<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
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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
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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
Great Wolf Senior Secured Revolving Credit
Facility
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<PAGE>
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
Great Wolf Senior Secured Revolving Credit
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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
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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
13
<PAGE>
"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
14
<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
15
<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.
Great Wolf Senior Secured Revolving Credit
Facility
16
<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
17
<PAGE>
"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
Great Wolf Senior Secured Revolving Credit
Facility
18
<PAGE>
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).
Great Wolf Senior Secured Revolving Credit
Facility
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<PAGE>
"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
Great Wolf Senior Secured Revolving Credit
Facility
20
<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.
Great Wolf Senior Secured Revolving Credit
Facility
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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).
Great Wolf Senior Secured Revolving Credit
Facility
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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.
Great Wolf Senior Secured Revolving Credit
Facility
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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).
Great Wolf Senior Secured Revolving Credit
Facility
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
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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
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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
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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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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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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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(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
Great Wolf Senior Secured Revolving Credit
Facility
36
<PAGE>
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
such extension would cause payment
of
