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<PAGE>
Exhibit 10.15
EXECUTION COPY
$75,000,000
REVOLVING CREDIT AGREEMENT
Dated as of December 20, 2004
among
GWR OPERATING PARTNERSHIP, L.L.L.P.,
as Borrower,
GREAT WOLF RESORTS, INC.,
as the Parent Guarantor,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors,
THE INITIAL LENDERS, INITIAL ISSUING BANK AND SWING LINE BANK
NAMED HEREIN,
as Initial Lenders, Initial Issuing Bank and Swing Line
Bank,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as Collateral Agent,
SOCIETE GENERALE,
as Syndication Agent,
CALYON NEW YORK BRANCH,
as Documentation Agent,
and
CITIGROUP GLOBAL MARKETS INC.,
SG AMERICAS SECURITIES, LLC,
and
CALYON NEW YORK BRANCH,
as Joint Lead Arrangers and Joint Book Running Managers
Great Wolf Senior Secured Revolving Credit Facility
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined
Terms................................................... 1
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions.............. 26
SECTION 1.03. Accounting
Terms........................................................
26
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of
Credit.................................. 26
SECTION 2.02. Making the
Advances.....................................................
28
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit...... 30
SECTION 2.04. Repayment of
Advances................................................... 31
SECTION 2.05. Termination or Reduction of the
Commitments............................. 32
SECTION 2.06.
Prepayments.............................................................
33
SECTION 2.07.
Interest................................................................
34
SECTION 2.08.
Fees....................................................................
35
SECTION 2.09. Conversion of
Advances.................................................. 36
SECTION 2.10. Increased Costs,
Etc.................................................... 36
SECTION 2.11. Payments and
Computations............................................... 38
SECTION 2.12.
Taxes...................................................................
40
SECTION 2.13. Sharing of Payments,
Etc................................................ 42
SECTION 2.14. Use of
Proceeds.........................................................
42
SECTION 2.15. Evidence of
Debt........................................................ 42
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit..................... 43
SECTION 3.02. Conditions Precedent to Each Borrowing, Issuance
and Renewal............ 49
SECTION 3.03. Determinations Under Section
3.01....................................... 49
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan
Parties...................... 50
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative
Covenants................................................... 56
SECTION 5.02. Negative
Covenants......................................................
61
SECTION 5.03. Reporting
Requirements..................................................
69
SECTION 5.04. Financial
Covenants.....................................................
71
</TABLE>
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<TABLE>
<S> <C>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of
Default.......................................................
73
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default................ 76
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of
Liability....................................... 77
SECTION 7.02. Guaranty
Absolute.......................................................
77
SECTION 7.03. Waivers and
Acknowledgments............................................. 78
SECTION 7.04.
Subrogation.............................................................
79
SECTION 7.05. Guaranty
Supplements....................................................
80
SECTION 7.06. Indemnification by
Guarantors........................................... 80
SECTION 7.07.
Subordination...........................................................
80
SECTION 7.08. Continuing
Guaranty.....................................................
81
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action; Appointment of
Supplemental Collateral Agents 81
SECTION 8.02. Agents' Reliance, Etc.
................................................. 82
SECTION 8.03. CNAI and
Affiliates.....................................................
83
SECTION 8.04. Lender Party Credit
Decision............................................ 83
SECTION 8.05. Indemnification by Lender
Parties....................................... 83
SECTION 8.06. Successor
Agents........................................................
84
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments,
Etc......................................................... 85
SECTION 9.02. Notices,
Etc............................................................
85
SECTION 9.03. No Waiver;
Remedies.....................................................
87
SECTION 9.04. Costs and
Expenses......................................................
87
SECTION 9.05. Right of
Set-off........................................................
88
SECTION 9.06. Binding
Effect..........................................................
88
SECTION 9.07. Assignments and
Participations.......................................... 89
SECTION 9.08. Execution in
Counterparts............................................... 91
SECTION 9.09. No Liability of the Issuing
Banks....................................... 92
SECTION 9.10.
Confidentiality.........................................................
92
SECTION 9.11. Release of
Collateral...................................................
92
SECTION 9.12. Patriot Act
Notification................................................ 93
SECTION 9.13. Jurisdiction,
Etc....................................................... 93
SECTION 9.14. Governing
Law...........................................................
93
SECTION 9.15. WAIVER OF JURY
TRIAL.................................................... 93
</TABLE>
Great Wolf Senior Secured Revolving Credit Facility
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<PAGE>
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Borrowing Base Assets
Schedule III - Designated Joint Ventures
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(n) - Existing Debt
Schedule 4.01(o) - Surviving Debt
Schedule 4.01(p) - Existing Liens
Schedule 4.01(q) - Owned Real Property
Schedule 4.01(r) - Leased Real Property
Schedule 4.01(s) - Environmental Concerns
Schedule 4.01(x) - Existing Loans to Directors and Executive
Officers
Schedule 4.01(y) - Excluded Subsidiaries and Excluded Subsidiary
Agreements
Schedule 4.01(z) - Plans and Welfare Plans
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Guaranty Supplement
Exhibit D - Form of Assignment and Acceptance
Exhibit E-1 - Form of Opinion of DeCampo, Diamond & Ash
Exhibit E-2 - Form of Opinion of King & Spaulding LLP
Exhibit E-3 - Form of Opinion of Local Counsel for the Loan
Parties
Exhibit F - Form of Security Agreement
Exhibit G - Form of Mortgage
Exhibit H - Form of Assignment of Leases
Exhibit I - Form of Borrowing Base Certificate
Great Wolf Senior Secured Revolving Credit Facility
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<PAGE>
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of December 20, 2004
(this
"AGREEMENT") among GWR OPERATING PARTNERSHIP, L.L.L.P., a
Delaware limited
liability limited partnership (the "BORROWER"), GREAT WOLF
RESORTS, INC., a
Delaware corporation (the "PARENT GUARANTOR"), the entities
listed on the
signature pages hereof as the subsidiary guarantors (together
with any
Additional Guarantors (as hereinafter defined) acceding hereto
pursuant to
Section 7.05, the "SUBSIDIARY GUARANTORS" and, together with the
Parent
Guarantor, the "GUARANTORS"), the banks, financial institutions
and other
institutional lenders listed on the signature pages hereof as
the initial
lenders (the "INITIAL LENDERS"), the Swing Line Bank (as
hereinafter defined),
CITICORP NORTH AMERICA, INC. ("CNAI"), as the initial issuer of
Letters of
Credit (as hereinafter defined) (the "INITIAL ISSUING BANK"),
CNAI, as
administrative agent (together with any successor administrative
agent appointed
pursuant to Article VIII, the "ADMINISTRATIVE AGENT") for the
Lender Parties (as
hereinafter defined), CNAI, as collateral agent (together with
any successor
collateral agent appointed pursuant to Article VIII, the
"COLLATERAL AGENT", and
together with the Administrative Agent, the "AGENTS") for the
Secured Parties
(as hereinafter defined), Societe Generale, as syndication
agent, CALYON NEW
YORK BRANCH, as documentation agent, and CITIGROUP GLOBAL
MARKETS INC. ("CGMI"),
SG AMERICAS SECURITIES, LLC ("SG AMERICAS") and CALYON NEW YORK
BRANCH
("CALYON"), as joint lead arrangers and joint book running
managers (the
"ARRANGERS").
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the
following terms shall have the following meanings (such meanings
to be equally
applicable to both the singular and plural forms of the terms
defined):
"ADDITIONAL GUARANTOR" has the meaning specified in Section
7.05.
"ADJUSTED NET OPERATING INCOME" means, with respect to any
Borrowing
Base Asset, (a) the Net Operating Income attributable to such
Borrowing
Base Asset less (b) the amount, if any, by which (i) the
Management
Reserve for such Borrowing Base Asset for the consecutive four
fiscal
quarters most recently ended for which financial statements are
required
to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c),
as the case may be, exceeds (ii) all management fees payable in
respect of
such Borrowing Base Asset during such fiscal period.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital
of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank,
N.A., at its office at 2 Penns Way, Suite 200, New Castle,
Delaware 19720,
ABA No. 021000089, Account No. 36852248, Account Name:
Agency/Medium Term
Finance, Reference: Great Wolf, Attention: Global Loans/Agency,
or such
other account as the Administrative Agent shall specify in
writing to the
Lender Parties.
"ADVANCE" means a Revolving Credit Advance, a Swing Line Advance
or
a Letter of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly
or indirectly, controls, is controlled by or is under common
control with
such Person or is a director or officer of such
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Person. For purposes of this definition, the term "control"
(including the
terms "controlling", "controlled by" and "under common control
with") of a
Person means the possession, direct or indirect, of the power to
vote 15%
or more of the Voting Interests of such Person or to direct or
cause the
direction of the management and policies of such Person, whether
through
the ownership of Voting Interests, by contract or otherwise.
"AGENTS" has the meaning specified in the recital of parties to
this
Agreement.
"AGREEMENT" has the meaning specified in the recital of parties
to
this Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date
of
determination, an amount determined by the Administrative Agent
equal to:
(a) in the case of a Hedge Agreement documented pursuant to the
Master
Agreement (Multicurrency-Cross Border) published by the
International Swap
and Derivatives Association, Inc. (the "MASTER AGREEMENT"), the
amount, if
any, that would be payable by any Loan Party or any of its
Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge
Agreement
was being terminated early on such date of determination, (ii)
such Loan
Party or Subsidiary was the sole "Affected Party", and (iii)
the
Administrative Agent was the sole party determining such payment
amount
(with the Administrative Agent making such determination
pursuant to the
provisions of the form of Master Agreement); or (b) in the case
of a Hedge
Agreement traded on an exchange, the mark-to-market value of
such Hedge
Agreement, which will be the unrealized loss on such Hedge
Agreement to
the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement
determined by the Administrative Agent based on the settlement
price of
such Hedge Agreement on such date of determination, or (c) in
all other
cases, the mark-to-market value of such Hedge Agreement, which
will be the
unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of
a Loan Party party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the
present value
of the future cash flows to be paid by such Loan Party or
Subsidiary
exceeds (ii) the present value of the future cash flows to be
received by
such Loan Party or Subsidiary pursuant to such Hedge
Agreement;
capitalized terms used and not otherwise defined in this
definition shall
have the respective meanings set forth in the above described
Master
Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender
Party, such Lender Party's Domestic Lending Office in the case
of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office
in the case
of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, at any date of determination, a
percentage per annum determined by reference to the Leverage
Ratio as set
forth below:
<TABLE>
<CAPTION>
APPLICABLE MARGIN APPLICABLE MARGIN
PRICING FOR BASE RATE FOR EURODOLLAR RATE
LEVEL LEVERAGE RATIO ADVANCES ADVANCES
------- -------------------------------- -----------------
-------------------
<S> <C> <C> <C>
I > or = 5.00:1.00 2.00% 3.00%
II > or = 4.50:1.00 but < 5.00:1.00 1.75% 2.75%
III > or = 4.00:1.00 but < 4.50:1.00 1.50% 2.50%
IV < 4.00:1.00 1.25% 2.25%
</TABLE>
The Applicable Margin for each Base Rate Advance shall be
determined by
reference to the Leverage Ratio in effect from time to time and
the
Applicable Margin for any Interest Period for
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all Eurodollar Rate Advances comprising part of the same
Borrowing shall
be determined by reference to the Leverage Ratio in effect on
the first
day of such Interest Period; provided, however, that (a) no
change in the
Applicable Margin resulting from the Leverage Ratio shall be
effective
until three Business Days after the date on which the
Administrative Agent
receives (x) the financial statements required to be delivered
pursuant to
Section 5.03(b) or (c), as the case may be, and (y) a
certificate of a
Responsible Officer of the Borrower demonstrating the Leverage
Ratio, and
(b) the Applicable Margin shall be at Pricing Level I for so
long as the
Borrower has not submitted to the Administrative Agent as and
when
required under Section 5.03(b) or (c), as applicable, the
information
described in clause (a) of this proviso.
"APPRAISAL" means an appraisal complying with the requirements
of
the Federal Financial Institutions Reform, Recovery and
Enforcement Act of
1989, commissioned by and prepared for the account of the
Collateral Agent
(for the benefit of the Lenders) by a MAI appraiser selected by
the
Collateral Agent in consultation with the Borrower, and
otherwise in
scope, form and substance satisfactory to the Collateral
Agent.
"APPRAISED VALUE" means, for any Borrowing Base Asset, the
fair
market value of such Borrowing Base Asset, determined by the
Administrative Agent based on an Appraisal of such Borrowing
Base Asset,
after discretionary adjustments of the value shown in such
Appraisal by
the Administrative Agent in consultation with the Borrower;
provided,
however, that Administrative Agent confirms that the
valuation
methodologies used in the Appraisals of the Wisconsin Dells
Asset and the
Sandusky Asset delivered to and approved by the Administrative
Agent prior
to the Closing Date shall be acceptable methodologies for any
future
Appraisals with respect to such Borrowing Base Assets.
"APPROVED MANAGER" means (i) an Affiliate of the Parent
Guarantor,
or (ii) a nationally recognized theme park resort manager (a)
with (or
controlled by a Person or Persons with) at least ten years of
experience
in the theme park resort management industry, (b) that is
engaged pursuant
to a written management agreement and (c) that has entered into
a
subordination agreement, in form and substance reasonably
satisfactory to
the Collateral Agent. For purposes of this definition, the term
"control"
(including the term "controlled by") of a Person means the
possession,
direct or indirect, of the power to direct or cause the
direction of the
management and policies of such Person, whether through the
ownership of
Voting Interests, by contract or otherwise.
"ARRANGERS" has the meaning specified in the recital of parties
to
this Agreement.
"ASSETS" means Resort Assets, Development Assets and Joint
Venture
Assets.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and
acceptance
entered into by a Lender Party and an Eligible Assignee, and
accepted by
the Administrative Agent, in accordance with Section 9.07 and
in
substantially the form of Exhibit D hereto.
"ASSIGNMENTS OF LEASES" has the meaning specified in Section
3.01(a)(iii).
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time,
the
maximum amount available to be drawn under such Letter of Credit
at such
time (assuming compliance at such time with all conditions to
drawing).
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"BANKRUPTCY LAW" means any applicable law governing a proceeding
of
the type referred to in Section 6.01(f) or Title 11, U.S. Code,
or any
similar foreign, federal or state law for the relief of
debtors.
"BASE RATE" means a fluctuating interest rate per annum in
effect
from time to time, which rate per annum shall at all times be
equal to the
higher of (a) the rate of interest announced publicly by
Citibank, N.A. in
New York, New York, from time to time, as Citibank, N.A.'s base
rate and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided
in Section 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties
to
this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by
the Borrower with Wachovia Bank, N.A. at its office at 1753
Pinnacle
Drive, 3rd Floor, McLean, VA 22102, ABA No. 051400549, Account
No.
2000026799144 or such other account as the Borrower shall
specify in
writing to the Administrative Agent.
"BORROWING" means a borrowing consisting of simultaneous
Revolving
Credit Advances of the same Type made by the Lenders or a Swing
Line
Borrowing.
"BORROWING BASE ASSETS" means only those Resort Assets (a)
listed on
Schedule II hereto (as supplemented from time to time pursuant
to Section
5.01(j)(iv)), (b) for which the applicable conditions (as may
be
determined by the Collateral Agent in its sole discretion) in
Section 3.01
and, if applicable, 5.01(j) have been satisfied and (c) that the
Required
Lender Parties in their sole discretion have elected to treat as
Borrowing
Base Assets for purposes of this Agreement.
"BORROWING BASE CERTIFICATE" means a certificate in
substantially
the form of Exhibit I hereto, duly certified by a Responsible
Officer of
the Parent Guarantor.
"BORROWING BASE CONDITIONS" means, with respect to any
Proposed
Borrowing Base Asset, that (i) such Proposed Borrowing Base
Asset (a) is a
Resort Asset located in one of the 48 contiguous states of the
United
States of America or the District of Columbia that has been in
operation
for at least one year; (b) is wholly-owned directly or
indirectly by the
Borrower either in fee or subject to a Qualifying Ground Lease;
(c) is
fully operating, open to the public, and not under significant
development
or redevelopment; (d) is free of all material structural defects
or
architectural deficiencies, title defects, environmental
conditions
casualties, condemnation or other material adverse matters; (e)
is
operated by an Approved Manager or any other manager approved by
the
Administrative Agent; (f) is not subject to mezzanine Debt
financing; (g)
is not, and no interest of the Borrower or any of its
Subsidiaries therein
is, subject to any Lien (other than Permitted Liens) or any
Negative
Pledge, and (h) is owned by a Loan Party that is a
single-purpose
Subsidiary of the Borrower and (i) none of the Borrower's or the
Parent
Guarantor's direct or indirect Equity Interests in such
Subsidiary is
subject to any Lien (other than Permitted Liens) or any Negative
Pledge
and (ii)(a) on or prior to the date such Asset is added to the
Collateral,
such Subsidiary shall have duly executed and delivered to
the
Administrative Agent a Guaranty Supplement in substantially the
form of
Exhibit C hereto, or such other guaranty supplement in form and
substance
satisfactory to the Administrative Agent, guaranteeing the other
Loan
Parties' Obligations under the Loan Documents, and (b) the
Borrower
directly, or indirectly through a Subsidiary, has the right to
take the
following actions without the need to obtain the consent of any
Person:
(A) to create Liens on such Asset as security for Debt of
the
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<PAGE>
Borrower of such Subsidiary, as applicable, and (B) to sell,
transfer or
otherwise dispose of such Asset.
"BORROWING BASE DEBT SERVICE COVERAGE RATIO" means, at any date
of
determination, the ratio of (a) the aggregate Adjusted Net
Operating
Income for all Borrowing Base Assets to (b) the greater of (i)
the actual
interest expense of the Borrower under this Agreement for the
consecutive
four fiscal quarters of the Parent Guarantor most recently ended
for which
financial statements are required to be delivered pursuant to
Section
5.03(b) or (c), as the case may be, and (ii) the payments that
would have
been required to be made for such fiscal period on an assumed
Debt in an
aggregate principal amount equal to the Facility Exposure
applying a debt
constant of 8.5%.
"BUSINESS DAY" means a day of the year on which banks are
not
required or authorized by law to close in New York City and, if
the
applicable Business Day relates to any Eurodollar Rate Advances,
on which
dealings are carried on in the London interbank market.
"CALYON" has the meaning specified in the recital of parties to
this
Agreement.
"CAPITALIZED LEASES" means all leases that have been or should
be,
in accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means any of the following, to the extent
owned
by the Parent Guarantor or any of its Subsidiaries free and
clear of all
Liens other than Liens created under the Collateral Documents
and having a
maturity of not greater than 90 days from the date of issuance
thereof:
(a) readily marketable direct obligations of the Government of
the United
States or any agency or instrumentality thereof or
obligations
unconditionally guaranteed by the full faith and credit of the
Government
of the United States, (b) certificates of deposit of or time
deposits with
any commercial bank that is a Lender Party or a member of the
Federal
Reserve System, issues (or the parent of which issues)
commercial paper
rated as described in clause (c) below, is organized under the
laws of the
United States or any State thereof and has combined capital and
surplus of
at least $1,000,000,000 or (c) commercial paper in an aggregate
amount of
not more than $50,000,000 per issuer outstanding at any time,
issued by
any corporation organized under the laws of any State of the
United States
and rated at least "Prime-1" (or the then equivalent grade) by
Moody's or
"A-1" (or the then equivalent grade) by S&P.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to
time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the
U.S.
Environmental Protection Agency.
"CGMI" has the meaning specified in the recital of parties to
this
Agreement.
"CHANGE OF CONTROL" means the occurrence of any of the
following:
(a) any Person or two or more Persons acting in concert shall
have
acquired and shall continue to have following the date hereof
beneficial
ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange
Commission under the Securities Exchange Act of 1934), directly
or
indirectly, of Voting Interests of the Parent Guarantor (or
other
securities convertible into such Voting Interests) representing
35% or
more of the combined voting power of all Voting Interests of the
Parent
Guarantor, it being agreed that officers and directors of the
Parent
Guarantor shall not be deemed to be acting in concert merely by
virtue of
their being officers and directors; or (b) there is a change in
the
composition of the Parent Guarantor's Board of Directors over a
period of
24
Great Wolf Senior Secured Revolving Credit Facility
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<PAGE>
consecutive months (or less) such that a majority of Board
members
(rounded up to the nearest whole number) ceases, by reason of
one or more
proxy contests for the election of Board members, to be
comprised of
individuals who either (i) have been Board members continuously
since the
beginning of such period or (ii) have been elected or nominated
for
election as Board members during such period by at least a
majority of the
Board members described in clause (i) who were still in office
at the time
such election or nomination was approved by the Board; or (c)
the sole
member of OP General Partner ceases to be a wholly-owned
Subsidiary of the
Parent Guarantor; or (d) the Parent Guarantor ceases to be the
direct
legal and beneficial owner of at least 70% of limited
partnership
interests in the Borrower and the indirect beneficial owner
(through its
Equity Interest in OP General Partner) of all general
partnership
interests in the Borrower; or (e) OP General Partner ceases to
be the
general partner of the Borrower unless it is succeeded by
another
wholly-owned subsidiary of the Parent Guarantor; or (f) the
Parent
Guarantor shall create, incur, assume or suffer to exist any
Lien on the
Equity Interests in the Borrower owned by it, unless (and only
for so long
as) the same is the subject of a Good Faith Contest.
"CLOSING DATE" means December 20, 2004 or such other date as may
be
agreed upon by the Borrower and the Administrative Agent.
"CNAI" has the meaning specified in the recital of parties to
this
Agreement.
"COLLATERAL" means all "Collateral" and all "Mortgaged
Property"
referred to in the Collateral Documents and all other property
that is or
is intended to be subject to any Lien in favor of the Collateral
Agent for
the benefit of the Secured Parties and will include, without
limitation,
all Borrowing Base Assets.
"COLLATERAL AGENT" has the meaning specified in the recital
of
parties to this Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages,
the Assignments of Leases and any other agreement entered into
by a Loan
Party that creates or purports to create a Lien in favor of the
Collateral
Agent for the benefit of the Secured Parties.
"COLLATERAL TRIGGER EVENT" has the meaning specified in
Section
5.01(j)(i).
"COMMITMENT" means a Revolving Credit Commitment, a Swing
Line
Commitment or a Letter of Credit Commitment.
"COMMUNICATIONS" has the meaning specified in Section
9.02(b).
"COMPANY DEBT SERVICE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) EBITDA to (b) the sum of (i)
interest
(including capitalized interest) payable on, and amortization of
debt
discount in respect of, all Debt for Borrowed Money, plus (ii)
principal
amounts of all Debt for Borrowed Money (other than scheduled
maturities)
payable, in each case, of or by the Parent Guarantor and its
Subsidiaries
(without duplication) for the consecutive four fiscal quarters
of the
Parent Guarantor most recently ended for which financial
statements are
required to be delivered to the Lender Parties pursuant to
Section 5.03(b)
or (c), as the case may be; provided, however, that for purposes
of
calculating the Company Debt Service Coverage Ratio at any date
of
determination occurring during the fiscal quarter of the Parent
Guarantor
ending December 31, 2004, (x) the amount described in clause (a)
shall be
deemed to equal the amount of EBITDA attributable to the three
consecutive
fiscal quarters of the Parent Guarantor ending September 30,
2004 computed
on a pro forma basis, and (y) the amounts described in
Great Wolf Senior Secured Revolving Credit Facility
6
<PAGE>
clause (b) shall be deemed to equal the sum of such items for
the three
consecutive fiscal quarters of the Parent Guarantor ending
September 30,
2004 computed on a pro forma basis; provided further, that
calculations
which pertain to the fiscal quarters of the Parent Guarantor
ending on or
prior to December 31, 2004 shall be made on a pro forma basis,
including
to give effect to the IPO and the Formation Transactions.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party
furnishes to any Agent or any Lender Party in writing designated
as
confidential, but does not include any such information that is
or becomes
generally available to the public or that is or becomes
available to such
Agent or such Lender Party from a source other than the Loan
Parties.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance
with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person,
any
Obligation or arrangement of such Person to guarantee or
intended to
guarantee any Debt, leases, dividends or other payment
Obligations
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY
OBLIGOR") in any
manner, whether directly or indirectly, including, without
limitation, (a)
the direct or indirect guarantee, endorsement (other than for
collection
or deposit in the ordinary course of business), co-making,
discounting
with recourse or sale with recourse by such Person of the
Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or
similar
payments, if required, regardless of nonperformance by any other
party or
parties to an agreement or (c) any Obligation of such Person,
whether or
not contingent, (i) to purchase any such primary obligation or
any
property constituting direct or indirect security therefor, (ii)
to
advance or supply funds (A) for the purchase or payment of any
such
primary obligation or (B) to maintain working capital or equity
capital of
the primary obligor or otherwise to maintain the net worth or
solvency of
the primary obligor, (iii) to purchase property, assets,
securities or
services primarily for the purpose of assuring the owner of any
such
primary obligation of the ability of the primary obligor to make
payment
of such primary obligation or (iv) otherwise to assure or hold
harmless
the holder of such primary obligation against loss in respect
thereof;
provided, however, that the term "Contingent Obligation" shall
not include
guarantees by the Parent Guarantor of primary obligations of a
direct or
indirect Subsidiary with respect to trade payables to the extent
such
guarantees, in the aggregate, do not exceed, at any time,
$5,000,000. The
amount of any Contingent Obligation shall be deemed to be an
amount equal
to the stated or determinable amount of the primary obligation
in respect
of which such Contingent Obligation is made (or, if less, the
maximum
amount of such primary obligation for which such Person may be
liable
pursuant to the terms of the instrument evidencing such
Contingent
Obligation) or, if not stated or determinable, the maximum
reasonably
anticipated liability in respect thereof (assuming such Person
is required
to perform thereunder), as determined by such Person in good
faith.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion
of Advances of one Type into Advances of the other Type pursuant
to
Section 2.07(d), 2.09 or 2.10.
"CUSTOMARY CARVE-OUT AGREEMENT" has the meaning specified in
the
definition of Non-Recourse Debt.
"DEBT" of any Person means, without duplication for purposes
of
calculating financial ratios, (a) all Debt for Borrowed Money of
such
Person, (b) all Obligations of such Person for the deferred
purchase price
of property or services other than trade payables incurred in
the ordinary
course of business and not overdue by more than 90 days, (c)
all
Obligations of such Person evidenced by notes, bonds, debentures
or other
similar instruments, (d) all Obligations of such Person created
or arising
under any conditional sale or other title retention agreement
with respect
Great Wolf Senior Secured Revolving Credit Facility
7
<PAGE>
to property acquired by such Person (even though the rights and
remedies
of the seller or lender under such agreement in the event of
default are
limited to repossession or sale of such property), (e) all
Obligations of
such Person as lessee under Capitalized Leases, (f) all
Obligations of
such Person under acceptance, letter of credit or similar
facilities, (g)
all Obligations of such Person to purchase, redeem, retire,
defease or
otherwise make any payment in respect of any Equity Interests in
such
Person or any other Person (other than Preferred Interests that
are issued
by any Loan Party or Subsidiary thereof and classified as either
equity or
minority interests pursuant to GAAP) or any warrants, rights or
options to
acquire such Equity Interests, (h) all Obligations of such
Person in
respect of Hedge Agreements, valued at the Agreement Value
thereof, (i)
all Contingent Obligations of such Person and (j) all
indebtedness and
other payment Obligations referred to in clauses (a) through (i)
above of
another Person secured by (or for which the holder of such Debt
has an
existing right, contingent or otherwise, to be secured by) any
Lien on
property (including, without limitation, accounts and contract
rights)
owned by such Person, even though such Person has not assumed or
become
liable for the payment of such indebtedness or other payment
Obligations;
provided, however, that in the case of the Parent Guarantor and
its
Subsidiaries, "Debt" shall also include, without duplication,
the JV Pro
Rata Share of Debt for each Joint Venture (other than an
Excluded Joint
Venture).
"DEBT FOR BORROWED MONEY" of any Person means all items that,
in
accordance with GAAP, would be classified as indebtedness on
a
Consolidated balance sheet of such Person; provided, however,
that in the
case of the Parent Guarantor and its Subsidiaries "Debt for
Borrowed
Money" shall also include, without duplication, the JV Pro Rata
Share of
Debt for Borrowed Money for each Joint Venture (other than an
Excluded
Joint Venture); provided, further, that as used in the
definition of
"Fixed Charge Coverage Ratio", "Company Debt Service Coverage
Ratio" and
"Interest Coverage Ratio", in the case of any acquisition or
disposition
of any direct or indirect interest in any Asset (including
through the
acquisition of Equity Interests) by the Parent or any of its
Subsidiaries
during the consecutive four fiscal quarters of the Parent most
recently
ended for which financial statements are required to be
delivered to the
Lender Parties pursuant to Section 5.03(b) or (c), as the case
may be, the
term "Debt for Borrowed Money" (a) shall include, in the case of
an
acquisition, any Debt for Borrowed Money directly relating to
such Asset
existing immediately following such acquisition computed as if
such
indebtedness also existed for the portion of such period that
such Asset
was not owned by the Parent Guarantor or such Subsidiary, and
(ii) shall
exclude, in the case of a disposition, for such period any Debt
for
Borrowed Money to which such Asset was subject to the extent
such Debt for
Borrowed Money was repaid or otherwise terminated upon the
disposition of
such Asset.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that
notice be
given or time elapse or both.
"DEFAULT TERMINATION NOTICE" has the meaning specified in
Section
2.01(b).
"DESIGNATED JOINT VENTURE" means, at any time, (i) a Joint
Venture
listed on Schedule III hereto as of the date hereof and (ii) any
other
Joint Venture designated as such by the Administrative
Agent.
"DEVELOPMENT ASSETS" means all Real Property acquired for
development into Resort Assets that, in accordance with GAAP,
would be
classified as development property on a Consolidated balance
sheet of the
Parent Guarantor and its Subsidiaries.
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(f).
Great Wolf Senior Secured Revolving Credit Facility
8
<PAGE>
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party,
the office of such Lender Party specified as its "Domestic
Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance
pursuant to which it became a Lender Party, as the case may be,
or such
other office of such Lender Party as such Lender Party may from
time to
time specify to the Borrower and the Administrative Agent.
"EBITDA" means, at any date of determination, the sum of the
following items, in each for the four consecutive fiscal
quarters of the
Parent Guarantor most recently ended: (a) the sum of (i) net
income (or
net loss) (excluding gains (or losses) from extraordinary,
infrequent, and
unusual items), (ii) interest expense, (iii) income tax expense,
(iv)
depreciation expense, (v) amortization expense, and (vi) to the
extent
subtracted in computing net income, without duplication, (A)
income
attributable to minority interests, (B) non-cash employee
compensation,
asset impairment charges and other non-cash items, (C) the
cumulative
effect of changes in accounting principles, and (D) expenses
incurred in
connection with the Formation Transactions and the IPO and
other
non-recurring items, in each case of the Parent Guarantor and
its
Subsidiaries determined on a Consolidated basis and in
accordance with
GAAP for such four fiscal quarter period, plus (b) with respect
to each
Joint Venture (other than an Excluded Joint Venture), the JV Pro
Rata
Share of the sum of (i) net income (or net loss) (excluding
gains (or
losses) from extraordinary and unusual items), (ii) interest
expense,
(iii) income tax expense, (iv) depreciation expense, (v)
amortization
expense, and (vi) to the extent subtracted in computing net
income of such
Joint Venture, without duplication, (A) income from minority
interests,
(B) non-cash employee compensation, asset impairment charges and
other
non-cash items, (C) the cumulative effect of changes in
accounting
principles, and (D) non-recurring items, in each case of such
Joint
Venture determined on a Consolidated basis and in accordance
with GAAP for
such four fiscal quarter period; provided, however, that for
purposes of
this definition, in the case of any acquisition or disposition
of any
direct or indirect interest in any Asset in an amount in excess
of
$1,000,000 (including through the sale or acquisition of Equity
Interests)
by the Parent Guarantor or any of its Subsidiaries during such
four fiscal
quarter period, EBITDA will be adjusted (1) in the case of an
acquisition,
by adding thereto an amount equal to the acquired Asset's actual
EBITDA
(computed as if such Asset was owned by the Parent Guarantor or
one of its
Subsidiaries for the entire four fiscal quarter period)
generated during
the portion of such four fiscal quarter period that such Asset
was not
owned by the Parent Guarantor or such Subsidiary, and (2) in the
case of a
disposition, by subtracting therefrom an amount equal to the
actual EBITDA
generated by the Asset so disposed of for such four fiscal
quarter period;
and provided further, that calculations which pertain to the
fiscal
quarters of the Parent Guarantor ending on or prior to December
31, 2004
shall be made on a pro forma basis, including to give effect to
the IPO
and the Formation Transactions.
"EFFECTIVE DATE" means the first date on which the conditions
set
forth in Article III shall be satisfied.
"ELIGIBLE ASSIGNEE" means (a) with respect to the Revolving
Credit
Facility, (i) a Lender; (ii) an Affiliate or Fund Affiliate of a
Lender;
(iii) a commercial bank organized under the laws of the United
States, or
any State thereof, respectively, and having total assets in
excess of
$500,000,000; (iv) a savings and loan association or savings
bank
organized under the laws of the United States or any State
thereof, and
having total assets in excess of $500,000,000; (v) a commercial
bank
organized under the laws of any other country that is a member
of the
OECD or has concluded special lending arrangements with the
International
Monetary Fund associated with its General Arrangements to
Borrow, or a
political subdivision of any such country, and having total
assets in
excess of $500,000,000, so long as such bank is acting through a
branch or
agency located in the United States; (vi) the central bank of
any country
that is a member of the
Great Wolf Senior Secured Revolving Credit Facility
9
<PAGE>
OECD; and (vii) a finance company, insurance company or other
financial
institution or fund (whether a corporation, partnership, trust
or other
entity) that is engaged in making, purchasing or otherwise
investing in
commercial loans in the ordinary course of its business and
having total
assets in excess of $500,000,000, and (b) with respect to the
Letter of
Credit Facility, a Person that is an Eligible Assignee under
subclause
(iii) or (v) of this definition and is approved by the
Administrative
Agent (such approval not to be unreasonably withheld) and,
unless a
Default has occurred and is continuing at the time any
assignment is
effected pursuant to Section 9.07, approved by the Borrower,
such approval
not to be unreasonably withheld or delayed; provided, however,
that
neither any Loan Party nor any Affiliate of a Loan Party shall
qualify as
an Eligible Assignee under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand,
demand
letter, claim, notice of non-compliance or violation, notice of
liability
or potential liability, investigation, proceeding, consent order
or
consent agreement relating in any way to any Environmental Law,
any
Environmental Permit or Hazardous Material or arising from
alleged injury
or threat to the environment or injury or threat to human health
and
safety from Hazardous Materials, including, without limitation,
such
matters brought (a) by any governmental or regulatory authority
for
enforcement, cleanup, removal, response, remedial or other
actions or
damages and (b) by any governmental or regulatory authority or
third party
for damages, contribution, indemnification, cost recovery,
compensation or
injunctive relief.
"ENVIRONMENTAL LAW" means any applicable Federal, state, local
or
foreign statute, law, ordinance, rule, regulation, code, order,
writ,
judgment, injunction, decree or judicial or agency
interpretation, policy
or guidance relating to pollution or protection of the
environment or
natural resources or protection of human health and safety from
Hazardous
Materials, including, without limitation, those relating to the
use,
handling, transportation, treatment, storage, disposal, release
or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification
number, license or other authorization required under any
Environmental
Law.
"EQUITY INTERESTS" means, with respect to any Person, shares
of
capital stock of (or other ownership or profit interests in)
such Person,
warrants, options or other rights for the purchase or other
acquisition
from such Person of shares of capital stock of (or other
ownership or
profit interests in) such Person, securities convertible into
or
exchangeable for shares of capital stock of (or other ownership
or profit
interests in) such Person or warrants, rights or options for the
purchase
or other acquisition from such Person of such shares (or such
other
interests), and other ownership or profit interests in such
Person
(including, without limitation, partnership, member or trust
interests
therein), whether voting or nonvoting, and whether or not such
shares,
warrants, options, rights or other interests are authorized or
otherwise
existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended from time to time, and the regulations promulgated
and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV
of
ERISA is a member of the controlled group of any Loan Party, or
under
common control with any Loan Party, within the meaning of
Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable
event,
within the meaning of Section 4043 of ERISA, with respect to any
Plan
unless the 30-day notice requirement with respect to such event
has been
waived by the PBGC or (ii) the requirements of Section
4043(b)
Great Wolf Senior Secured Revolving Credit Facility
10
<PAGE>
of ERISA apply with respect to a contributing sponsor, as
defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described
in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
ERISA is
reasonably expected to occur with respect to such Plan within
the
following 30 days; (b) the application for a minimum funding
waiver with
respect to a Plan; (c) the provision by the administrator of any
Plan of a
notice of intent to terminate such Plan in a distress
termination pursuant
to Section 4041(c) of ERISA; (d) the cessation of operations at
a facility
of any Loan Party or any ERISA Affiliate in the circumstances
described in
Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party
or any
ERISA Affiliate from a Multiple Employer Plan during a plan year
for which
it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA;
(f) the conditions for imposition of a lien under Section 302(f)
of ERISA
shall have been met with respect to any Plan; (g) the adoption
of an
amendment to a Plan requiring the provision of security to such
Plan
pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the
occurrence of any event or condition described in Section 4042
of ERISA
that constitutes grounds for the termination of, or the
appointment of a
trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D
of the Board of Governors of the Federal Reserve System, as in
effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party,
the office of such Lender Party specified as its "Eurodollar
Lending
Office" opposite its name on Schedule I hereto or in the
Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no
such
office is specified, its Domestic Lending Office), or such other
office of
such Lender Party as such Lender Party may from time to time
specify to
the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar
Rate Advances comprising part of the same Borrowing, an interest
rate per
annum equal to the rate per annum obtained by dividing (a) the
rate per
annum (rounded upward, if necessary, to the nearest 1/100 of 1%)
appearing
on Telerate Page 3750 (or any successor page) as the London
interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London
time) two
Business Days before the first day of such Interest Period for a
period
equal to such Interest Period or, if for any reason such rate is
not
available, the average (rounded upward, if necessary, to the
nearest 1/100
of 1%, if such average is not such a multiple) of the rate per
annum at
which deposits in U.S. dollars are offered by the principal
office of each
of the Reference Banks in London, England to prime banks in the
London
interbank market at 11:00 A.M. (London time) two Business Days
before the
first day of such Interest Period in an amount substantially
equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such
Borrowing
to be outstanding during such Interest Period (or, if such
Reference Bank
shall not have such a Eurodollar Rate Advance, $1,000,000) and
for a
period equal to such Interest Period by (b) a percentage equal
to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest
Period
for all Eurodollar Rate Advances comprising part of the same
Borrowing,
the reserve percentage applicable two Business Days before the
first day
of such Interest Period under regulations issued from time to
time by the
Board of Governors of the Federal Reserve System (or any
successor) for
determining the maximum reserve requirement (including,
without
limitation, any emergency, supplemental or other marginal
reserve
requirement) for a member bank of the Federal Reserve System in
New York
City with respect to liabilities or assets consisting of or
including
Eurocurrency
Great Wolf Senior Secured Revolving Credit Facility
11
<PAGE>
Liabilities (or with respect to any other category of
liabilities that
includes deposits by reference to which the interest rate on
Eurodollar
Rate Advances is determined) having a term equal to such
Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section
6.01.
"EXISTING DEBT" means Debt of each Loan Party and its
Subsidiaries
outstanding immediately before giving effect to the
Formation
Transactions.
"EXCLUDED JOINT VENTURE" means, at any time, a Joint Venture
in
which (a) the economic interest of the Parent Guarantor and
its
Subsidiaries is less than 15% of the total economic interests of
all
Persons therein, and (b) the JV Pro Rata Share of Debt for such
Joint
Venture is less than or equal to $10,000,000.
"EXCLUDED SUBSIDIARY" at any time means (a) any direct or
indirect
Subsidiary of the Borrower that is unable, or pursuant to
Section
5.01(j)(ii) will become unable, to guaranty the Obligations of
the Loan
Parties under the Loan Documents at such time because it is or
will be
party to one or more Excluded Subsidiary Agreements that
prohibit such
Excluded Subsidiary from entering into the Guaranty set forth in
Article
VII or a Guaranty Supplement and (b) any Limited Subsidiary.
"EXCLUDED SUBSIDIARY AGREEMENT" for each Excluded Subsidiary
means
any agreement (and any amendments thereto to the extent not
prohibited by
the terms of this Agreement) set forth opposite the name of such
Excluded
Subsidiary on Schedule 4.01(y) hereto (as such Schedule may
be
supplemented from time to time pursuant to Sections 5.01(j)(i)
and
5.01(j)(ii)) and any agreement (and any amendments thereto to
the extent
not prohibited by the terms of this Agreement) pursuant to which
such
Excluded Subsidiary incurs Refinancing Debt with regard to the
Debt, if
any, incurred pursuant to such Excluded Subsidiary
Agreement.
"FACILITY" means the Revolving Credit Facility, the Swing
Line
Facility or the Letter of Credit Facility.
"FACILITY EXPOSURE" means, at any date of determination, the sum
of
(a) the aggregate principal amount of all outstanding Advances,
plus (b)
the amount (not less than zero) equal to the Available Amount
under all
outstanding Letters of Credit less all amounts then on deposit
in the LC
Cash Collateral Account, plus (c) all Obligations of the Loan
Parties in
respect of Secured Hedge Agreements, valued at the Agreement
Value
thereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest
rate per annum equal for each day during such period to the
weighted
average of the rates on overnight Federal funds transactions
with members
of the Federal Reserve System arranged by Federal funds brokers,
as
published for such day (or, if such day is not a Business Day,
for the
next preceding Business Day) by the Federal Reserve Bank of New
York, or,
if such rate is not so published for any day that is a Business
Day, the
average of the quotations for such day for such transactions
received by
the Administrative Agent from three Federal funds brokers of
recognized
standing selected by it.
"FEE LETTER" means the fee letter dated as of October 13, 2004
among
The Great Lakes Companies, Inc., CNAI and CGMI, as the same may
be amended
from time to time.
Great Wolf Senior Secured Revolving Credit Facility
12
<PAGE>
"FF&E" means , with respect to any Real Property, any
furniture,
fixtures and equipment, including any beds, lamps, bedding,
tables,
chairs, sofas, curtains, carpeting, smoke detectors, mini bars,
paintings,
decorations, televisions, telephones, radios, desks, dressers,
towels,
bathroom equipment, heating, cooling, lighting, laundry,
incinerating,
loading, swimming pools, landscaping, garage and power
equipment,
machinery, engines, vehicles, fire prevention, refrigerating,
ventilating
and communications apparatus, carts, dollies, elevators,
escalators,
kitchen appliances, restaurant equipment, computers, reservation
systems,
software, cash registers, switchboards, cleaning equipment or
any other
items of furniture, fixtures and equipment typically used in
hotel or
resort properties (including furniture, fixtures and equipment
used in
guest rooms, lobbies, common areas, front desk, back office,
bars,
restaurants, kitchens, laundries, concierge, bellman,
recreation,
amusement, landscaping, parking and other areas of hotels or
resorts) and
any replacements of all or any portion of any of the
foregoing.
"FF&E RESERVE" means, with respect to any Asset or Assets
for any
fiscal period, an amount equal to 4.0% of the total revenues
generated
from the operation of such Asset or Assets for such fiscal
period.
"FISCAL YEAR" means a fiscal year of the Parent Guarantor and
its
Consolidated Subsidiaries ending on December 31 in any calendar
year.
"FIXED CHARGE COVERAGE RATIO" means, at any date of
determination,
the ratio of (a) EBITDA to (b) the sum of (i) interest
(including
capitalized interest) payable on, and amortization of debt
discount in
respect of, all Debt for Borrowed Money plus (ii) principal
amounts of all
Debt for Borrowed Money payable (excluding maturities) plus
(iii) all cash
dividends payable on any Preferred Interests, plus (iv) the
FF&E Reserve
for all Assets, in each case, of or by the Parent Guarantor and
its
Subsidiaries for the consecutive four fiscal quarters of the
Parent
Guarantor most recently ended for which financial statements are
required
to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c),
as the case may be; provided, however, that for purposes of
calculating
the Fixed Charge Coverage Ratio at any date of determination
occurring
during the fiscal quarter of the Parent ending December 31,
2004, (x) the
amount described in clause (a) shall be deemed to equal the
amount of
EBITDA attributable to the three consecutive fiscal quarters of
the Parent
Guarantor ending September 30, 2004 computed on a pro forma
basis, and (y)
the amounts described in clause (b) shall be deemed to equal the
sum of
such items for the three consecutive fiscal quarters of the
Parent
Guarantor ending September 30, 2004 computed on a pro forma
basis;
provided further, that calculations which pertain to the fiscal
quarters
of the Parent Guarantor ending on or prior to December 31, 2004
shall be
made on a pro forma basis, including to give effect to the IPO
and the
Formation Transactions.
"FORMATION TRANSACTIONS" means the "formation transaction" all
as
more fully described in the Registration Statement and otherwise
on terms
reasonably satisfactory to the Administrative Agent. The
Formation
Transactions shall include (a) the formation by the Borrower of
certain
wholly owned Subsidiaries and the merger of such Subsidiaries
into the
existing owners of certain Resort Assets, and (b) the purchase
of the
interests held by certain Affiliates of AIG SunAmerica in the
Wisconsin
Dells Asset and the Sandusky Asset.
"FUND AFFILIATE" means, with respect to any Lender that is a
fund
that invests in bank loans, any other fund that invests in bank
loans and
is advised or managed by the same investment advisor as such
Lender or by
an Affiliate of such investment advisor.
"GAAP" has the meaning specified in Section 1.03.
Great Wolf Senior Secured Revolving Credit Facility
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"GREAT WOLF LODGE CONDOMINIUM" means the condominium
association
referred to in that certain Declaration of Easements and
Covenant to Share
Costs for Great Wolf Lodge shown on Schedule B of the Mortgage
Policy
issued in respect of the Wisconsin Dells Asset.
"GOOD FAITH CONTEST" means the contest of an item as to which:
(a)
such item is contested in good faith, by appropriate
proceedings, (b)
reserves that are adequate are established with respect to such
contested
item in accordance with GAAP and (c) the failure to pay or
comply with
such contested item during the period of such contest is not
reasonably
likely to result in a Material Adverse Effect.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
7.01.
"GUARANTY" means the Guaranty by the Guarantors pursuant to
Article
VII, together with any and all Guaranty Supplements required to
be
delivered pursuant to Section 5.01(j).
"GUARANTY SUPPLEMENT" means a supplement entered into by an
Additional Guarantor in substantially the form of Exhibit C
hereto.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, radon
gas and
mold and (b) any other chemicals, materials or substances
designated,
classified or regulated as hazardous or toxic or as a pollutant
or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency
swap
agreements, currency future or option contracts and other
hedging
agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a
Lender
Party in its capacity as a party to a Secured Hedge
Agreement.
"INDEMNIFIED COSTS" has the meaning specified in Section
8.05(a).
"INDEMNIFIED PARTY" has the meaning specified in Section
7.06(a).
"INFORMATION MEMORANDUM" means the information memorandum
dated
September, 2004 used by the Arrangers in connection with the
syndication
of the Commitments.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of
the
initial Borrowing and the initial issuance of a Letter of
Credit
hereunder.
"INITIAL ISSUING BANK" has the meaning specified in the recital
of
parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital
of
parties to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if
any,
of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of
ERISA.
"INTELLECTUAL PROPERTY ASSET" means any and all rights or
interests
in any intellectual property (including but not limited to
patents,
copyrights, trademarks, service marks, domain
Great Wolf Senior Secured Revolving Credit Facility
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<PAGE>
names, trade dress, logos, designs, slogans, trade names,
business names,
corporate names and other source identifiers, whether registered
or
unregistered) held by Great Wolf Services, LLC, regardless of
whether the
same is now or hereafter used, held or acquired.
"INTEREST COVERAGE RATIO" means, at any date of determination,
the
ratio of (a) EBITDA to (b) the sum of interest (including
capitalized
interest) payable on, and amortization of debt discount in
respect of, all
Debt for Borrowed Money, in each case, of or by the Parent
Guarantor and
its Subsidiaries (without duplication) for the consecutive four
fiscal
quarters of the Parent Guarantor most recently ended for which
financial
statements are required to be delivered to the Lender Parties
pursuant to
Section 5.03(b) or (c), as the case may be; provided, however,
that for
purposes of calculating the Interest Coverage Ratio at any date
of
determination occurring during the fiscal quarter of the Parent
Guarantor
ending December 31, 2004, (x) the amount described in clause (a)
shall be
deemed to equal the amount of EBITDA attributable to the three
consecutive
fiscal quarters of the Parent Guarantor ending September 30,
2004 computed
on a pro forma basis, and (y) the amounts described in clause
(b) shall be
deemed to equal the sum of such items for the three consecutive
fiscal
quarters of the Parent Guarantor ending September 30, 2004
computed on a
pro forma basis; provided further, that calculations which
pertain to the
fiscal quarters of the Parent Guarantor ending on or prior to
December 31,
2004 shall be made on a pro forma basis, including to give
effect to the
IPO and the Formation Transactions.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising
part of the same Borrowing, the period commencing on the date of
such
Eurodollar Rate Advance or the date of the Conversion of any
Base Rate
Advance into such Eurodollar Rate Advance, and ending on the
last day of
the period selected by the Borrower pursuant to the provisions
below and,
thereafter, each subsequent period commencing on the last day of
the
immediately preceding Interest Period and ending on the last day
of the
period selected by the Borrower pursuant to the provisions
below. The
duration of each such Interest Period shall be one, two, three
or six
months, as the Borrower may, upon notice received by the
Administrative
Agent not later than 12:00 Noon (New York City time) on the
third Business
Day prior to the first day of such Interest Period, select;
provided,
however, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance that ends after the
Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall
be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of
such Interest Period shall be extended to occur on the next
succeeding Business Day; provided, however, that if such
extension
would cause the last day of such Interest Period to occur in
the
next following calendar month, the last day of such Interest
Period
shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on
a
day of an initial calendar month for which there is no
numerically
corresponding day in the calendar month that succeeds such
initial
calendar month by the number of months equal to the number of
months
in such Interest Period, such Interest Period shall end on the
last
Business Day of such succeeding calendar month.
Great Wolf Senior Secured Revolving Credit Facility
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<PAGE>
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as
amended from time to time, and the regulations promulgated and
rulings
issued thereunder.
"INVESTMENT" means (a) any loan or advance to any Person,
any
purchase or other acquisition of any Equity Interests or Debt or
the
assets comprising a division or business unit or a substantial
part or all
of the business of any Person, any capital contribution to any
Person or
any other direct or indirect investment in any Person,
including, without
limitation, any acquisition by way of a merger or consolidation
and any
arrangement pursuant to which the investor incurs Debt of the
types
referred to in clause (i) or (j) of the definition of "DEBT" in
respect of
any Person, and (b) the purchase or other acquisition of any
unimproved
land, Development Assets or Resort Assets.
"IPO" means the initial public offering of common stock of
the
Parent Guarantor and its registration as a public company with
the
Securities and Exchange Commission.
"ISSUING BANK" means the Initial Issuing Bank and any other
Lender
approved as an Issuing Bank by the Administrative Agent and the
Borrower
and any Eligible Assignee to which a Letter of Credit Commitment
hereunder
has been assigned pursuant to Section 9.07 so long as each such
Lender or
each such Eligible Assignee expressly agrees to perform in
accordance with
their terms all of the obligations that by the terms of this
Agreement are
required to be performed by it as an Issuing Bank and notifies
the
Administrative Agent of its Applicable Lending Office and the
amount of
its Letter of Credit Commitment (which information shall be
recorded by
the Administrative Agent in the Register) for so long as such
Initial
Issuing Bank, Lender or Eligible Assignee, as the case may be,
shall have
a Letter of Credit Commitment.
"JOINT VENTURE" means any joint venture (a) in which the
Parent
Guarantor or any of its Subsidiaries holds any Equity Interest,
(b) that
is not a Subsidiary of the Parent Guarantor or any of its
Subsidiaries and
(c) the accounts of which would not appear on the Consolidated
financial
statements of the Parent Guarantor.
"JOINT VENTURE ASSETS" means, with respect to any Joint Venture
at
any time, the assets owned by such Joint Venture at such
time.
"JV PRO RATA SHARE" means (a) with respect to any Joint
Venture
(other than a Designated Joint Venture), at any time, the
fraction,
expressed as a percentage, obtained by dividing (i) the total
book value
of all Equity Interests in such Joint Venture held by the Parent
Guarantor
and any of its Subsidiaries by (ii) the total book value of
all
outstanding Equity Interests in such Joint Venture at such time,
and (b)
with respect to a Designated Joint Venture, at any time, the
percentage
interest of the applicable party in profits and losses of such
Joint
Venture at such time.
"L/C CASH COLLATERAL ACCOUNT" means an account of the Borrower
to be
maintained with the Administrative Agent, in the name of the
Administrative Agent and under the sole control and dominion of
the
Administrative Agent and subject to the terms of this
Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(b)(ii)(A).
"LENDER PARTY" means any Lender, the Swing Line Bank or any
Issuing
Bank.
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<PAGE>
"LENDERS" means the Initial Lenders and each Person that
shall
become a Lender hereunder pursuant to Section 9.07 for so long
as such
Initial Lender or Person, as the case may be, shall be a party
to this
Agreement.
"LETTER OF CREDIT ADVANCE" means an advance made by any Issuing
Bank
or any Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to any
Issuing
Bank at any time, the amount set forth opposite such Issuing
Bank's name
on Schedule I hereto under the caption "Letter of Credit
Commitment" or,
if such Issuing Bank has entered into one or more Assignment
and
Acceptances, set forth for such Issuing Bank in the Register
maintained by
the Administrative Agent pursuant to Section 9.07(d) as such
Issuing
Bank's "Letter of Credit Commitment", as such amount may be
reduced at or
prior to such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal
to
the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of
Credit Commitments at such time, and (b) $5,000,000, as such
amount may be
reduced at or prior to such time pursuant to Section 2.05.
"LETTERS OF CREDIT" has the meaning specified in Section
2.01(b).
"LEVERAGE RATIO" means, at any date of determination, the ratio
of
Total Debt to EBITDA as at the end of the most recently ended
fiscal
quarter of the Parent Guarantor for which financial statements
are
required to be delivered to the Lender Parties pursuant to
Section 5.03(b)
or (c), as the case may be; provided, however, that, for
purposes of this
definition, Total Debt shall be computed without regard to the
Obligations
described by clause (h) of the definition of "Debt".
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement,
including, without limitation, the lien or retained security
title of a
conditional vendor and any easement, right of way or other
encumbrance on
title to real property.
"LIMITED SUBSIDIARY" means, at any date of determination, a
Subsidiary of a Loan Party (a) that is prohibited by the terms
of any loan
agreement or indenture or other material agreement to which it
is or is
then becoming a party from providing guarantees of the
Obligations of the
Loan Parties under the Loan Documents, (b) that is being formed
with the
intention of incurring Non-Recourse Debt permitted under
Section
5.02(b)(iii)(E) in respect of Assets that are not Borrowing Base
Assets,
or (c) that is inactive or holds de minimis assets. For the
avoidance of
doubt, it is acknowledged that assets comprised of a single
liquor license
(or other similar license) relating to a Borrowing Base Asset
are deemed
not to be de minimis for purposes of this definition.
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c)
the
Fee Letter, (d) each Letter of Credit Agreement, (e) each
Guaranty
Supplement, (f) the Collateral Documents, and (g) each Secured
Hedge
Agreement, in each case, as amended.
"LOAN PARTIES" means the Borrower and the Guarantors.
Great Wolf Senior Secured Revolving Credit Facility
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"LOAN VALUE" means, with respect to any Borrowing Base Asset,
an
amount equal to 60% of the most recent Appraised Value of such
Borrowing
Base Asset.
"MANAGEMENT AGREEMENT" means individually (and collectively, as
the
context may require) (x) the Management Agreement, of even date
herewith,
between Great Lakes Services, LLC and Great Bear Lodge of
Wisconsin Dells,
LLC, (y) the Management Agreement, of even date herewith,
between Great
Lakes Services, LLC and Great Bear Lodge of Sandusky, LLC and
(z) any
Management Agreement in respect of a Borrowing Base Asset
entered into
after the Closing Date in compliance with Section 5.01(o).
"MANAGEMENT RESERVE" means, with respect to any Asset for any
fiscal
period, an amount equal to 3.0% of the total revenues generated
from the
operation of such Asset for such fiscal period.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the
business, condition (financial or otherwise), results of
operations or
prospects of the Borrower or the Borrower and its Subsidiaries,
taken as a
whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the
business, condition (financial or otherwise), operations or
prospects of
the Borrower and its Subsidiaries, taken as a whole, (b) the
rights and
remedies of any Agent or any Lender Party under any Loan
Document, (c) the
ability of any Loan Party to perform its Obligations under any
Loan
Document to which it is or is to be a party or (d) the value of
the
Collateral.
"MATERIAL CONTRACT" means each contract to which the Borrower or
any
of its Subsidiaries is a party involving aggregate consideration
payable
to or by the Borrower or such Subsidiary in an amount of
$5,000,000 or
more per annum or which, if terminated, would be reasonably
likely to
result in a Material Adverse Change.
"MATERIAL DEBT" means Debt of any Loan Party or any Subsidiary
of a
Loan Party that is outstanding in a principal amount (or, in the
case of
any Hedge Agreement, an Agreement Value) of $10,000,000 or more,
either
individually or in the aggregate; in each case (a) whether the
primary
obligation of one or more of the Loan Parties or their
respective
Subsidiaries, (b) whether the subject of one or more separate
debt
instruments or agreements, and (c) exclusive of Debt outstanding
under
this Agreement.
"MOODY'S" means Moody's Investors Services, Inc. and any
successor
thereto.
"MORTGAGE POLICIES" has the meaning specified in Section
3.01(a)(iii)(B).
"MORTGAGES" has the meaning specified in Section
3.01(a)(iii).
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined
in
Section 4001(a)(3) of ERISA, to which any Loan Party or any
ERISA
Affiliate is making or accruing an obligation to make
contributions, or
has within any of the preceding five plan years made or accrued
an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any
Loan Party or any
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ERISA Affiliate and at least one Person other than the Loan
Parties and
the ERISA Affiliates or (b) was so maintained and in respect of
which any
Loan Party or any ERISA Affiliate could have liability under
Section 4064
or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NEGATIVE PLEDGE" means, with respect to any asset, any
provision of
a document, instrument or agreement (other than a Loan Document)
which
prohibits or purports to prohibit the creation or assumption of
any Lien
on such asset as security for Debt of the Person owning such
asset or any
other Person.
"NET ASSET SALES PROCEEDS" has the meaning specified in
Section
5.02(e)(i)(B).
"NET OPERATING INCOME" means, with respect to any Borrowing
Base
Asset, (a) the total rental revenue and other revenues from the
operation
of such Borrowing Base Asset, minus (b) the FF&E Reserve for
such
Borrowing Base Asset and all expenses and other proper charges
incurred in
connection with the operation and maintenance of such Borrowing
Base
Asset, including, without limitation, management fees, repairs,
real
estate and chattel taxes and bad debt expenses, but before
payment or
provision for debt service charges, income taxes and
depreciation,
amortization, asset impairment charges and other non-cash
expenses and
non-recurring charges, all as determined in accordance with GAAP
and in
each case for consecutive four fiscal quarters of the Parent
Guarantor
most recently ended for which financial statements are required
to be
delivered pursuant to Section 5.03(b) or (c), as the case may
be.
"NON-RECOURSE DEBT" means Debt for Borrowed Money with respect
to
which recourse for payment is limited to (a) any building(s) or
parcel(s)
of real property or any related assets encumbered by a Lien
securing such
Debt for Borrowed Money and/or (b) (i) the general credit of
the
Property-Level Subsidiary that has incurred such Debt for
Borrowed Money,
and/or the direct Equity Interests therein and/or (ii) the
general credit
of the immediate parent entity of such Property-Level Subsidiary
provided
that such parent entity's assets consist solely of Equity
Interests in one
or more Property-Level Subsidiaries, it being understood that
the
instruments governing such Debt may include customary carve-outs
to such
limited recourse (any such customary carve-outs or agreements
limited to
such customary carve-outs, being a "CUSTOMARY CARVE-OUT
AGREEMENT") such
as, for example, personal recourse to the Parent Guarantor or
any
Subsidiary of the Parent Guarantor for fraud,
misrepresentation,
misapplication or misappropriation of cash, waste, environmental
claims,
damage to properties, non-payment of taxes or other liens
despite the
existence of sufficient cash flow, interference with the
enforcement of
loan documents upon maturity or acceleration, voluntary or
involuntary
bankruptcy filings, violation of loan document prohibitions
against
transfer of properties or ownership interests therein and
liabilities and
other circumstances customarily excluded by lenders from
exculpation
provisions and/or included in separate indemnification and/or
guaranty
agreements in non-recourse financings of real estate.
"NOTE" means a promissory note of the Borrower payable to the
order
of any Lender, in substantially the form of Exhibit A hereto,
evidencing
the aggregate indebtedness of the Borrower to such Lender
resulting from
the Revolving Credit Advances, Swing Line Advances and Letter of
Credit
Advances made by such Lender.
"NOTICE" has the meaning specified in Section 9.02(c).
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
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"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(b).
"NOTICE OF SWING LINE BORROWING" has the meaning specified
in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(b).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind,
including,
without limitation, any liability of such Person on any claim,
whether or
not the right of any creditor to payment in respect of such
claim is
reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured,
and whether
or not such claim is discharged, stayed or otherwise affected by
any
proceeding referred to in Section 6.01(f). Without limiting the
generality
of the foregoing, the Obligations of any Loan Party under the
Loan
Documents include (a) the obligation to pay principal, interest,
Letter of
Credit commissions, charges, expenses, fees, attorneys' fees
and
disbursements, indemnities and other amounts payable by such
Loan Party
under any Loan Document and (b) the obligation of such Loan
Party to
reimburse any amount in respect of any of the foregoing that any
Lender
Party, in its sole discretion, may elect to pay or advance on
behalf of
such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OP GENERAL PARTNER" means GWR OP General Partner, LLC, a
Delaware
limited liability company.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARENT GUARANTOR" has the meaning specified in the recital
of
parties to this Agreement.
"PARTICIPANT" has the meaning specified in Section
2.03(c)(i).
"PATRIOT ACT" has the meaning specified in Section 9.12.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any
successor).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure
proceeding shall
have been commenced: (a) Liens for taxes, assessments and
governmental
charges or levies not yet due and payable; (b) Liens imposed by
law, such
as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens
and other similar Liens arising in the ordinary course of
business
securing obligations that (i) are not overdue for a period of
more than 30
days and (ii) individually or together with all other Permitted
Liens
outstanding on any date of determination do not materially
adversely
affect the use of the property to which they relate; (c) pledges
or
deposits to secure obligations under workers' compensation or
unemployment
laws or similar legislation or to secure public or statutory
obligations;
(d) easements, zoning restrictions, rights of way and other
encumbrances
on title to real property that do not materially adversely
affect the use
or value of such property for its present purposes; (e) Tenancy
Leases;
(f) Permitted Encumbrances (as defined in each of the
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<PAGE>
Mortgages); and (g) with respect to any Excluded Subsidiary,
any
non-monetary Liens permitted under agreements pertaining to
Non-Recourse
Debt.
"PERSON" means an individual, partnership, corporation
(including a
business trust), limited liability company, joint stock company,
trust,
unincorporated association, joint venture or other entity, or a
government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLATFORM" has the meaning specified in Section 9.02(b).
"POST PETITION INTEREST" has the meaning specified in
Section
7.07(c).
"PREDECESSORS" means (a) "Great Lakes Predecessor" or
"Predecessor",
as more particularly described in and as such terms are defined
in, the
Registration Statement, (b) Great Bear Lodge of Sandusky, LLC,
and (c)
Great Bear Lodge of Wisconsin Dells, LLC.
"PREFERRED INTERESTS" means, with respect to any Person,
Equity
Interests issued by such Person that are entitled to a
preference or
priority over any other Equity Interests issued by such Person
upon any
distribution of such Person's property and assets, whether by
dividend or
upon liquidation.
"PROPERTY-LEVEL SUBSIDIARY" means any Subsidiary of the Borrower
or
any Joint Venture that holds a direct fee or leasehold interest
in any
single building (or group of related buildings, including,
without
limitation, buildings pooled for purposes of a Non-Recourse
Debt
financing) or parcel (or group of related parcels, including,
without
limitation, parcels pooled for purposes of a Non-Recourse Debt
financing)
of real property and related assets and not in any other
building or
parcel of real property.
"PROPOSED BORROWING BASE ASSET" has the meaning specified in
Section
5.01(j)(iv).
"PRO RATA SHARE" of any amount means, with respect to any Lender
at
any time, the product of such amount times a fraction the
numerator of
which is the amount of such Lender's Revolving Credit Commitment
at such
time (or, if the Commitments shall have been terminated pursuant
to
Section 2.05 or 6.01, such Lender's Revolving Credit Commitment
as in
effect immediately prior to such termination) and the
denominator of which
is the Revolving Credit Facility at such time (or, if the
Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the
Revolving
Credit Facility as in effect immediately prior to such
termination).
"QUALIFYING GROUND LEASE" means a ground lease containing
the
following terms and conditions: (a) a remaining term (exclusive
of any
unexercised extension options) of 30 years or more from the
Closing Date;
(b) the right of the lessee to mortgage and encumber its
interest in the
leased property without the consent of the lessor; (c) the
obligation of
the lessor to give the holder of any mortgage Lien on such
leased property
written notice of any defaults on the part of the lessee and
agreement of
such lessor that such lease will not be terminated until such
holder has
had a reasonable opportunity to cure or complete foreclosures,
and fails
to do so; (d) reasonable transferability of the lessee's
interest under
such lease, including ability to sublease; and (e) such other
rights
customarily required by mortgagees making a loan secured by the
interest
of the holder of a leasehold estate demised pursuant to a ground
lease.
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"REAL PROPERTY" means all right, title and interest of the
Borrower
and each of its Subsidiaries in and to any land and any
improvements
located thereon, together with all equipment, furniture,
materials,
supplies, personal property and all other rights and property
within the
scope of the definition of Mortgaged Property (as defined in the
Form of
Mortgage attached hereto as Exhibit G) in which such Person has
an
interest now or hereafter located on or used in connection with
such land
and improvements, and all appurtenances, additions,
improvements,
renewals, substitutions and replacements thereof now or
hereafter acquired
by such Person.
"REFERENCE BANKS" means Citibank, N.A., Societe Generale and
Calyon.
"REFINANCING DEBT" means, with respect to any Debt, any Debt
extending the maturity of, or refunding or refinancing, in whole
or in
part, such Debt, provided that the terms of any Refinancing
Debt, and of
any agreement entered into and of any instrument issued in
connection
therewith, (a) do not provide for any Lien on any Borrowing Base
Assets
and, (b) do not cause a breach of any of the covenants set forth
in
Section 5.04, and (c) are not otherwise prohibited by the Loan
Documents.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGISTRATION STATEMENT" means the Parent Guarantor's Form
S-1
Registration Statement filed with the Securities and Exchange
Commission
in connection with the IPO, as amended.
"REGULATION U" means Regulation U of the Board of Governors of
the
Federal Reserve System, as in effect from time to time.
"REQUIRED LENDER PARTIES" means (a) CNAI, Societe Generale
and
Calyon, in each case to the extent such Person or an Affiliate
thereof is
a Lender at such time, and (b) such additional Lenders, if any,
as shall,
together with CNAI, Societe Generale and Calyon, be necessary
to
constitute Required Lenders.
"REQUIRED LENDERS" means, at any time, Lenders owed or
holding
greater than 50% of the sum of (a) the aggregate principal
amount of the
Advances outstanding at such time, (b) the aggregate Available
Amount of
all Letters of Credit outstanding at such time and (c) the
aggregate
Unused Revolving Credit Commitments at such time. For purposes
of this
definition, the aggregate principal amount of Swing Line
Advances owing to
the Swing Line Bank and of Letter of Credit Advances owing to
any Issuing
Bank and the Available Amount of each Letter of Credit shall be
considered
to be owed to the Revolving Lenders ratably in accordance with
their
respective Revolving Credit Commitments.
"RESORT ASSET" means Real Property (other than any Joint
Venture
Asset) that operates or is intended to be operated as a hotel or
resort
that features indoor water parks or other family oriented
facilities or is
a structure from which a hotel or resort that features indoor
water parks
or other family oriented facilities is operated or intended to
be
operated.
"RESPONSIBLE OFFICER" means any officer of, or any officer of
any
general partner or managing member of, the relevant Loan Party,
which
officer shall have (a) responsibility for performing the
underlying
function that is the subject of the action required of such
officer
hereunder, or (b) supervisory responsibility for such an
officer.
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section
2.01(a).
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"REVOLVING CREDIT COMMITMENT" means, (a) with respect to any
Lender
at any time, the amount set forth opposite such Lender's name on
Schedule
I hereto under the caption "Revolving Credit Commitment" or (b)
if such
Lender has entered into one or more Assignment and Acceptances,
set forth
for such Lender in the Register maintained by the Administrative
Agent
pursuant to Section 9.07(d) as such Lender's "Revolving
Credit
Commitment", as such amount may be reduced at or prior to such
time
pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount
of the Lenders' Revolving Credit Commitments at such time.
"S&P" means Standard & Poor's Ratings Group, a division
of The
McGraw-Hill Companies, Inc. and any successor thereto.
"SALE AND LEASEBACK TRANSACTION" shall mean any arrangement with
any
Person providing for the leasing by the Parent Guarantor or any
of its
Subsidiaries of any Real Property that has been sold or
transferred or is
to be sold or transferred by the Parent Guarantor or such
Subsidiary, as
the case may be, to such Person.
"SANDUSKY ASSET" means the Resort Asset owned by Great Bear
Lodge of
Sandusky, LLC located in Sandusky, Ohio.
"SARBANES-OXLEY" means the Sarbanes-Oxley Act of 2002, as
amended.
"SCOTRUN ASSET" means the Resort Asset owned by Great Wolf Lodge
of
the Poconos, LLC located in Scotrun, Pennsylvania.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required
or
permitted under Article V that is entered into by and between
any Loan
Party and any Hedge Bank and that is secured by the Collateral
Documents.
"SECURED OBLIGATIONS" means, collectively, the "Secured
Obligations"
as defined in Section 2 of the Security Agreement.
"SECURED PARTIES" means the Agents, the Lender Parties and the
Hedge
Banks.
"SECURITIES ACT" means the Securities Act of 1933, as amended to
the
date hereof and from time to time hereafter, and any successor
statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934,
as amended to the date hereof and from time to time hereafter,
and any
successor statute.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"SHEBOYGAN ASSET" means the Resort Asset owned by Blue Harbor
Resort
Sheboygan, LLC located in Sheboygan, Michigan.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined
in
Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any
Loan Party or any ERISA Affiliate and no Person other than the
Loan
Parties and the ERISA Affiliates or (b) was so maintained and in
respect
of which any Loan Party or any ERISA Affiliate could have
liability under
Section 4069 of ERISA in the event such plan has been or were to
be
terminated.
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<PAGE>
"SG AMERICAS" has the meaning specified in the recital of
parties to
this Agreement.
"SOLVENT" means, with respect to any Person on a particular
date,
that on such date (a) the fair value of the property of such
Person, on a
going-concern basis, 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, on
a
going-concern basis, 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
the light
of all the facts and circumstances existing at such time
(including,
without limitation, after taking into account appropriate
discount factors
for the present value of future contingent liabilities),
represents the
amount that can reasonably be expected to become an actual or
matured
liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under
the Letter of Credit Facility, other than a Trade Letter of
Credit.
"SUBORDINATED OBLIGATIONS" has the meaning specified in
Section
7.07(a).
"SUBSIDIARY" of any Person means any corporation, partnership,
joint
venture, limited liability company, trust or estate of which (or
in which)
50% or more of (a) the issued and outstanding capital stock
having
ordinary voting power to elect a majority of the Board of
Directors of
such corporation (irrespective of whether at the time capital
stock of any
other class or classes of such corporation shall or might have
voting
power upon the occurrence of any contingency), (b) the interest
in the
capital or profits of such partnership, joint venture or limited
liability
company or (c) the beneficial interest in such trust or estate,
in each
case, is at the time directly or indirectly owned or controlled
by such
Person, by such Person and one or more of its other Subsidiaries
or by one
or more of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTOR" has the meaning specified in the recital
of
parties to this Agreement.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in
Section
8.01(b).
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries
outstanding immediately before and after giving effect to the
IPO and the
Formation Transactions.
"SWING LINE ADVANCE" means an advance made by (a) the Swing
Line
Bank pursuant to Section 2.01(c) or (b) any Lender pursuant to
Section
2.02(b).
"SWING LINE BANK" means CNAI, in its capacity as the Lender of
Swing
Line Advances, and its successors and permitted assigns in such
capacity.
"SWING LINE BORROWING" means a borrowing consisting of a Swing
Line
Advance made by the Swing Line Bank pursuant to Section 2.01(c)
or the
Lenders pursuant to Section 2.02(b).
Great Wolf Senior Secured Revolving Credit Facility
24
<PAGE>
"SWING LINE COMMITMENT" means, with respect to the Swing Line
Bank,
the amount of the Swing Line Facility set forth in Section
2.01(b), as
such amount may be reduced at or prior to such time pursuant to
Section
2.05.
"SWING LINE FACILITY" has the meaning specified in Section
2.01(c).
"TAXES" has the meaning specified in Section 2.12(a).
"TENANCY LEASES" means operating leases, subleases,
licenses,
occupancy agreements and rights-of-use entered into by the
Borrower or any
of its Subsidiaries in its capacity as a lessor or a similar
capacity in
the ordinary course of business that do not materially and
adversely
affect the use of the Real Property encumbered thereby for its
intended
purpose (excluding any lease entered into in connection with a
Sale and
Leaseback Transaction).
"TERMINATION DATE" means the earlier of (a) the third
anniversary of
the Closing Date and (b) the date of termination in whole of the
Revolving
Credit Commitments, the Swing Line Commitment and the Letter of
Credit
Commitments pursuant to Section 2.05 or 6.01.
"TOTAL DEBT" means, at any date of determination, all
Consolidated
Debt of the Parent Guarantor and its Subsidiaries as at the end
of the
most recently ended fiscal quarter of the Parent Guarantor for
which
financial statements are required to be delivered to the Lender
Parties
pursuant to Section 5.03(b) or (c), as the case may be.
"TOTAL LOAN VALUE" means an amount equal to the lesser of (a)
the
sum of the Loan Values of all Borrowing Base Assets and (b) the
sum of (i)
3.75 times Adjusted Net Operating Income, and (ii) a credit
equal to the
lesser of (A) 60% of the actual cost to upgrade the waterpark at
the
Wisconsin Dells Asset and (B) $5,400,000, which credit shall
decline on a
straight-line basis over the 12-month period following
completion of such
upgrade.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued
under the Letter of Credit Facility for the benefit of a
supplier of
inventory to the Borrower or any of its Subsidiaries to effect
payment for
such Inventory.
"TRANSFER" has the meaning specified in Section 5.02(e)(i).
"TYPE" refers to the distinction between Advances bearing
interest
at the Base Rate and Advances bearing interest at the Eurodollar
Rate.
"UNUSED FEE" has the meaning specified in Section 2.08(a).
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any
Lender at any time, (a) such Lender's Revolving Credit
Commitment at such
time minus (b) the sum of (i) the aggregate principal amount of
all
Revolving Credit Advances, Swing Line Advances and Letter of
Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding
at such time plus (ii) such Lender's Pro Rata Share of (A) the
aggregate
Available Amount of all Letters of Credit outstanding at such
time, (B)
the aggregate principal amount of all Letter of Credit Advances
made by
the Issuing Banks pursuant to Section 2.03(c) and outstanding at
such time
and (C) the aggregate principal amount of all Swing Line
Advances made by
the Swing Line Bank pursuant to Section 2.01(c) and outstanding
at such
time; provided, however, that for purposes of calculating the
Unused Fee,
prior to the date of an assignment by the Swing Line Bank to the
other
Lenders of their respective Pro Rata Shares of a Swing Line
Advance
pusuant
Great Wolf Senior Secured Revolving Credit Facility
25
<PAGE>
to Section 2.02(b), (1) the Pro Rata Share of each Lender (other
than the
Swing Line Bank) of the amount referred to in clause (C) with
respect to
such Swing Line Advance shall be deemed to be zero, and (2) the
Pro Rata
Share of the Swing Line Bank of the amount referred to in clause
(C) with
respect to such Swing Line Advance shall be deemed to be entire
principal
amount of such Swing Line Advance.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person,
the
holders of which are ordinarily, in the absence of
contingencies, entitled
to vote for the election of directors (or persons performing
similar
functions) of such Person, even if the right so to vote has been
suspended
by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1)
of
ERISA, that is maintained for employees of any Loan Party or in
respect of
which any Loan Party could have liability.
"WILLIAMSBURG ASSET" means the Resort Asset owned by Great
Wolf
Lodge of Williamsburg, LLC located in Williamsburg,
Virginia.
"WISCONSIN DELLS ASSET" means the Resort Asset owned by Great
Bear
Lodge of Wisconsin Dells, LLC located in Wisconsin Dells,
Wisconsin.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I
of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other
Definitional
Provisions. In this Agreement and the other Loan Documents in
the computation of
periods of time from a specified date to a later specified date,
the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each
mean "to but
excluding". References in the Loan Documents to any agreement or
contract "AS
AMENDED" shall mean and be a reference to such agreement or
contract as amended,
amended and restated, supplemented or otherwise modified from
time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance
with generally
accepted accounting principles consistent with those applied in
the preparation
of the financial statements referred to in Section 4.01(g)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a)
The
Revolving Credit Advances. Each Lender severally agrees, on the
terms and
conditions hereinafter set forth, to make advances (each, a
"REVOLVING CREDIT
ADVANCE") to the Borrower from time to time on any Business Day
during the
period from the date hereof until the Termination Date in an
amount for each
such Advance not to exceed such Lender's Unused Revolving Credit
Commitment at
such time. Each Borrowing shall be in an aggregate amount of
$1,000,000 or an
integral multiple of $250,000 in excess thereof and shall
consist of Revolving
Credit Advances made simultaneously by the Lenders ratably
according to their
Revolving Credit Commitments. Within the limits of each Lender's
Unused
Revolving Credit Commitment in effect from time to time and
prior to the
Termination Date, the Borrower may borrow under this Section
2.01(a), prepay
pursuant to Section 2.06(a) and reborrow under this Section
2.01(a).
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26
<PAGE>
(b) Letters of Credit. Each Issuing Bank severally agrees, on
the
terms and conditions hereinafter set forth, to issue (or cause
its Affiliate
that is a commercial bank to issue on its behalf) letters of
credit (the
"LETTERS OF CREDIT"), for the account of the Borrower from time
to time on any
Business Day during the period from the date hereof until 60
days before the
Termination Date in an aggregate Available Amount (i) for all
Letters of Credit
not to exceed at any time the Letter of Credit Facility at such
time, (ii) for
all Letters of Credit issued by such Issuing Bank not to exceed
such Issuing
Bank's Letter of Credit Commitment at such time, and (iii) for
each such Letter
of Credit not to exceed the Unused Revolving Credit Commitments
of the Lenders
at such time. No Letter of Credit shall have an expiration date
(including all
rights of the Borrower or the beneficiary to require renewal)
later than the
earlier of 60 days before the Termination Date and (A) in the
case of a Standby
Letter of Credit one year after the date of issuance thereof,
but may by its
terms be renewable annually upon notice (a "NOTICE OF RENEWAL")
given to the
Issuing Bank that issued such Standby Letter of Credit and the
Administrative
Agent on or prior to any date for notice of renewal set forth in
such Letter of
Credit but in any event at least three Business Days prior to
the date of the
proposed renewal of such Standby Letter of Credit and upon
fulfillment of the
applicable conditions set forth in Article III unless such
Issuing Bank has
notified the Borrower (with a copy to the Administrative Agent)
on or prior to
the date for notice of termination set forth in such Letter of
Credit but in any
event at least 30 Business Days prior to the date of automatic
renewal of its
election not to renew such Standby Letter of Credit (a "NOTICE
OF TERMINATION")
and (B) in the case of a Trade Letter of Credit, 60 days after
the date of
issuance thereof; provided, however, that the terms of each
Standby Letter of
Credit that is automatically renewable annually shall (x)
require the Issuing
Bank that issued such Standby Letter of Credit to give the
beneficiary named in
such Standby Letter of Credit notice of any Notice of
Termination, (y) permit
such beneficiary, upon receipt of such notice, to draw under
such Standby Letter
of Credit prior to the date such Standby Letter of Credit
otherwise would have
been automatically renewed and (z) not permit the expiration
date (after giving
effect to any renewal) of such Standby Letter of Credit in any
event to be
extended to a date later than 60 days before the Termination
Date. If either a
Notice of Renewal is not given by the Borrower or a Notice of
Termination is
given by the relevant Issuing Bank pursuant to the immediately
preceding
sentence, such Standby Letter of Credit shall expire on the date
on which it
otherwise would have been automatically renewed; provided,
however, that even in
the absence of receipt of a Notice of Renewal the relevant
Issuing Bank may in
its discretion, unless instructed to the contrary by the
Administrative Agent or
the Borrower, deem that a Notice of Renewal had been timely
delivered and in
such case, a Notice of Renewal shall be deemed to have been so
delivered for all
purposes under this Agreement. Each Standby Letter of Credit
shall contain a
provision authorizing the Issuing Bank that issued such Letter
of Credit to
deliver to the beneficiary of such Letter of Credit, upon the
occurrence and
during the continuance of an Event of Default, a notice (a
"DEFAULT TERMINATION
NOTICE") terminating such Letter of Credit and giving such
beneficiary 15 days
to draw such Letter of Credit. Within the limits of the Letter
of Credit
Facility, and subject to the limits referred to above, the
Borrower may request
the issuance of Letters of Credit under this Section 2.01(b) and
request the
issuance of additional Letters of Credit under this Section
2.01(b).
(c) Swing Line Advances. The Borrower may request the Swing
Line
Bank to make, and the Swing Line Bank agrees to make, on the
terms and
conditions hereinafter set forth, Swing Line Advances to the
Borrower from time
to time on any Business Day during the period from the date
hereof until the
Termination Date (i) in an aggregate amount not to exceed at any
time
outstanding $5,000,000 (the "SWING LINE FACILITY") and (ii) in
an amount for
each such Swing Line Borrowing not to exceed the aggregate of
the Unused
Revolving Credit Commitments of the Lenders at such time. No
Swing Line Advance
shall be used for the purpose of funding the payment of
principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an
amount of $250,000
or an integral multiple of $250,000 in excess thereof and shall
be made as a
Base Rate Advance. Within the limits of the Swing Line Facility
and within the
limits referred to in clause (ii) above, the Borrower may borrow
under this
Great Wolf Senior Secured Revolving Credit Facility
27
<PAGE>
Section 2.01(c), repay pursuant to Section 2.04(b) or prepay
pursuant to Section
2.06(a) and reborrow under this Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided
in Section 2.03, each Borrowing (other than a Swing Line
Borrowing) shall be
made on notice, given not later than 12:00 Noon (New York City
time) on the
third Business Day prior to the date of the proposed Borrowing
in the case of a
Borrowing consisting of Eurodollar Rate Advances, or not later
than 1:00 P.M.
(New York City time) on the date one Business Day prior to the
date of the
proposed Borrowing in the case of a Borrowing consisting of Base
Rate Advances,
by the Borrower to the Administrative Agent, which shall give to
each Lender
prompt notice thereof by telex or telecopier. Each such notice
of a Borrowing (a
"NOTICE OF BORROWING") shall be by telephone, confirmed
immediately in writing,
or telex or telecopier or e-mail, in each case in substantially
the form of
Exhibit B hereto, specifying therein the requested (i) date of
such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such
Borrowing and (iv) in the case of a Borrowing consisting of
Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each
Lender shall,
before 12:00 Noon (New York City time) on the date of such
Borrowing in the case
of a Borrowing consisting of Eurodollar Rate Advances and 1:00
P.M. (New York
City time) on the date of such Borrowing in the case of a
Borrowing consisting
of Base Rate Advances, make available for the account of its
Applicable Lending
Office to the Administrative Agent at the Administrative Agent's
Account, in
same day funds, such Lender's ratable portion of such Borrowing
in accordance
with the respective Commitments of such Lender and the other
Lenders. After the
Administrative Agent's receipt of such funds and upon
fulfillment of the
applicable conditions set forth in Article III, the
Administrative Agent will
make such funds available to the Borrower by crediting the
Borrower's Account;
provided, however, that the Administrative Agent shall first
make a portion of
such funds equal to the aggregate principal amount of any Swing
Line Advances
and Letter of Credit Advances made by the Swing Line Bank or any
Issuing Bank,
as the case may be, and by any other Lender and outstanding on
the date of such
Borrowing, plus interest accrued and unpaid thereon to and as of
such date,
available to the Swing Line Bank or such Issuing Bank, as the
case may be, and
such other Lenders for repayment of such Swing Line Advances and
Letter of
Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not
later than 12:00 Noon (New York City time) on the date of the
proposed Swing
Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative
Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF
SWING LINE
BORROWING") shall be by telephone, confirmed immediately in
writing or by
telecopier or e-mail, in each case specifying therein the
requested (i) date of
such Borrowing, (ii) amount of such Borrowing and (iii) maturity
of such
Borrowing (which maturity shall be no later than the earlier of
(A) the seventh
day after the requested date of such Borrowing and (B) the
Termination Date).
The Swing Line Bank shall, before 1:00 P.M. (New York City time)
on the date of
such Swing Line Borrowing, make the amount thereof available to
the
Administrative Agent at the Administrative Agent's Account, in
same day funds.
After the Administrative Agent's receipt of such funds and upon
fulfillment of
the applicable conditions set forth in Article III, the
Administrative Agent
will make such funds available to the Borrower by crediting the
Borrower's
Account. Upon written demand by the Swing Line Bank, with a copy
of such demand
to the Administrative Agent, each other Lender shall purchase
from the Swing
Line Bank, and the Swing Line Bank shall sell and assign to each
such other
Lender, such other Lender's Pro Rata Share of such outstanding
Swing Line
Advance as of the date of such demand, by making available for
the account of
its Applicable Lending Office to the Administrative Agent for
the account of the
Swing Line Bank, by deposit to the Administrative Agent's
Account, in same day
funds, an amount equal to the portion of the outstanding
principal amount of
such Swing Line Advance to be purchased by such Lender. The
Borrower hereby
agrees to each such sale and assignment. Each Lender agrees to
purchase its Pro
Rata Share of an outstanding Swing Line Advance on (i) the
Business Day on which
demand therefor is made by the Swing Line Bank, provided that
notice of such
demand is given not later than 12:00 Noon (New York City time)
on such Business
Day or (ii) the first Business Day next
Great Wolf Senior Secured Revolving Credit Facility
28
<PAGE>
succeeding such demand if notice of such demand is given after
such time. Upon
any such assignment by the Swing Line Bank to any other Lender
of a portion of a
Swing Line Advance, the Swing Line Bank represents and warrants
to such other
Lender that the Swing Line Bank is the legal and beneficial
owner of such
interest being assigned by it, but makes no other representation
or warranty and
assumes no responsibility with respect to such Swing Line
Advance, the Loan
Documents or any Loan Party. If and to the extent that any
Lender shall not have
so made the amount of such Swing Line Advance available to the
Administrative
Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand
such amount together with interest thereon, for each day from
the date of demand
by the Swing Line Bank until the date such amount is paid to the
Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to
the Administrative
Agent such amount for the account of the Swing Line Bank on any
Business Day,
such amount so paid in respect of principal shall constitute a
Swing Line
Advance made by such Lender on such Business Day for purposes of
this Agreement,
and the outstanding principal amount of the Swing Line Advance
made by the Swing
Line Bank shall be reduced by such amount on such Business
Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for
the initial Borrowing hereunder or for any Borrowing if the
aggregate amount of
such Borrowing is less than $1,000,000 or if the obligation of
the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant
to Section
2.07(d)(ii), 2.09 or 2.10 and (ii) there may not be more than 10
separate
Borrowings outstanding at any time.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing
shall be irrevocable and binding on the Borrower. In the case of
any Borrowing
that the related Notice of Borrowing specifies is to be
comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Lender against
any loss, cost
or expense incurred by such Lender as a result of any failure to
fulfill on or
before the date specified in such Notice of Borrowing for such
Borrowing the
applicable conditions set forth in Article III, including,
without limitation,
any loss, cost or expense incurred by reason of the liquidation
or reemployment
of deposits or other funds acquired by such Lender to fund the
Advance to be
made by such Lender as part of such Borrowing when such Advance,
as a result of
such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice
from
a Lender prior to (x) the date of any Borrowing consisting of
Eurodollar Rate
Advances or (y) 12:00 Noon (New York City time) on the date of
any Borrowing
consisting of Base Rate Advances that such Lender will not make
available to the
Administrative Agent such Lender's ratable portion of such
Borrowing, the
Administrative Agent may assume that such Lender has made such
portion available
to the Administrative Agent on the date of such Borrowing in
accordance with
subsection (a) of this Section 2.02 and the Administrative Agent
may, in
reliance upon such assumption, make available to the Borrower on
such date a
corresponding amount. If and to the extent that such Lender
shall not have so
made such ratable portion available to the Administrative Agent,
such Lender and
the Borrower severally agree to repay or pay to the
Administrative Agent
forthwith on demand such corresponding amount and to pay
interest thereon, for
each day from the date such amount is made available to the
Borrower until the
date such amount is repaid or paid to the Administrative Agent,
at (i) in the
case of the Borrower, the interest rate applicable at such time
under Section
2.07 to Advances comprising such Borrowing and (ii) in the case
of such Lender,
the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent
such corresponding amount, such amount so paid shall constitute
such Lender's
Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance 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 Advance on
Great Wolf Senior Secured Revolving Credit Facility
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the date of such Borrowing, but no Lender shall be responsible
for the failure
of any other Lender to make the Advance to be made by such other
Lender on the
date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement
Under
Letters of Credit. (a) Request for Issuance. Each Letter of
Credit shall be
issued upon notice, given not later than 12:00 Noon (New York
City time) on the
fifth Business Day prior to the date of the proposed issuance of
such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to
the
Administrative Agent and each Lender prompt notice thereof by
telex, telecopier
or e-mail or by means of the Platform. Each such notice of
issuance of a Letter
of Credit (a "NOTICE OF ISSUANCE") shall be by telephone,
confirmed immediately
in writing, telex, telecopier or e-mail, in each case specifying
therein the
requested (i) date of such issuance (which shall be a Business
Day), (ii)
Available Amount of such Letter of Credit, (iii) expiration date
of such Letter
of Credit, (iv) name and address of the beneficiary of such
Letter of Credit and
(v) form of such Letter of Credit, and shall be accompanied by
such application
and agreement for letter of credit as such Issuing Bank may
specify to the
Borrower for use in connection with such requested Letter of
Credit (a "LETTER
OF CREDIT AGREEMENT"). If (y) the requested form of such Letter
of Credit is
acceptable to such Issuing Bank in its sole discretion and (z)
it has not
received notice of objection to such issuance from the Required
Lenders, such
Issuing Bank will, upon fulfillment of the applicable conditions
set forth in
Article III, make such Letter of Credit available to the
Borrower at its office
referred to in Section 9.02 or as otherwise agreed with the
Borrower in
connection with such issuance. In the event and to the extent
that the
provisions of any Letter of Credit Agreement shall conflict with
this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish
(i) to
each Lender on the first Business Day of each month a written
report summarizing
issuance and expiration dates of Letters of Credit issued by
such Issuing Bank
during the preceding month and drawings during such month under
all Letters of
Credit issued by such Issuing Bank and (ii) to the
Administrative Agent and each
Lender on the first Business Day of each calendar quarter a
written report
setting forth the average daily aggregate Available Amount
during the preceding
calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Letter of Credit Participations; Drawing and Reimbursement.
(i)
Immediately upon the issuance by the Issuing Bank of any Letter
of Credit, the
Issuing Bank shall be deemed to have sold and transferred to
each Lender, and
each Lender (in its capacity under this Section 2.03(c), a
"PARTICIPANT") shall
be deemed irrevocably and unconditionally to have purchased and
received from
the Issuing Bank, without recourse or warranty, an undivided
interest and
participation in such Letter of Credit, to the extent of such
Participant's Pro
Rata Share of the Available Amount of such Letter of Credit,
each drawing or
payment made thereunder and the obligations of the Borrower
under this Agreement
with respect thereto, and any security therefor or guaranty
pertaining thereto.
Upon any change in the Revolving Credit Commitments or the
Lenders' respective
Pro Rata Shares pursuant to Section 9.07, it is hereby agreed
that, with respect
to all outstanding Letters of Credit and unpaid drawings
relating thereto, there
shall be an automatic adjustment to the participations pursuant
to this Section
2.03(c) to reflect the new Pro Rata Shares of the assignor and
assignee Lenders,
as the case may be.
(ii) In determining whether to pay under any Letter of Credit,
the
Issuing Bank shall not have any obligation with respect to the
other Revolving
Credit Lenders other than to confirm that any documents required
to be delivered
under such Letter of Credit appear to have been delivered and
that they appear
to substantially comply on their face with the requirements of
such Letter of
Credit. Any action taken or omitted to be taken by the Issuing
Bank under or in
connection with any Letter of Credit issued by it shall not
create for the
Issuing Bank any resulting liability to the Borrower, any other
Loan Party, any
Revolving Credit Lender or any other Person unless such action
is taken or
omitted to be taken
Great Wolf Senior Secured Revolving Credit Facility
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<PAGE>
with gross negligence or willful misconduct on the part of the
Issuing Bank (as
determined by a court of competent jurisdiction in a final
non-appealable
judgment)
(iii) The payment by any Issuing Bank of a draft drawn under
any
Letter of Credit shall constitute for all purposes of this
Agreement the making
by such Issuing Bank of a Letter of Credit Advance, which shall
be a Base Rate
Advance, in the amount of such draft. In the event that the
Issuing Bank makes
any payment under any Letter of Credit issued by it and the
Borrower shall not
have reimbursed such amount in full to the Issuing Bank pursuant
to Section
2.04(b), the Issuing Bank shall promptly notify the
Administrative Agent, which
shall promptly notify each Participant of such failure, and each
Participant
shall promptly and unconditionally pay to the Administrative
Agent for the
account of the Issuing Bank the amount of such Participant's Pro
Rata Share of
such unreimbursed payment in U.S. dollars and in same day funds.
Upon such
notification by the Administrative Agent to any Participant
required to fund a
payment under a Letter of Credit, such Participant shall make
available to the
Administrative Agent for the account of the Issuing Bank its Pro
Rata Share of
an outstanding Letter of Credit Advance on (i) the Business Day
on which demand
therefor is made by the Issuing Bank which made such Advance,
provided that
notice of such demand is given not later than 11:00 A.M. (New
York City time) on
such Business Day, or (ii) the first Business Day next
succeeding such demand if
notice of such demand is given after such time. If such Lender
shall pay to the
Administrative Agent such amount for the account of such Issuing
Bank on any
Business Day, such amount so paid in respect of principal shall
constitute a
Letter of Credit Advance made by such Lender on such Business
Day for purposes
of this Agreement, and the outstanding principal amount of the
Letter of Credit
Advance made by such Issuing Bank shall be reduced by such
amount on such
Business Day. If and to the extent that any Lender shall not
have so made the
amount of such Letter of Credit Advance available to the
Administrative Agent,
such Lender agrees to pay to the Administrative Agent forthwith
on demand such
amount together with interest thereon, for each day from the
date of demand by
such Issuing Bank until the date such amount is paid to the
Administrative
Agent, at the Federal Funds Rate for its account or the account
of such Issuing
Bank, as applicable.
(iv) Whenever the Issuing Bank receives a payment of a
reimbursement
obligation as to which it has received any payments from the
Participants
pursuant to clause (iii) above, the Issuing Bank shall pay to
the Administrative
Agent for the account of each such Participant that has paid its
Pro Rata Share
thereof, in same day funds, an amount equal to such
Participant's share (based
upon the proportionate aggregate amount originally funded by
such Participant to
the aggregate amount funded by all Participants) of the
principal amount of such
reimbursement obligation and interest thereon accruing after the
purchase of the
respective participations.
(d) Failure to Make Letter of Credit Advances. The failure of
any
Lender to make the Letter of Credit Advance to be made by it on
the date
specified in Section 2.03(c) shall not relieve any other Lender
of its
obligation hereunder to make its Letter of Credit Advance on
such date, but no
Lender shall be responsible for the failure of any other Lender
to make the
Letter of Credit Advance to be made by such other Lender on such
date.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit
Advances.
The Borrower shall repay to the Administrative Agent for the
ratable account of
the Lenders on the Termination Date the aggregate outstanding
principal amount
of the Revolving Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of (i) the Swing Line Bank
and (ii) each
other Lender that has made a Swing Line Advance by purchase from
the Swing Line
Bank pursuant to Section 2.02(b), the outstanding principal
amount of each Swing
Line Advance made by each of them on the earlier of the maturity
date specified
in the applicable
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Notice of Swing Line Borrowing (which maturity shall be no later
than the
seventh day after the requested date of such Swing Line
Borrowing) and the
Termination Date.
(c) Letter of Credit Advances. (i) The Borrower shall repay to
the
Administrative Agent for the account of each Issuing Bank and
each other Lender
that has made a Letter of Credit Advance on the same day on
which such Advance
was made the outstanding principal amount of each Letter of
Credit Advance made
by each of them.
(ii) The Obligations of the Borrower under this Agreement,
any
Letter of Credit Agreement and any other agreement or instrument
relating to any
Letter of Credit (and the obligations of each Lender to
reimburse the Issuing
Bank with respect thereto) shall be unconditional and
irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement,
such Letter of
Credit Agreement and such other agreement or instrument under
all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document,
any
Letter of Credit Agreement, any Letter of Credit or any other
agreement or
instrument relating thereto (all of the foregoing being,
collectively, the
"L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in
any
other term of, all or any of the Obligations of the Borrower in
respect of
any L/C Related Document or any other amendment or waiver of or
any
consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other right
that
the Borrower may have at any time against any beneficiary or
any
transferee of a Letter of Credit (or any Persons for which any
such
beneficiary or any such transferee may be acting), any Issuing
Bank or any
other Person, whether in connection with the transactions
contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a 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;
(E) payment by any Issuing Bank under a Letter of Credit
against
presentation of a draft or certificate that does not strictly
comply with
the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or
other collateral, or any release or amendment or waiver of or
consent to
departure from the Guaranties or any other guarantee, for all or
any of
the Obligations of the Borrower in respect of the L/C Related
Documents;
or
(G) any other circumstance or happening whatsoever, whether or
not
similar to any of the foregoing, including, without limitation,
any other
circumstance that might otherwise constitute a defense available
to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments.
(a)
Optional. The Borrower may, upon at least three Business Days'
notice to the
Administrative Agent, terminate in whole or reduce in part the
unused portions
of the Swing Line Facility, the Letter of Credit Facility and
the Unused
Revolving Credit Commitments; provided, however, that each
partial reduction of
a Facility (i) shall be in an aggregate amount of $1,000,000
(or, in the case of
the Swing Line Facility, $250,000) or
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<PAGE>
an integral multiple of $250,000 in excess thereof and (ii)
shall be made
ratably among the Lenders in accordance with their Commitments
with respect to
such Facility.
(b) Mandatory. (i) The Revolving Credit Facility shall be
automatically and permanently reduced, on a pro rata basis, on
each date on
which prepayment thereof is required to be made pursuant to
Section 2.06(b)(ii)
in an amount equal to the aggregate principal amount of
Revolving Credit
Advances so required to be paid, provided that each such
reduction of the
Revolving Credit Facility shall be made ratably among the
Lenders in accordance
with their Commitments.
(ii) The Letter of Credit Facility shall be permanently reduced
from
time to time on the date of each reduction in the Revolving
Credit Facility by
the amount, if any, by which the amount of the Letter of Credit
Facility exceeds
the Revolving Credit Facility after giving effect to such
reduction of the
Revolving Credit Facility.
(iii) The Swing Line Facility shall be permanently reduced from
time
to time on the date of each reduction in the Revolving Credit
Facility by the
amount, if any, by which the amount of the Swing Line Facility
exceeds the
Revolving Credit Facility after giving effect to such reduction
of the Revolving
Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon
same
day notice in the case of Base Rate Advances and two Business
Days' notice in
the case of Eurodollar Rate Advances, in each case to the
Administrative Agent
stating the proposed date and aggregate principal amount of the
prepayment, and
if such notice is given the Borrower shall, prepay the
outstanding aggregate
principal amount of the Advances comprising part of the same
Borrowing in whole
or ratably in part, together with accrued interest to the date
of such
prepayment on the aggregate principal amount prepaid; provided,
however, that
(i) each partial prepayment shall be in an aggregate principal
amount of
$1,000,000 or an integral multiple of $250,000 in excess thereof
or, if less,
the amount of the Advances outstanding and (ii) if any
prepayment of a
Eurodollar Rate Advance is made on a date other than the last
day of an Interest
Period for such Advance, the Borrower shall also pay any amounts
owing pursuant
to Section 9.04(c).
(b) Mandatory. (i) The Borrower shall, on each Business Day,
prepay
an aggregate principal amount of the Revolving Credit Advances
comprising part
of the same Borrowings, the Swing Line Advance and the Letter of
Credit Advances
and, to the extent all Advances have been prepaid, make a
deposit, to the extent
necessary, in the L/C Cash Collateral Account in an amount equal
to the amount
by which (A) the sum of the aggregate principal amount of (1)
the Revolving
Credit Advances then outstanding, (2) the Swing Line Advances
then outstanding
and (3) the Letter of Credit Advances then outstanding plus the
aggregate
Available Amount of all Letters of Credit then outstanding
exceeds (B) the
lesser of the Revolving Credit Facility and the Total Loan Value
on such
Business Day.
(ii) In accordance with Section 5.02(e), the Borrower shall,
within
12 months following the date of receipt of any Net Asset Sales
Proceeds by the
Borrower or any of its Subsidiaries, prepay an aggregate
principal amount of the
Revolving Credit Advances comprising part of the same Borrowings
and the Letter
of Credit Advances and deposit an amount in the L/C Cash
Collateral Account in
an amount equal to the amount of such Net Asset Sales Proceeds
that have not be
reinvested as permitted under Section 5.02(f), provided that any
amount of Net
Asset Sales Proceeds remaining after the Facility Exposure has
been reduced to
zero may be retained by the Borrower or its Subsidiaries.
(iii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral
Account an amount
sufficient to cause the aggregate amount on deposit in the L/C
Cash Collateral
Account to equal the amount by which the aggregate Available
Amount of all
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33
<PAGE>
Letters of Credit then outstanding exceeds the Letter of Credit
Facility on such
Business Day. To the extent the funds on deposit in the L/C Cash
Collateral
Account shall at any time exceed the total amount required to be
deposited
therein pursuant to the terms of this Agreement, the
Administrative Agent shall,
promptly upon request by the Borrower and provided that no
Default or Event of
Default shall then have occurred or be continuing or would
result therefrom,
return such excess amount to the Borrower.
(iv) Prepayments of the Revolving Credit Facility made pursuant
to
clauses (i), (ii) and (iii) above shall be first applied to
prepay Letter of
Credit Advances then outstanding until such Advances are paid in
full, second
applied to prepay Swing Line Advances then outstanding until
such Advances are
paid in full, third applied to prepay Revolving Credit Advances
then outstanding
comprising part of the same Borrowings until such Advances are
paid in full and
fourth deposited in the L/C Cash Collateral Account to cash
collateralize 100%
of the Available Amount of the Letters of Credit then
outstanding. Upon the
drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the
relevant
Issuing Bank or Lenders, as applicable.
(v) All prepayments under this subsection (b) shall be made
together
with accrued interest to the date of such prepayment on the
principal amount
prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall
pay interest on the unpaid principal amount of each Advance
owing to each Lender
from the date of such Advance until such principal amount shall
be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a
Base Rate Advance, a rate per annum equal at all times to the
sum of (A)
the Base Rate in effect from time to time plus (B) the
Applicable Margin
in effect from time to time, payable in arrears quarterly on the
last day
of each December, March, June and September during such periods
and on the
date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance
is a Eurodollar Rate Advance, a rate per annum equal at all
times during
each Interest Period for such Advance to the sum of (A) the
Eurodollar
Rate for such Interest Period for such Advance plus (B) the
Applicable
Margin in effect on the first day of such Interest Period,
payable in
arrears on the last day of such Interest Period and, if such
Interest
Period has a duration of more than three months, on each day
that occurs
during such Interest Period every three months from the first
day of such
Interest Period and on the date such Eurodollar Rate Advance
shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance
of any Event of Default, the Borrower shall pay interest on (i)
the unpaid
principal amount of each Advance owing to each Lender, payable
in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above and on
demand, at a rate per
annum equal at all times to 2% per annum above the rate per
annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above
and (ii) to the
fullest extent permitted by law, the amount of any interest, fee
or other amount
payable under the Loan Documents that is not paid when due, from
the date such
amount shall be due until such amount shall be paid in full,
payable in arrears
on the date such amount shall be paid in full and on demand, at
a rate per annum
equal at all times to 2% per annum above the rate per annum
required to be paid,
in the case of interest, on the Type of Advance on which such
interest has
accrued pursuant to clause (a)(i) or (a)(ii) above and, in all
other cases, on
Base Rate Advances pursuant to clause (a)(i) above.
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(c) Notice of Interest Period and Interest Rate. Promptly
after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a
notice of
Conversion pursuant to Section 2.09 or a notice of selection of
an Interest
Period pursuant to the terms of the definition of "Interest
Period", the
Administrative Agent shall give notice to the Borrower and each
Lender of the
applicable Interest Period and the applicable interest rate
determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above, and the
applicable rate, if any, furnished by each Reference Bank for
the purpose of
determining the applicable interest rate under clause (a)(ii)
above.
(d) Interest Rate Determination. (i) Each Reference Bank agrees
to
furnish to the Administrative Agent timely information for the
purpose of
determining each Eurodollar Rate. If any one or more of the
Reference Banks
shall not furnish such timely information to the Administrative
Agent for the
purpose of determining any such interest rate, the
Administrative Agent shall
determine such interest rate on the basis of timely information
furnished by the
remaining Reference Banks.
(ii) If Telerate Page 3750 (or a successor page) is unavailable
and
fewer than two Reference Banks are able to furnish timely
information to the
Administrative Agent for determining the Eurodollar Rate for any
Eurodollar Rate
Advances,
(A) the Administrative Agent shall forthwith notify the Borrower
and
the Lenders that the interest rate cannot be determined for
such
Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day of
the
then existing Interest Period therefor, Convert into a Base Rate
Advance
(or if such Advance is then a Base Rate Advance, will continue
as a Base
Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert
Advances
into, Eurodollar Rate Advances shall be suspended until the
Administrative
Agent shall notify the Borrower and the Lenders that the
circumstances
causing such suspension no longer exist.
SECTION 2.08. Fees. (a) Unused Fee. The Borrower shall pay to
the
Administrative Agent for the account of the Lenders an unused
commitment fee
(the "UNUSED FEE"), from the date hereof in the case of each
Initial Lender and
from the effective date specified in the Assignment and
Acceptance, pursuant to
which it became a Lender in the case of each other Lender until
the Termination
Date, payable in arrears quarterly on the last day of each
December, March, June
and September, commencing December 31, 2004, and on the
Termination Date. The
Unused Fee payable for the account of each Lender shall be
calculated for each
period for which the Unused Fee is payable on the average daily
Unused Revolving
Credit Commitment of such Lender during such period at the rate
of 0.50% per
annum.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the
Administrative Agent for the account of each Lender a
commission, payable in
arrears, (a) quarterly on the last day of each December, March,
June and
September, commencing December 31, 2004, and (b) on the earliest
to occur of the
full drawing, expiration, termination or cancellation of any
Letter of Credit,
and (c) on the Termination Date, on such Lender's Pro Rata Share
of the average
daily aggregate Available Amount during such quarter of all
Letters of Credit
outstanding from time to time for the applicable period at the
rate per annum
equal to the Applicable Margin for Eurodollar Rate Advances in
effect from time
to time.
(ii) The Borrower shall pay to each Issuing Bank, for its
own
account, (A) a fronting fee for each Letter of Credit issued by
such Issuing
Bank in an amount equal to 0.125% of the Available Amount of
such Letter of
Credit on the date of issuance of such Letter of Credit, payable
on such date
and
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<PAGE>
(B) such other commissions, issuance fees, transfer fees and
other fees and
charges in connection with the issuance or administration of
each Letter of
Credit as the Borrower and such Issuing Bank shall agree.
(c) Agents' Fees. The Borrower shall pay to each Agent for its
own
account the fees, in the amounts and on the dates, set forth in
the Fee Letter
and such other fees as may from time to time be agreed between
the Borrower and
such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower
may
on any Business Day, upon notice given to the Administrative
Agent not later
than 12:00 Noon (New York City time) on the third Business Day
prior to the date
of the proposed Conversion and subject to the provisions of
Sections 2.07 and
2.10, Convert all or any portion of the Advances of one Type
comprising the same
Borrowing into Advances of the other Type; provided, however,
that any
Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made
only on the last day of an Interest Period for such Eurodollar
Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in
an amount not less than the minimum amount specified in Section
2.02(c), no
Conversion of any Advances shall result in more separate
Borrowings than
permitted under Section 2.02(c) and each Conversion of Advances
comprising part
of the same Borrowing under any Facility shall be made ratably
among the Lenders
in accordance with their Commitments under such Facility. Each
such notice of
Conversion shall, within the restrictions specified above,
specify (i) the date
of such Conversion, (ii) the Advances to be Converted and (iii)
if such
Conversion is into Eurodollar Rate Advances, the duration of the
initial
Interest Period for such Advances. Each notice of Conversion
shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than
$1,000,000, such
Advances shall automatically Convert into Base Rate
Advances.
(ii) If the Borrower shall fail to select the duration of
any
Interest Period for any Eurodollar Rate Advances in accordance
with the
provisions contained in the definition of "Interest Period" in
Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and
the Lenders,
whereupon each such Eurodollar Rate Advance will automatically,
on the last day
of the then existing Interest Period therefor, Convert into a
Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of
Default, (y) each Eurodollar Rate Advance will automatically, on
the last day of
the then existing Interest Period therefor, Convert into a Base
Rate Advance and
(z) the obligation of the Lenders to make, or to Convert
Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i)
the
introduction of or any change in or in the interpretation of any
law or
regulation or (ii) the compliance with any guideline or request
from any central
bank or other governmental authority (whether or not having the
force of law),
there shall be any increase in the cost to any Lender Party of
agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or
of agreeing to
issue or of issuing or maintaining or participating in Letters
of Credit or of
agreeing to make or of making or maintaining Letter of Credit
Advances
(excluding, for purposes of this Section 2.10, any such
increased costs
resulting from (y) Taxes or Other Taxes (as to which Section
2.12 shall govern)
and (z) changes in the basis of taxation of overall net income
or overall gross
income by the United States or by the foreign jurisdiction or
state under the
laws of which such Lender Party is organized or has its
Applicable Lending
Office or any political subdivision thereof), then the Borrower
shall from time
to time, upon demand by such Lender Party (with a copy of such
demand to the
Administrative Agent), pay to the Administrative Agent for the
account of such
Lender Party additional amounts sufficient to compensate such
Lender Party for
such increased
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cost; provided, however, that a Lender Party claiming additional
amounts under
this Section 2.10(a) agrees to use reasonable efforts
(consistent with its
internal policy and legal and regulatory restrictions) to
designate a different
Applicable Lending Office if the making of such a designation
would avoid the
need for, or reduce the amount of, such increased cost that may
thereafter
accrue and would not, in the reasonable judgment of such Lender
Party, be
otherwise disadvantageous to such Lender Party. A certificate as
to the amount
of such increased cost, submitted to the Borrower by such Lender
Party, shall be
conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender Party determines that compliance with any law
or
regulation or any guideline or request from any central bank or
other
governmental authority (whether or not having the force of law)
affects or would
affect the amount of capital required or expected to be
maintained by such
Lender Party or any corporation controlling such Lender Party
and that the
amount of such capital is increased by or based upon the
existence of such
Lender Party's commitment to lend or to issue or participate in
Letters of
Credit hereunder and other commitments of such type or the
issuance or
maintenance of or participation in the Letters of Credit (or
similar contingent
obligations), then, upon demand by such Lender Party or such
corporation (with a
copy of such demand to the Administrative Agent), the Borrower
shall pay to the
Administrative Agent for the account of such Lender Party, from
time to time as
specified by such Lender Party, additional amounts sufficient to
compensate such
Lender Party in the light of such circumstances, to the extent
that such Lender
Party reasonably determines such increase in capital to be
allocable to the
existence of such Lender Party's commitment to lend or to issue
or participate
in Letters of Credit hereunder or to the issuance or maintenance
of or
participation in any Letters of Credit. A certificate as to such
amounts
submitted to the Borrower by such Lender Party shall be
conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the
Required
Lenders notify the Administrative Agent that the Eurodollar Rate
for any
Interest Period for such Advances will not adequately reflect
the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate
Advances for
such Interest Period, the Administrative Agent shall forthwith
so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar
Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until
the Administrative Agent shall notify the Borrower that such
Lenders have
determined that the circumstances causing such suspension no
longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the
introduction of or any change in or in the interpretation of any
law or
regulation shall make it unlawful, or any central bank or other
governmental
authority shall assert that it is unlawful, for any Lender or
its Eurodollar
Lending Office to perform its obligations hereunder to make
Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder,
then, on notice thereof and demand therefor by such Lender to
the Borrower
through the Administrative Agent, (i) each Eurodollar Rate
Advance will
automatically, upon such demand, Convert into a Base Rate
Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall
notify the
Borrower that such Lender has determined that the circumstances
causing such
suspension no longer exist; provided, however, that, before
making any such
demand, such Lender agrees to use reasonable efforts (consistent
with its
internal policy and legal and regulatory restrictions) to
designate a different
Eurodollar Lending Office if the making of such a designation
would allow such
Lender or its Eurodollar Lending Office to continue to perform
its obligations
to make Eurodollar Rate Advances or to continue to fund or
maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be
otherwise
disadvantageous to such Lender.
Great Wolf Senior Secured Revolving Credit Facility
37
<PAGE>
SECTION 2.11. Payments and Computations. (a) The Borrower shall
make
each payment hereunder and under the Notes, irrespective of any
right of
counterclaim or set-off (except as otherwise provided in Section
2.13), not
later than 12:00 Noon (New York City time) on the day when due
in U.S. dollars
to the Administrative Agent at the Administrative Agent's
Account in same day
funds, with payments being received by the Administrative Agent
after such time
being deemed to have been received on the next succeeding
Business Day. The
Administrative Agent will promptly thereafter cause like funds
to be distributed
(i) if such payment by the Borrower is in respect of principal,
interest,
commitment fees or any other Obligation then payable hereunder
and under the
Notes to more than one Lender Party, to such Lender Parties for
the account of
their respective Applicable Lending Offices ratably in
accordance with the
amounts of such respective Obligations then payable to such
Lender Parties and
(ii) if such payment by the Borrower is in respect of any
Obligation then
payable hereunder to one Lender Party, to such Lender Party for
the account of
its Applicable Lending Office, in each case to be applied in
accordance with the
terms of this Agreement. Upon its acceptance of an Assignment
and Acceptance and
recording of the information contained therein in the Register
pursuant to
Section 9.07(d), from and after the effective date of such
Assignment and
Acceptance, the Administrative Agent shall make all payments
hereunder and under
the Notes in respect of the interest assigned thereby to the
Lender Party
assignee thereunder, and the parties to such Assignment and
Acceptance shall
make all appropriate adjustments in such payments for periods
prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each of
its
Affiliates, if and to the extent payment owed to such Lender
Party is not made
when due hereunder or, in the case of a Lender, under the Note
held by such
Lender, to charge from time to time, to the fullest extent
permitted by law,
against any or all of the Borrower's accounts with such Lender
Party any amount
so due.
(c) All computations of interest based on the Base Rate shall
be
made by the Administrative Agent on the basis of a year of 365
or 366 days, as
the case may be, and all computations of interest based on the
Eurodollar Rate
or the Federal Funds Rate and of fees and Letter of Credit
commissions shall be
made by the Administrative Agent on the basis of a year of 360
days, in each
case for the actual number of days (including the first day but
excluding the
last day) occurring in the period for which such interest, fees
or commissions
are payable. Each determination by the Administrative Agent of
an interest rate,
fee or commission hereunder shall be conclusive and binding for
all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall
be
stated to be due on a day other than a Business Day, such
payment shall be made
on the next succeeding Business Day, and such extension of time
shall in such
case be included in the computation of payment of interest or
commitment fee, as
the case may be; provided, however, that if su
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