AMENDMENT NO. 3 AND JOINDER AGREEMENT
Exhibit 10.18
EXECUTION COPY
AMENDMENT NO. 3 AND JOINDER AGREEMENT
This Amendment No. 3 and Joinder Agreement, dated as of August 30, 2013 (this “Amendment”), to that certain Credit Agreement, dated as of November 30, 2010, as amended by Amendment No. 1, dated as of November 16, 2012 and Amendment No. 2, dated as of July 24, 2013 (and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time through the date hereof, the “Credit Agreement”), among, inter alios, CCA CLUB OPERATIONS HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), CLUBCORP CLUB OPERATIONS, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto (the “Lenders”) and CITICORP NORTH AMERICA, INC., as Administrative Agent, is entered into by and among Holdings, the Borrower, the Administrative Agent, the Tranche X X/C Issuer, the New Swing Line Lender and the Lenders party hereto. Capitalized terms used herein but not defined herein are used as defined in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, Holdings, the Administrative Agent, the Lenders and certain other parties hereto are parties to the Credit Agreement;
WHEREAS, the Borrower desires to reduce the Existing Revolving Credit Commitments pursuant to Section 2.06(a) of the Credit Agreement to an aggregate principal amount no greater than the aggregate face amount of all issued and undrawn Letters of Credit immediately prior to the Third Amendment Effective Date (as defined in Section 3 hereof);
WHEREAS, the Borrower has requested that the initial New Revolving Credit Lenders party hereto (each, an “Initial New Revolving Credit Lender”) extend credit to the Borrower in the form of New Revolving Credit Commitments in an aggregate principal amount of $135,000,000 (the “Tranche B Revolving Credit Commitments” and, with respect to each Initial New Revolving Credit Lender, the amount specified on such Lender’s signature page hereto (or such lesser amount as shall be allocated to such Lender pursuant to the terms of Section 2.14 of the Credit Agreement), such Lender’s “Tranche B Revolving Credit Commitment”) and make revolving loans thereunder that shall constitute a new tranche of Revolving Credit Loans under the Credit Agreement (the “Tranche B Revolving Credit Loans”);
WHEREAS, the Borrower has requested Citibank, N.A., (a) in its capacity as a swing line lender under the Tranche B Revolving Credit Commitments (the “New Swing Line Lender”), agree to provide swing line loans on the terms and conditions in the Restated Credit Agreement (as defined in Section 1 below) and (B) in its capacity as an issuer of letters of credit under the Tranche B Revolving Credit Commitments (the “Tranche X X/C Issuer”), agree to provide letters of credit on the terms and conditions in the Restated Credit Agreement;
WHEREAS, pursuant to Section 2.14(g) of the Credit Agreement, the terms and provisions of the Tranche B Revolving Credit Loans and Tranche B Revolving Credit Commitments shall be as agreed between the Borrower and the Initial New Revolving Lenders and, to the extent not identical to the existing Revolving Credit Facility, reasonably satisfactory to the Administrative Agent;
WHEREAS, (a) each Initial New Revolving Credit Lender has indicated its willingness to provide such Tranche B Revolving Credit Commitments up to an amount specified on its signature page hereto (or such lesser amount as shall be allocated to such Lender pursuant to the terms of Section 2.14 of the Credit Agreement), in the aggregate amount of $135,000,000, (b) the New Swing Line Lender has indicated its willingness to provide swing line loans under the Tranche B Revolving Credit Commitments and (c) the Tranche X X/C Issuer has indicated its willingness to provide letters of credit under the Tranche B Revolving Credit Commitments, in each case, on the terms and subject to the conditions contemplated hereby and in the Restated Credit Agreement; and
WHEREAS, in order to effect the foregoing, the Borrower and the other parties hereto desire to amend the Credit Agreement, subject to the terms and conditions set forth herein.
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NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations herein set forth and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, and in reliance upon the representations, warranties and covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1.AMENDMENTS TO THE CREDIT AGREEMENT
Effective as of the Third Amendment Effective Date (as defined in Section 3 below) and subject to the satisfaction (or due waiver) of the conditions set forth in Section 3 below:
1.1 the Credit Agreement is hereby amended and restated in its entirety to be in the form of Annex I as attached hereto (as amended and restated, the “Restated Credit Agreement”); and
1.2 the Tranche B Revolving Credit Commitments shall be New Revolving Credit Commitments under the Credit Agreement and this Amendment shall be a Joinder Agreement under the Credit Agreement.
SECTION 2. TRANCHE B REVOLVING CREDIT COMMITMENTS
Subject to the terms and conditions set forth herein, on the Third Amendment Effective Date, (a) each Initial New Revolving Credit Lender agrees to provide the Tranche B Revolving Credit Commitments and make the Tranche B Revolving Credit Loans on the terms and conditions in the Restated Credit Agreement, (b) the New Swing Line Lender agrees to provide swing line loans on the terms and conditions in the Restated Credit Agreement and (c) the Tranche X X/C Issuer, agrees to provide letters of credit on the terms and conditions in the Restated Credit Agreement. The Tranche B Revolving Credit Commitments, the Tranche B Revolving Credit Loans, the swing line loans and the letters of credit issued thereunder shall have the terms as specified in the Restated Credit Agreement (including, without limitation, with respect to the interest rate, maturity date, mandatory prepayments and voluntary prepayments). For the avoidance of doubt and notwithstanding anything in this Amendment to the contrary, the Tranche B Revolving Credit Commitments and the Tranche B Revolving Credit Loans shall be considered a separate tranche of Indebtedness under the Credit Agreement.
Each Initial New Revolving Credit Lender, the New Swing Line Lender and the Tranche X X/C Issuer (i) confirms that it has received a copy of the Restated Credit Agreement and the other Loan Documents, together with copies of the most recently delivered financial statements delivered pursuant to Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) as of the Third Amendment Effective Date, appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Restated Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) as of the Third Amendment Effective Date, agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Restated Credit Agreement are required to be performed by it as a Lender (including Section 10.15). Upon the Third Amendment Effective Date, to the extent not already a Lender, each Initial New Revolving Credit Lender, the New Swing Line Lender and the Tranche X X/C Issuer shall become Lenders under the Credit Agreement.
SECTION 3. CONDITIONS PRECEDENT
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The amendments contemplated by Section 1 hereof and the obligations of each Initial New Revolving Credit Lender, the New Swing Line Lender and the Tranche X X/C Issuer under Section 2 hereof are subject to, prior to the Termination Date (as defined in Section 6 hereof), the satisfaction or waiver of each of the following conditions precedent (such date the satisfaction or waiver of such conditions occur, the “Third Amendment Effective Date”):
3.1 Certain Documents. The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(a) this Amendment, dated as of the date hereof, duly executed by each of the Borrower, Holdings, the Administrative Agent, the Tranche X X/C Issuer, the New Swing Line Lender and the Initial New Revolving Credit Lenders;
(b) an Acknowledgement and Confirmation, dated as of the Third Amendment Effective Date, and substantially in the form of Exhibit A hereto, duly executed by each Loan Party;
(c) a certificate executed by a Responsible Officer of the Borrower, dated as of the Third Amendment Effective Date, certifying compliance with the requirements of Sections 3.4 and 3.7 have been satisfied;
(d) a certificate from the Treasurer of the Borrower, dated as of the Third Amendment Effective Date, certifying that Holdings and its Restricted Subsidiaries, on a consolidated basis, both before and after giving effect to the Tranche B Revolving Credit Commitments and any extension of Tranche B Revolving Credit Loans on the Third Amendment Effective Date and the application of the proceeds thereof, are Solvent;
(e) (A) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (B) a certificate of Responsible Officers of each Loan Party dated the Third Amendment Effective Date and certifying (w) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Third Amendment Effective Date (or certifying no change as of the Second Amendment Effective Date), (x) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which such Person is a party and, in the case of the Borrower, the incurrence of the Tranche B Revolving Credit Commitments contemplated hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (y) that the certificate or articles of incorporation or organization of such Loan Party have not been amended since the later of (1) the Second Amendment Effective Date or (2) the date of the last amendment thereto shown on the certified copy of the certificate or articles of incorporation or organization, in ease case, furnished pursuant to clause (A) above, and (z) as to the incumbency and specimen signature of each officer executing this Amendment and any other Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (B) above;
(f) (x) executed legal opinions of Xxxxxxx Coie LLP, special counsel to the Loan Parties dated the Third Amendment Effective Date and (y) executed legal opinions of each local counsel for the Loan Parties in each relevant jurisdiction where a Loan Party is organized, in each case, dated the
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Third Amendment Effective Date, in each case, addressed to the Administrative Agent, the other Secured Parties, and their successors, assigns and participants permitted under the Credit Agreement;
(g) a “Life of Loan” Federal Emergency Agency Standard Flood Hazard Determination with respect to the Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the applicable Restricted Subsidiary, and evidence of flood insurance, in the event any such Mortgaged Property or portion thereof is located in a special flood hazard area);
(h) insurance certificates in form and substance reasonably satisfactory to the Administrative Agent demonstrating that the insurance policies required by Section 6.07 of the Credit Agreement are in full force and effect and have all endorsements required by Section 6.07 of the Credit Agreement; and
(i) the results of recent UCC Lien searches with respect to each of the Loan Parties to the extent reasonably required by the Administrative Agent, and such results shall reveal no Liens on any of the assets of the Loan Parties except for Permitted Liens.
3.2 Mortgage Related Documents.
(a)a fully executed counterpart of an amended and restated Mortgage or amendment for each Mortgage, as applicable (each, a “Mortgage Amendment”; and together with the applicable Mortgage, an “Amended Mortgage”), duly executed by the applicable Restricted Subsidiary, together with evidence that such counterpart has been delivered to the title insurance company insuring the Amended Mortgage for recording;
(b)a date down and modification endorsement in connection with the existing Lenders’ title insurance policy or a new title insurance policy, as applicable, as may be mutually acceptable to the Administrative Agent and the Borrower, insuring the applicable Amended Mortgage and, which endorsement or new policy, as applicable, shall insure that each applicable Amended Mortgage is a valid and enforceable Lien on the Mortgaged Property, free of any other Liens except Permitted Liens;
(c)such affidavits and certificates as shall be required to induce the title company to issue the endorsement contemplated in Section (b) above and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes, if applicable, and related charges required for the issuance of such endorsement;
(d)an appraisal of each of the Mortgaged Properties that (i) is prepared by a member of the Appraisal Institute selected by the Administrative Agent, (ii) meets the minimum appraisal standards for national banks promulgated by the Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA), (iii) complies with the Uniform Standards of Professional Appraisal Practice (USPAP) and (iv) is reasonably satisfactory to the Initial New Revolving Credit Lenders in all respects; and
(e)an opinion from local counsel in the state where each Mortgaged Property is located, in form and substance reasonably satisfactory to the Administrative Agent.
3.3 Fees and Expenses.
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(a)Borrower shall have paid to the Administrative Agent for the account of each Initial New Revolving Credit Lender that has executed and delivered to the Administrative Agent (or its designee) a counterpart hereof, an upfront fee (the “Upfront Fee”) in dollars in an amount equal to one percent (1.00%) of the Tranche B Revolving Credit Commitments of such Initial New Revolving Credit Lender as in effect on the Third Amendment Effective Date immediately after giving effect to this Amendment, which Upfront Fee shall not be subject to counterclaim or set-off, or be otherwise affected by, any claim or dispute relating to any other matter; and
(b)All fees and reimbursable expenses that have been invoiced as of the Third Amendment Effective Date that are due and payable to any Person under the Credit Agreement or under any engagement letter entered into or approved by the Borrower in connection with this Amendment shall have been paid in full in immediately available funds.
3.4 Representations and Warranties. On and as of the Third Amendment Effective Date and after giving effect to this Amendment, each of the representations and warranties contained in Section 4 below shall be true and correct.
3.5 Tranche B Revolving Credit Commitments. On and as of the Third Amendment Effective Date and after giving effect to this Amendment, the Tranche B Revolving Credit Commitments contemplated hereby and any Tranche B Revolving Credit Loans made thereunder, each of the conditions precedent to the effectiveness of such New Revolving Credit Commitments under Section 2.14 of the Credit Agreement shall have been satisfied.
3.6 Termination of Existing Commitments. On and as of the Third Amendment Effective Date and before giving effect to this Amendment, (a) in accordance with Section 2.06 of the Credit Agreement, the Borrower shall have (i) reduced the Existing Revolving Credit Commitments to an aggregate principal amount no greater than the aggregate face amount of all issued and undrawn Letters of Credit immediately prior to the Third Amendment Effective Date and (ii) terminated the existing Swing Line Sublimit and repaid all Swing Line Loans and all Unreimbursed Amounts outstanding on such date and (b) pursuant to Section 9.06(b) of the Credit Agreement, Citicorp North America Inc. shall have resigned as L/C Issuer and Swing Line Lender under the Credit Agreement; provided, that notwithstanding such resignation, Citicorp North America Inc. shall retain all the rights and obligations of an L/C Issuer under the Credit Agreement with respect to all Letters of Credit issued by it and outstanding as of the Third Amendment Effective Date.
3.7 Qualified IPO Proceeds. The Borrower shall have received Eligible Equity Proceeds of at least $150,000,000 from a Qualifying IPO.
SECTION 4. REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower, on behalf of itself and each Loan Party, hereby represents and warrants to the Agents, each other Secured Party, each Initial New Revolving Credit Lender, the New Swing Line Lender and the Tranche X X/C Issuer, with respect to all Loan Parties, as follows (a) as of the date hereof and (b) as of the Third Amendment Effective Date that:
4.1 Incorporation of Representations and Warranties from Loan Documents. Immediately before and immediately after giving effect to this Amendment, each of the representations and warranties of the Borrower and each other Loan Party contained in Article 5 of the Credit Agreement or in any other Loan Document are true and correct in all material respects (and in all respects if qualified by materiality) on and as of such date, except (i) to the extent that such representations and warranties specifically refer to
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an earlier date, in which case they shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such earlier date and (ii) that for purposes of this Section 4.1, the representations and warranties contained in Section 5.05(a) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and 6.01(b) of the Credit Agreement and, in the case of the financial statements furnished pursuant to Section 6.01(b) of the Credit Agreement, the representations contained in Section 5.05(a) of the Credit Agreement, as modified by this clause (ii), shall be qualified by the statement that such financial statements are subject to the absence of footnotes and year-end audit adjustments;
4.2 Corporate Power and Authority. As of the date hereof, each of Holdings and the Borrower has taken all necessary action to authorize the execution, delivery and performance of this Amendment, this Amendment has been duly executed and delivered by each of Holdings and the Borrower, and this Amendment is the legal, valid and binding obligation of each of Holdings and the Borrower, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles; and
4.3 Absence of Default. No Default or Event of Default exists or would result from this Amendment or the occurrence of the Third Amendment Effective Date.
SECTION 5. COVENANTS
Upon reasonable request by the Administrative Agent, Holdings and the Borrower shall, and shall cause each other Restricted Subsidiary to (a) correct any defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any stock pledge agreement or other document or instrument relating to (i) any Material Real Property located in Mexico which is owned by any Loan Party and (ii) Restricted Subsidiaries which own any Material Real Property located in Mexico and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time for the purposes of perfecting the rights of the Administrative Agent for the benefit of the Secured Parties with respect to (i) any Material Real Property located in Mexico which is owned by any Loan Party and (ii) Restricted Subsidiaries which own any Material Real Property located in Mexico.
SECTION 6. TERMINATION
This Amendment (a) shall automatically terminate on October 31, 2013 (the “Termination Date”) if the Third Amendment Effective Date has not occurred on or prior to such date and (b) may be terminated prior to the Third Amendment Effective Date at the election of the Administrative Agent, (i) during the period any Default or Event of Default occurs and is continuing and (ii) the date any event occurs or information becomes available that, in the reasonable judgment of the Initial New Revolving Credit Lenders having more than 50% of the Tranche B Revolving Credit Commitments, results in, or is likely to result in the failure to satisfy any condition set forth in Section 3 hereof.
SECTION 7. MISCELLANEOUS
7.1 Costs and Expenses. The Borrower agrees to reimburse the Administrative Agent for its costs and expenses in connection with this Amendment (and any other Loan Documents delivered in connection herewith) as provided in Section 10.04 of the Credit Agreement. From the date hereof until the Third Amendment Effective Date, each Initial New Revolving Credit Lender, the New Swing Line Lender and the Tranche X X/C Issuer shall each be deemed a “Lender” and shall have the rights and obligations of a “Lender” solely for purposes of Section 10.04, 10.05 and 10.08 of the Credit Agreement.
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7.2 Reference to and Effect on the Loan Documents.
(a) As of the Third Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Restated Credit Agreement.
(b) Except as expressly amended hereby, all of the terms and provisions of the Credit Agreement (including the schedules and exhibits thereto) and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case, as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any Loan Document, or constitute a waiver or amendment of any other provision of the Credit Agreement or any Loan Document (as amended hereby) except as and to the extent expressly set forth herein.
7.3 Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Receipt by the Administrative Agent of a facsimile copy of an executed signature page hereof shall constitute receipt by the Administrative Agent of an executed counterpart of this Amendment.
7.4 Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
7.5 Loan Document and Integration. This Amendment is a Loan Document, and together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
7.6 Headings. Section headings contained in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes.
7.7 Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers and members thereunto duly authorized, as of the date indicated above.
CCA CLUB OPERATIONS HOLDINGS, LLC
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: Treasurer
Title: Treasurer
CLUBCORP CLUB OPERATIONS, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: Treasurer
Title: Treasurer
[SIGNATURE PAGE TO AMENDMENT NO. 3]
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 3]
IN WITNESS WHEREOF, the undersigned, as an Initial New Revolving Credit Lender, the New Swingline Lender and a Tranche X X/C Issuer has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above and hereby irrevocably and unconditionally agrees to provide a Tranche B Revolving Credit Commitment in the amount of $____25,000,000_____________________ (or such lesser amount allocated to such Lender by the Administrative Agent) on the Third Amendment Effective Date.
CITIBANK, N.A.,
as an Initial New Revolving Credit Lender, New Swing Line Lender and Tranche X X/C Issuer
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 3]
IN WITNESS WHEREOF, the undersigned Initial New Revolving Credit Lender has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above and hereby irrevocably and unconditionally agrees to provide a Tranche B Revolving Credit Commitment in the amount of $____25,000,000_______________ (or such lesser amount allocated to such Lender by the Administrative Agent) on the Third Amendment Effective Date.
Bank of America, N.A ,
(Type Name of Legal Entity)
as an Initial New Revolving Credit Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
If a second signature is necessary:
By:_________________________
Name:
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT NO. 3]
IN WITNESS WHEREOF, the undersigned Initial New Revolving Credit Lender has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above and hereby irrevocably and unconditionally agrees to provide a Tranche B Revolving Credit Commitment in the amount of $___30,000,000___________ (or such lesser amount allocated to such Lender by the Administrative Agent) on the Third Amendment Effective Date.
Deutsche Bank AG New York Branch ,
(Type Name of Legal Entity)
as an Initial New Revolving Credit Lender
By: /s/ Xxxx Xxx Xxxxx
Name: Xxxx Xxx Xxxxx
Name: Xxxx Xxx Xxxxx
Title: Managing Director
If a second signature is necessary:
By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 3]
IN WITNESS WHEREOF, the undersigned Initial New Revolving Credit Lender has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above and hereby irrevocably and unconditionally agrees to provide a Tranche B Revolving Credit Commitment in the amount of $___25,000,000______________ (or such lesser amount allocated to such Lender by the Administrative Agent) on the Third Amendment Effective Date.
XXXXXXX SACHS BANK USA ,
(Type Name of Legal Entity)
as an Initial New Revolving Credit Lender
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 3]
IN WITNESS WHEREOF, the undersigned Initial New Revolving Credit Lender has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above and hereby irrevocably and unconditionally agrees to provide a Tranche B Revolving Credit Commitment in the amount of $___25,000,000______________ (or such lesser amount allocated to such Lender by the Administrative Agent) on the Third Amendment Effective Date.
JEFFERIES FINANCE LLC ,
(Type Name of Legal Entity)
as an Initial New Revolving Credit Lender
By: /s/ E. Xxxxxx Xxxx
Name: E. Xxxxxx Xxxx
Name: E. Xxxxxx Xxxx
Title: Managing Director
If a second signature is necessary:
By: Name:
Title:
[SIGNATURE PAGE TO AMENDMENT NO. 3]
IN WITNESS WHEREOF, the undersigned Initial New Revolving Credit Lender has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above and hereby irrevocably and unconditionally agrees to provide a Tranche B Revolving Credit Commitment in the amount of $____10,000,000_____________ (or such lesser amount allocated to such Lender by the Administrative Agent) on the Third Amendment Effective Date.
Xxxxx Fargo Bank, N.A. ,
(Type Name of Legal Entity)
as an Initial New Revolving Credit Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: EVP
If a second signature is necessary:
By: Name:
Title:
[SIGNATURE PAGE TO AMENDMENT NO. 3]
Exhibit A
FORM OF ACKNOWLEDGMENT AND CONFIRMATION
1. Reference is made to Amendment No. 3, dated as of August 30, 2013 (the “Third Amendment”), by and among CCA CLUB OPERATIONS HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), CLUBCORP CLUB OPERATIONS, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities party thereto (the “Lenders”) and CITICORP NORTH AMERICA, INC., as administrative agent, swing line lender and L/C issuer. Terms defined in the Third Amendment and used herein shall have the meanings assigned to such terms in the Third Amendment, unless otherwise defined herein or the context otherwise requires.
2. Certain provisions of the Credit Agreement are being amended pursuant to the Third Amendment. Each of the undersigned is a Guarantor of the Guaranteed Obligations as defined in and pursuant to the Guaranty and Security Agreement and is a Grantor as defined in and pursuant to the Guaranty and Security Agreement and hereby:
(a) consents to the execution, delivery and performance of the foregoing Third Amendment;
(b) acknowledges that, notwithstanding the execution and delivery of the foregoing Third Amendment, the Secured Obligations of such Grantor and the obligations of such Guarantor under the Loan Documents to which it is a party are not impaired or affected and all guaranties made by such Guarantor pursuant to the Guaranty and Security Agreement and all Liens granted by such Grantor as security for the Secured Obligations of such Grantor pursuant to such Loan Documents continue in full force and effect and shall continue to secure such Secured Obligations except to the extent any waiver, release or modification has been granted by or on behalf of Lenders or has otherwise occurred pursuant to the terms of the Loan Documents;
(c) confirms and ratifies its obligations under each of the Loan Documents executed by it after giving effect to the Third Amendment; and
(d) represents and warrants that (i) it has taken all necessary action to authorize the execution, delivery and performance of this Acknowledgment and Confirmation, this Acknowledgment and Confirmation has been duly executed and delivered by it, and this Acknowledgment and Confirmation is its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles and (ii) each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
3. Except as expressly provided in the Third Amendment, each Guarantor hereby ratifies and confirms all of the terms and conditions of the Guaranty and Security Agreement and other Loan Documents to which it is a party and all documents, instruments and agreements related thereto, which remain in full force and effect. This Acknowledgment and Confirmation shall constitute a Loan Document.
4. This Acknowledgement and Confirmation and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.
5. This Acknowledgment and Confirmation may be executed by one or more of the parties hereto on any number of separate counterparts (including by telecopy or electronic mail), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgment and Confirmation to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
[_____________]
By:
Name:
Title:
Name:
Title:
Restated Credit Agreement
ANNEX I
RESTATED CREDIT AGREEMENT
See attached.
Exhibit 10.18
EXECUTION COPY
$360,000,000
CREDIT AGREEMENT
Dated as of November 30, 2010
(as amended by Amendment No. 1, dated as of November 16, 2012, Amendment No. 2, dated as of July 24, 2013 and Amendment No. 3, dated as of August 30, 2013)
among
CCA CLUB OPERATIONS HOLDINGS, LLC
as Holdings
CLUBCORP CLUB OPERATIONS, INC.
as Borrower
CITICORP NORTH AMERICA, INC.
as Administrative Agent, Swing Line Lender and L/C Issuer
as Holdings
CLUBCORP CLUB OPERATIONS, INC.
as Borrower
CITICORP NORTH AMERICA, INC.
as Administrative Agent, Swing Line Lender and L/C Issuer
THE OTHER LENDERS PARTY HERETO
CITIGROUP GLOBAL MARKETS INC.
as Sole Arranger and Sole Bookrunner
as Sole Arranger and Sole Bookrunner
-0-
0
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TABLE OF CONTENTS
Table of Contents
Page
Page
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.01. | Defined Terms 1 |
Section 1.02. | Other Interpretive Provisions 4446 |
Section 1.03. | Accounting Terms 4546 |
Section 1.04. | Rounding 4547 |
Section 1.05. | References To Agreements And Laws 4547 |
Section 1.06. | Times Of Day 4547 |
Section 1.07. | Timing Of Payment Or Performance 4547 |
Section 1.08. | Compliance With Financial Covenants 47 |
ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS 4647
Section 2.01. | The Loans 4647 |
Section 2.02. | Borrowings, Conversions and Continuations of Loans 4648 |
Section 2.03. | Letters Of Credit 4849 |
Section 2.04. | Swing Line Loans 5657 |
Section 2.05. | Prepayments 5860 |
Section 2.06. | Termination or Reduction of Commitments 6263 |
Section 2.07. | Repayment of Loans 6364 |
Section 2.08. | Interest 6365 |
Section 2.09. | Fees 6465 |
Section 2.10. | Computation of Interest and Fees 6466 |
Section 2.11. | Evidence of Indebtedness 6566 |
Section 2.12. | Payments Generally 6667 |
Section 2.13. | Sharing Of Payments 6768 |
Section 2.14. | Incremental Facilities 6869 |
Section 2.15. | Modification of Revolving Credit Loans 7172 |
Section 2.16. | Defaulting Lenders 7374 |
ARTICLE 3 TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY 7576
Section 3.01. | Taxes 7576 |
Section 3.02. | Illegality 77 |
Section 3.03. | Inability To Determine Rates 7778 |
Section 3.04. | Increased Cost And Reduced Return; Capital Adequacy; Reserves On Eurodollar Rate Loans 78 |
Section 3.05. | Funding Losses 79 |
Section 3.06. | Matters Applicable To All Requests For Compensation 79 |
Section 3.07. | Replacement Of Lenders Under Certain Circumstances 80 |
Section 3.08. | Survival 82 |
ARTICLE 4 CONDITIONS PRECEDENT 82
Section 4.01. | Conditions To Initial (Closing Date) Credit Extension 82 |
Section 4.02. | Conditions To All Credit Extensions 8685 |
ARTICLE 5 REPRESENTATIONS AND WARRANTIES 8786
Section 5.01. | Existence, Qualification And Power; Compliance with Laws 8786 |
Section 5.02. | Authorization; No Contravention 8786 |
Section 5.03. | Governmental Authorization; Other Consents; Liquor Licenses 87 |
Section 5.04. | Binding Effect 88 |
Section 5.05. | Financial Statements; No Material Adverse Effect 88 |
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TABLE OF CONTENTS
Table of Contents
(continued)
Page
Section 5.06. | Litigation 8988 |
Section 5.07. | Ownership of Property; Liens; Material Agreements 89 |
Section 5.08. | Environmental Compliance 9089 |
Section 5.09. | Taxes 9190 |
Section 5.10. | ERISA Compliance 9190 |
Section 5.11. | Subsidiaries; Equity Interests 9291 |
Section 5.12. | Margin Regulations; Investment Company Xxx 0000 |
Section 5.13. | Disclosure 9291 |
Section 5.14. | Intellectual Property; Licenses, Etc 9392 |
Section 5.15. | Solvency 9392 |
Section 5.16. | Perfection, Etc 9392 |
Section 5.17. | Compliance with Laws Generally 9392 |
Section 5.18. | Labor Matters 9392 |
Section 5.19. | Senior Debt 9492 |
Section 5.20. | Limitations on Holdings and Certain Subsidiaries 9493 |
ARTICLE 6 AFFIRMATIVE COVENANTS 9493
Section 6.01. | Financial Statements 9593 |
Section 6.02. | Certificates; Other Information 9694 |
Section 6.03. | Notices 9896 |
Section 6.04. | Payment of Obligations; Material Agreements; Liquor Licenses 9896 |
Section 6.05. | Preservation of Existence, Etc 9997 |
Section 6.06. | Maintenance of Properties 9997 |
Section 6.07. | Maintenance of Insurance 9997 |
Section 6.08. | Compliance With Laws 9997 |
Section 6.09. | Books and Records 9998 |
Section 6.10. | Inspection and Appraisal Rights 9998 |
Section 6.11. | Use of Proceeds 10098 |
Section 6.12. | Covenant To Guarantee Obligations And Give Security 10099 |
Section 6.13. | Control Accounts, Approved Deposit Accounts 102100 |
Section 6.14. | Compliance with Environmental Laws 103101 |
Section 6.15. | Further Assurances 103101 |
Section 6.16. | Maintenance of Ratings 103101 |
Section 6.17. | Designation of Subsidiaries 103101 |
Section 6.18. | Post Closing Matters 105102 |
ARTICLE 7 NEGATIVE COVENANTS 105103
Section 7.01. | Liens 105103 |
Section 7.02. | Investments 108105 |
Section 7.03. | Indebtedness 111108 |
Section 7.04. | Fundamental Changes 113110 |
Section 7.05. | Dispositions 114111 |
Section 7.06. | Restricted Payments 116112 |
Section 7.07. | Change In Nature of Business 118114 |
Section 7.08. | Transactions With Affiliates 118114 |
Section 7.09. | Burdensome Agreements 118115 |
Section 7.10. | Financial Covenants 119115 |
Section 7.11. | Amendments of Certain Documents 120115 |
Section 7.12. | Accounting Changes 120116 |
Section 7.13. | Prepayments, Etc. of Indebtedness 120116 |
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Table of Contents
(continued)
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Section 7.14. | Limitations on Holdings and Certain Subsidiaries 120116 |
Section 7.15. | Designated Senior Debt 121117 |
Section 7.16. | Pension Plans 121117 |
ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES 121117
Section 8.01. | Events of Default 121117 |
Section 8.02. | Remedies upon Event of Default 123119 |
Section 8.03. | Application Of Funds 124120 |
ARTICLE 9 ADMINISTRATIVE AGENT AND OTHER AGENTS 125121
Section 9.01. | Appointment and Authority 125121 |
Section 9.02. | Rights as a Lender 126122 |
Section 9.03. | Exculpatory Provisions 126122 |
Section 9.04. | Reliance by Administrative Agent 127123 |
Section 9.05. | Delegation of Duties 127123 |
Section 9.06. | Resignation of Administrative Agent 128123 |
Section 9.07. | Non-Reliance on Administrative Agent and Other Lenders 129124 |
Section 9.08. | Collateral and Guaranty Matters 129124 |
Section 9.09. | No Other Duties, Etc 130125 |
Section 9.10. | Appointment of Supplemental Administrative Agents 130125 |
Section 9.11. | Withholding Tax 131126 |
ARTICLE 10 MISCELLANEOUS 131127
Section 10.01. | Amendments, Etc 131127 |
Section 10.02. | Notices and Other Communications; Facsimile Copies 134129 |
Section 10.03. | No Waiver; Cumulative Remedies 135130 |
Section 10.04. | Attorney Costs, Expenses and Taxes 135130 |
Section 10.05. | Indemnification by the Borrower 135131 |
Section 10.06. | Payments Set Aside 136132 |
Section 10.07. | Successors and Assigns 137132 |
Section 10.08. | Confidentiality 143138 |
Section 10.09. | Setoff 144139 |
Section 10.10. | Interest Rate Limitation 145139 |
Section 10.11. | Counterparts 145140 |
Section 10.12. | Integration 145140 |
Section 10.13. | Survival of Representations and Warranties 145140 |
Section 10.14. | Severability 145140 |
Section 10.15. | Tax Forms 146140 |
Section 10.16. | GOVERNING LAW 147142 |
Section 10.17. | WAIVER OF RIGHT TO TRIAL BY JURY 148142 |
Section 10.18. | Binding Effect 148142 |
Section 10.19. | USA PATRIOT Act Notice 148142 |
Section 10.20. | No Advisory or Fiduciary Relationship 148143 |
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SCHEDULES
Schedule I | Accounting Periods |
Schedule II | Administrative Agent’s Office |
Schedule III | Excluded Subsidiaries |
Schedule IV | Ground Leases |
Schedule V | Guarantors |
Schedule VI | Surviving Indebtedness |
Schedule VII | Local Counsel |
Schedule 2.01(a) | Term B Commitment |
Schedule 2.01(b) | Revolving Credit Commitment |
Schedule 2.03(l) | Letters of Credit Issued Prior to the Closing Date |
Schedule 4.01(a)(v) | Mortgaged Property |
Schedule 5.03(b) | Liquor Licenses |
Schedule 5.07(b) | Real Property |
Schedule 5.07(c) | Unrecorded Ground Leases |
Schedule 5.10(a) | ERISA Plans |
Schedule 5.10(c) | ERISA Events |
Schedule 5.11 | Subsidiaries |
Schedule 6.17 | Dormant Subsidiaries |
Schedule 6.18 | Post Closing Matters |
Schedule 7.01(b) | Existing Liens |
Schedule 7.02(e) | Existing Investments |
Schedule 7.02(p) | Existing Joint Venture Investments |
Schedule 7.03(c) | Existing Indebtedness |
Schedule 7.09 | Burdensome Agreements |
Schedule 10.02 | Notices |
EXHIBITS
A | Form of Committed Loan Notice |
B | Form of Swing Line Loan Notice |
C-1 | Form of Term Note |
C-2 | Form of Revolving Credit Note |
D | Form of Compliance Certificate |
E | Form of Assignment and Assumption |
F | Form of Guaranty and Security Agreement |
G | Form of Joinder Agreement |
H | Form of Administrative Questionnaire |
I-1 | Tax Status Certificate (For Non-U.S. Lenders that are not Partnerships For U.S. Federal Income Tax Purposes) |
I-2 | Tax Status Certificate (For Non-U.S. Lenders that are Partnerships For U.S. Federal Income Tax Purposes) |
I-3 | Tax Status Certificate (For Non-U.S. Participants that are not Partnerships For U.S. Federal Income Tax Purposes) |
I-4 | Tax Status Certificate (For Non-U.S. Participants that are Partnerships For U.S. Federal Income Tax Purposes) |
J | Form of Affiliated Lender Assignment and Assumption |
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into as of November 30, 2010, among CCA CLUB OPERATIONS HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), CLUBCORP CLUB OPERATIONS, INC., a Delaware corporation (together with any successors or assigns expressly permitted under Section 7.04 and Section 10.07, the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and CITICORP NORTH AMERICA, INC., as Administrative Agent , and the Tranche A L/C Issuer and Citibank, N.A., as Swing Line Lender and Tranche X X/C Issuer.
PRELIMINARY STATEMENTS
The Borrower has requested that (a) on the Closing Date, the Term B Lenders make Term B Loans to the Borrower in an aggregate principal amount not to exceed $310,000,000 to satisfy certain Existing Indebtedness (as defined below) of Affiliates of the Borrower and terminate the commitments thereunder and, (b) from time to time, thethe Closing Date until the Third Amendment Effective Date, the Tranche A Revolving Credit Lenders lend to the Borrower and the Tranche A L/C Issuer issue Tranche A Letters of Credit for the account of the Restricted Subsidiaries under a $50,000,000 Tranche A Revolving Credit Facility and (c) on and after the Third Amendment Effective Date, the Tranche B Revolving Credit Lenders lend to the Borrower and the Tranche X X/C Issuer issue Tranche B Letters of Credit for the account of the Restricted Subsidiaries under a $135,000,000 Tranche B Revolving Credit Facility.
The applicable Lenders have indicated their willingness to lend and the applicable L/C Issuer hasIssuers have indicated itstheir willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Accepting Lender” has the meaning specified in Section 2.05(b)(vii).
“Accounting Period” means each of the periods during the Borrower’s Fiscal Year that constitutes a separate accounting period, as more particularly identified in Schedule I.
“Administrative Agent” means Citicorp North America, Inc., in its capacity as administrative agent under any of the Loan Documents, or any permitted successor administrative agent pursuant to Section 9.06.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule II or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower, the Lenders and the L/C Issuers.
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“Administrative Questionnaire” means an Administrative Questionnaire substantially in the form of Exhibit H.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have corresponding meanings.
“Affiliated Lender” shall mean a Lender that is (a) the Sponsor or Affiliate of the Sponsor or (b) an Affiliate of any Loan Party (excluding, in each case, Holdings and any of its Subsidiaries).
“Affiliated Lender Assignment and Assumption Agreement” has the meaning specified in Section 10.07(i)(B).
“Agent-Related Person” means the Administrative Agent and any Supplemental Administrative Agent, together with their respective Affiliates, and the officers, directors, employees, advisors, agents and attorneys-in-fact of such Persons and Affiliates.
“Agents” means, collectively, the Administrative Agent and the Supplemental Administrative Agents (if any).
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” means this Credit Agreement.
“Applicable Rate” means a percentage per annum equal to:
(a) with respect to Term B Loans, (i) for any period occurring prior to the Second Amendment Effective Date, (A) for Eurodollar Rate Loans, 3.75% and (B) for Base Rate Loans, 2.75% and (ii) on and after the Second Amendment Effective Date, (A) for Eurodollar Rate Loans, 3.25% and (B) for Base Rate Loans, 2.25%; provided that, at any time on or after the Borrower’s receipt of Eligible Equity Proceeds of at least $50,000,000 from a Qualifying IPO, solely with respect to Term B Loans, (x) for Eurodollar Rate Loans, 3.00% and (B) for Base Rate Loans, 2.00%; and
(b) with respect to (i) the Tranche A Revolving Credit Loans, unused Tranche A Revolving Credit Commitments and Tranche A Letter of Credit fees, (iA) for Eurodollar Rate Loans, 4.50%, (iiB) for Base Rate Loans, 3.50%, (iiiC) for Letter of Credit fees, 4.50% and (ivD) for Revolving Credit Commitment Fees, the following percentages per annum listed below, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02 :and (ii) the Tranche B Revolving Credit Loans, unused Tranche B Revolving Credit Commitments and Tranche B Letter of Credit fees, (A) for Eurodollar Rate Loans, 3.00%, (B) for Base Rate Loans, 2.00%, (C) for Letter of Credit fees, 3.00% and (D) for Revolving Credit Commitment Fees, 0.50%.
Tranche A Revolving Credit Commitment Fee Rate | ||
Pricing Level | Total Leverage Ratio | Revolving Credit Commitment Fee Rate |
1 | > 3.00:1.00 | 0.75% |
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2 | < 3.00:1.00 | 0.50% |
Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02; provided that at the option of the Administrative Agent or the Required Tranche A Revolving Lenders, Pricing Level 1 shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after a Default or Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Default or Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply); provided, further, that prior to delivery of the Compliance Certificate with respect to the first Fiscal Quarter beginning after the Closing Date, Pricing Level 1 shall apply.
In the event that the Administrative Agent or the Borrower determine that any financial statements previously delivered were incorrect or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall as soon as practicable deliver to the Administrative Agent the corrected financial statements for such Applicable Period, (ii) the Applicable Rate shall be determined as if the Pricing Level for such higher Applicable Rate were applicable for such Applicable Period, and (iii) the Borrower shall within three (3) Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional amount owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative Agent and Lenders with respect to Section 2.08 and Article 8.
“Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, (b) with respect to the Letter of Credit Sublimit in respect of any Class, (i) the L/C Issuer andfor such Class, (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a)(i), the Tranche A Revolving Credit Lenders and (iii) if any Letters of Credit have been issued pursuant to Section 2.03(a)(i), the Tranche B Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Tranche B Revolving Credit Lenders.
“Approved Deposit Account” means a Deposit Account that is the subject of an effective Deposit Account Control Agreement and that is maintained by any Loan Party with a Deposit Account Bank. “Approved Deposit Account” includes all monies on deposit in a Deposit Account and all certificates and instruments, if any, representing or evidencing such Deposit Account.
“Approved Domestic Bank” has the meaning specified in clause (c) of the definition of “Cash Equivalents.”
“Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
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“Approved Securities Intermediary” means a “securities intermediary” or “commodity intermediary” (as such terms are defined in the UCC) selected or approved by the Administrative Agent.
“Arranger” means Citigroup Global Markets Inc. in its capacity as sole arranger and sole bookrunner for the Facilities.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E or in another form reasonably acceptable to the Administrative Agent.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel.
“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease or in respect of a Sale and Leaseback Transaction of any Person, the present value at the time of determination of the obligation of the lessee for net rental payments during the remaining term of such Capitalized Lease or the Lease included in such Sale and Leaseback Transaction, as applicable, including any period for which such Lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
“Available Amount” means, on any date of determination (the “Reference Date”), the sum of (without duplication):
(a) $40,000,000; plus
(b) Eligible Equity Proceeds (excluding an amount equal to the aggregate Equity Contribution); plus
(c) solely to the extent that the Total Leverage Ratio of Holdings and its Restricted Subsidiaries is less than 5.00:1.00 (after giving effect to the proposed (A) Restricted Payment made using the Available Amount pursuant to Section 7.06(d), (B) Investment made using the Available Amount pursuant to Section 7.02(h)(i) or Section 7.02(l) or (C) prepayment made using the Available Amount pursuant to Section 7.13(a), as applicable), the sum of (i) Retained Excess Cash Flow for each Fiscal Year of the Borrower accrued during the period (treated as one accounting period) commencing with the Fiscal Year of the Borrower ended December 27, 2011 and ending with the most recent Fiscal Year of the Borrower for which financial statements of the Borrower have been delivered in accordance with Section 6.01 plus (ii) to the extent not included in the foregoing sub clauses of this clause (c), the aggregate amount of cash Returns to any Restricted Subsidiary in respect of Investments made pursuant to Section 7.02(l); minus
(d) the aggregate amount of (A) Restricted Payments made using the Available Amount pursuant to Section 7.06(d), (B) Investments made using the Available Amount pursuant to Section 7.02(h)(i) and Section 7.02(l) and (C) prepayments made using the Available Amount pursuant to Section 7.13(a) during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date (without taking account of the intended usage of the Available Amount on such Reference Date).
“Bankruptcy Proceedings” has the meaning specified in Section 10.07(i)(iv).
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“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) (i) 2.50% with respect to Revolving Credit Loans or (ii) with respect to Term B Loans, (A) for any period occurring prior to the Second Amendment Effective Date, 2.25% and (B) on and after the Second Amendment Effective Date, 2.00%, (bhigher of (a) the rate of interest per annum determined from time to time by the Administrative Agent as its “prime rate” in effect at its principal office in New York City and (cb) the Eurodollar Rate applicable for an Interest Period of one month beginning on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, (x) with respect to Tranche A Revolving Credit Loans, the Base Rate shall in no event be less than 2.50% per annum and (y) with respect to the Term Loans, the Base Rate shall in no event be less than 2.00% per annum. The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such determined rate. Any change in the Base Rate due to a change in the Federal Funds Rate or such “prime rate” shall be effective as of the opening of business on the effective day of such change in the Federal Funds Rate or “prime rate”, as the case may be.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Borrower” has the meaning specified in the introductory paragraph to this Agreement.
“Borrowing” means a Tranche A Revolving Credit Borrowing, a Tranche B Revolving Credit Borrowing, a Swing Line Borrowing, a Term Borrowing, or a New Term Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in when used in relation to the Borrower, the state where the Administrative Agent’s Office is located, and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.
“Capital Expenditures” means, for any Person for any period, the aggregate of amounts that would be reflected as additions to property, plant or equipment on a consolidated balance sheet of such Person, excluding interest capitalized during construction.
“Capitalized Lease Obligation” means, for any Person at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at that time be required to be capitalized on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases on a balance sheet of the lessee.
“Cash Collateral Account” means any Deposit Account or Securities Account that is (a) established by the Administrative Agent from time to time in its sole discretion to receive cash and Cash Equivalents (or purchase cash or Cash Equivalents with funds received) from Holdings and its Restricted Subsidiaries or Persons acting on their behalf pursuant to the Loan Documents, (b) with such depositaries and securities intermediaries as the Administrative Agent may determine in its sole discretion, (c) in the name of the Administrative Agent (although such account may also have words referring to the Borrower
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and the account’s purpose), (d) under the control of the Administrative Agent and (e) in the case of a Securities Account, with respect to which the Administrative Agent shall be the Entitlement Holder and the only Person authorized to give Entitlement Orders with respect thereto.
“Cash Collateralize” means, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) to the Administrative Agent (for the benefit of the Lenders and/or, if applicable, the L/C IssuerIssuers) cash or deposit account balances as cash collateral in Dollars, in deposit accounts at a location designated by the Administrative Agent and under the sole dominion and control of the Administrative Agent pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and, if applicable, the L/C IssuerIssuers (which documents are hereby consented to by the Lenders). “Cash Collateralization” has a corresponding meaning.
“Cash Equivalents” means any of the following types of Investments, to the extent owned free and clear of all Liens (other than Liens permitted pursuant to any Loan Document):
(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof, having maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(b) direct obligations (or certificates representing an ownership interest in such obligations) of any state of the United States (including any agency or instrumentality thereof) the long-term debt of which is rated A-3 or higher by Moody’s and A- or higher by S&P (or rated the equivalent by at least one nationally recognized statistical rating organization) and having maturities of not more than six months after the date of acquisition;
(c) time deposits with, or insured certificates or deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (ii) has combined capital and surplus of at least $5,000,000,000 or whose commercial paper rating is at least A-1 by S&P and P-1 by Xxxxx’x (any such bank being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(d) commercial paper and variable or fixed rate notes issued by or guaranteed by a domestic corporation (other than a commercial bank or financial institution) rated “A-1” (or the equivalent thereof) or better by S&P or “P-1” (or the equivalent thereof) or better by Xxxxx’x, in each case with maturities of not more than one year from the date of acquisition thereof; and
(e) Investments, classified in accordance with GAAP as current assets of Holdings or any Restricted Subsidiary, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $5,000,000,000, and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this definition of “Cash Equivalents”.
“Cash Management Obligations” means obligations owed by Holdings or any Restricted Subsidiary to any Lender or any Affiliate of a Lender in respect of any overdraft and liabilities arising
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from treasury, depository and cash management services or any automated clearing house transfers of funds or in respect of any credit card or similar services.
“Casualty Event” means any event that gives rise to the receipt by any Person of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
“CERCLIS” means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the US Environmental Protection Agency.
“Change of Control” means the earliest to occur of
(a) (a) at any time prior to a Qualifying IPO, the Permitted Holders cease to, directly or indirectly, beneficially own (within the meaning of Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, or any successor provision) Equity Interests representing more than 50% of the total voting power for the election of directors of Holdings;
(b) (b) at any time on or after a Qualifying IPO, (i) any Person or Persons (in each case, other than any Permitted Holder and any employee benefit plan of Holdings or any Restricted Subsidiary, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) that together constitute a “group” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of more than the greater of (x) thirty-five percent (35%) of the total voting power of all of the outstanding Equity Interests of Holdings for the election of the directors of Holdings and (y) the percentage of the total voting power of all of the outstanding Equity Interests of Holdings for the election of directors of Holdings owned, directly or indirectly, beneficially by the Permitted Holders, and (ii) during any period of twelve (12) consecutive months, the board of directors of Holdings shall cease to consist of a majority of the Continuing Directors;
(c) (c) the Borrower ceasing to be a directly or indirectly wholly owned Restricted Subsidiary of Holdings; or
(d) (d) any “Change of Control” (or any comparable term) in any documentation pertaining to any Material Indebtedness, the effect of which is to cause, or to permit the holders or holders of such Material Indebtedness to cause, with the giving of notice if required, such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to the stated maturity of such Material Indebtedness.
“Claim” has the meaning specified in Section 10.07(i)(iv).
“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Tranche A Revolving Credit Lenders, NewTranche B Revolving Credit Lenders, Term B Lenders or New Term Lenders, (b) when used with respect to Commitments, refers to whether such Commitments are Tranche A Revolving Credit Commitments, NewTranche B Revolving Credit Commitments, Term B Commitments or New Term Commitments and, (c) when used with respect to L/C Issuers, refers to whether such L/C
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Issuers are Tranche A L/C Issuers or Tranche X X/C Issuers, (d) when used with respect to L/C Obligations, refers to whether such L/C Obligations are Tranche A L/C Obligations or Tranche X X/C Obligations, (e) when used with respect to Letters of Credit, refers to whether such Letters of Credit are Tranche A Letters of Credit or Tranche B Letters of Credit and (f) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Tranche A Revolving Credit Loans, Tranche B Revolving Credit Loans, Swing Line Loans or Term Loans, in each case, under this Agreement as originally in effect or pursuant to Section 2.14 or 2.15, of which such Loan, Borrowing or Commitment shall be a part.
“Closing Date” means November 30, 2010 or, if later, the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01.
“Code” means the US Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to Liens in favor of the Administrative Agent, for the benefit of the Secured Parties pursuant to the Collateral Documents in order to secure the Secured Obligations.
“Collateral Documents” means, collectively, the Guaranty and Security Agreement, each Intellectual Property Security Agreement, the Mortgages, the Deposit Account Control Agreements, the Securities Account Control Agreements and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties as security for the Secured Obligations, including collateral assignments, security agreements, pledge agreements or other similar agreements and supplements thereto delivered to the Administrative Agent and the Secured Parties pursuant to Sections 4.01, 6.12 and 6.18.
“Commitment” means a Term Commitment or a Revolving Credit Commitment, as the context may require.
“Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other or (d) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
“Commodity Account” has the meaning given to such term in the UCC.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company Materials” has the meaning specified in Section 6.02.
“Compensation Period” has the meaning specified in Section 2.12(c)(ii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Consolidated” or “consolidated” means, unless otherwise expressly indicated, the consolidation of accounts of Holdings and its Subsidiaries (excluding all Unrestricted Subsidiaries) in accordance with GAAP.
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“Consolidated Depreciation and Amortization Expense” means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased, without duplication, by:
(i) provision for taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus
(ii) total interest expense of such Person for such period (including (A) net losses or Hedging Obligations or other derivative instruments that are permitted pursuant to Section 7.03(h) and entered into for the purpose of hedging interest rate risk and (B) costs of surety bonds in connection with financing activities, in each case, to the extent included in total interest expense), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clause (a) thereof, in each case, to the extent the same was deducted (and not added back) in calculating such Consolidated Net Income; plus
(iii) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(iv) any expenses or charges (other than depreciation or amortization expense) related to any issuance of Equity Interests, Investment permitted pursuant to Section 7.02, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred pursuant to Section 7.03 (whether or not successful), including (i) such fees, expenses or charges related to the offering of the Facilities and the Senior Notes and (ii) any amendment or other modification of the Facilities or the Senior Notes, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus
(v) the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Closing Date and costs related to the closure and/or consolidation of facilities in an amount not to exceed (A) $500,000 in connection with any single acquisition, closure or consolidation and (B) $1,000,000 in the aggregate in connection with all acquisitions, closures or consolidations in any single Fiscal Year; plus
(vi) any other non-cash charges, including any write offs or write downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus
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(vii) the amount of any non-controlling interest income or expense consisting of Subsidiary income or loss attributable to non-controlling equity interests of third parties in any non-wholly owned Restricted Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus
(viii) the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the Sponsor pursuant to Section 7.08(d); plus
(ix) the amount of net cost-savings projected by the management of the Borrower in good faith to be realized as a result of specified actions initiated or to be taken on or prior to the date that is 12 months after any acquisition, merger or operational change permitted under this Agreement (calculated on a Pro Forma Basis as though such cost-savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost-savings are reasonably identifiable and quantifiable, (B) no cost-savings shall be added pursuant to this clause (ix) to the extent duplicative of any expenses or charges relating to such cost-savings that are included in clause (v) above, and (z) the aggregate amount of cost-savings added pursuant to this clause (ix) shall not exceed (A) $3,000,000 in connection with any acquisition of a club and (B) $10,000,000 for any four consecutive quarter period on a Pro Forma Basis; plus
(x) the amount of deferred revenue relating to Membership Deposit Liabilities that was written off in connection with the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006 which, but for such write-off, would have been recognized as revenue in such period; plus
(xi) any costs or expense incurred by Holdings or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with Eligible Equity Proceeds and solely to the extent that such Net Cash Proceeds are excluded from the calculation of the Available Amount; plus
(xii) the amount of expenses relating to payments made to option holders of any direct or indirect parent company of the Borrower or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement; plus
(xiii) fees and expenses of third parties retained by management of the Borrower in connection with preparing the Borrower to comply with the public filing requirements of the SEC and the Xxxxxxxx-Xxxxx Act of 2002, as amended, and related rules and regulations, to the extent deducted in computing Consolidated Net Income; plus
(xiv) any state or local property taxes, regulatory expenses or other charges directly resulting from (i) the reorganization Transactions described in the offering memorandum relating to the initial offering of the Senior Notes or (ii) the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006; and
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(b) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period;
provided that Consolidated EBITDA for the Fiscal Quarter ended on (i) September 7, 2010 shall be deemed to be $37,433,000, (ii) June 15, 2010 shall be deemed to be $41,876,000, (iii) March 23, 2010 shall be deemed to be $26,867,000 and (iv) December 29, 2009 shall be deemed to be $49,684,000.
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(a) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, other than with respect to Indebtedness borrowed under the Facilities or the Senior Notes, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit (including Letters of Credit) or bankers acceptances, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the xxxx to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP, (iv) the interest component of Attributable Indebtedness, and (v) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (i) interest expense relating to Membership Deposit Liabilities, (ii) accretion or accrual of discounted liabilities not constituting Indebtedness, (iii) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (iv) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Indebtedness under the Facilities,(v) any expensing of bridge, commitment and other financing fees and (vi) commissions, discounts, yield and other fees and charges (including any interest expense) related to any receivables facility); plus
(b) consolidated capitalized interest (including interest with respect to Attributable Indebtedness as provided in the definition thereof) of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(c) interest income for such period.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that without duplication:
(a) any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs and curtailments shall be excluded;
(b) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;
(c) any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded;
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(d) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to Dispositions other than in the ordinary course of business, as determined in good faith by the management of the Borrower, shall be excluded;
(e) the Net Income for such period of any Person that is not a Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period;
(f) solely for the purpose of calculating the Excess Cash Flow for purposes of clause (c) of the definition of Available Amount, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not, at the date of determination, wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that “Consolidated Net Income” of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;
(g) effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in the property and equipment, software and other intangible assets, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any consummated acquisition after the Closing Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;
(h) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded;
(i) any impairment charge, asset write-off or write-down, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded;
(j) any (A) non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights and (B) income (loss) attributable to deferred compensation plans or trusts shall be excluded;
(k) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded;
(l) accruals and reserves that are established, adjusted or changed as a result of the adoption or modification of accounting policies shall be excluded;
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(m) to the extent covered by insurance and actually reimbursed, expenses with respect to liability or casualty events or business interruption shall be excluded;
(n) any net gain or loss resulting in such period from Hedging Obligations and the application of Financial Accounting Standards Codification No. 815—Derivatives and Hedging shall be excluded; and
(o) any net gain or loss resulting in such period from currency transaction or translation gain or losses related to currency re-measurements (including any net loss or gain resulting from hedge agreements for currency exchange risk) shall be excluded.
“Consolidated Scheduled Funded Debt Payments” means, as of any date for the applicable period ending on such date with respect to Holdings and its Restricted Subsidiaries, the sum of all scheduled payments of principal on Consolidated Total Debt made during such period (including the implied principal component of payments made on Capitalized Leases during such period) as determined in accordance with GAAP.
“Consolidated Senior Secured Debt” means, as of any date of determination, the aggregate principal amount of Consolidated Total Debt (including the aggregate face amount of all drawn and undrawn letters of credit (including Letters of Credit) that collateralize, backstop or otherwise provide credit support therefor) outstanding on such date that is secured by a Lien on any asset or property of any Loan Party or that is collateralized, backstopped or otherwise provided credit support by letters of credit (including Letters of Credit), whether drawn or undrawn.
“Consolidated Total Debt” means, as of any date of determination, (a) the aggregate stated balance sheet amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date of the types described in clauses (a), (b) (to the extent of any reimbursement obligation that is unpaid), (c), (d), and (f) of the definition of “Indebtedness” at such date of determination and (b) all Indebtedness of the type described in clause (h) of the definition of “Indebtedness” at such date of determination to the extent it relates to the foregoing types of Indebtedness, in each case, as determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition) minus the lesser of (x) the aggregate amount of unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than nonconsensual Liens permitted under Section 7.01 and (y) $75,000,000.
“Consolidated Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period; provided that there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities, the effect of any Disposition or acquisition during such period, and the application of purchase accounting.
“Continuing Directors” shall mean the directors (or managers) of Holdings on the Closing Date and each other director (or manager), if, in each case, such other directors’ or managers’ nomination for election to the board of directors (or board of managers) of Holdings is endorsed by a majority of the then-Continuing Directors.
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“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Control Account” means a Securities Account or Commodity Account that is the subject of an effective Securities Account Control Agreement and that is maintained by any Loan Party with an Approved Securities Intermediary. “Control Account” includes all Financial Assets held in a Securities Account or a Commodity Account and all certificates and instruments, if any, representing or evidencing the Financial Assets contained therein.
“Copyright Security Agreement” means the Copyright Security Agreement among the Borrower, the other grantors named therein and the Administrative Agent, dated as of the Closing Date.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Current Assets” means, at any time, the consolidated current assets (other than cash, deferred income taxes and Cash Equivalents) of Holdings and its Restricted Subsidiaries.
“Current Liabilities” means, at any time, the consolidated current liabilities of Holdings and its Restricted Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness, (b) the current portion of any Capitalized Leases and (c) the current portion of deferred income taxes.
“Debt Issuance” means the issuance or incurrence by Holdings or any Restricted Subsidiary of any Indebtedness of the type specified in clause (a) of the definition of “Indebtedness”.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, examinership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declining Lender” has the meaning specified in Section 2.05(b)(vii).
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans that are Term Loans plus (c) 2.0% per annum; provided that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Defaulting Lender” means, at any time, as determined by the Administrative Agent in its sole discretion acting in good faith, a Lender as to which the Administrative Agent has notified the Borrower that (i) such Lender has failed for three or more Business Days to comply with its obligations under this Agreement to make a Term Loan, Revolving Credit Loan, make a payment to the L/C Issuer of a particular Class in respect of an L/C Obligation of such Class and/or make a payment to the Swing Line
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Lender in respect of a Swing Line Loan (each a “Lender Funding Obligation”), (ii) such Lender has notified the Administrative Agent, or has stated publicly, that it will not comply with any such Lender Funding Obligation hereunder, or has defaulted on its Lender Funding Obligations under any other loan agreement or credit agreement or other similar agreement (absent a good faith dispute), (iii) such Lender has, for three or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its Lender Funding Obligations hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with respect to such Lender; provided that in the case of each of clauses (i) through (iv) (inclusive) above, neither the reallocation of Lender Funding Obligations provided for in Section 2.16 as a result of a Lender’s being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated Lender Funding Obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender). The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.
“Deposit Account” has the meaning given to such term in the UCC.
“Deposit Account Bank” means a financial institution selected or approved by the Administrative Agent.
“Deposit Account Control Agreement” has the meaning specified in the Guaranty and Security Agreement.
“Disposition” or “Dispose” means the sale, transfer, license, Lease or other disposition of any property by any Person (including any Sale and Leaseback Transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term B Loan Facility.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary of Holdings that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Dormant Subsidiary” means each Non-Recourse Subsidiary listed on Schedule 6.17 on the Second Amendment Effective Date; provided that to the extent the Borrower elects to convert any such “Dormant Subsidiary” to a Restricted Subsidiary pursuant to Section 6.17, it shall cease to be a “Dormant Subsidiary”.
“DPO Agreement” means that certain letter agreement, dated as of November 9, 2010, among Citigroup Global Markets Realty Corp., Citicorp North America, Inc. and the “Borrower Parties” named therein.
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“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; (d) an Affiliated Lender to the extent permitted under Section 10.07(i); and (e) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Tranche A Revolving Credit Commitment, the Tranche A L/C Issuer, (iii) in the case of any assignment of a Tranche B Revolving Credit Commitment, the Tranche X X/C Issuer and the Swing Line Lender , and (iiiiv) in the case of any assignment of a Revolving Credit Commitment of any Class, unless a Default or Event of Default has occurred and is continuing under Section 8.01(a), Section 8.01(f) or Section 8.01(g) or would result therefrom, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that under no circumstances shall Holdings or any of its Subsidiaries (including Unrestricted Subsidiaries) or any of their respective Affiliates be an Eligible Assignee.
“Eligible Equity Proceeds” means the Net Cash Proceeds received by Holdings or any direct or indirect parent thereof from any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) or from any capital contributions in respect of Equity Interests (other than Disqualified Equity Interests) to the extent such Net Cash Proceeds or capital contributions are directly or indirectly contributed to, and actually received by, the Borrower as cash common equity (or, if only a portion thereof is so contributed and received, to the extent of such portion).
“Entitlement Holder” has the meaning given to such term in the UCC.
“Entitlement Order” has the meaning given to such term in the UCC.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil and subsurface strata, and natural resources, such as wetlands, flora and fauna.
“Environmental Laws” means the common law and any and all applicable federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements, governmental restrictions or other legal requirements relating to pollution, the protection of the Environment or of public health (to the extent relating to exposure to Hazardous Materials) or the management, storage, treatment, transport, distribution or Release of any Hazardous Materials.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Holdings or any Restricted Subsidiary arising from, resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or Release of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Contribution” means investments in the form of cash common equity directly or indirectly in Holdings (or any parent company thereof) by the Sponsor that are contributed to the Borrower, together with the proceeds of the Resort Spin-Off received by the Borrower (or a Subsidiary Guarantor), in an aggregate amount that is not less than $425,000,000.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit
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interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“Equity Issuance” means any issuance by any Person to any other Person that is not a Loan Party of (a) its Equity Interests, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests. A Disposition of Equity Interests shall not be deemed to be an “Equity Issuance”.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code solely for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due, upon the Borrower or any ERISA Affiliate or (g) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code and Section 302 of ERISA, whether or not waived, or the failure to make any contribution to a Multiemployer Plan.
“Eurodollar Rate” means, for any Interest Period with respect to any Eurodollar Rate Loan, the greater of: (a) (i) 1.50% with respect to Tranche A Revolving Credit Loans or (ii) with respect to Term B Loans, (A) for any period occurring prior to the Second Amendment Effective Date, 1.25% and (B) on and after the Second Amendment Effective Date, 1.00% and (b) (i) the rate per annum equal to the rate appearing on Reuters Page LIBOR01 (or any successor or substitute page of such Reuters service, or if the Reuters service ceases to be available, any successor to or substitute for such service providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time in consultation with the Borrower, for purposes of providing quotations of interest rates applicable to deposits in Dollars in the London interbank market) for delivery on the first day of such Interest Period with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, or (ii) if the rate referenced in the preceding clause (i) is not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London branch to
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major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two (2) Business Days prior to the first day of such Interest Period.
“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar Rate.
“Event of Default” has the meaning specified in Section 8.01.
“Excess Cash Flow” means, with respect to any Fiscal Year of the Borrower on a consolidated basis, an amount equal to
(a) the sum, without duplication, of (i) Consolidated EBITDA for such period and the Consolidated Working Capital Adjustment for such period, minus
(b) the sum, without duplication, of:
(i) Capital Expenditures (to the extent not financed by the incurrence of Indebtedness or an Equity Issuance) made by Holdings or any Restricted Subsidiary during such period;
(ii) cash payments made by Holdings or any Restricted Subsidiary to satisfy tax obligations during such period;
(iii) cash interest expense of Holdings or any Restricted Subsidiary during such period;
(iv) Consolidated Scheduled Funded Debt Payments of Holdings and its Restricted Subsidiaries (including the amount of any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) but excluding (A) all other prepayments of Term Loans and (B) all prepayments of Revolving Credit Loans and Swing Line Loans, except to the extent there is an equivalent permanent reduction in commitments thereunder, except in each case to the extent such prepayments are financed with the proceeds of Debt Issuances (excluding the Revolving Credit Facility and any revolving lines of credit) or Equity Issuances;
(v) cash payments by Holdings and its Restricted Subsidiaries during such period in respect of long-term liabilities (other than Indebtedness) to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated EBITDA, except to the extent financed with the proceeds of Debt Issuances (excluding the Revolving Credit Facility and any revolving lines of credit) or Equity Issuances; and
(vi) Investments (including Permitted Acquisitions) paid in cash by Holdings or any Restricted Subsidiary during such period to the extent permitted by Section 7.02, except to the extent financed with the proceeds of Debt Issuances or Equity Issuances.
“Excluded Assets” means, collectively:
(a) any property or assets (including, without limitation, Liquor Licenses and other Permits, but excluding property and assets described in clause (b) of this definition of “Excluded Assets”) held by, or any contract entered into by, any Loan Party (other than contractual requirements entered into
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by a Loan Party to avoid guaranteeing or securing the Obligations) (i) that prohibits, or requires the consent, approval, license or authorization of any Person other than Holdings and its Affiliates as a condition to the creation by such Loan Party of a Lien on any right, title or interest in such property, asset, or contract or (ii) to the extent that any Law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibitions in the foregoing sub clauses (i) and (ii), to the extent that, and for as long as, such prohibition or other applicable requirement is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Law and so long as such negative pledge is otherwise permitted under Section 7.09;
(b) Equity Interests (i) constituting margin stock, (ii) in (A) any Subsidiary that is not a wholly-owned Subsidiary or (B) a Joint Venture, in each case, that is in existence on the Closing Date, if the granting of a security interest in such Equity Interests would (x) be prohibited by organizational or governance documents of such Subsidiary or Joint Venture, (y) require consents from any Person other than Holdings and its Affiliates and such consent has not been obtained, or (z) would trigger a termination pursuant to any “change of control” or similar provision in such documents, or (iii) that are voting Equity Interests in any Restricted Subsidiary described in clause (c) of the definition of Excluded Subsidiary in excess of 66% (or in the case of Promociones Turísticas Profesionales, S.A. de C.V., CG Inversiones, S.A. de C.V. and CCG Club de Golf, S.A. de C.V., 65%) of the voting Equity Interests in such Restricted Subsidiary;
(c) any intellectual property to the extent that the attachment of the security interest thereto, or any assignment thereof, would result in the forfeiture, invalidation or unenforceability of the grantors’ rights in such property including, without limitation, any license pursuant to which grantor is licensee under terms which prohibit the granting of a security interest or under which granting such an interest would give rise to a breach or default by grantor, any Trademark (as defined in the Guaranty and Security Agreement) applications filed in the USPTO on the basis of such grantor’s “intent-to-use” such Trademark, unless and until acceptable evidence of use of such Trademark has been filed with the USPTO pursuant to Section 1(c) or Section 1(d) of the Xxxxxx Act (15 U.S.C. 1051, et seq.), to the extent that granting a lien in such Trademark application prior to such filing would adversely affect the enforceability or validity of such Trademark application; and
(d) assets and property set forth on Schedule 7.05(m); provided that if such assets and property have not been Disposed of by the date that is 90 days after the Closing Date (as such date may be extended by the Administrative Agent in its sole discretion), the Restricted Subsidiaries owning such assets and property shall comply with the requirements of Section 6.12 with respect to such assets and property until the time of their Disposition pursuant to Section 7.05(m).
Notwithstanding the foregoing, “Excluded Assets” shall not include any proceeds, products, substitutions or replacements of “Excluded Assets” unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets.
“Excluded Perfection Assets” means (a) any real property or real property interests (including leasehold interests) other than Material Real Property; (b) motor vehicles and other assets subject to certificates or title; (c) letter-of-credit rights (except to the extent constituting a supporting obligation for other Collateral as to which perfection of the security interest in such other Collateral is accomplished solely by the filing of a UCC financing statement); and (d) assets or property with respect to which, in the reasonable judgment of the Administrative Agent, the cost or other consequences of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom.
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“Excluded Subsidiary” means (a) each Subsidiary listed on Schedule III; (b) any Subsidiary (other than any wholly-owned Subsidiary) in existence on the Closing Date that is prohibited by contractual requirements (other than contractual requirements entered into by such Subsidiary to avoid guaranteeing the Obligations) or applicable Law from guaranteeing the Obligations, in each case, for so long as such contractual requirements or applicable Law prevent the guarantee of the Obligations; (c) (i) any Foreign Subsidiary, (ii) any Domestic Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes and that has substantially no assets other than the Equity Interests of one or more Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Code (“CFC”) or (iii) any Subsidiary for which the grant of a security interest in its property would reasonably be expected to cause material and adverse tax consequences to Holdings and its Restricted Subsidiaries; and (d) any Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, the cost or other consequences of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal or unenforceable under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such Lien becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or Lien is or becomes illegal or unenforceable.
“Excluded Taxes” means, with respect to any Agent, any Lender (including any L/C Issuer) or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document,
(a) (a) any Taxes imposed on or measured by its overall net income (however denominated) Taxes imposed on it in lieu of net income taxes by a jurisdiction as a result of such recipient being organized or resident in, maintaining a Lending Office in, doing business in or having another present or former connection with, such jurisdiction (other than a business or connection deemed to arise solely by virtue of the Loan Documents or any of the transactions contemplated thereby);
(b) (b) any United States federal withholding tax that is imposed pursuant to any Law in effect at the time such recipient becomes a party to this Agreement, except to the extent such Lender’s assignor (if any) was entitled, immediately prior to the assignment to payments in respect of United States federal withholding tax under Section 3.01(a) or (c);
(c) (c) any Taxes attributable to a recipient’s failure or comply with Section 10.15(a) or (b); or
(d) (d) any United States federal withholding taxes under current Sections 1471 through 1474 of the Code, or any amended version or successor provision that is substantively comparable thereto, and, in each case, any regulations promulgated thereunder and any interpretation or other guidance issued in connection therewith.
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“Existing Indebtedness” means the indebtedness of (i) Clubcorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC pursuant to that certain Loan Agreement, dated as of December 26, 2006, with Citigroup Global Markets Realty Corp. and (ii) Clubcorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC, Fillmore Homestead REIT Mezzanine, LLC pursuant to that certain Mezzanine Loan and Revolving Credit Facility, dated as of December 26, 2006, with Citigroup Global Markets Realty Corp.
“Existing Revolving Credit Commitments” means the aggregate outstanding amount of (a) the Revolving Credit Commitments in effect as of the Second Amendment Effective Date and (b) any subsequent reductions or terminations of such Revolving Credit Commitments pursuant to Section 2.06(a).
“Facility” means the Term Loan Facility, the Tranche A Revolving Credit Facility, the Tranche B Revolving Credit Facility, the Swing Line Sublimit or the, the Tranche A Letter of Credit Sublimit or the Tranche B Letter of Credit Sublimit, as the context may require.
“Fair Market Value” means, with respect to any asset or group of assets at any date, the value of the consideration obtainable in a sale of such asset at such date assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by (a) the Borrower’s management, if the value of such asset or group of assets is less than or equal to $5,000,000, (b) the Board of Directors of the Borrower if the value of such asset or group of assets is more than $5,000,000 or (c) if such asset or group of assets shall have been the subject of a relatively contemporaneous appraisal by an independent third party appraiser, the basic assumptions underlying which have not materially changed since its date, the value set forth in such appraisal.
“Federal Funds Rate” means, for any day, the rate per annum 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 such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means any letter agreement from time to time in effect between any Agent and any Loan Party with respect to certain fees to be paid from time to time to such Agent in respect of the Facilities, together with such other terms and conditions in respect of the Facilities as may be agreed between the applicable Agent and such Loan Party or Loan Parties.
“Financial Asset” has the meaning given to such term in the UCC.
“Fiscal Quarter” means each of the following periods: (i) The first (1st) through the third (3rd) Accounting Periods (inclusive) of any Fiscal Year; (ii) the fourth (4th) through the sixth (6th) Accounting Periods (inclusive) of any Fiscal Year; (ii) the seventh (7th) through the ninth (9th) Accounting Periods (inclusive) of any Fiscal Year; and (iv) the tenth (10th) through the thirteenth (13th) Accounting Periods (inclusive) of any Fiscal Year, with the exception of Fiscal Year 2013 which will include the tenth (10th) through the fourteenth (14th) Accounting Periods (inclusive).
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“Fiscal Year” means the period of time commencing upon the first day of the first Accounting Period during any calendar year and ending on the last day of the last Accounting Period of such calendar year.
“Foreign Plan” means any employee pension benefit plan (other than a governmental plan or arrangement) which is maintained or contributed to by any Restricted Subsidiary primarily for their employees employed outside the United States and is subject to any Laws requiring contributions or other funding of benefits under such plan, including, without limitation, upon any termination, wind up or withdrawal with respect to such plan.
“Foreign Subsidiary” means any Subsidiary of Holdings that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Granting Lender” has the meaning specified in Section 10.07(g).
“Ground Lease” means each ground Lease, in existence on the Closing Date, listed on Schedule IV.
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or Lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term
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“Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means, collectively, (a) Holdings and each of its Subsidiaries listed on Schedule V that, as of the Closing Date, shall have Guaranteed the Obligations of the Borrower pursuant to the Guaranty and Security Agreement and (b) each other Restricted Subsidiary of Holdings that shall be required to become a Guarantor pursuant to Section 6.12.
“Guaranty and Security Agreement” means the Guaranty and Security Agreement made by the Guarantors in favor of the Secured Parties, substantially in the form of Exhibit F, together with each supplement or joinder thereto in respect of the Obligations of the Borrower delivered pursuant to Section 6.12.
“Hazardous Materials” means all substances, materials, wastes, chemicals, pollutants, contaminants, constituents or compounds, in any form, regulated, or which can give rise to liability, under any Environmental Law, including petroleum or petroleum distillates, asbestos or asbestos-containing materials and polychlorinated biphenyls.
“Hedge Bank” means the counterparty to any Loan Party under a Secured Hedge Agreement.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under any interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies, in each case, to the extent permitted pursuant to Section 7.03(h).
“Holdings” has the meaning specified in the introductory paragraph to this Agreement.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“Increased Amount Date” has the meaning specified in Section 2.14(a).
“Increased Revolving Credit Commitments” has the meaning specified in Section 2.14(a).
“Incremental Commitments” has the meaning specified in Section 2.14(a).
“Incremental Revolving Credit Commitments” has the meaning specified in Section 2.14(a).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all
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obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the maximum amount of all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person; (c) net obligations of such Person under any Swap Contract (it being understood that the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date); (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business that are not overdue and liabilities associated with customer prepayments and deposits); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) all Attributable Indebtedness; (g) all obligations of such Person in respect of Disqualified Equity Interests; and (h) all Guarantees of such Person in respect of any of the foregoing.
“Indemnified Liabilities” has the meaning specified in Section 10.05.
“Indemnitees” has the meaning specified in Section 10.05.
“Information” has the meaning specified in Section 10.08.
“Intellectual Property Security Agreement” means, collectively, the Patent Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement, substantially in the forms attached to the Guaranty and Security Agreement together with each other intellectual property security agreement executed and delivered pursuant to Section 6.12 or the Guaranty and Security Agreement.
“Interest Coverage Ratio” means, as of the end of any Fiscal Quarter of the Borrower for the Test Period ending on such date, the ratio of (a) Consolidated EBITDA for such Test Period to (b) Consolidated Interest Expense for such Test Period.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.
“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, or with the consent of all relevant Lenders, twelve months thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:
(a) (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
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(b) (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;
(c) (c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made; and
(d) (d) any Interest Period that begins on the Second Amendment Effective Date shall be deemed to end on September 30, 2013; provided that for purposes of determining the Eurodollar Rate for such Interest Period, such Interest Period shall be deemed to end two months after the Second Amendment Effective Date.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (h) of the definition of “Indebtedness” set forth in this Section 1.01 in respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any Returns in respect of such Investment. For purposes of this definition, in the case of intercompany Investments resulting from cash management and concentration among Holdings and its Subsidiaries in the ordinary course of business consistent with past practice, the aggregate amount of such Investment made at any time by the Loan Parties in other Subsidiaries that are not Loan Parties shall be deemed to be the aggregate amount owed to the Loan Parties by such other Subsidiaries less the aggregate amount owed by the Loan Parties to such other Subsidiaries.
“IP Rights” has the meaning specified in Section 5.14.
“IRS” means the United States Internal Revenue Service.
“Joinder Agreement” means an agreement substantially in the form of Exhibit G or another agreement in form and substance reasonably acceptable to the Administrative Agent.
“Joint Venture” means any Person in whom any Restricted Subsidiary beneficially owns any Equity Interest that is not a Subsidiary.
“Jurisdictional Requirements” has the meaning specified in Section 7.04(a).
“KSL” means KSL Capital Partners II GP, LLC.
“KSL Investment Vehicle” means any investment vehicle Controlled by or under common Control with KSL or its Affiliates.
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“L/C Advance” means, with respect to each Revolving Credit Lender of a particular Class, such Lender’s funding of its participation in any L/C Borrowing of the same Class in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit of a particular Class which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing of such Class.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Issuer” means Citicorp North America, Inc., in its capacity as issuer of Letters of Credit hereunder and each other Revolving Credit Lender reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) that has entered into an agreement (in form and substance satisfactory to the Administrative Agent and the Borrower) with the Administrative Agent to be bound by the terms applicable to an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.the Tranche A L/C Issuer or the Tranche X X/C Issuer, as applicable.
“L/C Obligations” means , as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including, without duplication, all L/C Borrowings.the Tranche A L/C Obligations or the Tranche X X/C Obligations, as applicable.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Term Loan or any New Term Commitment.
“Laws” means, collectively, all applicable international, foreign, Federal, state, commonwealth and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lease” means any lease, license, letting, concession, occupancy agreement, or sublease to which any Restricted Subsidiary is granted a possessory interest in, or right to use or occupy all or any portion of any space in any real or personal property, and every modification or amendment thereof, excluding (i) short-term agreements in the ordinary course of business pursuant to which hotel rooms and facilities are made available to individual hotel guests and other customers and guests and (ii) Liquor License Arrangements.
“Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes theeach L/C Issuer and the Swing Line Lender.
“Lender Funding Obligation” has the meaning specified in the definition of “Defaulting Lender.”
“Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its
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Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Revolving Credit Lender or its Parent Company, or such Revolving Credit Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender-Insolvency Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interest in any Revolving Credit Lender or its Parent Company by a Governmental Authority or an instrumentality thereof.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter Agreement” means that certain letter agreement, dated November 9, 2010, among Citigroup Global Markets Inc., the “Company Parties” named therein and KSL Capital Partners Management II, LLC.
“Letter of Credit” means any letter of credit issued hereunder.a Tranche A Letter of Credit may be a commercial letter of credit (if available to be issued by the applicable L/C Issuer) or a standby letter of creditor a Tranche B Letter of Credit, as applicable.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit substantially in the form from time to time in use by the applicable L/C Issuer.
“Letter of Credit Expiration Date” means, with respect to Letters of Credit issued under any Revolving Credit Facility, the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for thesuch Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Sublimit” means $30,000,000. Thethe Tranche A Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facilityor the Tranche B Letter of Credit Sublimit, as the context requires.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).
“Liquor License Arrangement” means any license, concession or other agreement or arrangement by which any Person that holds a Liquor License is afforded one or more rights with respect to any one or more of properties in connection with the provision of alcohol thereon.
“Liquor Licenses” means collectively, the licenses set forth on Schedule 5.03(b) and each other license issued by a state or local agency.
“Loan” means an extension of credit by a Lender (x) to the Borrower in the form of a Term Loan or a New Term Loan and (y) to the Borrower in the form of a Revolving Credit Loan, a New Revolving Loan or a Swing Line Loan.
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“Loan Documents” means, collectively, this Agreement, the Notes, the Guaranty and Security Agreement, any Fee Letter, the DPO Agreement, the Letter Agreement, the other Collateral Documents and each Letter of Credit Application.
“Loan Parties” means, collectively, Holdings, the Borrower and each Subsidiary Guarantor.
“Management Agreement” means that certain investment management agreement dated as of December 26, 2006 among KSL Advisors, LLC, Fillmore CCA Holdings I, LLC, Fillmore CCA Holdings, Inc. and Clubcorp, Inc., as in effect on the Closing Date and as such investment management agreement may be amended, modified, supplemented, restated, replaced or substituted so long as such amendment, modification, supplement, restatement, replacement or substitution is in a manner not materially disadvantageous to the Lenders, when taken as a whole, as compared to the Management Agreement in effect on the Closing Date, as determined in the good faith judgment of a majority of the disinterested members of the board of directors of the Borrower.
“Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to pay the Obligations under any Loan Document or (c) a material adverse effect on the rights and remedies of the Lenders, taken as a whole, under the Loan Documents.
“Material Agreement” means each Contractual Obligation or series of related Contractual Obligations (other than (x) any Contractual Obligation that ceases to be in effect with respect to Holdings and its Restricted Subsidiaries after giving effect to, and concurrently with, the Transactions and (y) that certain Procurement Services Agreement between Avendra, LLC and Clubcorp, Inc., dated as of January 1, 2007, to the extent that such agreement terminates in accordance with its own terms, except due to a breach by Holdings or a Restricted Subsidiary) that (a) relates to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of any of the Material Real Properties, or otherwise imposes obligations on Holdings or any of its Restricted Subsidiary (including Leases and Ground Leases), under which Holdings or any of its Restricted Subsidiary pays, performs or otherwise provides consideration in an aggregate amount that exceeds $2,500,000 in any Fiscal Year and (b) pursuant to which Holdings or any of its Restricted Subsidiaries manages any golf club or non-golf club (i.e., business and sporting club) business for which Holdings or such Restricted Subsidiary or its Affiliates receive $2,500,000 or more in gross aggregate consideration in any Fiscal Year.
“Material Indebtedness” means Indebtedness of Holdings or any Restricted Subsidiary having (a) an outstanding aggregate principal amount or (b) outstanding commitments, in either case, in an amount of $25,000,000 or more.
“Material Intellectual Property” means all registrations or pending applications for registration with the US Patent and Trademark Office for any trademarks or service marks that are material to the operation of the business of Holdings and its Restricted Subsidiaries, taken as a whole.
“Material Lease” means (i) the Ground Leases and (ii) any Lease of real property that constitutes Material Real Property.
“Material Real Property” means (a) the real property described in clause (a) of the definition of Mortgaged Property and (b) fee owned real property and Leases of real property located in the United States with a Fair Market Value (or, if agreed to by the Administrative Agent in its sole discretion, a tax-assessed value) equal to or greater than $1,500,000.
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“Maturity Date” means (a) with respect to the Tranche A Revolving Credit Facility, the date that is five (5) years after the Closing Date and, (b) with respect to the Tranche B Revolving Credit Facility, the date that is five (5) years after the Third Amendment Effective Date and (c) with respect to the Term B Loan Facility, the date that is seven (7) years after the Second Amendment Effective Date; provided that, the reference to Maturity Date with respect to Revolving Credit Commitments and Revolving Credit Loans of a particular Class whose maturity has been extended pursuant to Section 2.15 shall be the Revolving Maturity Date of such Class of Revolving Credit Loans; provided further that, if, on the date that is 91 days before the maturity date of the Senior Notes (without giving effect to Section 1.05) or any Permitted Refinancing of the Senior Notes that matures earlier than 91 days after the seventh anniversary of the Second Amendment Effective Date, more than $75,000,000 of Indebtedness in the aggregate remains outstanding under the Senior Notes (without giving effect to Section 1.05) or any Permitted Refinancing of the Senior Notes, as applicable, the “Maturity Date” shall mean, solely with respect to the Term B Loan Facility, the date that is 91 days before the maturity date of the Senior Notes (without giving effect to Section 1.05) or such Permitted Refinancing, as applicable.
“Maximum Rate” has the meaning specified in Section 10.10.
“Membership Deposit Liabilities” means those amounts paid to any Subsidiary by any club member that such Subsidiary is obligated to refund to such member in accordance with the applicable club membership agreement.
“Membership Report” means, during the applicable period, a membership report for such period (together with year-to-date summaries of such information) showing (i) the number of memberships sold, (ii) the revenues (gross and net) from the sale of such memberships and (iii) the amount of such revenues that are Membership Deposit Liabilities and refundable in future years and the date of eligibility for such refund. For purposes of the Company Materials described in Section 6.02, no “Membership Report” shall be suitable for Public Lenders and shall be suitable only for posting on a portion of the Platform designated “Private Investor”.
“MNPI” has the meaning specified in Section 10.07(i)(A).
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgage” means, collectively, the deeds of trust, deeds of mortgage, trust deeds or mortgages, as applicable, made by any Loan Party in favor or for the benefit of the Administrative Agent on behalf of the Secured Parties in respect of Material Real Property in form and substance reasonably acceptable to the Administrative Agent executed and delivered pursuant to Section 6.12.
“Mortgage Requirement” means, with respect to any Material Real Property owned by any Loan Party, (a) provision of (i) a policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each Mortgage as a first priority Lien on the Material Real Property described therein, subject only to Permitted Prior Liens, and free of other Liens except Liens that are junior in priority to the Lien of the Administrative Agent secured by such Mortgage that are otherwise permitted pursuant to Section 7.01 and (ii) a Mortgage executed by any Loan Party in recordable form and otherwise in form and substance reasonably acceptable to the Administrative Agent; (b) recording of such Mortgage in the land records of the county in which such Material Real Property to be so encumbered is located; (c) acquisition of standard flood hazard determinations for such Material Real Property, and if such Material Real Property is determined to be in a special flood zone, delivery of evidence of flood insurance in compliance with the requirements of the National Flood Insurance Program; (d) a local counsel opinion as to the enforceability of such Mortgage in the state in which the
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Material Real Property described in such Mortgage is located in form and substance reasonably acceptable to the Administrative Agent; and (e) a title survey in form and substance reasonably satisfactory to the Administrative Agent for each Material Real Property and, with respect to Material Real Property acquired after the Closing Date, certified to the Borrower or the applicable Restricted Subsidiary, the title company issuing the title insurance policy, the Administrative Agent and their respective successors and assigns.
“Mortgaged Property” means (a) on the Closing Date, the real property of the Loan Parties subject to a Mortgage that is set forth on Schedule 4.01(a)(v) and (b) thereafter, each other Material Real Property of any Loan Party that becomes subject to a Mortgage pursuant to Section 6.12.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Holdings or a Restricted Subsidiary or any of its ERISA Affiliates has any obligation or liability, contingent or otherwise.
“Net Cash Proceeds” means:
(a) with respect to any Disposition or any Casualty Event, in each case, by any Person (other than a Non-Prepayment Unrestricted Subsidiary), the difference, if any, of:
(xv) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event; provided that (A) to the extent included in the calculation of Excess Cash Flow for the applicable period, business interruption insurance proceeds or similar payments shall be excluded, (B) any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise shall be included, but only as and when so received and (C) with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of any Loan Party; minus
(xvi) the sum of (A) the principal amount, together with any applicable premium, penalty, interest and breakage costs, of any Indebtedness (other than the Obligations) that is secured by the assets being Disposed of or with respect to which such Casualty Event has occurred, in each case, to the extent that (x) with respect to Holdings or any Restricted Subsidiary, such Indebtedness and such Lien are permitted pursuant to Sections 7.03 and 7.01, respectively and (y) such Indebtedness is required by its terms to be repaid in connection with such Disposition or Casualty Event, (B) the reasonable out-of-pocket expenses (including, without limitation, attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by such Person in connection with such Disposition or Casualty Event, (C) taxes (or distributions for taxes) paid or reasonably estimated to be payable in connection therewith by such Person and attributable to such Disposition or Casualty Event (including, in respect of any proceeds received in connection with a Disposition or Casualty Event of any asset of any Foreign Subsidiary, deductions in respect of withholding taxes that are payable in cash if such funds are repatriated to the United States); (D) any reasonably estimated reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by any Person after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such
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transaction, and it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents (i) received upon the Disposition of any non-cash consideration received by any Subsidiary that is not a Non-Prepayment Unrestricted Subsidiary in respect of any such Disposition or Casualty Event and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within one hundred and eighty (180) days after such Disposition or Casualty Event, the amount of such reserve.
Notwithstanding the foregoing, for purposes of this clause (a), (i) proceeds from Dispositions permitted under clauses (a), (b), (c), (d), (e), (g) or (k) of Section 7.05 (or, in the case of a Prepayment Unrestricted Subsidiary, Dispositions of the type that would be permitted by such clauses if otherwise applicable thereto) shall not be included in the calculation of Net Cash Proceeds and (ii) (x) no proceeds realized by Holdings and its Restricted Subsidiaries in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such proceeds shall exceed $2,500,000 in the aggregate and (y) no proceeds realized by Holdings and its Restricted Subsidiaries shall constitute Net Cash Proceeds in any Fiscal Year of the Borrower until the aggregate amount of all such proceeds in such Fiscal Year shall exceed $5,000,000 (and thereafter only proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); provided that the exclusions to Net Cash Proceeds under clause (ii) above shall not be applicable to proceeds realized by any Prepayment Unrestricted Subsidiary.
(b) with respect to Equity Issuance by any Person (other than a Non-Prepayment Unrestricted Subsidiary), the excess of (i) the sum of the cash and Cash Equivalents received in connection with such Equity Issuance over (ii) all taxes and reasonable fees (including investment banking fees, underwriting discounts, commissions, costs and other reasonable out-of-pocket expenses (including attorneys’ fees) and other customary expenses) incurred by such Person in connection with such Equity Issuance; and
(c) with respect to the incurrence or issuance of any Indebtedness by any Person (other than a Non-Prepayment Unrestricted Subsidiary), the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the reasonable investment banking fees, underwriting discounts, commissions, costs and other reasonable out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by such Person in connection with such incurrence or issuance (including, in the case of Indebtedness of any Foreign Subsidiary, deductions in respect of withholding taxes that are payable in cash if such funds are repatriated to the United States).
“Net Income” means, with respect to any Person, the net income (or loss) of such Person, determined in accordance with GAAP.
“New Revolving Credit Commitments” has the meaning specified in Section 2.14(a).
“New Revolving Credit Lender” has the meaning specified in Section 2.14(a).
“New Revolving Loan” means any loan made to the Borrower by a New Revolving Credit Lenders pursuant to its New Revolving Credit Commitment.
“New Term Borrowing” means a borrowing consisting of simultaneous New Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the New Term Lenders pursuant to Section 2.14.
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“New Term Commitments” has the meaning specified in Section 2.14(a).
“New Term Lender” has the meaning specified in Section 2.14(a).
“New Term Loans” has the meaning specified in Section 2.14(d).
“New Term Note” means, for each Class of New Term Loans, a promissory note in substantially the form of Exhibit C-1 with, subject to Section 2.14, such changes as shall be agreed to by the Borrower and the New Term Lenders providing such Class of New Term Loans and reasonably satisfactory to Administrative Agent, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Non-Consenting Lender” has the meaning specified in Section 3.07(d).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.
“Non-Excluded Taxes” means any Taxes other than Excluded Taxes.
“Non-Prepayment Unrestricted Subsidiary” means an Unrestricted Subsidiary, formed after the Closing Date, that owns no assets or property that were owned by Holdings or its Subsidiaries on the Closing Date (and with respect to Equity Interests owned by it, the issuer of such Equity Interests was not in existence on the Closing Date).
“Non-Recourse Indebtedness” means Indebtedness or that portion of Indebtedness as to which neither Holdings nor its Recourse Subsidiaries (A) provide credit support (including any undertaking, agreement or instrument which would constitute Indebtedness), (B) is directly or indirectly liable or (C) constitute the lender or purchaser.
“Non-Recourse Subsidiary” means any Subsidiary of Holdings that (a) has no Indebtedness other than Non-Recourse Indebtedness; (b) is not party to any agreement, contract, arrangement or understanding with Holdings or any Recourse Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to Holdings or such Recourse Subsidiary than those that might be obtained at the time such transaction is entered into from Persons who are not Affiliates of Holdings; it being understood that agreements, contracts, arrangements or understandings that apply generally to Holdings and its Subsidiaries on a company-wide basis, and that are no more favorable to the Unrestricted Subsidiaries than to Restricted Subsidiaries, shall not, in and of themselves, disqualify a Subsidiary from being a “Non-Recourse Subsidiary”; (c) is a Person with respect to which neither the Holdings nor any of the Recourse Subsidiaries has any direct or indirect obligation to (i) subscribe for additional Equity Interests or warrants, options or other rights to acquire Equity Interests or (ii) maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and (d) does not guarantee or otherwise provide credit support after the time of such designation for any Indebtedness of Holdings or any of its Recourse Subsidiaries. If, at any time, any Non-Recourse Subsidiary would fail to meet the foregoing requirements as a Non-Recourse Subsidiary, it shall thereafter cease to be a Non-Recourse Subsidiary for purposes of this Agreement.
“Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).
“Non-US Lender” has the meaning specified in Section 10.15(a).
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“Note” means a Term Note, a New Term Note, a Revolving Credit Note or a New Revolving Credit Note, as the context may require.
“NPL” means the National Priorities List under CERCLA.
“Obligations” means (a) for purposes of this Agreement, all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding and (b) for purposes of the Guaranty and Security Agreement and the other Collateral Documents, (x) all “Obligations” as defined in clause (a) above, (y) all Secured Hedge Obligations (excluding any Excluded Swap Obligations) and (z) all Cash Management Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or the memorandum and articles of association (if applicable); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Taxes” has the meaning specified in Section 3.01(b).
“Outstanding Amount” means (a) with respect to the Term Loans, Revolving Credit Loans of any Class and Swing Line Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans of such Class (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations of any Class on any date, the amount thereof on such date after giving effect to any L/C Credit Extension with respect to Letters of Credit of such Class occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit of such Class (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit of such Class taking effect on such date.
“Parent Company” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the economic or voting Equity Interests of such Lender.
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“Participant” has the meaning specified in Section 10.07(d).
“Participant Register” has the meaning specified in Section 10.07(d).
“Patent Security Agreement” means the Patent Security Agreement among the Borrower, the other grantors named therein and the Administrative Agent, dated as of the Closing Date.
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and to which Holdings or any Restricted Subsidiary or its ERISA Affiliate has any obligation or liability, contingent or otherwise.
“Permit” means any license, permit, authorization, approval, variance, permission or certificate used in connection with the ownership, operaionoperation, use or occupancy of any Material Real Property (including Liquor Licenses, certificates of occupancy, business licenses, state health department licenses, licenses to conduct business and all such other permits, licenses and rights, obtained from any Governmental Authority or private Person concerning ownership, operation, use or occupancy of any Material Real Property).
“Permitted Acquisition” has the meaning specified in Section 7.02(h).
“Permitted Holders” means the Sponsor.
“Permitted Prior Liens” means Liens having priority senior to the Liens in favor of the Administrative Agent pursuant to the Loan Documents that are permitted pursuant to Xxxxxxx 0.00 (x), (x), (x), (x), (x), (x), (x), (x), (x), (x) and (s).
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement, exchange or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed, replaced, exchanged or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement, exchange or extension and by an amount equal to any existing commitments unutilized thereunder and as otherwise permitted to be incurred or issued pursuant to Section 7.03; (b) such modification, refinancing, refunding, renewal, replacement, exchange or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended; (c) if the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended is contractually subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is contractually subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the
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Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended, taken as a whole, (d) such modification, refinancing, refunding, renewal, replacement, exchange or extension is incurred by the Person or Persons who are the obligors on the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended or who would otherwise be permitted to incur such Indebtedness (including any guarantees thereof pursuant to Section 7.02 and Section 7.03); (e) if such modification, refinancing, refunding, renewal, replacement, exchange or extension is secured Indebtedness, the Liens securing such refinancing Indebtedness are limited to Liens on assets or property that secured the Indebtedness being refinanced without any change in the class or category of assets or property subject to such Lien; provided that, this clause (e) shall not apply to any New Term Loans incurred pursuant to Section 2.14 that would otherwise constitute a “Permitted Refinancing” of the Senior Notes; and; and (f) at the time thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom.
“Permitted Subordinated Indebtedness” means any unsecured Indebtedness of Holdings or the Borrower that (a) is on terms and conditions (including as to covenants) customary for subordinated notes issued under Rule 144A of the Securities Act, expressly subordinated to the prior payment in full in cash of the Obligations on terms and conditions (including as to covenants) customary for “high-yield” senior subordinated notes issued under Rule 144A of the Securities Act, (b) is not scheduled to mature prior to the date that is ninety-one (91) days after the Latest Maturity Date, (c) has no scheduled amortization or payments of principal (other than customary offers to purchase) prior to the date that is ninety-one (91) days after the Latest Maturity Date, and (d) has no material covenant, default (including with respect to “change of control”) and remedy provisions that are more expansive in scope, or mandatory prepayment, repurchase or redemption provisions that are more expansive in scope, in each case than those set forth in the Senior Notes Indenture (other than as would customarily be contained in senior subordinated debt securities).
“Permitted Unsecured Indebtedness” means any unsecured Indebtedness of Holdings or the Borrower that (a) (i) is on terms and conditions (including as to covenants) customary for senior notes issued under Rule 144A of the Securities Act, (ii) is not scheduled to mature prior to the date that is ninety-one (91) days after the Latest Maturity Date, (iii) has no scheduled amortization or payments of principal (other than customary offers to purchase) prior to the Latest Maturity Date, and (iv) has covenant, default and remedy provisions no more expansive in scope, or mandatory prepayment, repurchase or redemption provisions no more expansive in scope, taken as a whole, than those set forth in the Senior Notes Indenture, or (b) is Permitted Subordinated Indebtedness.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Platform” has the meaning specified in Section 6.02.
“Pledged Debt” has the meaning specified in the Guaranty and Security Agreement.
“Pledged Equity” has the meaning specified in the Guaranty and Security Agreement.
“Prepayment Unrestricted Subsidiary” means any Unrestricted Subsidiary that is not a Non-Prepayment Unrestricted Subsidiary.
“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to any determination for any period, that such determination shall be made giving pro forma effect to each acquisition and each Disposition consummated during such period, together with all transactions relating
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thereto consummated during such period (including any incurrence, assumption, refinancing or repayment of Indebtedness and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom), as if such acquisition or Disposition and related transactions had been consummated on the first day of such period, in each case based on historical results accounted for in accordance with GAAP and, to the extent applicable, the amount of net cost-savings projected by the management of the Borrower as contemplated by clause (ix) of the definition of “Consolidated EBITDA” that are specified in detail in the relevant Compliance Certificate, financial statement or other document provided to the Administrative Agent or any Lender in connection herewith. If, since the beginning of such period, any Person that subsequently became a Restricted Subsidiary or was merged with or into Holdings or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, Disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then with respect to any determination for any period, such determination shall be made giving pro forma effect for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable four quarter period. For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness (including Attributable Indebtedness) bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen or, if none, then based upon such optional rate chosen as the Borrower may designate.
“Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
“Public Lender” has the meaning specified in Section 6.02.
“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Qualifying IPO” means the issuance by Holdings or any direct or indirect parent of Holdings of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Recourse Subsidiary” means any Subsidiary of Holdings that is not a Non-Recourse Subsidiary.
“Reference Date” has the meaning specified in the definition of “Available Amount.”
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“Register” has the meaning specified in Section 10.07(c).
“Rejection Notice” has the meaning specified in Section 2.05(b)(vii).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any structure or facility.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
“Repricing Transaction” means the incurrence of Indebtedness by any Loan Party with the effect of repaying, refinancing, substituting or replacing the Term Loans with IndebtednesIndebtedness having an effective interest cost or weighted average yield (as determined by the Administrative Agent in its reasonable discretion) that is less than the interest rate for or weighted average yield (as determined by the Administrative Agent in its reasonable discretion) of the Term Loans, including without limitation, as may be effected through any amendment to this Agreement relating to the interest rate for, or weighted average yield of, the Term Loans or any Class thereof.
“Request for Credit Extension” means (a) with respect to a Borrowing of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitment, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders having more than 50% of the sum of the (a) Outstanding Amount of all Revolving Credit Loans and all L/C Obligations (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments, in each case, under each Revolving Credit Facility; provided that unused Revolving Credit Commitment of, and the portion of the Outstanding Amount of all Revolving Credit Loans and all L/C Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Required Tranche A Revolving Lenders” means, as of any date of determination, Tranche A Revolving Credit Lenders having more than 50% of the sum of the (a) Outstanding Amount of all Tranche A Revolving Credit Loans and all Tranche A L/C Obligations (with the aggregate amount of each Lender’s risk participation and funded participation in Tranche A L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Tranche A Revolving Credit Commitments; provided that unused Tranche A Revolving Credit Commitment of, and the portion of the
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Outstanding Amount of all Tranche A Revolving Credit Loans and all Tranche A L/C Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Tranche A Revolving Lenders.
“Required Tranche B Revolving Lenders” means, as of any date of determination, Tranche B Revolving Credit Lenders having more than 50% of the sum of the (a) Outstanding Amount of all Tranche B Revolving Credit Loans and all Tranche X X/C Obligations (with the aggregate amount of each Lender’s risk participation and funded participation in Tranche X X/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Tranche B Revolving Credit Commitments; provided that unused Tranche B Revolving Credit Commitment of, and the portion of the Outstanding Amount of all Tranche B Revolving Credit Loans and all Tranche X X/C Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Tranche B Revolving Lenders.
“Required Term Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Outstanding Amount of all Term Loans and (b) aggregate unused Term Commitments; provided that the unused Term Commitment and the portion of the Outstanding Amount of all Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.
“Resort Spin-Off” means the Disposition by Subsidiaries of Holdings of their interests in Persons consisting of the Xxxxxx Creek Resort and Spa and The Homestead and the sale or contribution of other assets or rights related to such resorts.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, chief accounting officer, treasurer, chief legal officer, managing member or general partner of any Person or, in the case of any Foreign Subsidiary, any duly appointed authorized signatory or any director or managing member of such Person, but in any event, with respect to financial matters, the chief financial officer, treasurer or controller of such Person and with respect to any secretary’s certificate delivered on the Closing Date, any secretary or assistant secretary. Any document delivered hereunder that is signed by a Responsible Officer of any Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.
“Restricted Payment” means, with respect to any Person, any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of such Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the stockholders, partners or members (or the equivalent Persons thereof) of such Person or any contribution to or payment under Title IV of ERISA in respect of any Pension Plan maintained or contributed to by any ERISA Affiliate of such Person (excluding Holdings or any Restricted Subsidiary) for its current or former employees.
“Restricted Subsidiary” means each Subsidiary of Holdings that is not an Unrestricted Subsidiary.
“Retained Excess Cash Flow” means, with respect to any Fiscal Year, the amount of Excess Cash Flow for such completed Fiscal Year that is not required to be applied as a mandatory prepayment pursuant to Section 2.05(b)(i), but in any case, (a) without giving effect to any subtraction pursuant to Section 2.05(b)(i)(B) and (b) it being understood for the avoidance of doubt that, for purposes of this
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definition, Excess Cash Flow for any Fiscal Year shall be deemed to be zero until the financial statements required to be delivered pursuant to Section 6.01(a) for such Fiscal Year, and the related Compliance Certificate required to be delivered pursuant to Section 6.01(d) for such Fiscal Year, have been received by the Administrative Agent.
“Returns” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from a Disposition or otherwise) and other amounts received or realized in respect of such Investment.
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Class and Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders of the same Class pursuant to Section 2.01(b).
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Tranche A Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01(b) under the caption “Commitment or Tranche B Revolving Credit Commitment” or in the Assignment and Assumption, Joinder Agreement or Revolving Extension Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Aggregate Commitments of all Revolving Credit Lenders shall be $50,000,000 on the Closing Date., as applicable.
“Revolving Credit Commitment Fee” has the meaning specified in Section 2.09(a).
“Revolving Credit Commitment Period” means the period from and including the Closing Date to but not including the Maturity Date of the Fee” means the Tranche A Revolving Credit Facility or any earlier date on which the Commitment Fee or the Tranche B Revolving Credit Commitments shall terminate as provided hereinCommitment Fee, as applicable.
“Revolving Credit Facility” means , at any time, the aggregate amount of the the Tranche A Revolving Credit Lenders’Facility or the Tranche B Revolving Credit Commitments and the aggregate amount of the New Revolving Credit Lenders’ Increased Revolving Credit Commitments at such timeFacility, as applicable.
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment , aof any Class, an Increased Revolving Credit Commitment ,with respect to any Class of Revolving Credit Commitments or a Revolving Credit Loan of any Class at such time.
“Revolving Credit Loan” has the meaning specified in Section 2.01(b)means a Tranche A Revolving Credit Loan or Tranche B Revolving Credit Loan, as applicable.
“Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit C-2 hereto, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender to the Borrower.
“Revolving Extension Agreement” has the meaning specified in Section 2.15(c).
“Revolving Maturity Date” has the meaning specified in Section 2.15(a).
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“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and any successor thereto.
“Sale and Leaseback Transaction” means any arrangement providing for the Lease by Holdings or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by Holdings or such Restricted Subsidiary to a third Person in contemplation of such Lease.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment” means the Second Amendment to this Agreement, dated as of July 24, 2013.
“Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment.
“Secured Hedge Agreement” means any Swap Contract required or permitted under Article 6 or Article 7 that is entered into by and between any Loan Party and any Person that was a Lender, an Agent or an Arranger or an Affiliate of a Lender at the time such Swap Contract was entered into.
“Secured Hedge Obligations” means the obligations of any Loan Party arising under any Secured Hedge Agreement; provided that, in no event will Secured Hedge Obligations include any Excluded Swap Obligations.
“Secured Obligations” has the meaning specified in the Guaranty and Security Agreement.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, Lenders or Affiliates of Lenders under Cash Management Obligations of a Loan Party, the Supplemental Administrative Agent, if any, and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.
“Securities Account” has the meaning given to such term in the UCC.
“Securities Account Control Agreement” has the meaning specified in the Guaranty and Security Agreement.
“Securities Act” means the Securities Act of 1933.
“Senior Notes” means the Borrower’s 10% senior unsecured notes due 2018 pursuant to the Senior Notes Indenture.
“Senior Notes Indenture” means the Indenture, dated as of the date hereof, pursuant to which the Senior Notes are issued.
“Senior Secured Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Senior Secured Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period, in each case for Holdings and its Restricted Subsidiaries.
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“Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“SPC” has the meaning specified in Section 10.07(g).
“Sponsor” means, KSL and its Affiliates (including KSL Advisors, LLC and any KSL Investment Vehicle). Notwithstanding the foregoing, portfolio companies of KSL or any KSL Investment Vehicle shall not constitute a part of this definition of “Sponsor”.
“Subsidiary” of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.
“Subsidiary Guarantor” means any Guarantor other than Holdings.
“Supplemental Administrative Agent” has the meaning specified in Section 9.10 and “Supplemental Administrative Agents” shall have the corresponding meaning.
“Surviving Indebtedness” means Indebtedness of the types specified in clauses (a) and (f) of the definition of “Indebtedness” of Holdings and its Restricted Subsidiaries disclosed on Schedule VI.
“Swap Contract” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance, in each case that are entered into for the sole purpose of hedging in the normal course of business and consistent with industry practices, and in any case not for speculative purposes.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
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“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Facility” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04.
“Swing Line Lender” means Citicorp North AmericaCitibank, IncN.A., acting through one of its affiliates or branches, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B.
“Swing Line Sublimit” means $10,000,000. The Swing Line Sublimit is part of, and not in addition to, the Tranche B Revolving Credit Facility.
“Taxes” means any and all present or future taxes, duties, levies, imposts, assessments, deductions, fees, withholdings or similar charges imposed by any Governmental Authority, and all liabilities (including interest, penalties or additions to tax) with respect to the foregoing.
“Term B Commitment” means, as to each Term B Lender, its obligation to make a Term B Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed the amount set forth opposite such Term B Lender’s name on Schedule 2.01(a) under the caption “Term B Commitment” or in the Assignment and Assumption or Joinder Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Term B Commitments as of the Closing Date is $310,000,000.
“Term B Lender” means, at any time, any Lender that has a Term B Commitment or a Term B Loan at such time.
“Term B Loan Facility” means the facility providing for the Borrowing of Term B Loans.
“Term B Loans” has the meaning specified in Section 2.01(a).
“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).
“Term Commitment” means a Term B Commitment or a New Term Commitment.
“Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan at such time.
“Term Loan Facility” means the Term B Loan Facility and each of the New Term Loan Facilities.
“Term Loans” means Term B Loans and New Term Loans.
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“Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit C-1 hereto, evidencing the indebtedness of the Borrower to such Term Lender resulting from the Term Loans made by such Term Lender.
“Test Period” means a period of four (4) consecutive Fiscal Quarters.
“Third Amendment” means Amendment No. 3 and Joinder Agreement to this Agreement, dated as of August 30, 2013, among Holdings, the Borrower, the Administrative Agent, each Tranche X X/C Issuer, the Swing Line Lender and the Lenders party thereto.
“Third Amendment Effective Date” has the meaning assigned to such term in the Third Amendment.
“Third Amendment Tranche A Revolving Credit Commitment Amount” has the meaning assigned to such term in the definition of Tranche A Revolving Credit Commitments.
“Total Assets” means the total assets of Holdings and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Borrower delivered pursuant to Section 6.01(a) or (b) or, for the period prior to the time any such statements are so delivered pursuant to Section 6.01(a) or (b), the pro forma financial statements referred to in Section 5.05(b).
“Total Leverage Ratio” means as of the end of any Fiscal Quarter of the Borrower for the Test Period ending on such date, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period, in each case, for Holdings and its Restricted Subsidiaries.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Trademark Security Agreement” means the Trademark Security Agreement among the Borrower, the other grantors named therein and the Administrative Agent, dated as of the Closing Date.
“Tranche A L/C Advance” means, with respect to each Tranche A Revolving Credit Lender, such Lender’s funding of its participation in any Tranche A L/C Borrowing in accordance with its Pro Rata Share of the Tranche A Revolving Credit Facility.
“Tranche A L/C Borrowing” means an extension of credit resulting from a drawing under any Tranche A Letter of Credit that has not been reimbursed on the date when made or refinanced as a Tranche A Revolving Credit Borrowing.
“Tranche A L/C Credit Extension” means, with respect to any Tranche A Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“Tranche A L/C Issuer” means Citicorp North America, Inc., in its capacity as an issuer of Tranche A Letters of Credit hereunder, or any successor issuer of Tranche A Letters of Credit hereunder.
“Tranche A L/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all outstanding Tranche A Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to such Tranche A Letters of Credit, including, without duplication, all Tranche A L/C Borrowings.
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“Tranche A Letter of Credit” means any letter of credit issued hereunder by a Tranche A L/C Issuer prior to the Third Amendment Effective Date. A Tranche A Letter of Credit may be a commercial letter of credit (if available to be issued by the applicable L/C Issuer) or a standby letter of credit.
“Tranche A Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Tranche A Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Tranche A Letter of Credit Sublimit” means, at any time, the lesser of (i) the Third Amendment Tranche A Revolving Credit Commitment Amount and (ii) the aggregate face amount of the Tranche A Letters of Credit outstanding at such time. The Tranche A Letter of Credit Sublimit is part of, and not in addition to, the Tranche A Revolving Credit Facility.
“Tranche A Revolving Credit Borrowing” means a borrowing consisting of simultaneous Tranche A Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Tranche A Revolving Credit Lenders pursuant to Section 2.01(b).
“Tranche A Revolving Credit Commitments” means, as to each Lender, its obligation to (a) make Tranche A Revolving Credit Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in Tranche A L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01(b) under the caption “Revolving Credit Commitment” or in the Assignment and Assumption, Joinder Agreement or Revolving Extension Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate principal amount of all Tranche A Revolving Credit Commitments on the Third Amendment Effective Date shall be equal to the aggregate face amount of all issued and undrawn Tranche A Letters of Credit immediately prior to the Third Amendment Effective Date (such amount, the “Third Amendment Tranche A Revolving Credit Commitment Amount”).
“Tranche A Revolving Credit Commitment Fee” has the meaning specified in Section 2.09(a)(i).
“Tranche A Revolving Credit Commitment Period” means the period from and including the Closing Date to but not including the Maturity Date of the Tranche A Revolving Credit Facility or any earlier date on which the Tranche A Revolving Credit Commitments shall terminate as provided herein.
“Tranche A Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’ Tranche A Revolving Credit Commitments and the aggregate amount of the Lenders’ Increased Revolving Credit Commitments to make Tranche A Revolving Loans at such time.
“Tranche A Revolving Credit Lender” means, at any time, any Lender that has a Tranche A Revolving Credit Commitment, an Increased Revolving Credit Commitment with respect to such Class of Commitments or a Tranche A Revolving Credit Loan at such time.
“Tranche A Revolving Credit Loan” has the meaning specified in Section 2.01(b)(i).
“Tranche A Rollover Letters of Credit” means each undrawn Tranche A Letter of Credit outstanding as of the Tranche A Letter of Credit Expiration Date.
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“Tranche X X/C Advance” means, with respect to each Tranche B Revolving Credit Lender, such Lender’s funding of its participation in any Tranche X X/C Borrowing in accordance with its Pro Rata Share.
“Tranche X X/C Borrowing” means an extension of credit resulting from a drawing under any Tranche B Letter of Credit that has not been reimbursed on the date when made or refinanced as a Tranche B Revolving Credit Borrowing.
“Tranche X X/C Credit Extension” means, with respect to any Tranche B Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“Tranche X X/C Issuer” means (a) Citibank, N.A., in its capacity as an issuer of Tranche B Letters of Credit hereunder, (b) as of the Tranche A Letter of Credit Expiration Date, solely with respect to the Tranche A Rollover Letters of Credit, Citicorp North America, Inc., in its capacity as issuer of Tranche A Rollover Letters of Credit deemed to be Tranche B Letters of Credit hereunder and (c) each other Tranche B Revolving Credit Lender reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) that has entered into an agreement (in form and substance satisfactory to the Administrative Agent and the Borrower) with the Administrative Agent to be bound by the terms applicable to an issuer of Tranche B Letters of Credit hereunder, or any successor issuer of Tranche B Letters of Credit hereunder.
“Tranche X X/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all outstanding Tranche B Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to such Tranche B Letters of Credit, including, without duplication, all Tranche X X/C Borrowings.
“Tranche B Letter of Credit” means any letter of credit issued hereunder by a Tranche X X/C Issuer and, as of the Tranche A Letter of Credit Expiration Date, the Tranche A Rollover Letters of Credit. A Tranche B Letter of Credit may be a commercial letter of credit (if available to be issued by the applicable L/C Issuer) or a standby letter of credit.
“Tranche B Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Tranche B Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Tranche B Letter of Credit Sublimit” means, at any time, $50,000,000 minus the aggregate amount of the Tranche A L/C Obligations outstanding at such time. The Tranche B Letter of Credit Sublimit is part of, and not in addition to, the Tranche B Revolving Credit Facility.
“Tranche B Revolving Credit Borrowing” means a borrowing consisting of simultaneous Tranche B Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Tranche B Revolving Credit Lenders pursuant to Section 2.01(b).
“Tranche B Revolving Credit Commitments” means, as to each Lender, its obligation to (a) make Tranche B Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in Tranche X X/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on its signature pages to the Third Amendment (as may be adjusted in accordance with the terms hereof and thereof) or in the Assignment and Assumption, Joinder Agreement or Revolving
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Extension Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate principal amount of all Tranche B Revolving Credit Commitments on the Third Amendment Effective Date shall be $135,000,000.
“Tranche B Revolving Credit Commitment Fee” has the meaning specified in Section 2.09(a)(ii).
“Tranche B Revolving Credit Commitment Period” means the period from and including the Third Amendment Effective Date to but not including the Maturity Date of the Tranche B Revolving Credit Facility or any earlier date on which the Tranche B Revolving Credit Commitments shall terminate as provided herein.
“Tranche B Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’ Tranche B Revolving Credit Commitments and the aggregate amount of the Lenders’ Increased Revolving Credit Commitments to make Tranche B Revolving Loans at such time.
“Tranche B Revolving Credit Lender” means, at any time, any Lender that has a Tranche B Revolving Credit Commitment, an Increased Revolving Credit Commitment with respect to such Class of Commitments or a Tranche B Revolving Credit Loan at such time.
“Tranche B Revolving Credit Loan” has the meaning specified in Section 2.01(b)(ii).
“Transaction Documents” means the Loan Documents, the Senior Notes Indenture, the purchase agreement with respect to the Senior Notes, guarantees of the Senior Notes, a registration rights agreement relating to the Senior Notes, and other agreements in connection with the foregoing, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
“Transactions” means, collectively, (a) the execution and delivery and performance by the Loan Parties of each Loan Document to which they are a party executed and delivered or to be executed and delivered on or prior to the Closing Date, and, in the case of the Borrower, the making of the initial Borrowings hereunder, (b) the issuance of the Senior Notes, the Equity Contribution and the repayment of the Existing Indebtedness and the other transactions contemplated thereby, (c) the Resort Spin-Off, and (d) the consummation of any other transactions in connection with the foregoing.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided that in the event that, by reason of mandatory provisions of any applicable Law, any of the attachment, perfection or priority of the Administrative Agent’s or any other Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions the applicable Loan Documents relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.
“Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the aggregate amount, if any (i) made available to the Borrower on the assumption that each Appropriate Lender has made its Pro Rata Share of the applicable Borrowing available to the Administrative Agent and (ii) with respect to which a corresponding amount shall not in fact have been made available to the
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Administrative Agent by any such Lender, (b) with respect to the Swing Line Lender, the aggregate amount, if any, of participations in respect of any outstanding Swing Line Loan that shall not have been funded by the Appropriate Lenders in accordance with Section 2.04(b) and (c) with respect to the L/C Issuer of a particular Class, the aggregate amount of L/C Borrowings of such Class.
“United States” and “US” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Unrestricted Subsidiary” means (i) each Dormant Subsidiary and (ii) any Non-Recourse Subsidiary of Holdings designated after the date of this Agreement by the board of directors of the Borrower as an “Unrestricted Subsidiary” pursuant to Section 6.17.
“Unsecured Financing” shall mean (a) the Senior Notes and (b) any future Permitted Unsecured Indebtedness.
“Unsecured Financing Documentation” means any documentation governing any Unsecured Financing.
“Unsecured Financing Obligations” means any obligations in respect of any Unsecured Financing.
“US Lender” has the meaning specified in Section 10.15(b).
“US Tax Certificate” has the meaning set forth in Section 10.15(a).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness.
Section 1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(i) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(ii) The term “including” is by way of example and not limitation.
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(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”
(d) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e) The term “manifest error” shall be deemed to include any clearly demonstrable error whether or not obvious on the face of the document containing such error.
(f) For purposes of determining compliance at any time or from time to time with Sections 7.01 (except as set forth in the second proviso to Section 7.01(p)), 7.02, 7.03, 7.05, 7.06, 7.08, 7.09 and 7.13, in the event that any Lien, Investment, Indebtedness, Disposition, Restricted Payment, affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of more than one of the categories of transactions permitted pursuant to any clause of such Sections 7.01, 7.02, 7.03, 7.05, 7.06, 7.08, 7.09 and 7.13, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Borrower in its reasonable discretion at such time of determination.
Section 1.03. Accounting Terms.
(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, as in effect from time to time.
(b) If at any time any change in GAAP (including conversion to IFRS as described below) would affect the computation of any financial covenant or ratio set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such financial covenant or ratio (and provisions in this Agreement that reference such covenant or ratio) to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such covenant or ratio shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of such covenant or ratio made before and after giving effect to such change in GAAP. If the Borrower notifies the Administrative Agent that it is required to report under IFRS or has elected to do so through an early-adoption policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS (provided that after such conversion, the Borrower cannot elect to report under U.S. generally accepted accounting principles).
Section 1.04. Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.05. References To Agreements And Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other
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contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
Section 1.06. Times Of Day. Unless otherwise specified, all references herein to times of day shall be references to New York time (daylight or standard, as applicable).
Section 1.07. Timing Of Payment Or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be.
Section 1.08. Compliance withWith Financial Covenants. With respect to any provision of this Agreement that requires compliance or Pro Forma Compliance with the financial covenants set forth in Section 7.10, such compliance or Pro Forma Compliance shall not be required when the Borrower is not otherwise required to comply with such covenant under the terms of Section 7.10 at such time.
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The Loans.
(a) The Term Borrowings. Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make a loan on the Closing Date to the Borrower (each, a “Term B Loan” and, collectively, the “Term B Loans”) in an amount in US Dollars equal to such Term B Lender’s Term B Commitment. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be re-borrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, (i) each Tranche A Revolving Credit Lender severally agrees to make loans in US Dollars to the Borrower (each such loan, a “Tranche A Revolving Credit Loan”) from time to time, on any Business Day following the Closing Date during the Tranche A Revolving Credit Commitment Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Tranche A Revolving Credit Commitment and (ii) each Tranche B Revolving Credit Lender severally agrees to make loans in US Dollars to the Borrower (each such loan, a “Tranche B Revolving Credit Loan”) from time to time, on any Business Day on or after the Third Amendment Effective Date during the Tranche B Revolving Credit Commitment Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Tranche B Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing of a particular Class, the aggregate Outstanding Amount of the Revolving Credit Loans of such Class of any Revolving Credit Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations of such Class, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans of such Class, shall not exceed such Lender’s Revolving Credit Commitment in respect of such Class. Within the limits of each Lender’s Revolving Credit Commitment of a particular Class, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and re-borrow under this Section 2.01(b). Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein;
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provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and same Class made to the Borrower.
Section 2.02. Borrowings, Conversions and Continuations of Loans.
(a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent (i) not later than 11:00 a.m. three (3) Business Days prior to the requested date of any Borrowing of Eurodollar Rate Loans, continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to Eurodollar Rate Loans, (ii) not later than 11:00 a.m. on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Section 2.03(c)(i) and Section 2.04(c)(i), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Borrowing, a Tranche A Revolving Credit Borrowing, a Tranche B Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the account of the Borrower to be credited with the proceeds of such Borrowing. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 11:00 a.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Article 4, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan unless the Borrower
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pays the amount due, if any, under Section 3.05 in connection therewith. If a Default or Event of Default shall have occurred and be continuing or would result therefrom, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as Eurodollar Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Appropriate Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the determination of such change.
(e) After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect.
(f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Section 2.03. Letters Of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the Tranche X X/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders of such Class set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the ClosingThird Amendment Effective Date until the Tranche B Letter of Credit Expiration Date, to issue Tranche B Letters of Credit denominated in Dollars for the account of the Borrower (or any Restricted Subsidiary so long as the Borrower is a joint and several co-applicant, and references to the “Borrower” in this Section 2.03 shall be deemed to include reference to such Restricted Subsidiary) and (B) each L/C Issuer of any applicable Class agrees, in reliance upon the agreements of the other Revolving Credit Lenders of such Class set forth in this Section 2.03, from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date of such Class, (1) to amend or renew Letters of Credit of such Class previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit of such Class; and (BC) the Revolving Credit Lenders of such Class severally agree to participate in Letters of Credit of such Class issued for the account of the Borrower; provided that the applicable L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit of such Class, and no Lender of such Class shall be obligated to participate in any Letter of Credit of such Class if, as of the date of such L/C Credit Extension, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of such Class of any Revolving Credit Lender of such Class, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations of such Class, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans of such Class, would exceed such Lender’s Revolving Credit Commitment in
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respect of such Class or (y) the Outstanding Amount of the L/C Obligations of such Class would exceed the applicable Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Tranche B Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Tranche B Letters of Credit to replace Tranche B Letters of Credit that have expired or that have been drawn upon and reimbursed. As of the Tranche A Letter of Credit Expiration Date, each Tranche A Rollover Letter of Credit shall be deemed, for all purposes of this Agreement (including paragraphs (c), (d) and (e) of this Section), to be a Tranche B Letter of Credit issued hereunder.
(ii) The Tranche A L/C Issuer shall be under no obligation to issue any Letter of Credit on or after the Third Amendment Effective Date. The Tranche X X/C Issuer shall be under no obligation to issue any Letter of Credit if
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain thesuch L/C Issuer from issuing such Letter of Credit, or any Law applicable to thesuch L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over thesuch L/C Issuer shall prohibit, or request that thesuch L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon thesuch L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which thesuch L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon thesuch L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which, in each case, thesuch L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit, prior to giving effect to any automatic renewal, would occur more than twelve (12) months after the date of issuance or last renewal;
(C) the expiry date of such requested Letter of Credit would occur after the applicable Letter of Credit Expiration Date;
(D) the issuance of such Letter of Credit would violate any Laws or one or more policies of thesuch L/C Issuer; or
(E) any Tranche B Revolving Credit Lender is a Defaulting Lender, unless thesuch L/C Issuer has entered into arrangements satisfactory to it to eliminate thesuch L/C Issuer’s risk with respect to the participation in Tranche B Letters of Credit by all such Defaulting Lenders, including by Cash Collateralizing, or obtaining a backstop letter of credit from an issuer satisfactory to thesuch L/C Issuer to support, each such Defaulting Lender’s Pro Rata Share of any Unreimbursed Amount.
(iii) XxxXx L/C Issuer shall be under noany obligation to amend any Letter of Credit if (A) thesuch L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
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(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.
(i) Each Tranche B Letter of Credit shall be issued or any Letter of Credit of any Class shall be amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer with respect to such Class (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by thesuch L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days prior to the proposed issuance date or date of amendment, as the case may be, or such later date and time as thesuch L/C Issuer may agree in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Tranche B Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the Tranche X X/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the Tranche X X/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer of such Letter of Credit: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as thesuch L/C Issuer may reasonably request.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, thesuch L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by thesuch L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof (such confirmation to be promptly provided by the Administrative Agent), then, subject to the terms and conditions hereof, thesuch L/C Issuer shall, on the requested date, issue a Tranche B Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit of a particular Class, each Revolving Credit Lender of such Class shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer of such Class, an unfunded risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit thesuch L/C Issuer to prevent any such renewal at least once in each twelve month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such
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twelve month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by thesuch L/C Issuer, the Borrower shall not be required to make a specific request to thesuch L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) thesuch L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the applicable Letter of Credit Expiration Date; provided that thesuch L/C Issuer shall not permit any such renewal if (A) thesuch L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Revolving Credit Lender of such Class or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit of a particular Class or any amendment to a Letter of Credit of such Class to an advising bank with respect thereto or to the beneficiary thereof, thesuch L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit issued by any L/C Issuer of any notice of a drawing under such Letter of Credit, thesuch L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 3:30 p.m. on the date of any payment by thean L/C Issuer under a Letter of Credit issued by such L/C Issuer (each such date, an “Honor Date”), the Borrower shall reimburse thesuch L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing; provided that if such notice is not provided to the Borrower prior to 11:00 a.m. on the Honor Date, then the Borrower shall reimburse thesuch L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the next succeeding Business Day and such extension of time shall be reflected in computing fees in respect of any such Letter of Credit. If the Borrower fails to so reimburse thesuch L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the applicable Class of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans of such Class to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02(a) for the principal amount of Base Rate Loans or the conditions set forth in Section 4.02, but subject to the unutilized portion of the aggregate Revolving Credit Commitments of such Class. Any notice given by thesuch L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of a prompt confirmation shall not affect the conclusiveness or binding effect of such notice.
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(ii) Each Revolving Credit Lender of a Class (including the Lender acting as L/C Issuer with respect to such Class) shall upon any applicable notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount owing to such L/C Issuer not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender of the applicable Class that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to thesuch L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing of the applicable Class in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender of any Class funds its Revolving Credit Loan or L/C Advance of such Class pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit issued by such L/C Issuer, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of thesuch L/C Issuer.
(v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse thean L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against thesuch L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default or that a Default or Event of Default would result therefrom, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans of a particular Class pursuant to this Section 2.03(c) is subject to such Revolving Credit Loans not exceeding the unutilized portion of such Revolving Credit Lender’s Revolving Credit Commitment in respect of such Class. No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse thesuch L/C Issuer for the amount of any payment made by thesuch L/C Issuer under any Letter of Credit of such Class, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
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time specified in Section 2.03(c)(ii), thesuch L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to thesuch L/C Issuer at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. A certificate of thesuch L/C Issuer submitted to any Revolving Credit Lender of the same Class (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) If, at any time after thean L/C Issuer of a particular Class has made a payment under any Letter of Credit of such Class and has received from any Revolving Credit Lender of such Class, such Lender’s applicable L/C Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent receives for the account of thesuch L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer of a particular Class pursuant to Section 2.03(d)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by thesuch L/C Issuer in its discretion), each Revolving Credit Lender of such Class shall pay to the Administrative Agent for the account of thesuch L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse thean L/C Issuer for each drawing under each Letter of Credit issued by such L/C Issuer for its account and to repay each L/C Borrowing relating to any Letter of Credit issued by such L/C Issuer for its account shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or applicable Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), thesuch L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
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(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by thesuch L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by thesuch L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(v) any exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty and Security Agreement or any other guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower;
provided that the foregoing shall not excuse thesuch L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by thesuch L/C Issuer’s gross negligence or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The Borrower shall promptly examine a copy of each Letter of Credit issued for its account and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against thesuch L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer of such Letter of Credit shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by thesuch Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of thesuch L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of thesuch L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at Law or under any other agreement. None of the L/C IssuerIssuers, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of theany L/C Issuer,
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shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against thean L/C Issuer, and thesuch L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by thesuch L/C Issuer’s willful misconduct or gross negligence or thesuch L/C Issuer’s willful or grossly negligent failure to pay under any Letter of Credit issued by such L/C Issuer after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of asuch Letter of Credit. In furtherance and not in limitation of the foregoing, thesuch L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and thesuch L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if thean L/C Issuer under any Class has honored any full or partial drawing request under any Letter of Credit issued by it and such drawing has resulted in an L/C Borrowing of such Class (other than the Tranche A Rollover Letters of Credit) and the conditions set forth in Section 4.02 to a Revolving Credit Borrowing cannot then be met, or (ii) if, as of the applicable Letter of Credit Expiration Date, any Letter of Credit of such Class may for any reason remain outstanding and partially or wholly undrawn, the Borrower shall promptly Cash Collateralize (x) in the case of clause (i), 103% and (y) in the case of clause (ii), 105%, in each case of the then Outstanding Amount of all L/C Obligations of such Class (such Outstanding Amount to be determined as of the date of such L/C Borrowing or the applicable Letter of Credit Expiration Date, as the case may be) or, in the case of clause (ii), provide a back to back letter of credit in a face amount at least equal to 105% of the then undrawn amount of such Letter of Credit from an issuer and in form and substance satisfactory to thesuch L/C Issuer in its sole discretion. Any Letter of Credit that is so Cash Collateralized or in respect of which such a back-to-back letter of credit shall have been issued shall be deemed no longer outstanding for purposes of this Agreement. If at any time the Administrative Agent determines that any funds held as cash collateral are subject to any right or claim of any Person other than the Administrative Agent or claims of the depositary bank arising by operation of law or that the total amount of such funds is less than the amount required by the first sentence of this clause (g), the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the deposit accounts designated by the Administrative Agent as aforesaid, an amount equal to the excess of (x) 103% or 105%, as applicable, of such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as cash collateral that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as cash collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the L/C Issuer of such Letter of Credit. To the extent the amount of any cash collateral exceeds 103% or 105%, as applicable, of the then Outstanding Amount of such L/C Obligations and so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the excess shall be refunded to the Borrower.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits , as most recently published by the International Chamber of Commerce (or such later version thereof as may be in effect at the time of issuance) at the time of issuance shall apply to each commercial Letter of Credit.
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(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender of a particular Class in accordance with its Pro Rata Share, a Letter of Credit fee for each Letter of Credit of such Class issued equal to the Applicable Rate for Revolving Credit Loans of such Class that are Eurodollar Rate Loans times the daily maximum amount then available to be drawn under such Letter of Credit. Such letter of credit fees shall be computed from the date of issuance thereof on a quarterly basis in arrears. Such letter of credit fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit and on the later of (i) the applicable Letter of Credit Expiration Date and (ii) the day that is five (5) Business Days prior to the Revolving Maturity Date with respect to the Revolving Credit Commitments of such Class (or, if such day is not a Business Day, the next preceding Business Day).
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to theeach L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued by such L/C Issuer equal to a percentage per annum to be agreed upon of the daily maximum amount then available to be drawn under such Letter of Credit of such Class. Such fronting fees shall be computed on a quarterly basis in arrears. Such fronting fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the applicable Letter of Credit Expiration Date and thereafter on demand. In addition, the Borrower shall pay directly to thesuch L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of thesuch L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees not related to the fronting fee and standard costs and charges are due and payable within five (5) Business Days of demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms of this Agreement shall control.
(l) Letters of Credit Issued Prior to Closing Date. Schedule 2.03(l) contains a schedule of certain letters of credit issued prior to the Closing Date by Citibank, N.A. for the account of the Borrower (including any such letter of credit issued on behalf of a Subsidiary of the Borrower that is a Restricted Subsidiary). On the Closing Date (i) such letters of credit, to the extent outstanding, shall be automatically and without further action by the parties thereto converted to Letters of Credit issued pursuant to this Section 2.03 for the account of the Borrower and subject to the provisions hereof, and for this purpose the fees specified in this Section 2.03 shall be payable (in substitution for any fees set forth in the applicable letter of credit reimbursement agreements or applications relating to such letters of credit) as if such letters of credit had been issued on the Closing Date, (ii) the issuer of such Letters of Credit shall be deemed to be an “L/C Issuer” hereunder solely for the purpose of maintaining such letters of credit until the expiration date stated therein (without giving effect to any provision therein for automatic extension, evergreen maturity or the like), (iii) the face amount of such letters of credit shall be included in the calculation of L/C Obligations and (iv) all liabilities of the Borrower with respect to such letters of credit shall constitute Obligations. Nothwithstanding anything to the contrary in this Agreement, no letter of credit converted in accordance with this clause (l) may be amended, extended or renewed; provided that each such letter of credit may, at the Borrower's option and subject to the terms and conditions of this Agreement, be replaced at the time of its maturity with a Letter of Credit issued hereunder.
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Section 2.04. Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender may, in its sole discretion, make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day (other than the Closing Date) during the Tranche B Revolving Credit Commitment Period in an aggregate amount at any time outstanding (together with the Outstanding Amount of Loans made by the Swing Line Lender in its capacity as a Lender or the Tranche B Swing Line Lender) not to exceed the lesser of (ix) the Swing Line Lender’s Pro Rata Share of the Tranche B Revolving Credit Commitments and (iiy) the Swing Line Sublimit; provided that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and re-borrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender an unfunded risk participation in suchthe Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share and the amount of suchthe Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, (ii) the requested borrowing date, which shall be a Business Day and (iii) the account of the Borrower to be credited with the proceeds of suchthe Swing Line Borrowing. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Tranche B Revolving Credit Lender) prior to 2:00 p.m. on the date of such proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when a Tranche B Revolving Credit Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it to eliminate the Swing Line Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swing Line Loans, including by Cash Collateralizing, or obtaining a backstop letter of credit from an issuer satisfactory to the Swing Line Lender to support, such Defaulting Lender’s or Defaulting Lenders’ Pro Rata Share of the outstanding Swing Line Loans.
(c) Refinancing of Swing Line Loans. The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Tranche B Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans
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then outstanding. Each such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02(a), without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans or the conditions set forth in Section 4.02, but subject to the unutilized portion of the aggregate Tranche B Revolving Credit Commitments. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Tranche B Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Tranche B Revolving Credit Lender that so makes funds available shall be deemed to have made a Tranche B Revolving Credit Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(i) If for any reason any Swing Line Loan cannot be refinanced by such a Tranche B Revolving Credit Borrowing in accordance with Section 2.04(c), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Tranche B Revolving Credit Lenders fund its risk participation in suchthe Swing Line Loan and each such Tranche B Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c) shall be deemed payment in respect of such participation.
(ii) If any Tranche B Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iiiii) shall be conclusive absent manifest error.
(iii) Each Tranche B Revolving Credit Lender’s obligation to make Tranche B Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or that a Default or Event of Default would result therefrom, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Tranche B Revolving Credit Lender’s obligation to make Tranche B Revolving Credit Loans pursuant to this Section 2.04(c) is subject to such Tranche B Revolving Credit Loans not exceeding the unutilized portion of such Tranche B Revolving Credit Lender’s Tranche B Revolving Credit Commitment. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
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(d) Repayment of Participations. At any time after any Tranche B Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of suchthe Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(i) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Tranche B Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Tranche B Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
Section 2.05. Prepayments.
(a) Optional.
(i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans made to the Borrower, in each case, in whole or in part without premium or penalty except as described in clause (iv) below; provided that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m., (1) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) one (1) Business Day prior to any date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied among the
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Facilities in such amounts as the Borrower may direct in its sole discretion and, in the case of the Term B Loan Facility, in inverse order of maturity or as otherwise directed by the Borrower.; provided that, prepayments of any Revolving Credit Loans shall be applied (x) on a pro rata basis between the Tranche A Revolving Credit Loans and the Tranche B Revolving Credit Loans or (y) with a greater than pro rata portion applied to the Tranche A Revolving Credit Loans.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 11:00 a.m. on the date of the prepayment , and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(iii) Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a)(i) or Section 2.05(a)(ii) if such prepayment would have resulted from (A) an Equity Issuance or a refinancing of the Facilities that is not prohibited by this Agreement or (B) issuance of New Term Loans and/or Increased Revolving Credit Commitments, which refinancing or issuance shall not be consummated or shall otherwise be delayed.
(iv) At the time of the effectiveness of any Repricing Transaction that (A) makes any prepayment of Term Loans in connection with any Repricing Transaction, or (B) effects any amendment of this Agreement resulting in a Repricing Transaction and is consummated prior to January 24, 2014, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each applicable Term Lender, a fee in an amount equal to, (x) in the case of clause (A), a prepayment premium of 1% of the amount of the Term Loans being prepaid and (y) in the case of clause (B), a payment equal to 1% of the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.
(b) Mandatory.
(i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) 50% of Excess Cash Flow, if any, for the Fiscal Year of the Borrower covered by such financial statements (commencing with the Fiscal Year of the Borrower ended December 27, 2011) minus (B) the sum of (1) the amount of any voluntary prepayments of Term Loans made pursuant to Section 2.05(a) during such Fiscal Year and (2) solely to the extent the amount of the Revolving Credit Commitments are permanently reduced pursuant to Section 2.06 in connection therewith (and solely to the extent of the amount of such reduction), the amount of any voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) during such Fiscal Year; provided that, such percentage shall
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be reduced to (x) 25% if the Senior Secured Leverage Ratio as of the last day of the applicable Fiscal Year was less than 3.75:1.00; and (y) 0% if the Senior Secured Leverage Ratio as of the last day of the applicable Fiscal Year was less than 3.25:1.00.
(ii) (A) With respect to any Disposition or any Casualty Event by Holdings or any Subsidiary (other than a Non-Prepayment Unrestricted Subsidiary) that results in the realization or receipt by any such Subsidiary of Net Cash Proceeds, the Borrower shall cause to be prepaid on or prior to the date that is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Net Cash Proceeds in accordance with Section 2.05(b)(ii)(B) (which election may only be made (x) if no Default or Event of Default has occurred and is then continuing or would result therefrom and (y) the Disposition or Casualty Event giving rise to such Net Cash Proceeds is with respect to the property of Holdings or a Subsidiary that is not a Prepayment Unrestricted Subsidiary);
(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event (other than a Disposition or Casualty event in respect of the property of a Prepayment Unrestricted Subsidiary), at the option of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Cash Proceeds in assets or property that are useful for its business within three hundred and sixty (360) days of the receipt of such Net Cash Proceeds (provided that if prior to the expiration of such three hundred and sixty (360) day reinvestment period, any Loan Party enters into a legally binding commitment to reinvest such Net Cash Proceeds, such reinvestment period shall be extended by an additional ninety (90) days); provided that if any Net Cash Proceeds are not so reinvested within such reinvestment period or are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to any such Net Cash Proceeds shall be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.05.
(iii) If for any reason the aggregate Outstanding Amount of the Revolving Credit Loans ,and the L/C Obligations of a particular Class (and Swing Line Loans with respect to the Tranche B Revolving Credit Commitment) at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the Borrower shall promptly prepay such Revolving Credit Loans or Swing Line Loans, as applicable, and/or Cash Collateralize thesuch L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize thesuch L/C Obligations pursuant to this Section 2.05(b)(iii) unless after the prepayment in full of thesuch Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds such aggregate Revolving Credit Commitments of such Class then in effect.
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(iv) If Holdings or any Restricted Subsidiary incurs or issues (A) any Indebtedness not permitted to be incurred or issued pursuant to Section 7.03, (B) any Indebtedness incurred in reliance on Section 7.03(r) to the extent the applicable Permitted Acquisition is not consummated within ninety (90) days of the incurrence or issuance thereof or (C) any Permitted Unsecured Indebtedness incurred in reliance on Section 7.03(t) to the extent procceedsproceeds of such Indebtedness are not used to prepay the Loans pursuant to Section 2.05(a) withingwithin 10 days of the incurrence or issuance thereof, the Borrower shall cause the Term Loans to be prepaid in an aggregate amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is, in the case of clause (A), one (1) Business Day after such incurrence or issuance and, in the case of clause (B), no later than the ninetieth (90th) day after such incurrence or issuance.
(v) If any Prepayment Unrestricted Subsidiary incurs or issues any Indebtedness, the Borrower shall cause the Term Loans to be prepaid in an aggregate amount equal to 100% of all Net Cash Proceeds received therefrom (minus the principal amount, together with any applicable premium, penalty, interest and breakage costs, of any Indebtedness (other than the Obligations) that is required by its terms to be repaid in connection with such incurrence or issuance of Indebtedness) on or prior to the date that is one (1) Business Day after such incurrence or issuance.
(vi) Subject to Section 2.14 with respect to any New Term Loans, (A) Each prepayment of Term Loans of any Class pursuant to this Section 2.05(b) shall be applied, first, in inverse order of maturity to the principal repayment installments of such Term Loans other than the principal payment due on the Maturity Date and second, to the principal payment on the Maturity Date of such Term Loans; and unless otherwise provided herein, each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares (prior to giving effect to any rejection by any Term Lender of any such prepayment pursuant to clause (vii) below), subject to clause (vii) of this Section 2.05(b) and (B) on and after the borrowing of any New Term Loans, the prepayments referred to in this Section 2.05(b) shall be allocated among each Class of Term Loans pro rata based on the aggregate principal amount of the Outstanding Amount of Term Loans of each such Class unless, with respect to any Class of New Term Loans, the Borrower and the New Term Loan Lenders for such Class of New Term Loans have agreed in accordance with Section 2.14(e)(iii) that such Class of New Term Loans will be receive less than such Class of New Term Loans’ pro rata share of prepayments made under this Section 2.05(b) (it being understood that any Class of Term B Loans shall not be allocated any less than its pro rata share of such prepayment).
(vii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (vi) of this Section 2.05(b) at least one (1) Business Day prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of any such prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Any Term Lender (a “Declining Lender”, and any Term Lender which is not a Declining Lender, an “Accepting Lender”) may elect, by delivering not less than two (2) Business Days prior to the proposed prepayment date, a written notice (such notice, a “Rejection Notice”) that any mandatory prepayment otherwise required to be made with respect to
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the Term Loans held by such Term Lender pursuant to clauses (i) through (vi) of this Section 2.05(b) not be made, in which event the portion of such prepayment which would otherwise have been applied to the Term Loans of the Declining Lenders shall be retained by the Borrower (for itself and on behalf of the other Restricted Subsidiaries). If a Term Lender fails to deliver a Rejection Notice within the time frame specified above, such Term Lender will be deemed to be an Accepting Lender.
(viii) Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurodollar Rate Loan pursuant to Section 3.05. Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, if any prepayment of Eurodollar Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would result therefrom, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
Section 2.06. Termination or Reduction of Commitments.
(a) Optional. The Borrower may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments of any Class; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount (A) of $500,000 or any whole multiple of $100,000 in excess thereof or (B) equal to the entire remaining amount of the Commitments of any Class and (iii) if, after giving effect to any reduction of the Commitments, the Letter of Credit Sublimit of any Class or the Swing Line Sublimit, as the case may be, exceeds the amount of the Revolving Credit Commitments of the applicable Class, such sublimit shall be automatically reduced by the amount of such excess. The amount of any such Commitment reduction shall not be applied to the applicable Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrower or as required by the preceding sentence. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or otherwise shall be delayed.
(i) Mandatory. The Term Commitment of each Term Lender shall be automatically and permanently reduced to $0 at 5:00 p.m. on the Closing Date upon funding the Term Loans.
(ii) The Tranche A Revolving Credit Commitment of each Revolving Credit Lender shall be automatically and permanently reduced to $0 on the Maturity Date of the Tranche A Revolving Credit Facility.
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(iii) The Tranche B Revolving Credit Commitment of each Revolving Credit Lender shall be automatically and permanently reduced to $0 on the Maturity Date of the Tranche B Revolving Credit Facility.
(b) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit or the unused Commitments of any Class under this Section 2.06. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.07). All commitment fees accrued until the effective date of any termination of the Aggregate Commitments of any Class shall be paid to the Appropriate Lenders on the effective date of such termination.
Section 2.07. Repayment of Loans.
(a) Term Loans. The principal of the Term Loans of each Class shall be repaid in full, in Cash, in immediately available funds on the Maturity Date of such Class of Term Loans in an amount equal to the aggregate principal amount of all Term Loans of such Class outstanding on such date.
(b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent (a) for the ratable account of the applicable Tranche A Revolving Credit Lenders on the Maturity Date for the Tranche A Revolving Credit Facility the aggregate principal amount of all of its Tranche A Revolving Credit Loans outstanding on such date, and (b) for the ratable account of the applicable Tranche B Revolving Credit Lenders on the Maturity Date for the Tranche B Revolving Credit Facility the aggregate principal amount of all of its Tranche B Revolving Credit Loans outstanding on such date.
(c) Swing Line Loans. The Borrower shall repay the aggregate principal amount of all of itseach Swing Line Loans onLoan in full, in Cash, in immediately available funds on the earliest of (i) the funding date of any Tranche B Revolving Credit Borrowing (pursuant to Section 2.04(c) or otherwise) with the proceeds thereof, (ii) the date that is seven days after the date of such Swing Line Borrowing and (iii) the date that is five (5) Business Days prior to the Maturity Date for the Tranche B Revolving Credit Facility.
Section 2.08. Interest.
(a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Credit Loans.
(b) While any Default or Event of Default set forth in Section 8.01(a), (f) or (g) exists, the Borrower shall pay interest on all overdue amounts hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
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(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
Section 2.09. Fees. In addition to certain fees described in Section 2.03(i) and Section 2.03(j):
(a) Revolving Credit Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of (i) each Tranche A Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee (each, a “Tranche A Revolving Credit Commitment Fee” and, collectively, the “Tranche A Revolving Credit Commitment Fees”) equal to the Applicable Rate times the actual daily amount by which the aggregate Tranche A Revolving Credit Commitments exceed the sum of (ix) the Outstanding Amount of Tranche A Revolving Credit Loans and (iiy) the Outstanding Amount of Tranche A L/C Obligations and (ii) each Tranche B Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee (each, a “Tranche B Revolving Credit Commitment Fee” and, collectively, the “Tranche B Revolving Credit Commitment Fees”) equal to the Applicable Rate times the actual daily amount by which the aggregate Tranche B Revolving Credit Commitments exceed the sum of (x) the Outstanding Amount of Tranche B Revolving Credit Loans and (y) the Outstanding Amount of Tranche X X/C Obligations. The Tranche A Revolving Credit Commitment Fees shall accrue at all times from the date hereof until the Maturity Date of the Tranche A Revolving Credit Facility and the Tranche B Revolving Credit Commitment Fees shall accrue at all times from the Third Amendment Effective Date until the Maturity Date of the Tranche B Revolving Credit Facility, in each case, including at any time during which one or more of the conditions in Article 4 is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with (A) with respect to the Tranche A Revolving Credit Commitments, the first such date to occur after the Closing Date , andor (B) with respect to the Tranche B Revolving Credit Commitments, the first such date to occur after the Third Amendment Effective Date, and in each case, on the Maturity Date for the applicable Revolving Credit Facility. The Revolving Credit Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay or cause to be paid to the Agents such fees as may have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
Section 2.10. Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the Administrative Agent’s “prime rate” shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a three hundred and sixty-five (365) day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
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Section 2.11. Evidence of Indebtedness.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting as a non-fiduciary agent solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by each Lender and the Register maintained by the Administrative Agent shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register in respect of such matters, the Register shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. The Borrower and each Lender agrees from time to time after the occurrence and during the continuance of a Default or Event of Default under Section 8.01(f) or Section 8.01(g)(i) to execute and deliver to the Administrative Agent all such Notes or other promissory notes and other instruments and documents as the Administrative Agent shall reasonably request to evidence and confirm the respective interests and obligations of the Lenders after giving effect to any exchange of Lenders’ interests pursuant to arrangements relating thereto among the Lenders, and each Lender agrees to surrender any Notes or other promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent for cancellation against delivery of any Notes or other promissory notes so executed and delivered.
(b) In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the Register and the accounts and records of any Lender in respect of such matters, the Register shall control in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a) and Section 2.11(b), and by each Lender in its account or accounts pursuant to Section 2.11(a) and Section 2.11(b), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.
Section 2.12. Payments Generally.
(a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
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Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 4:00 p.m. shall be deemed received on the next succeeding Business Day in the Administrative Agent’s sole discretion and any applicable interest or fee shall continue to accrue to the extent applicable.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day in relation to the Borrower, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
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A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (i) the Outstanding Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Section 2.13. Sharing Of Payments. If, (other than (x) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or Participant or (y) as otherwise expressly provided elsewhere herein) any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total
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amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
Section 2.14. Incremental Facilities.
(a) At any time or from time to time on or after the SecondThird Amendment Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (i) prior to the Maturity Date of the applicable Revolving Credit Facility, one additional revolving credit facility tranche (“New Revolving Credit Commitments”) or one or more increases to the existingTranche A Revolving Credit Commitments or the NewTranche B Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan commitments (the “New Term Commitments” and, together with the New Revolving Credit Commitments and the IncreasedIncremental Revolving Credit Commitments, the “Incremental Commitments”) which may be of the same Class as existing Term Loans or a separate Class of new term loans; provided that, (x) the aggregate principal amount of all such Incremental Commitments shall not exceed (A) in the case of any Incremental Revolving Credit Commitments, $135,000,000; provided that the sum of the Incremental Revolving Credit Commitments plus the Existing Revolving Credit Commitments then in effect shall not exceed $155,000,000, plus (B) in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, $75,000,000, plus (CB) after the full utilization of the amounts available under clause (A) above, in the case of the Incremental Revolving Credit Commitments, and clause (B) above, in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (CB), the Senior Secured Leverage Ratio shall not exceed 2.75:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such IncreasedIncremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Total Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (y) any such request shall be for an aggregate principal amount of Incremental Commitments that is not less than $5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a
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date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender”, as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or New Term Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Incremental Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register, and each New Revolving Credit Lender and New Term Lender shall be subject to the requirements set forth in Section 10.15; (4) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the Incremental Commitments, if applicable; and (5) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.
(b) On any Increased Amount Date on which Increased Revolving Credit Commitments are effected through an increase to the existing Revolving Credit Commitments of any Class, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders of the applicable Class shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Class of Revolving Credit Loans will be held by existing Revolving Credit Lenders of such Class and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Increased Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (b) each Increased Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of such Class and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan of such Class and (c) each New Revolving Credit Lender shall become a Lender with respect to the Increased Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(a) of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) Any New Revolving Loans made pursuant to any New Revolving Credit Commitments established on an Increased Amount Date shall be designated as a Class of New Revolving Loans separate from the Revolving Credit Facility for all purposes of this Agreement. On any Increased Amount Date on which any New Revolving Credit Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, each New Revolving Lender of such Class shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such Class and the New Revolving Loans of such Class made pursuant thereto.
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(c) (d) Any New Term Loans made pursuant to any New Term Commitments of a separate Class of term loans on an Increased Amount Date shall be designated a separate Class of New Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and (ii) each New Term Lender of such Class shall become a Lender hereunder with respect to the New Term Commitment of such Class and the New Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to any existing Class of Term Loans and be treated as the same Class as such Term Loans.
(d) (e) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Class of New Term Commitments and the New Term Lenders of such Class , (ii) the Class of New