligations of such Lender,
including any such assignment or pledge to a Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Notes shall be fully transferable as
provided therein. No such assignment shall release the assigning Lender from its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(f) A Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 12.12.
(g) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan or
Letter of Credit Interest held by it hereunder to the Borrower or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
12.07. Survival. The obligations of the Borrower under
--------
Sections 5.01, 5.05, 5.06, 5.07 and 12.04, the obligations of each Subsidiary
Guarantor under Section 6.03, and the obligations of the Lenders under Section
11.05, shall survive the repayment of the Loans and Reimbursement Obligations
and the termination of the Commitments and, in the case of any Lender that may
assign any interest in its Commitments, Loans or Letter of Credit Interest
hereunder, shall survive the making of such assignment, notwithstanding that
such assigning Lender may cease to be a "Lender" hereunder. In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit, herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit hereunder, any Default that may arise
by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender or the Administrative Agent may
have had notice or knowledge or reason to believe that such representation or
warranty was false or misleading at the time such extension of credit was made.
12.08. Counterparts. This Agreement may be executed in any
------------
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
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12.09. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of the Supreme Court of the State of New York sitting
in New York County (including its Appellate Division), and of any other
appellate court in the State of New York, for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Obligor hereby irrevocably waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
12.10. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
--------------------
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
12.11. Captions. The table of contents and captions and
--------
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
12.12. Confidentiality. Each Lender and the Administrative
---------------
Agent agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking or lending practices, any non-public information supplied to it by
the Borrower pursuant to this Agreement that is identified by the Borrower as
being confidential at the time the same is delivered to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the disclosure of
--------
any such information (i) after such information shall have become public (other
than through a violation of this Section 12.12), (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Lenders or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority, including the National Association of Insurance
Commissioners, having jurisdiction over any Lender or the Agent), or to auditors
or accountants, (v) to the Agent or any other Lender, (vi) to any direct or
indirect contractual counterparty in swap agreements (or to such contractual
counterparty's professional advisor), so long as such contractual counterparty
(or such professional advisor) agrees to be bound by the provisions of this
Section 12.12, (vii) in connection with any litigation to which any one or more
of the Lenders or the Agent is a party, or in connection with the rights or
remedies hereunder or under any other Loan Document (viii) to a subsidiary or
affiliate of such Lender or (ix) subject to an agreement containing provisions
substantially the same as those of this Section pursuant to which an assignee or
participant acquires an interest in the Loans hereunder, to any assignee or
participant (or prospective assignee or participant); provided, further, that in
-------- -------
no event shall any Lender or the Administrative Agent be obligated or required
to return any materials furnished by the Borrower. The obligations of each
Lender under this Section 12.12 shall supersede and replace the obligations of
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such Lender under the confidentiality letter in respect of this financing signed
and delivered by such Lender to the Borrower prior to the date hereof; in
addition, the obligations of any assignee or participant that has executed an
agreement containing provisions substantially the same as those of this Section
pursuant to which such assignee or participant has acquired an interest in the
Loans hereunder the confidentiality provisions of such agreement shall be
superseded by this Section 12.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 12.06(b).
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
SIX FLAGS THEME PARKS INC.
By: /s/ James F. Dannhauser
-----------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
GUARANTORS
----------
SIX FLAGS ENTERTAINMENT CORPORATION
S. F. HOLDINGS, INC.
By: /s/ James F. Dannhauser
-----------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
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SUBSIDIARY GUARANTORS
---------------------
SIX FLAGS SERVICES, INC.
SIX FLAGS SERVICES OF GEORGIA, INC.
SIX FLAGS SERVICES OF ILLINOIS, INC.
SIX FLAGS SERVICES OF MISSOURI, INC.
SIX FLAGS SERVICES OF TEXAS, INC.
SFTP, INC.
SFTP SAN ANTONIO, INC.
SFTP SAN ANTONIO GP, INC.
By: /s/ James F. Dannhauser
-----------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
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SF PARTNERSHIP
By: SFTP, Inc. a partner
By: /s/ James F. Dannhauser
-----------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
SIX FLAGS SAN ANTONIO, L.P.
By: SFTP San Antonio GP, Inc.,
its general partner
By: /s/ James F. Dannhauser
-----------------------
Name: James F. Dannhauser
Title: Chief Financial Officer
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LENDERS
-------
LEHMAN COMMERCIAL PAPER INC.
By: /s/ William J. Gallagher
------------------------
Name: William J. Gallagher
Title: Authorized Signatory
ADMINISTRATIVE AGENT
--------------------
THE BANK OF NEW YORK
By: /s/ Vincent L. Pacilio
----------------------
Name: Vincent L. Pacilio
Title: Senior Vice President
Schedule II
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Schedule I
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SCHEDULE I
Commitments
- -------------------------------------------------------------------------------
Lender Facility A Revolving Facility B Term Total
Credit Commitment Loan Commitment Commitment
- -------------------------------------------------------------------------------
LEHMAN COMMERICIAL
PAPER INC. $100,000,000.00 $372,000,000.00 $472,000,000.00
- -------------------------------------------------------------------------------
TOTAL $100,000,000.00 $372,000,000.00 $472,000,000.00
- -------------------------------------------------------------------------------
Schedule II
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SCHEDULE II
Debt Agreements and Liens
Schedule III
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SCHEDULE III
Environmental Matters
Schedule IV
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SCHEDULE IV
Subsidiaries and Investments
Schedule V
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SCHEDULE V
Existing Parks and Real Property
Schedule VI
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SCHEDULE VI
Certain Litigation
Schedule VII
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SCHEDULE VII
Insurance
Schedule VIII
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SCHEDULE VIII
Certain EBITDA Adjustments
Schedule IX
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SCHEDULE IX
Labor Matters