EXHIBIT 10.11(c)
CREDIT AGREEMENT
between
THE VAIL CORPORATION
(D/B/A "VAIL ASSOCIATES, INC.")
Borrower
and
NATIONSBANK OF TEXAS, N.A.
Lender
$32,000,000
OCTOBER 10, 1997
TABLE OF CONTENTS
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Page
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SECTION 1 DEFINITIONS AND TERMS........................................................ 1
1.1 Definitions.................................................................. 1
1.2 Number and Gender of Words................................................... 3
1.3 Accounting Principles........................................................ 3
SECTION 2 COMMITMENT................................................................... 3
2.1 Credit Facility.............................................................. 3
2.2 Loan Procedure............................................................... 4
SECTION 3 TERMS OF PAYMENT............................................................. 4
3.1 Note and Payments............................................................ 4
3.2 Interest and Principal Payments; Voluntary Commitment Reductions............. 4
3.3 Interest Options............................................................. 5
3.4 Quotation of Rates........................................................... 5
3.5 Default Rate................................................................. 5
3.6 Interest Recapture........................................................... 5
3.7 Interest Calculations........................................................ 5
3.8 Maximum Rate................................................................. 5
3.9 Interest Periods............................................................. 6
3.10 Conversions.................................................................. 6
3.11 Order of Application......................................................... 6
3.12 Booking Loans................................................................ 6
3.13 Basis Unavailable or Inadequate for LIBOR.................................... 6
3.14 Additional Costs............................................................. 7
3.15 Change in Laws............................................................... 7
3.16 Funding Loss................................................................. 7
3.17 Lender's Obligation to Mitigate.............................................. 8
SECTION 4 FEES......................................................................... 8
4.1 Treatment of Fees............................................................ 8
4.2 Underwriting Fee............................................................. 8
4.3 Commitment Fee............................................................... 8
SECTION 5 SECURITY..................................................................... 8
5.1 Guaranties................................................................... 8
5.2 Additional Security and Guaranties........................................... 8
SECTION 6 CONDITIONS PRECEDENT......................................................... 8
6.1 Initial Advance.............................................................. 8
6.2 Each Advance................................................................. 9
SECTION 7 REPRESENTATIONS AND WARRANTIES............................................... 9
7.1 Existing Representations..................................................... 9
7.2 Incurrence of Obligation..................................................... 9
7.3 Authorization and Contravention.............................................. 9
7.4 Binding Effect............................................................... 9
7.5 Full Disclosure.............................................................. 10
Page
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SECTION 8 AFFIRMATIVE COVENANTS........................................................ 10
8.1 Existing Affirmative Covenants............................................... 10
8.2 Items to be Furnished........................................................ 10
8.3 Use of Proceeds.............................................................. 10
8.4 Inspections.................................................................. 10
8.5 Expenses..................................................................... 10
8.6 Subsidiaries................................................................. 11
8.7 Indemnification.............................................................. 11
SECTION 9 NEGATIVE COVENANTS........................................................... 11
9.1 Existing Negative Covenants.................................................. 11
9.2 Taxes........................................................................ 11
9.3 Assignment................................................................... 11
SECTION 10 FINANCIAL COVENANTS.......................................................... 11
SECTION 11 DEFAULT...................................................................... 11
11.1 Payment of Obligation........................................................ 11
11.2 Covenants.................................................................... 12
11.3 Debtor Relief................................................................ 12
11.4 Misrepresentation............................................................ 12
11.5 Default Under January 1997 Agreement......................................... 12
11.6 Validity and Enforceability of Loan Papers................................... 12
SECTION 12 RIGHTS AND REMEDIES.......................................................... 12
12.1 Remedies Upon Default........................................................ 12
12.2 Company Waivers.............................................................. 12
12.3 Performance by Lender........................................................ 13
12.4 Not in Control............................................................... 13
12.5 Course of Dealing............................................................ 13
12.6 Cumulative Rights............................................................ 13
12.7 Application of Proceeds...................................................... 13
12.8 Certain Proceedings.......................................................... 13
SECTION 13 MISCELLANEOUS................................................................ 13
13.1 Headings..................................................................... 13
13.2 Nonbusiness Days; Time....................................................... 13
13.3 Communications............................................................... 13
13.4 Form and Number of Documents................................................. 14
13.5 Exceptions to Covenants...................................................... 14
13.6 Survival..................................................................... 14
13.7 Governing Law................................................................ 14
13.8 Invalid Provisions........................................................... 14
13.9 Venue; Service of Process; Jury Trial........................................ 14
13.10 Amendments, Consents, Conflicts and Waivers.................................. 15
13.11 Multiple Counterparts........................................................ 15
13.12 Successors and Assigns; Participation........................................ 15
13.13 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances.. 16
13.14 Entirety..................................................................... 16
SCHEDULES AND EXHIBITS
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Schedule 1 Parties, Addresses and Wiring Information
Schedule 7 Exceptions to January 1997 Agreement Representations
Exhibit A Revolving Credit Promissory Note
Exhibit B Guaranty
Exhibit C Loan Request
Exhibit D Conversion Request
CREDIT AGREEMENT
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This Credit Agreement is entered into as of October 10, 1997, between The
Vail Corporation, a Colorado corporation doing business as "Vail Associates,
Inc." ("BORROWER"), and NationsBank of Texas, N.A. ("LENDER").
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
SECTION DEFINITIONS AND TERMS.
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1.1 Definitions. Unless otherwise defined in this Agreement, capitalized
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terms in this Agreement are used as defined in the January 1997 Agreement.
APPLICABLE MARGIN means, for any day, the margin of interest over the Base
Rate or LIBOR, as the case may be, that is applicable when any interest rate is
determined under this Agreement. The Applicable Margin is subject to adjustment
(upwards or downwards, as appropriate) based on the ratio of Funded Debt to
Resort EBITDA, as follows:
RATIO OF FUNDED DEBT APPLICABLE APPLICABLE
TO RESORT EBITDA MARGIN FOR MARGIN FOR
LIBOR BASE RATE
LOANS LOANS
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Less than 2.25 to 1.00 0.500% 0.000%
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Greater than or equal to 0.625% 0.000%
2.25 to 1.00, but less than
2.75 to 1.00
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Greater than or equal to 0.750% 0.000%
2.75 to 1.00, but less than
3.25 to 1.00
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Greater than or equal to 1.000% 0.000%
3.25 to 1.00, but less than
3.75 to 1.00
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Greater than or equal to 1.250% 0.125%
3.75 to 1.00
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The ratio of Funded Debt to Resort EBITDA shall be calculated on a
consolidated basis for the Companies in accordance with GAAP for the most
recently completed fiscal year of the Companies for which results are
available. The ratio shall be determined from the Current Financials and
any related Compliance Certificate. However, if Borrower fails to furnish
to Agent the Current Financials and any related Compliance Certificate when
required pursuant to the January 1997 Agreement, then the ratio shall be
deemed to be greater than 4.00 to 1.00 until Borrower furnishes the
required Current Financials and any related Compliance Certificate to
Agent. Furthermore, if the Companies' audited Financial Statements
subsequently delivered to Agent for such fiscal year pursuant to the
January 1997 Agreement result in a different ratio, such revised ratio
(whether higher or lower) shall govern effective as of the date of such
delivery. For purposes of determining such ratio, Resort EBITDA for any
fiscal year shall include on a pro forma basis all EBITDA for such period
relating to assets acquired (including Restricted Subsidiaries formed or
organized) during such period, but shall exclude on a pro forma basis all
EBITDA for such period relating to any such assets disposed of in
accordance with this Agreement during such period.
Until the next required delivery after the date hereof of a Compliance
Certificate under the January 1997 Agreement, the ratio of Funded Debt to Resort
EBITDA shall be deemed to be greater than 2.75 to 1.00, but less than 3.25 to
1.00.
APPLICABLE PERCENTAGE means, for any day, the commitment fee percentage
applicable under SECTION 4.3 when commitment fees are determined under this
Agreement. The Applicable Percentage is subject to adjustment (upwards or
downwards, as appropriate) based on the ratio of Funded Debt to Resort EBITDA,
as follows:
RATIO OF FUNDED DEBT APPLICABLE
TO RESORT EBITDA PERCENTAGE
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Less than 2.25 to 1.00 0.125%
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Greater than or equal to 2.25 to 1.00, 0.150%
but less than 2.75 to 1.00
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Greater than or equal to 2.75 to 1.00, 0.200%
but less than 3.25 to 1.00
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Greater than or equal to 3.25 to 1.00, 0.300%
but less than 3.75 to 1.00
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Greater than or equal to 3.75 to 1.00 0.300%
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The ratio of Funded Debt to Resort EBITDA shall be determined as described in
the definition of "Applicable Margin."
CLOSING DATE means the date on which counterparts of this Agreement have
been executed and delivered by Borrower and Lender.
COMMITTED SUM means $32,000,000 (as reduced and canceled under this
Agreement).
CONVERSION REQUEST means a request substantially in the form of EXHIBIT D.
DEFAULT is defined in SECTION 11.
FACILITY means the revolving credit facility made available to Borrower
under this Agreement.
FUNDING LOSS means any loss or expense that Lender reasonably incurs
because (a) Borrower fails or refuses (for any reason whatsoever, other than a
default by Lender) to take any Loan that it has requested under this Agreement,
or (b) Borrower pays any LIBOR Loan or converts any LIBOR Loan to a Base Rate
Loan, in each case, before the last day of the applicable Interest Period.
GUARANTOR means any Company which has executed and delivered a Guaranty.
GUARANTY means a guaranty substantially in the form of EXHIBIT B.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
JANUARY 1997 AGREEMENT means the $340,000,000 Credit Agreement dated as of
January 3, 1997, among The Vail Corporation, NationsBank of Texas, N.A., as
Agent, and the Lenders named therein, as amended from time to time.
LOAN means any amount disbursed by Lender to Borrower or on behalf of any
Company under the Loan Papers, either as an original disbursement of funds or
the continuation of an amount outstanding.
LOAN DATE is defined in SECTION 2.2(A).
LOAN PAPERS means (a) this Agreement and the Note, (b) each Guaranty, and
(c) all renewals, extensions
and restatements of, and amendments and supplements to, any of the foregoing.
LOAN REQUEST means a request substantially in the form of EXHIBIT C.
NOTE means a promissory note substantially in the form of EXHIBIT A, as
amended, supplemented or restated.
OBLIGATION means all present and future indebtedness and obligations, and
all renewals, increases and extensions thereof, or any part thereof, now or
hereafter owed to Lender by the Companies under the Loan Papers, together with
all interest accruing thereon, fees, costs and expenses (including, without
limitation, all attorneys' fees and expenses incurred in the enforcement or
collection thereof) payable under the Loan Papers or in connection with the
protection of Rights under the Loan Papers.
PRINCIPAL DEBT means, at any time, the unpaid principal balance of all
Loans.
TERMINATION DATE means the earlier of (a) April 10, 1998, and (b) the date
on which the obligations of the Companies under the January 1997 Agreement are
refinanced.
1.2 Number and Gender of Words. The singular number includes the plural
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where appropriate and vice versa, and words of any gender include each other
gender where appropriate.
1.3 Accounting Principles. Under the Loan Papers and any documents
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delivered thereunder, unless otherwise stated, (a) GAAP in effect on the date of
this Agreement determines all accounting and financial terms and compliance with
financial covenants, (b) otherwise, all accounting principles applied in a
current period must be comparable in all material respects to those applied
during the preceding comparable period, and (c) while VRI has any consolidated
Restricted Subsidiaries, all accounting and financial terms and compliance with
financial covenants must be on a consolidating and consolidated basis, as
applicable.
SECTION 2 COMMITMENT.
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2.1 Credit Facility. Subject to the provisions in the Loan Papers, Lender
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hereby agrees to lend to Borrower one or more revolving Loans in an aggregate
principal amount outstanding at any time up to the Committed Sum, which Borrower
may borrow, repay, and reborrow under this Agreement. Loans are subject to the
following conditions:
(a) Each Loan must occur on a Business Day and no later than the
Business Day immediately preceding the Termination Date;
(b) Each Loan must be in an amount not less than (i) $500,000 or a
greater integral multiple of $100,000 (if a Base Rate Loan), or (ii)
$1,000,000 or a greater integral multiple of $100,000 (if a LIBOR Loan);
(c) The Principal Debt may never exceed the Committed Sum.
2.2 Loan Procedure.
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(a) Borrower may request a Loan by submitting a Loan Request, which
is irrevocable and binding on Borrower. It must be received by Lender no
later than 1:00 p.m. on the third Business Day preceding the date on which
funds are requested (the "LOAN DATE") for any LIBOR Loan or no later than
1:00 p.m. on the Business Day immediately preceding the Loan Date for any
Base Rate Loan.
(b) Lender shall (unless to its actual knowledge any of the
applicable conditions precedent
have not been satisfied by Borrower or waived) make such funds available to
Borrower as directed in the Loan Request.
SECTION 3 TERMS OF PAYMENT.
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3.1 Note and Payments.
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(a) Principal Debt under the Facility shall be evidenced by the Note,
payable to Lender in the stated principal amount of the Committed Sum.
(b) Borrower must make each payment on the Obligation to Lender's
principal office in Dallas, Texas, in funds that will be available for
immediate use by Lender by 12:00 noon on the day due; otherwise, but
subject to SECTION 3.8, those funds continue to accrue interest as if they
were received on the next Business Day.
3.2 Interest and Principal Payments; Voluntary Commitment Reductions.
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(a) Accrued interest on each LIBOR Loan is due and payable on the
last day of its Interest Period. If any Interest Period with respect to a
LIBOR Loan is a period greater than three months, then accrued interest is
also due and payable on the date three months after the commencement of the
Interest Period. Accrued interest on each Base Rate Loan is due and
payable on each Quarterly Date (commencing December 31, 1997) and on the
Termination Date.
(b) The Principal Debt is due and payable on the Termination Date.
(c) If the Principal Debt ever exceeds the Committed Sum, Borrower
shall pay Principal Debt in at least the amount of that excess, together
with (i) all accrued and unpaid interest on the principal amount so paid
and (ii) any resulting Funding Loss.
(d) Borrower may voluntarily reduce or prepay the Facility as
follows:
(i) Without premium or penalty and upon giving at least two
Business Days prior written and irrevocable notice to Lender, Borrower
may terminate all or reduce part of the unused portion of the
Committed Sum. Each partial reduction (unless the remaining portion
of such commitment is less) must be in an amount of not less than
$5,000,000 or a greater integral multiple of $1,000,000. Once
terminated or reduced, the Committed Sum may not be reinstated or
increased.
(ii) Borrower may voluntarily prepay all or any part of the
Principal Debt at any time without premium or penalty, subject to the
following conditions:
(A) Lender must receive Borrower's written payment notice
(which shall specify (1) the payment date, and (2) the Type and
amount of the Loan(s) to be paid;
(B) each partial payment must be in a minimum amount of at
least $500,000 if a Base Rate Loan or $1,000,000 if a LIBOR Loan
or, in either case, a greater integral multiple of $100,000;
(C) all accrued interest on the principal amount so to be
prepaid must also be paid in full on the date of payment; and
(D) Borrower shall pay any related Funding Loss upon demand.
3.3 Interest Options. Except where specifically otherwise provided, Loans
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bear interest at an annual rate equal to the lesser of (a) the Base Rate plus
the Applicable Margin or LIBOR plus the Applicable Margin for the Interest
Period, if any, selected by Borrower (in each case as designated or deemed
designated by Borrower), as the case may be, and (b) the Maximum Rate. Each
change in the Base Rate and Maximum Rate is effective, without notice to
Borrower or any other Person, upon the effective date of change.
3.4 Quotation of Rates. A Responsible Officer of Borrower may call Lender
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before delivering a Loan Request to receive an indication of the interest rates
then in effect, but the indicated rates do not bind Lender or affect the
interest rate that is actually in effect when Borrower delivers its Loan Request
or on the Loan Date.
3.5 Default Rate. If permitted by Law, all past-due Principal Debt and
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past-due interest bears interest from the date due (stated or by acceleration)
at the Default Rate until paid, regardless whether payment is made before or
after entry of a judgment.
3.6 Interest Recapture. If the designated interest rate applicable to any
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Loan exceeds the Maximum Rate, the interest rate on that Loan is limited to the
Maximum Rate, but any subsequent reductions in the designated rate shall not
reduce the interest rate thereon below the Maximum Rate until the total amount
of accrued interest equals the amount of interest that would have accrued if
that designated rate had always been in effect. If at maturity (stated or by
acceleration), or at final payment of the Note, the total interest paid or
accrued is less than the interest that would have accrued if the designated
rates had always been in effect, then, at that time and to the extent permitted
by Law, Borrower shall pay an amount equal to the difference between (a) the
lesser of the amount of interest that would have accrued if the designated rates
had always been in effect and the amount of interest that would have accrued if
the Maximum Rate had always been in effect, and (b) the amount of interest
actually paid or accrued on the Note.
3.7 Interest Calculations.
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(a) Interest will be calculated on the basis of actual number of days
elapsed (including the first day, but excluding the last day), but computed
as if each calendar year consisted of 360 days for LIBOR Loans (unless the
calculation would result in an interest rate greater than the Maximum Rate,
in which event interest will be calculated on the basis of a year of 365 or
366 days, as the case may be), and 365 or 366 days, as the case may be, for
Base Rate Loans. All interest rate determinations and calculations by
Lender are conclusive and binding absent manifest error.
(b) The provisions of this Agreement relating to calculation of the
Base Rate and LIBOR are included only for the purpose of determining the
rate of interest or other amounts to be paid under this Agreement that are
based upon those rates. Lender may fund and maintain its funding of all or
any part of each Loan as it selects.
3.8 Maximum Rate. Regardless of any provision contained in any Loan Paper
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or any document related thereto, Lender is not entitled to contract for, charge,
take, reserve, receive or apply, as interest on all or any part of the
Obligation any amount in excess of the Maximum Rate, and, if Lender ever does
so, then any excess shall be treated as a partial payment of principal and any
remaining excess shall be refunded to Borrower. In determining if the interest
paid or payable exceeds the Maximum Rate, Borrower and Lender shall, to the
maximum extent permitted under applicable Law, (a) treat all Loans as but a
single extension of credit (and Lender and Borrower agree that is the case and
that provision in this Agreement for multiple Loans is for convenience only),
(b) characterize any nonprincipal payment as an expense, fee or premium rather
than as interest, (c) exclude voluntary payments and their effects, and (d)
amortize, prorate, allocate and spread the total amount of interest throughout
the entire contemplated term of the Obligation. However, if the Obligation is
paid in full before the end of its full contemplated term, and if the interest
received for its actual period of existence exceeds the Maximum Amount, Lender
shall refund any excess (and Lender shall not, to the extent permitted by Law,
be subject to any
penalties provided by any Laws for contracting for, charging, taking, reserving
or receiving interest in excess of the Maximum Amount).
3.9 Interest Periods. When Borrower requests any LIBOR Loan, Borrower may
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elect the applicable interest period (each an "INTEREST PERIOD"), which may be,
at Borrower's option, one, two, three or six months, subject to the following
conditions: (a) the initial LIBOR Interest Period commences on the applicable
Loan Date or conversion date, and each subsequent LIBOR Interest Period
commences on the day when the next preceding applicable Interest Period expires;
(b) if any LIBOR Interest Period begins on a day for which no numerically
corresponding Business Day in the calendar month at the end of the Interest
Period exists, then the Interest Period ends on the last Business Day of that
calendar month; (c) no LIBOR Interest Period for any portion of Principal Debt
may extend beyond the scheduled payment date for that portion of Principal Debt;
and (d) no more than four LIBOR Interest Periods may be in effect at one time.
3.10 Conversions. Subject to the dollar limits and denominations of
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SECTION 2.1 and the limitations on LIBOR Interest Periods of SECTION 3.9,
Borrower may (a) convert all or part of a LIBOR Loan on the last day of the
applicable Interest Period to a Base Rate Loan, (b) convert all or part of a
Base Rate Loan at any time to a LIBOR Loan, and (c) elect a new Interest Period
for all or part of a LIBOR Loan, in each case by delivering a Conversion Request
to Lender no later than 1:00 p.m. on the third Business Day before the
conversion date or the last day of the Interest Period, as the case may be (for
conversion to a LIBOR Loan or election of a new Interest Period), and no later
than 1:00 p.m. one Business Day before the last day of the Interest Period (for
conversion to a Base Rate Loan). Absent Borrower's notice of conversion or
election of a new Interest Period, a LIBOR Loan shall be converted to a Base
Rate Loan when the applicable Interest Period expires.
3.11 Order of Application.
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(a) If no Default or Potential Default exists, any payment shall be
applied to the Obligation in the order and manner as Borrower directs.
(b) If a Default or Potential Default exists or if Borrower fails to
give direction, any other payment (including proceeds from the exercise of
any Rights hereunder) shall be applied in the following order: (i) to all
fees and expenses for which Lender has not been paid or reimbursed in
accordance with the Loan Papers (and if such payment is less than all
unpaid or unreimbursed fees and expenses, then the payment shall be paid
against unpaid and unreimbursed fees and expenses in the order of
incurrence or due date); (ii) to accrued interest on the Principal Debt;
and (iii) ratably to the remainder of the Obligation.
3.12 Booking Loans. To the extent permitted by Law, Lender may make, carry
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or transfer its Loans at, to, or for the account of any of its branch offices or
the office of any of its Affiliates. However, no Affiliate is entitled to
receive any greater payment under SECTION 3.14 than Lender would have been
entitled to receive with respect to those Loans.
3.13 Basis Unavailable or Inadequate for LIBOR. If, on or before any date
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when LIBOR is to be determined for a Loan, Lender determines that the basis for
determining the applicable rate is not available or that the resulting rate does
not accurately reflect the cost to Lender of making or converting Loans at that
rate for the applicable Interest Period, then it shall promptly notify Borrower
of that determination (which is conclusive and binding on Borrower absent
manifest error) and the applicable Loan shall bear interest at the sum of the
Base Rate plus the Applicable Margin. Until Lender notifies Borrower that those
circumstances no longer exist, Lender's commitments under this Agreement to
make, or to convert to, LIBOR Loans are suspended.
3.14 Additional Costs.
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(a) With respect to any LIBOR Loan, (i) if any present or future Law
imposes, modifies, or deems applicable (or if compliance by Lender with any
requirement of any Tribunal results in) any Reserve
Requirement, and if (ii) those reserves reduce any sums receivable by
Lender under this Agreement or increase the costs incurred by Lender in
advancing or maintaining any portion of any LIBOR Loan, then (iii) Lender
shall deliver to Borrower a certificate setting forth in reasonable detail
the calculation of the amount necessary to compensate it for its reduction
or increase (which certificate is conclusive and binding absent manifest
error), and (iv) Borrower shall promptly pay that amount to Lender upon
demand. This paragraph shall survive the satisfaction and payment of the
Obligation and termination of this Agreement. This paragraph may be invoked
by Lender only if Lender is generally invoking similar provisions against
other Persons to which Lender lends funds pursuant to facilities similar to
the Facility.
(b) With respect to any Loan, if any present or future Law regarding
capital adequacy or compliance by Lender with any request, directive or
requirement now existing or hereafter imposed by any Tribunal regarding
capital adequacy, or any change in its written policies or in the risk
category of this transaction, reduces the rate of return on its capital as
a consequence of its obligations under this Agreement to a level below that
which it otherwise could have achieved (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by it to be
material (and it may, in determining the amount, utilize reasonable
assumptions and allocations of costs and expenses and use any reasonable
averaging or attribution method), then (unless the effect is already
reflected in the rate of interest then applicable under this Agreement)
Lender shall notify Borrower and deliver to Borrower a certificate setting
forth in reasonable detail the calculation of the amount necessary to
compensate it (which certificate is conclusive and binding absent manifest
error), and Borrower shall promptly pay that amount to Lender upon demand.
This paragraph shall survive the satisfaction and payment of the Obligation
and termination of this Agreement. This paragraph may be invoked by Lender
only if Lender is generally invoking similar provisions against other
Persons to which Lender lends funds pursuant to facilities similar to the
Facility.
(c) Any Taxes payable by Lender or ruled (by a Tribunal) payable by
Lender in respect of any Loan Paper or any document related thereto shall,
if permitted by Law, be paid by Borrower, together with interest and
penalties, if any (other than for Taxes imposed on or measured by the
overall net income of Lender and interest and penalties incurred as a
result of the gross negligence or willful misconduct of Lender). Lender
shall notify Borrower and deliver to Borrower a certificate setting forth
in reasonable detail the calculation of the amount of payable Taxes, which
certificate is conclusive and binding (absent manifest error), and Borrower
shall promptly pay that amount to Lender. If Lender subsequently receives
a refund of the Taxes paid to it by Borrower, then it shall promptly pay
the refund to Borrower.
3.15 Change in Laws. If any Law makes it unlawful for Lender to make or
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maintain LIBOR Loans, then Lender shall promptly notify Borrower, and (a) as to
undisbursed funds, that requested Loan shall be made as a Base Rate Loan, and
(b), as to any outstanding Loan, (i) if maintaining the Loan until the last day
of the applicable Interest Period is unlawful, the Loan shall be converted to a
Base Rate Loan as of the date of notice, and Borrower shall pay any related
Funding Loss, or (ii) if not prohibited by Law, the Loan shall be converted to a
Base Rate Loan as of the last day of the applicable Interest Period, or (iii) if
any conversion will not resolve the unlawfulness, Borrower shall promptly pay
the Loan, without penalty, together with any related Funding Loss. Concurrently
with any payment contemplated by clause (iii) of the immediately preceding
sentence, Borrower shall borrow a Base Rate Loan in an equal principal amount
from Lender and Lender shall fund such Base Rate Loan.
3.16 Funding Loss. BORROWER AGREES TO INDEMNIFY LENDER AGAINST, AND PAY TO
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IT UPON DEMAND, ANY FUNDING LOSS OF LENDER. When Lender demands that Borrower
pay any Funding Loss, Lender shall deliver to Borrower a certificate setting
forth in reasonable detail the basis for imposing Funding Loss and the
calculation of the amount, which calculation is conclusive and binding absent
manifest error. The provisions of and undertakings and indemnification set forth
in this paragraph shall survive the satisfaction and payment of the Obligation
and termination of this Agreement.
3.17 Lender's Obligation to Mitigate. Lender agrees that, as promptly as
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practicable after it becomes
aware of the occurrence of an event or the existence of a condition which would
entitle it to exercise any rights under SECTIONS 3.14 OR 3.15, it shall use
commercially reasonable efforts to make, fund or maintain the affected Loans
through another lending office of Lender if (a) as a result thereof the
additional moneys which would otherwise be required to be paid in respect of
such Loans would be reduced or the illegality or other adverse circumstances
which would otherwise affect such Loans would cease to exist or the increased
cost which would otherwise be required to be paid in respect of such Loans would
be reduced and (b) the making, funding or maintaining of such Loans through such
other lending office would not otherwise materially adversely affect such Loans
or Lender.
SECTION 4 FEES.
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4.1 Treatment of Fees. The fees described in this SECTION 4 (a) are not
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compensation for the use, detention, or forbearance of money, (b) are in
addition to, and not in lieu of, interest and expenses otherwise described in
this Agreement, (c) are payable in accordance with SECTION 3.1(B), (d) are non-
refundable, and (e) to the fullest extent permitted by Law, bear interest, if
not paid when due, at the Default Rate.
4.2 Underwriting Fee. Borrower shall pay Lender on the Closing Date an
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underwriting fee equal to 0.25% of the Committed Sum.
4.3 Commitment Fee. Borrower shall pay Lender a commitment fee, payable
--------------
as it accrues on each Quarterly Date and on the Termination Date, equal to the
Applicable Percentage (per annum), of the amount by which the Committed Sum
exceeds the average daily Principal Debt, in each case during the calendar
quarter (or portion thereof) ending on such date, calculated on the basis of the
actual number of days elapsed (including the first day, but excluding the last
day) in a calendar year of 365 or 366 days, as the case may be.
SECTION 5 SECURITY.
--------- --------
5.1 Guaranties. All obligations of Borrower under the Loan Papers to
----------
which it is a party shall be guaranteed in accordance with a Guaranty of even
date herewith, executed by each Restricted Company (other than Borrower).
5.2 Additional Security and Guaranties. Lender may, without notice or
----------------------------------
demand and without affecting any Person's obligations under the Loan Papers,
from time to time (i) receive and hold collateral from any Person for the
payment of all or any part of the Obligation and exchange, enforce or release
all or any part of that collateral and (ii) accept and hold any endorsement or
guaranty of payment of all or any part of the Obligation and release any
endorser or guarantor, or any Person who has given any other security for the
payment of all or any part of the Obligation, or any other Person in any way
obligated to pay all or any part of the Obligation; provided, however, that the
provisions of this SECTION 5.2 shall in no event be construed to obligate any
Company to deliver to Lender any collateral.
SECTION 6 CONDITIONS PRECEDENT.
--------- --------------------
6.1 Initial Advance. In addition to the items described in SECTION 6.2,
---------------
Lender will not be obligated to fund the initial Loan unless Lender has received
each of the following items:
(a) the Note;
(b) a Guaranty executed by each Restricted Company (other than
Borrower);
(c) the initial Loan Request;
(d) an Officers' Certificate for each Company, updating the Officers'
Certificate delivered in
connection with the initial closing under the January 1997 Agreement;
(e) Certificates of Existence and Good Standing (Account Status) for
each of VRI, VHI and Borrower from its state of organization and each other
state where it does business, each dated after September 15, 1997;
(f) Legal opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(g) Payment in full of all amounts then due under SECTION 8.5 and
SECTION 4.2;
6.2 Each Advance. Lender will not be obligated to fund (as opposed to
------------
continue or convert) any Loan (including the initial Loans) unless on the
applicable date (and after giving effect to the requested Loan): (a) Lender
shall have timely received a Loan Request; (b) all of the representations and
warranties of the Companies in the Loan Papers are true and correct in all
material respects (unless they speak to a specific date or are based on facts
which have changed by transactions contemplated or permitted by this Agreement);
(c) no Material Adverse Event, Default or Potential Default exists; and (d) the
funding of the Loan is permitted by Law. Upon Lender's reasonable request,
Borrower shall deliver to Lender evidence substantiating any of the matters in
the Loan Papers that are necessary to enable Borrower to qualify for the Loan.
Each condition precedent in this Agreement is material to the transactions
contemplated by this Agreement, and time is of the essence with respect to each
condition precedent. Lender may fund any Loan without all conditions being
satisfied, but, to the extent permitted by Law, that funding and issuance shall
not be deemed to be a waiver of the requirement that each condition precedent be
satisfied as a prerequisite for any subsequent funding or issuance, unless
Lender specifically waives each item in writing.
SECTION 7 REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
--------- ------------------------------
Lender as follows:
7.1 Existing Representations. Except as set forth on SCHEDULE 7 hereto,
------------------------
each of the representations and warranties set forth in Section 7 of the January
1997 Agreement is true and correct as of the date of this Agreement (except to
the extent that they speak to a specific date or the facts on which they are
based have been changed by transactions contemplated or permitted by the January
1997 Agreement or this Agreement).
7.2 Incurrence of Obligation. The Principal Debt to be incurred by
------------------------
Borrower under this Agreement qualifies as "Permitted Debt" under clause (h) of
the definition of such term in the January 1997 Agreement.
7.3 Authorization and Contravention. The execution and delivery by each
-------------------------------
Company of each Loan Paper or related document to which it is a party and the
performance by it of its obligations thereunder (a) are within its corporate
power, (b) have been duly authorized by all necessary corporate action, (c)
require no action by or filing with any Tribunal (other than any action or
filing that has been taken or made on or before the date of this Agreement), (d)
do not violate any provision of its charter or bylaws, (e) do not violate any
provision of Law or any order of any Tribunal applicable to it, other than
violations that individually or collectively are not a Material Adverse Event,
(f) do not violate any Material Agreements to which it is a party, or (g) do not
result in the creation or imposition of any Lien on any asset of any Company.
7.4 Binding Effect. Upon execution and delivery by all parties thereto,
--------------
each Loan Paper which is a contract will constitute a legal and binding
obligation of each Company party thereto, enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable Debtor
Relief Laws and general principles of equity.
7.5 Full Disclosure. Each material fact or condition relating to the Loan
---------------
Papers or the financial condition, business or property of any Company has been
disclosed to Lender. All information furnished by any Company to Lender in
connection with the Loan Papers on or before the date of this Agreement was,
taken as a whole, true and accurate in all material respects or based on
reasonable estimates on the date the information is
stated or certified.
SECTION 8 AFFIRMATIVE COVENANTS. So long as Lender is committed to fund Loans
--------- ---------------------
and thereafter until the Obligation is paid in full, Borrower covenants and
agrees as follows:
8.1 Existing Affirmative Covenants. Borrower shall comply (and shall
------------------------------
cause each other Company to comply) with the affirmative covenants set forth in
Section 8 of the January 1997 Agreement.
8.2 Items to be Furnished. Borrower shall cause the following to be
---------------------
furnished to Lender:
(a) Notice, promptly after any Company knows or has reason to know,
of (i) any change in any material fact or circumstance represented or
warranted by any Company in connection with any Loan Paper, or (ii) a
Default or Potential Default, specifying the nature thereof and what action
the Companies have taken, are taking, or propose to take.
(b) Promptly upon reasonable request by Lender, information (not
otherwise required to be furnished under the Loan Papers) respecting the
business affairs, assets and liabilities of the Companies (including, but
not limited to, seasonal operating statistics, annual budgets, etc.) and
opinions, certifications and documents in addition to those mentioned in
this Agreement; provided, however, that Lender shall not disclose to any
third Person any data or information obtained thereby in accordance with
the provisions of this paragraph (b), except (i) with the prior written
consent of the appropriate Company, (ii) to the extent necessary to comply
with Law or the ruling of any Tribunal in which event, Lender shall notify
the appropriate Company as promptly as practicable (and, if possible, prior
to making such disclosure) and shall seek confidential treatment of the
information desired, (iii) at the request of any banking or other
regulatory authority, or (iv) to their respective Representatives to the
extent such disclosure is necessary in connection with the transactions
contemplated by the Loan Papers.
8.3 Use of Proceeds. Borrower will use the proceeds of the Loans for
---------------
general corporate purposes and capital expenditures of the Companies. No part
of the proceeds of any Loan will be used, directly or indirectly, for a purpose
that violates any Law, including without limitation, the provisions of
Regulations G or U.
8.4 Inspections. Upon reasonable request, each Company will allow Lender
-----------
(or its Representatives) to inspect any of its properties, to review reports,
files and other records and to make and take away copies, to conduct tests or
investigations, and to discuss any of its affairs, conditions and finances with
its other creditors, directors, officers, employees or representatives from time
to time, during reasonable business hours; provided, however, that Lender and
its Representatives shall not disclose to any Person any data or information
obtained thereby in accordance with the provisions of this SECTION 8.4 which is
not a matter of public knowledge, except (i) with the prior written consent of
the appropriate Company, (ii) to the extent necessary to comply with Law or the
ruling of any Tribunal in which event, Lender and/or its Representatives shall
notify the appropriate Company as promptly as practicable (and, if possible,
prior to making such disclosure) and shall seek confidential treatment of the
information desired, (iii) at the request of any banking or other regulatory
authority, or (iv) to their respective Representatives to the extent such
disclosure is necessary in connection with the transactions contemplated by the
Loan Papers.
8.5 Expenses. Borrower shall promptly pay upon demand (a) all reasonable
--------
and customary costs, fees, and expenses paid or incurred by Lender and its
Affiliates in connection with the arrangement and negotiation of the Facility
and the negotiation, preparation, delivery and execution of the Loan Papers and
any related amendment, waiver, or consent (including in each case, without
limitation, the reasonable fees and expenses of Lender's counsel) and (b) all
reasonable costs and expenses of Lender incurred in connection with the
enforcement of the obligations of any Company arising under the Loan Papers or
the exercise of any Rights arising under the Loan Papers (including, but not
limited to, reasonable attorneys' fees and court costs), all of which shall be a
part of the Obligation and shall bear interest, if not paid upon demand, at the
Default Rate until paid.
8.6 Subsidiaries. Subject to Section 9.8 of the January 1997 Agreement,
------------
the Companies may create or acquire additional Subsidiaries (including
Unrestricted Subsidiaries); provided that each Person that becomes a Restricted
Subsidiary after the date of this Agreement (whether as a result of acquisition,
creation or otherwise) shall execute and deliver a Guaranty within 10 days after
becoming a Restricted Subsidiary.
8.7 Indemnification. BORROWER SHALL INDEMNIFY, PROTECT AND HOLD LENDER
---------------
AND ITS RESPECTIVE AFFILIATES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS AND
ATTORNEYS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS AND PROCEEDINGS AND ALL COSTS, EXPENSES (INCLUDING,
WITHOUT LIMITATION, ALL ATTORNEYS' FEES AND LEGAL EXPENSES WHETHER OR NOT SUIT
IS BROUGHT) AND DISBURSEMENTS OF ANY KIND OR NATURE (THE "INDEMNIFIED
LIABILITIES") THAT MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED
AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR ARISING OUT OF (a)
THE DIRECT OR INDIRECT RESULT OF THE VIOLATION BY ANY COMPANY OF ANY
ENVIRONMENTAL LAW, (b) ANY COMPANY'S GENERATION, MANUFACTURE, PRODUCTION,
STORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL OR PRESENCE IN
CONNECTION WITH ITS PROPERTIES OF A HAZARDOUS SUBSTANCE (INCLUDING, WITHOUT
LIMITATION, (i) ALL DAMAGES OF ANY USE, GENERATION, MANUFACTURE, PRODUCTION,
STORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL OR PRESENCE, OR (ii)
THE COSTS OF ANY ENVIRONMENTAL INVESTIGATION, MONITORING, REPAIR, CLEANUP OR
DETOXIFICATION AND THE PREPARATION AND IMPLEMENTATION OF ANY CLOSURE, REMEDIAL
OR OTHER PLANS), OR (c) THE LOAN PAPERS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN. HOWEVER, ALTHOUGH EACH INDEMNIFIED PARTY HAS THE RIGHT TO BE
INDEMNIFIED FOR ITS OWN ORDINARY NEGLIGENCE, NO INDEMNIFIED PARTY HAS THE RIGHT
TO BE INDEMNIFIED FOR ITS OWN FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
THE PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS
PARAGRAPH SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND
TERMINATION OF THIS AGREEMENT.
SECTION 9 NEGATIVE COVENANTS. So long as Lender is committed to fund Loans and
--------- ------------------
thereafter until the Obligation is paid in full, Borrower covenants and agrees
as follows:
9.1 Existing Negative Covenants. Borrower shall comply (and shall cause
---------------------------
each of the other Companies to comply) with each of the negative covenants set
forth in Section 9 of the January 1997 Agreement.
9.2 Taxes. No Company shall use any portion of the proceeds of any Loan
-----
to pay the wages of employees, unless a timely payment to or deposit with the
United States of America of all amounts of Tax required to be deducted and
withheld with respect to such wages is also made.
9.3 Assignment. No Company shall assign or transfer any of its Rights or
----------
cause to be delegated its duties or obligations under any of the Loan Papers.
SECTION 10 FINANCIAL COVENANTS. So long as Lender is committed to fund Loans
---------- -------------------
and thereafter until the Obligation is paid and performed in full (except for
provisions under the Loan Papers expressly intended to survive payment of the
Obligation and termination of the Loan Papers), Borrower covenants and agrees to
comply with each of the financial covenants set forth in Section 10 of the
January 1997 Agreement.
SECTION 11 DEFAULT. The term "DEFAULT" means the occurrence of any one or more
---------- -------
of the following events:
11.1 Payment of Obligation. The failure or refusal of any Company to pay
---------------------
(i) any principal payment contemplated by SECTION 3.2(b) of this Agreement after
such payment becomes due and payable hereunder, (ii) any principal payment
(other than those contemplated by SECTION 3.2(b)) or interest payment
contemplated to be made hereunder within 3 Business Days after demand therefor
by Lender, and (iii) any amount contemplated to be paid hereunder in respect of
fees, costs, expenses or indemnities within 10 Business Days after demand
therefor by Lender.
11.2 Covenants. The failure or refusal of any Company to punctually and
---------
properly perform, observe, and comply with:
(a) Any covenant, agreement or condition applicable to it contained
in SECTIONS 8.3 or 9.3; or
(b) Any other covenant, agreement or condition applicable to it
contained in any Loan Paper (other than the covenants to pay the Obligation
and the covenants in clause (a) preceding), and failure or refusal
continues for 30 days.
11.3 Debtor Relief. Any Restricted Company (a) fails to pay its Debts
-------------
generally as they become due, (b) voluntarily seeks, consents to, or acquiesces
in the benefit of any Debtor Relief Law, or (c) becomes a party to or is made
the subject of any proceeding provided for by any Debtor Relief Law, other than
as a creditor or claimant, that could suspend or otherwise adversely affect the
Rights of Lender granted in the Loan Papers (unless, if the proceeding is
involuntary, the applicable petition is dismissed within 60 days after its
filing).
11.4 Misrepresentation. Any material representation or warranty made by
-----------------
any Company in connection with any Loan Paper at any time proves to have been
materially incorrect when made; provided that if such Company made such
representation or warranty in good faith without any knowledge on the part of
the Companies that it was materially incorrect, such misrepresentation shall not
constitute a Default if the Companies notify Lender of such misrepresentation
within 5 Business Days after such Company has knowledge thereof.
11.5 Default Under January 1997 Agreement. Any "Default" occurs under
------------------------------------
Section 11 of the January 1997 Agreement.
11.6 Validity and Enforceability of Loan Papers. Except in accordance with
------------------------------------------
its terms or as otherwise expressly permitted by this Agreement, any Loan Paper
at any time after its execution and delivery ceases to be in full force and
effect in any material respect or is declared to be null and void or its
validity or enforceability is contested by any Company party thereto or any
Company denies that it has any further liability or obligations under any Loan
Paper to which it is a party.
SECTION 12 RIGHTS AND REMEDIES.
---------- -------------------
12.1 Remedies Upon Default.
---------------------
(a) If a Default exists under SECTION 11.3, the commitment to extend
credit under this Agreement automatically terminates, the entire unpaid
balance of the Obligation automatically becomes due and payable without any
action of any kind whatsoever.
(b) If any Default exists, Lender may do any one or more of the
following: (i) if the maturity of the Obligation has not already been
accelerated under SECTION 12.1(A), declare the entire unpaid balance of all
or any part of the Obligation immediately due and payable, whereupon it is
due and payable; (ii) terminate the commitments of Lender to extend credit
or to continue or convert any Loan under this Agreement; (iii) reduce any
claim to judgment; and (iv) exercise any and all other legal or equitable
Rights afforded by the Loan Papers, the Laws of the State of New York, or
any other applicable jurisdiction.
12.2 Company Waivers. TO THE EXTENT PERMITTED BY LAW, EACH COMPANY WAIVES
---------------
PRESENTMENT AND DEMAND FOR PAYMENT, PROTEST, NOTICE OF INTENTION TO ACCELERATE,
NOTICE OF ACCELERATION AND NOTICE OF PROTEST AND NONPAYMENT, AND AGREES THAT ITS
LIABILITY WITH RESPECT TO ALL OR ANY PART OF THE OBLIGATION IS NOT AFFECTED BY
ANY RENEWAL OR EXTENSION IN THE TIME OF PAYMENT OF ALL OR ANY PART OF THE
OBLIGATION, BY ANY INDULGENCE, OR BY ANY RELEASE OR CHANGE IN ANY SECURITY FOR
THE PAYMENT OF ALL OR ANY PART OF THE OBLIGATION.
12.3 Performance by Lender. If any covenant, duty or agreement of any
---------------------
Company is not performed in
accordance with the terms of the Loan Papers, Lender may, while a Default
exists, at its option, perform or attempt to perform that covenant, duty or
agreement on behalf of that Company (and any amount expended by Lender in its
performance or attempted performance is payable by the Companies, jointly and
severally, to Lender on demand, becomes part of the Obligation, and bears
interest at the Default Rate from the date of Lender's expenditure until paid).
However, Lender does not assume and shall never have, except by its express
written consent, any liability or responsibility for the performance of any
covenant, duty or agreement of any Company.
12.4 Not in Control. None of the covenants or other provisions contained
--------------
in any Loan Paper shall, or shall be deemed to, give Lender the Right to
exercise control over the assets (including, without limitation, real property),
affairs, or management of any Company; the power of Lender is limited to the
Right to exercise the remedies provided in this SECTION 12.
12.5 Course of Dealing. The acceptance by Lender of any partial payment
-----------------
on the Obligation shall not be deemed to be a waiver of any Default then
existing. No waiver by Lender of any Default shall be deemed to be a waiver of
any other then-existing or subsequent Default. No delay or omission by Lender in
exercising any Right under the Loan Papers will impair that Right or be
construed as a waiver thereof or any acquiescence therein, nor will any single
or partial exercise of any Right preclude other or further exercise thereof or
the exercise of any other Right under the Loan Papers or otherwise.
12.6 Cumulative Rights. All Rights available to Lender under the Loan
-----------------
Papers are cumulative of and in addition to all other Rights granted to Lender
at law or in equity, whether or not the Obligation is due and payable and
whether or not Lender has instituted any suit for collection, foreclosure, or
other action in connection with the Loan Papers.
12.7 Application of Proceeds. Any and all proceeds ever received by
-----------------------
Lender from the exercise of any Rights pertaining to the Obligation shall be
applied to the Obligation according to SECTION 3.11.
12.8 Certain Proceedings. The Companies will promptly execute and
-------------------
deliver, or cause the execution and delivery of, all applications, certificates,
instruments, registration statements and all other documents and papers Lender
reasonably requests in connection with the obtaining of any consent, approval,
registration, qualification, permit, license or authorization of any Tribunal or
other Person necessary or appropriate for the effective exercise of any Rights
under the Loan Papers. Because Borrower agrees that Lender's remedies at Law for
failure of the Companies to comply with the provisions of this paragraph would
be inadequate and that failure would not be adequately compensable in damages,
Borrower agrees that the covenants of this paragraph may be specifically
enforced.
SECTION 13 MISCELLANEOUS.
---------- -------------
13.1 Headings. The headings, captions and arrangements used in any of the
--------
Loan Papers are, unless specified otherwise, for convenience only and shall not
be deemed to limit, amplify or modify the terms of the Loan Papers, nor affect
the meaning thereof.
13.2 Nonbusiness Days; Time. Any payment or action that is due under any
----------------------
Loan Paper on a non-Business Day may be delayed until the next-succeeding
Business Day (but interest shall continue to accrue on any applicable payment
until payment is in fact made) unless the payment concerns a LIBOR Loan, in
which case if the next-succeeding Business Day is in the next calendar month,
then such payment shall be made on the next-preceding Business Day. Unless
otherwise indicated, all time references (e.g., 1:00 p.m.) are to Dallas, Texas
time.
13.3 Communications. Unless otherwise specifically provided, whenever any
--------------
Loan Paper requires or permits any consent, approval, notice, request or demand
from one party to another, communication must be in writing (which may be by
telex or telecopy) to be effective and shall be deemed to have been given (a) if
by telex,
when transmitted to the appropriate telex number and the appropriate
answerback is received, (b) if by telecopy, when transmitted to the appropriate
telecopy number (and all communications sent by telecopy must be confirmed
promptly thereafter by telephone; but any requirement in this parenthetical
shall not affect the date when the telecopy shall be deemed to have been
delivered), (c) if by mail, on the third Business Day after it is enclosed in an
envelope and properly addressed, stamped, sealed, and deposited in the
appropriate official postal service, or (d) if by any other means, when actually
delivered. Until changed by notice pursuant to this Agreement, the address (and
telecopy number) for each party to a Loan Paper is set forth on the attached
SCHEDULE 1.
13.4 Form and Number of Documents. The form, substance, and number of
----------------------------
counterparts of each writing to be furnished under the Loan Papers must be
satisfactory to Lender and its counsel, each in its reasonable discretion.
13.5 Exceptions to Covenants. The Companies may not take or fail to take
-----------------------
any action that is permitted as an exception to any of the covenants contained
in any Loan Paper if that action or omission would result in the breach of any
other covenant contained in any Loan Paper.
13.6 Survival. All covenants, agreements, undertakings, representations
--------
and warranties made in any of the Loan Papers survive all closings under the
Loan Papers and, except as otherwise indicated, are not affected by any
investigation made by any party.
13.7 Governing Law. The Laws (other than conflict-of-laws provisions) of
-------------
the State of New York and of the United States of America govern the Rights and
duties of the parties to the Loan Papers and the validity, construction,
enforcement and interpretation of the Loan Papers.
13.8 Invalid Provisions. Any provision in any Loan Paper held to be
------------------
illegal, invalid or unenforceable is fully severable; the appropriate Loan Paper
shall be construed and enforced as if that provision had never been included;
and the remaining provisions shall remain in full force and effect and shall not
be affected by the severed provision. Lender and the Companies shall negotiate,
in good faith, the terms of a replacement provision as similar to the severed
provision as may be possible and be legal, valid and enforceable.
13.9 Venue; Service of Process; Jury Trial. EACH PARTY TO ANY LOAN PAPER,
-------------------------------------
IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS (AND IN THE CASE OF
BORROWER, FOR EACH OTHER COMPANY), (a) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF TEXAS, (b)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING
OUT OF OR IN CONNECTION WITH THE LOAN PAPERS AND THE OBLIGATION BROUGHT IN
DISTRICT COURTS OF DALLAS OR ▇▇▇▇▇▇ COUNTY, TEXAS, OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN OR SOUTHERN DISTRICT OF TEXAS, DALLAS OR HOUSTON
DIVISION, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY
OF THE AFOREMENTIONED COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (d)
IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY TO ANY LOAN PAPER
ARISING OUT OF OR IN CONNECTION WITH THE LOAN PAPERS OR THE OBLIGATION MAY BE
BROUGHT IN ONE OF THE AFOREMENTIONED COURTS, AND (e) IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY LOAN PAPER. The scope
of each of the foregoing waivers is intended to be all-encompassing of any and
all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims.
Borrower (for itself and on behalf of each other Company) acknowledges that
these waivers are a material inducement to Lender's agreement to enter into a
business relationship, that Lender has already relied on these waivers in
entering into this Agreement, and that Lender will continue to rely on each of
these waivers in related future dealings. Borrower (for itself and on behalf of
each other
Company) further warrants and represents that it has reviewed these waivers with
its legal counsel, and that it knowingly and voluntarily agrees to each waiver
following consultation with legal counsel. THE WAIVERS IN THIS SECTION 13.9 MAY
NOT BE MODIFIED EXCEPT IN ACCORDANCE WITH SECTION 13.10, AND SHALL, EXCEPT TO
THE EXTENT WAIVED OR MODIFIED IN ACCORDANCE WITH SECTION 13.10, APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR PLACEMENTS TO OR OF THIS OR ANY OTHER LOAN
PAPER. In the event of Litigation, this Agreement may be filed as a written
consent to a trial by the court.
13.10 Amendments, Consents, Conflicts and Waivers.
-------------------------------------------
(a) Unless otherwise specifically provided, (i) this Agreement may be
amended only by an instrument in writing executed by Borrower and Lender
and supplemented only by documents delivered or to be delivered in
accordance with the express terms of this Agreement, and (ii) the other
Loan Papers may only be the subject of an amendment, modification or waiver
that has been approved by Lender and Borrower.
(b) Any conflict or ambiguity between the terms and provisions of
this Agreement and terms and provisions in any other Loan Paper is
controlled by the terms and provisions of this Agreement.
(c) No course of dealing or any failure or delay by Lender or any of
its Representatives with respect to exercising any Right under this
Agreement operates as a waiver thereof. A waiver must be in writing and
signed by Lender to be effective, and a waiver will be effective only in
the specific instance and for the specific purpose for which it is given.
13.11 Multiple Counterparts. Each Loan Paper (other than the Note) may be
---------------------
executed in a number of identical counterparts, each of which shall be deemed an
original for all purposes and all of which constitute, collectively, one
agreement; but, in making proof of thereof, it shall not be necessary to produce
or account for more than one counterpart. This Agreement shall become effective
when counterparts of this Agreement have been executed and delivered by Lender
and Borrower.
13.12 Successors and Assigns; Participation.
-------------------------------------
(a) The Loan Papers bind and inure to the benefit of the parties
hereto, any intended beneficiary thereof, and each of their respective
successors and permitted assigns. Lender may not transfer, pledge, assign,
sell any participation in, or otherwise encumber its portion of the
Obligation, except as permitted by this SECTION 13.12.
(b) Lender may, in the ordinary course of its business, at any time
sell to one or more Participants participating interests in all or any part
of its Rights and obligations under the Loan Papers. Lender shall remain a
"Lender" under this Agreement (and the Participant shall not constitute a
"Lender" under this Agreement) and its obligations under this Agreement
shall remain unchanged. Lender shall remain solely responsible for the
performance of its obligations under the Loan Papers and shall remain the
holder of the Principal Debt for all purposes under this Agreement.
Borrower shall continue to deal solely and directly with Lender in
connection with Lender's Rights and obligations under the Loan Papers.
Participants have no Rights under the Loan Papers, other than certain
voting Rights as provided below. Subject to the following, Lender may
obtain (on behalf of its Participants) the benefits of SECTION 3 with
respect to all participations in its part of the Obligation outstanding
from time to time so long as Borrower is not obligated to pay any amount in
excess of the amount that would be due to that Lender under SECTION 3
calculated as though no participation have been made. Lender may not sell
any participating interest under which the Participant has any Rights to
approve any amendment, modification or waiver of any Loan Paper, except to
the extent the amendment, modification or waiver extends the due date for
payment of any principal, interest or fees due under the Loan Papers or
reduces the interest rate or the
amount of principal or fees applicable to the Obligation (except reductions
contemplated by this Agreement). The relevant participation agreement shall
prohibit the Participant from transferring, pledging, assigning, selling
participation in, or otherwise encumbering its portion of the Obligation.
(c) This SECTION 13.12 relates to absolute assignments and,
notwithstanding SECTION 13.12(a), does not prohibit assignments creating
security interests. Specifically, without limitation, Lender may at any
time, without the consent of Borrower, assign all or any part of its Rights
under the Loan Papers to a Federal Reserve Bank without releasing Lender
from its obligations thereunder.
13.13 Discharge Only Upon Payment in Full; Reinstatement in Certain
-------------------------------------------------------------
Circumstances. Each Company's obligations under the Loan Papers remain in full
-------------
force and effect until the Committed Sum is terminated and the Obligation is
paid in full (except for provisions under the Loan Papers expressly intended to
survive payment of the Obligation and termination of the Loan Papers). If at
any time any payment of the principal of or interest on the Note or any other
amount payable by Borrower or any other obligor on the Obligation under any Loan
Paper is rescinded or must be restored or returned upon the insolvency,
bankruptcy or reorganization of Borrower or otherwise, the obligations of each
Company under the Loan Papers with respect to that payment shall be reinstated
as though the payment had been due but not made at that time.
13.14 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF THE COMPANIES AND LENDER
--------
SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS AND INSTRUMENTS,
AND ANY PRIOR ORAL AGREEMENTS AMONG THE PARTIES ARE SUPERSEDED BY AND MERGED
INTO THOSE WRITINGS. THIS AGREEMENT AND THE OTHER WRITTEN LOAN PAPERS (EACH AS
AMENDED IN WRITING FROM TIME TO TIME) EXECUTED BY ANY COMPANY OR LENDER
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. This Agreement
supersedes all prior written agreements and understandings relating to the
subject matter hereof, and may be supplemented only by documents delivered in
accordance with the terms hereof.
EXECUTED as of the day and year first mentioned.
THE VAIL CORPORATION
By:
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
SCHEDULE 1
PARTIES, ADDRESSES AND WIRING INFORMATION
-----------------------------------------
BORROWER AND ALL OTHER COMPANIES
--------------------------------
THE VAIL CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President and Chief Financial Officer
Phone: 970/▇▇▇-▇▇▇▇
FAX: 970/▇▇▇-▇▇▇▇
copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Senior Vice President and General Counsel
Vail Resorts, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: 970/▇▇▇-▇▇▇▇
FAX: 970/▇▇▇-▇▇▇▇ or 845-2667
LENDER
------
NATIONSBANK OF TEXAS, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Phone: 214/▇▇▇-▇▇▇▇
FAX: 214/▇▇▇-▇▇▇▇
copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Phone: 713/▇▇▇-▇▇▇▇
FAX: 713/▇▇▇-▇▇▇▇
WIRING INFORMATION
------------------
THE VAIL CORPORATION
--------------------
Location of account: NationsBank of Texas, N.A. (Dallas, Texas)
ABA #: ▇▇▇▇▇▇▇▇▇
Account No.: 129-▇▇▇▇▇▇▇
NATIONSBANK OF TEXAS, N.A.
--------------------------
Location of account: NationsBank of Texas, N.A. (Dallas, Texas)
ABA #: ▇▇▇▇▇▇▇▇▇
FTA Acct. # 0180019828
Attention: Commercial Loans
(Ref. The Vail Corporation)
SCHEDULE 7
EXCEPTIONS TO JANUARY 1997 AGREEMENT REPRESENTATIONS
----------------------------------------------------
(To be completed by Borrower.)
EXHIBIT A
---------
REVOLVING CREDIT PROMISSORY NOTE
$32,000,000Dallas, TexasOctober 10, 1997
For value received, THE VAIL CORPORATION ("MAKER"), hereby promises to pay to
the order of NationsBank of Texas, N.A. ("PAYEE") on or before the Termination
Date, the principal amount of $32,000,000, or so much thereof as may be
disbursed and outstanding hereunder, together with interest, as hereinafter
described.
This note has been executed and delivered under, and is subject to the terms
of, the Credit Agreement dated as of October 10, 1997 (as amended, supplemented
or restated, the "CREDIT AGREEMENT"), between Maker and Payee and is the "Note"
referred to therein. Unless defined herein or the context otherwise requires,
capitalized terms used herein have the meaning given to such terms in the Credit
Agreement. Reference is made to the Credit Agreement for provisions affecting
this note regarding applicable interest rates, principal and interest payment
dates, final maturity, acceleration of maturity, exercise of Rights, payment of
attorneys' fees, court costs and other costs of collection, and certain waivers
by Maker and others now or hereafter obligated for payment of any sums due
hereunder.
This note is a Loan Paper and, therefore, is subject to the applicable
provisions of SECTION 13 of the Credit Agreement, all of which applicable
provisions are incorporated herein by reference the same as if set forth herein
verbatim.
Specific reference is made to SECTION 3.8 of the Credit Agreement for usury
savings provisions.
THE VAIL CORPORATION
By:
Name:
Title:
EXHIBIT B
---------
GUARANTY
THIS GUARANTY is executed as of ___________, 19__, by each of the undersigned
(each a "GUARANTOR" and collectively the "GUARANTORS") for the benefit of
NATIONSBANK OF TEXAS, N.A.("LENDER") pursuant to the Credit Agreement with THE
VAIL CORPORATION ("BORROWER") dated as of October 10, 1997 (as hereafter
amended, supplemented, or restated, the "CREDIT AGREEMENT"). Capitalized terms
not otherwise defined herein are used as defined in the Credit Agreement.
A. Each Guarantor is an Affiliate of Borrower.
B. The execution and delivery of this Guaranty is an integral part of the
transactions contemplated by the Loan Papers and a condition precedent to
Lender's obligations to extend credit under the Credit Agreement.
C. In each Guarantor's judgment, the value of the consideration received and
to be received by it under the Loan Papers is reasonably worth at least as much
as its liability and obligation under this Guaranty, and such liability and
obligation may reasonably be expected to benefit it directly or indirectly.
NOW, THEREFORE, each Guarantor jointly and severally guarantees to Lender the
prompt payment at maturity (by acceleration or otherwise), and at all times
thereafter, of the Guaranteed Debt owing to Lender as follows:
1. Borrower. The term "BORROWER" includes, without limitation, Borrower as
--------
a debtor-in-possession and any party hereafter appointed Receiver for Borrower
or all or substantially all of its assets under any Debtor Relief Law.
2. Guaranteed Debt. The term "GUARANTEED DEBT" means all present and future
---------------
indebtedness and obligations, and all renewals, increases and extensions
thereof, or any part thereof, now or hereafter owed to Lender by Borrower under
the Loan Papers to which it is a party, together with all interest accruing
thereon, fees, costs and expenses (including, without limitation, (a) all
attorneys' fees and expenses incurred pursuant to, or in connection with the
protection of Rights under, the Loan Papers to which Borrower is a party, and
(b) amounts that would become due but for operation of Section 502, 506 or any
other applicable provision of Title 11 of the United States Code), together with
all pre- and post-maturity interest thereon (including, without limitation, all
post-petition interest if Borrower voluntarily or involuntarily files for
bankruptcy protection) and any and all costs, attorneys' fees and expenses
reasonably incurred by Lender to enforce Borrower's payment of any of the
foregoing indebtedness.
3. Absolute Guaranty. This instrument is an absolute, irrevocable and
-----------------
continuing guaranty, and the circumstance that at any time or from time to time
the Guaranteed Debt may be paid in full does not affect the obligation of any
Guarantor with respect to the Guaranteed Debt of Borrower thereafter incurred.
NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS GUARANTY, HOWEVER, EACH
GUARANTOR'S MAXIMUM LIABILITY HEREUNDER IS LIMITED, TO THE EXTENT, IF ANY,
REQUIRED SO THAT ITS LIABILITY IS NOT SUBJECT TO AVOIDANCE UNDER ANY DEBTOR
RELIEF LAW.
4. Representations and Warranties. Each Guarantor acknowledges that certain
------------------------------
representations and warranties contained in the other Loan Papers (including,
without limitation, SECTION 7 of the Credit Agreement) apply to it and hereby
represents and warrants to Lender that each such representation and warranty is
true and correct.
5. Covenants. Each Guarantor acknowledges that certain covenants, agreements
---------
and undertakings contained in the other Loan Papers (including, without
limitation, SECTIONS 8, 9 and 10 of the Credit Agreement) apply to it and hereby
covenants and agrees with Lender to comply with each such covenant, agreement
and
undertaking.
6. Other Indebtedness. If any Guarantor becomes liable for any indebtedness
------------------
owing by Borrower to Lender, other than under this Guaranty, such liability will
not be in any manner impaired or affected by this Guaranty, and the rights of
Lender under this Guaranty are cumulative of any and all other rights that
Lender may ever have against that Guarantor. The exercise by Lender of any
right or remedy under this Guaranty or otherwise will not preclude the
concurrent or subsequent exercise of any other right or remedy.
7. Default. If a Default under the Credit Agreement exists and as a result
-------
of such Default amounts are owing to Lender, each Guarantor shall, on demand and
without further notice of dishonor and without any notice having been given to
any Guarantor previous to such demand of either the acceptance by Lender of this
Guaranty or the creation or incurrence of any Guaranteed Debt, pay the amount of
the Guaranteed Debt then due and payable to Lender, and it is not necessary for
Lender, in order to enforce such payment by any Guarantor, first or
contemporaneously to institute suit or exhaust remedies against Borrower or
others liable on such indebtedness or to enforce rights against any collateral
securing such indebtedness.
8. Subordinated Debt. All obligations of Borrower to any Guarantor (the
-----------------
"SUBORDINATED DEBT") are expressly subordinated to the full and final payment of
the Guaranteed Debt. Each Guarantor agrees not to accept any payment of the
Subordinated Debt from Borrower with respect thereto, if a Default exists; and,
if any Guarantor receives any payment of the Subordinated Debt in violation of
the foregoing, that Guarantor will hold any such payment in trust for Lender, in
the form received (with any necessary endorsements), to be applied to the
Guaranteed Debt in the manner contemplated by the Credit Agreement.
9. Waiver of Subrogation and Contribution. No Guarantor will assert, enforce
--------------------------------------
or otherwise exercise (a) any right of subrogation to any of the rights or liens
of Lender or any other beneficiary against Borrower or any other obligor on the
Guaranteed Debt or any collateral or other security, or (b) any right of
recourse, reimbursement, subrogation, contribution, indemnification or similar
right against Borrower or any other obligor on all or any part of the Guaranteed
Debt or any guarantor thereof, and each Guarantor irrevocably waives any and all
of the foregoing rights (whether such rights arise in equity, under contract, by
statute, under common law or otherwise). Guarantor irrevocably waives the
benefit of, and any right to participate in, any collateral or other security
given to any beneficiary to secure payment of the Guaranteed Debt.
10. Obligations Not Diminished. No Guarantor's obligations under this
--------------------------
Guaranty will be released, diminished or affected by the occurrence of any one
or more of the following events: (a) Lender's taking or accepting of any other
security or guaranty for any or all of the Guaranteed Debt; (b) any release,
surrender, exchange, subordination, impairment or loss of any collateral
securing any or all of the Guaranteed Debt; (c) any full or partial release of
the liability of any other obligor on the Obligation; (d) the modification of or
waiver of compliance with, any terms of any other Loan Paper; (e) the
insolvency, bankruptcy or lack of corporate power of any party at any time
liable for any or all of the Guaranteed Debt, whether now existing or hereafter
occurring; (f) any renewal, extension or rearrangement of any or all of the
Guaranteed Debt or any adjustment, indulgence, forbearance or compromise that
may be granted or given by Lender to any other obligor on the Obligation; (g)
any neglect, delay, omission, failure or refusal of Lender to take or prosecute
any action in connection with the Guaranteed Debt; (h) any failure of Lender to
notify any Guarantor of any renewal, extension or assignment of any or all of
the Guaranteed Debt or the release of any security or of any other action taken
or refrained from being taken by Lender against Borrower or any new agreement
between Lender and Borrower, it being understood that Lender is not required to
give Guarantors any notice of any kind under any circumstances whatsoever with
respect to or in connection with the Guaranteed Debt; (i) the unenforceability
of any part of the Guaranteed Debt against any party because it exceeds the
amount permitted by law, the act of creating it is ultra ▇▇▇▇▇, the officers
creating it exceeded their authority or violated their fiduciary duties in
connection therewith, or otherwise; or (j) any payment of the Obligation to
Lender is held to constitute a preference under any Debtor Relief Law or for any
other reason Lender is required to refund such payment or make payment to
someone else (and in each such instance this Guaranty will be reinstated in an
amount equal to such payment).
11. Waiver of Right to Require Suit. Each Guarantor waives all rights by
-------------------------------
which it might be entitled to require suit on an accrued right of action in
respect of any of the Guaranteed Debt or require suit against Borrower or
others.
12. Independent Credit Investigation. Each Guarantor confirms that it has
--------------------------------
executed and delivered this Guaranty after reviewing the terms and conditions of
the Loan Papers and such other information as it has deemed appropriate in order
to make its own credit analysis and decision to execute and deliver this
Guaranty. Each Guarantor confirms that it has made its own independent
investigation with respect to Borrower's creditworthiness and is not executing
and delivering this Guaranty in reliance on any representation or warranty by
Lender as to such creditworthiness. Each Guarantor expressly assumes all
responsibilities to remain informed of the financial condition of Borrower and
any circumstances affecting (a) Borrower's ability to perform under the Loan
Papers to which it is a party or (b) any collateral securing all or any part of
the Guaranteed Debt.
13. No Discharge. The Guaranteed Debt will not be reduced, discharged or
------------
released because or by reason of any existing or future offset, claim or defense
(except for the defense of payment of the Guaranteed Debt) of Borrower or any
other party against Lender or against payment of the Guaranteed Debt, whether
such offset, claim or defense arises in connection with the Guaranteed Debt or
otherwise. Such claims and defenses include, without limitation, failure of
consideration, breach of warranty, fraud, bankruptcy, incapacity/infancy,
statute of limitations, lender liability, accord and satisfaction, usury, forged
signatures, mistake, impossibility, frustration of purpose, and
unconscionability.
14. Successors and Assigns. This Guaranty is for the benefit of Lender and
----------------------
its successors and permitted assigns, and in the event of an assignment of all
or any of the Guaranteed Debt, the Rights hereunder, to the extent applicable to
the portion assigned, shall be transferred therewith. This Guaranty shall be
binding upon each Guarantor and its successors and permitted assigns.
15. Loan Paper. This Guaranty is a Loan Paper and is subject to the
----------
applicable provisions of SECTION 14 of the Credit Agreement, all of which are
incorporated into this Guaranty by reference the same as if set forth in this
Guaranty verbatim.
Vail Resorts, Inc.
Vail Holdings, Inc.
Vail Trademarks, Inc.
Vail Resorts Development Company
Beaver Creek Consultants, Inc.
Beaver Creek Associates, Inc.
Vail/beaver Creek Resort Properties, Inc.
Vail Food Services, Inc.
Piney River Ranch, Inc.
Vail/arrowhead, Inc.
Beaver Creek Food Services, Inc.
Vail Associates Holdings, Ltd.
Vail Associates Real Estate, Inc.
Vail Associates Consultants, Inc.
Vail Associates Management Company
Vail Associates Ranch and Land Company
▇▇▇▇▇▇▇ Group Management, Inc.
Ghtv, Inc.
▇▇▇▇▇▇▇ Broadcasting, Inc.
▇▇▇▇▇▇▇ Broadcasting of Maryland, Inc.
Vail Summit Resorts, Inc.
Keystone Conference Services, Inc.
Keystone Development Sales, Inc.
Keystone Food & Beverage Company
Keystone Resort Property Management Company
Lodge Properties, Inc.
Lodge Realty, Inc.
By:
Name:
Senior Vice President of each of the above
Companies
EXHIBIT C
---------
LOAN REQUEST
______________, 19__
NationsBank of Texas, N.A.
Corporate Finance Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the Credit Agreement dated as of October 10, 1997
(as amended, supplemented or restated from time to time, the "CREDIT
AGREEMENT"), between THE VAIL CORPORATION and NATIONSBANK OF TEXAS, N.A.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned hereby
gives you notice pursuant to SECTION 2.2(A) of the Credit Agreement that it
requests a Loan under the Credit Agreement on the following terms:
(A) Loan Date (a Business Day)
(B) Principal Amount of Loan*
(C) Type of Loan**
(D) For LIBOR Loan, Interest Period
and the last day thereof***
Please deposit the requested Loan in our account with you [and then wire
transfer amounts from that account as follows:
.]
--
Borrower hereby certifies that the following statements are true and
correct on the date hereof, and will be true and correct on the Loan Date
specified above after giving effect to such Loan: (a) all of the representations
and warranties of the Companies in the Loan Papers are true and correct in all
material respects (except to the extent that (i) they speak to a specific date
or (ii) the facts on which they are based have been changed by transactions
contemplated or permitted by the Credit Agreement); and (b) no Material Adverse
Event has occurred and no Default or Potential Default exists.
Very truly yours,
THE VAIL CORPORATION
By
Name:
Title:
* Not less than $500,000 or a greater integral multiple of $100,000 (if a
Base Rate Loan); not less than $1,000,000 or a greater integral multiple of
$100,000 (if a LIBOR Loan).
** LIBOR Loan or Base Rate Loan.
*** LIBOR Loan -- 1, 2, 3 or 6 months.
In no event may the Interest Period end after the appropriate Termination
Date.
EXHIBIT D
---------
CONVERSION REQUEST
______________, 19__
NationsBank of Texas, N.A.
Corporate Finance Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is made to the Credit Agreement dated as of October 10, 1997
(as amended, supplemented or restated, the "CREDIT AGREEMENT"), between THE VAIL
CORPORATION and NATIONSBANK OF TEXAS, N.A. Unless otherwise defined herein, all
capitalized terms have the meanings given to such terms in the Credit Agreement.
The undersigned hereby gives you notice pursuant to SECTION 3.10 of the
Credit Agreement that it elects to convert all or part of a Loan under the
Credit Agreement from one Type to another Type or elects a new Interest Period
for a LIBOR Loan on the following terms:
(A) Date of conversion or last day of
applicable Interest Period (a Business Day)
(B) Type** and Principal Amount* of Existing
Borrowing being converted
(C) New Type of Borrowing selected**
(D) For conversion to a LIBOR Rate Borrowing, the
Interest Period selected and the last day thereof***
(E) Type** and Principal Amount* of Existing
Borrower Being Continued
(F) For continuation of a LIBOR Rate Borrowing, the
Interest Period selected and the last day thereof***
Very truly yours,
THE VAIL CORPORATION
By:
Name:
Title:
* Not less than $500,000 or a greater integral multiple of $100,000 (if a
Base Rate Loan); not less than $1,000,000 or a greater
integral multiple of $100,000 (if a LIBOR Loan).
** LIBOR Loan or Base Rate Loan.
*** 1, 2, 3 or 6 months. The Interest Period may not end after the appropriate
Termination Date.