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EXHIBIT 4.8
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Fifth Amendment"),
dated as of February 2, 2000, but effective as provided herein, is entered into
among GAYLORD ENTERTAINMENT COMPANY, a Delaware corporation ("Borrower"), the
banks listed on the signature pages hereof (collectively, "Lenders"), and BANK
OF AMERICA, N.A. (formerly known as NationsBank, N.A., successor by merger to
NationsBank of Texas, N.A.), as Administrative Lender (in said capacity,
"Administrative Lender").
BACKGROUND
1. Borrower, Lenders and Administrative Lender are parties to
that certain Credit Agreement, dated as of August 19, 1997, as amended by that
certain First Amendment to Credit Agreement, dated as of September 30, 1997,
that certain Second Amendment to Credit Agreement, dated as of March 24, 1998,
that certain Third Amendment to Credit Agreement, dated as of March 22, 1999,
but effective as of December 31, 1998, and that certain Fourth Amendment to
Credit Agreement, dated as of October 8, 1999 (said Credit Agreement, as
amended, the "Credit Agreement"; the terms defined in the Credit Agreement and
not otherwise defined herein shall be used herein as defined in the Credit
Agreement).
2. Borrower, Lenders and Administrative Lender desire to amend
the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are all hereby acknowledged,
Borrower, Lenders and Administrative Lender covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(1) The following defined terms are hereby added to Section 1.1
of the Credit Agreement in proper alphabetical order to read as follows:
"Bank of America" means Bank of America, N.A., a national
banking association.
"CBS Stock" means, initially, the 10,081.691 shares of CBS
Series B Participating Preferred Stock acquired by the Company in the
CBS Stock Transaction, and, subsequently, any other stock that may be
obtained in exchange or conversion of such
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stock, including, but not limited to, CBS Common Stock, Series C
Preferred Stock of Viacom Inc., and Class B Common Stock of Viacom
Inc.
"CBS Stock Market Value" means, as of the date of
determination, the product of (a) the closing New York Stock Exchange
price of the CBS Stock on such date, or if the CBS Stock is not listed
on the New York Stock Exchange on such date, the closing New York
Stock Exchange price of any stock into which the CBS Stock may be
exchanged or converted and (b) the number of shares of CBS Stock (or,
if the CBS Stock is not listed on the New York Stock Exchange, the
number of shares of other stock into which the CBS Stock may be
exchanged or converted) pledged to the Administrative Lender pursuant
to the Pledge Agreement.
"CMBS Event" means the refinancing of Debt related to The
Opryland Hotel in a manner acceptable to the Determining Lenders and
the Administrative Lender, resulting in Net Proceeds of at least
$300,000,000, 100% of which are applied to repay Revolving Credit
Loans.
"Collateral" means any collateral in which a Lien is granted
by any Person to the Administrative Lender to secure the Obligations.
"Collateral Coverage Ratio" means the ratio of Funded Debt to
the CBS Stock Market Value.
"Collateral Documents" means the Pledge Agreement and any
document related thereto.
"Pledge Agreement" means the pledge agreement executed by the
Company substantially in the form of Exhibit T hereto, and any
amendments, modifications, or restatements thereof.
(2) The definition of "Applicable Law" set forth in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"Applicable Law" means the Laws of the State of Texas,
including, without limitation, Chapter 303 of the Texas Finance Code,
as amended to date and as the same may be amended at any time and from
time to time hereafter and any other statute of the State of Texas now
or at any time hereafter prescribing maximum rates of interest on
loans and extensions of credit; provided, however, with respect to any
Lender which is a national bank (or if not a national bank, is
permitted by Law to cause the Law of one of the following states, as
appropriate, to govern for the purpose of determining the Highest
Lawful Rate) located in the State of California or New York, for
purposes of determining the Highest Lawful Rate the Applicable Law
shall mean the Laws of the State of California or New York, as
appropriate, as now or hereafter in effect.
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(3) The definition of "Applicable LIBOR Rate Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"Applicable LIBOR Rate Margin" means a per annum percentage
equal to 1.000%.
(4) The definition of "Commitment" set forth in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"Commitment" means, as to a Lender, the amounts set forth
opposite its name on Schedule I of this Agreement under the caption
"Commitment" (and designated as "Prior to CMBS Event" and "After CMBS
Event") or, if such Lender has entered into one or more Assignments
and Acceptances, the amount set forth for such Lender in the Register
maintained by Administrative Lender pursuant to Section 8.16 (as the
same may be reduced or terminated pursuant to Section 2.4), which at
no time shall exceed such Lender's Specified Percentage of (a)
$525,000,000 prior to the date of the CMBS Event and (b) $275,000,000
from and including the date of the CMBS Event.
(5) The definition of "Dividends" set forth in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"Dividends" means, for any Company, (a) any dividend, payment
or other distribution (other than a dividend, payment or distribution
payable in such Company's common Capital Stock) of assets, rights,
obligations or securities on account of any Capital Stock of such
Company and (b) any purchase, redemption or other acquisition or
retirement for value by any Company of any shares of Capital Stock of
such Company.
(6) The definition of "Highest Lawful Rate" set forth in Section
1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"Highest Lawful Rate" means at the particular time in
question the maximum rate of interest which, under Applicable Law, any
Lender is then permitted to charge on the Obligation. If the maximum
rate of interest which, under Applicable Law, any Lender is permitted
to charge on the Obligation shall change after the date hereof, the
Highest Lawful Rate shall be automatically increased or decreased, as
the case may be, from time to time as of the effective time of each
change in the Highest Lawful Rate without notice to Borrower. For
purposes of determining the Highest Lawful Rate under Applicable Law,
the applicable rate ceiling shall be (a) the weekly rate ceiling
described in and computed in accordance with the provisions of Chapter
303.301 of the Texas Finance Code, as amended, or (b) if the parties
subsequently contract as allowed by Applicable Law, either the
annualized or quarterly ceiling computed pursuant to Chapter 303.302
of the Texas Finance Code.
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(7) The definition of "Loan Documents" set forth in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"Loan Documents" means this Agreement, the Guaranty, the L/C
Related Documents, the Collateral Documents and all other documents,
instruments and certificates to be executed by any Company pursuant to
the terms of this Agreement.
(8) The definition of "Permitted Debt" set forth in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"Permitted Debt" means, without duplication, (a) unsecured
Debt not to exceed $20,000,000 in aggregate principal amount, (b) Debt
secured by Liens permitted by clause (g) of the definition of
"Permitted Liens", provided, such Debt does not exceed $20,000,000 in
aggregate principal amount, (c) Existing Debt and extensions, renewals
and refinancings (but not increases) thereof, (d) Debt pursuant to or
in connection with Film Contracts, (e) trade payables incurred in the
ordinary course of the Companies' respective businesses, (f) Debt and
Contingent Debt pursuant to this Agreement, (g) intercompany Debt
between Companies, (h) Debt in respect of interest swap agreements and
other similar agreements designed to hedge against fluctuations in
interest rates, (i) Acquisition Consideration consisting of Debt
incurred to the seller of assets acquired in an Acquisition or assumed
pursuant to any single Acquisition not to exceed (A) during fiscal
year 1997, the remainder of (1) $100,000,000 minus (2) the aggregate
amount of cash Acquisition Consideration paid for any such Acquisition
during such fiscal year, (B) during fiscal year 1998, the remainder of
(1) $125,000,000 minus (2) the aggregate amount of cash Acquisition
Consideration paid for any such Acquisition during such fiscal year,
and (C) during each fiscal year thereafter, the remainder of (1)
$150,000,000 minus (2) the aggregate amount of cash Acquisition
Consideration paid for any such Acquisition during such fiscal year,
(j) Contingent Debt in respect of operating lease obligations and
other obligations (excluding Debt other than Permitted Debt) of any
Company incurred in the ordinary course of business, and (k) Debt in
respect of the CMBS Event.
(9) The definition of "Permitted Investments" set forth in
Section 1.1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"Permitted Investments" means (i) accounts receivable that
arise in the ordinary course of business, (ii) Cash and Cash
Equivalents, (iii) Investments that were made prior to January 1, 2000
and were permitted pursuant to the terms of this Agreement, and (iv)
additional Investments made on and after January 1, 2000 in an
aggregate amount equal to the remainder of $190,000,000 minus the
aggregate amount of Capital Expenditures made and Acquisition
Consideration paid by all Companies on and after January 1, 2000.
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(10) The definition of "Permitted Lien" set forth in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"Permitted Liens" means (a) Existing Liens, (b) pledges or
deposits made to secure payment of workmen's compensation, or to
participate in any fund in connection with workmen's compensation,
unemployment insurance, pensions, or other social security programs,
(c) good-faith pledges or deposits made to secure performance of bids,
tenders, contracts (other than for the repayment of borrowed money),
or leases, or to secure statutory obligations, surety or appeal bonds,
or indemnity, performance, or other similar bonds in the ordinary
course of business, (d) non-monetary encumbrances, including but not
limited to zoning restrictions, easements, or other restrictions on
the use of real property, none of which impair the use of such
property by any Company in the operation of its business in any manner
which would have a Material Adverse Effect, (e) the following, if
(i)(A) the validity or amount thereof is being contested in good faith
and by appropriate and lawful proceedings and so long as levy and
execution thereon have been stayed and continue to be stayed and (B)
adequate reserves, if required by GAAP, are maintained, or (ii) they
do not in the aggregate materially detract from the value of the
property of Companies, taken as a whole, or materially impair the use
thereof in the operation of the business of Companies, taken as a
whole: claims and Liens for Taxes due and payable; Liens under Section
412 of the Code or Section 302 of ERISA; mechanic's and materialmen's
Liens; claims and Liens upon, and defects of title to, real or
personal property or other legal process prior to adjudication of a
dispute on the merits; and adverse judgments on appeal, (f) Liens
existing upon property acquired at the time of Acquisition, provided,
that (i) no such Lien shall extend to or cover any property other than
the property acquired, (ii) the Debt secured by such Lien shall not
exceed the fair market value of the property acquired, (iii) no such
Lien shall have been created in contemplation of such acquisition and
(iv) the aggregate principal amount of the Debt secured by the Liens
permitted by this clause (f) shall not exceed the amount specified in
clause (i) of the definition of "Permitted Debt", (g) Liens arising
solely to secure purchase money Debt; provided, that (i) any such Lien
is limited to the asset or assets acquired or financed, (ii) the Debt
secured by such Lien shall not exceed the fair market value of the
asset or assets acquired or financed and (iii) the aggregate principal
amount of the Debt secured by the Liens permitted by this clause (g)
shall not exceed the amount specified in clause (b) of the definition
of "Permitted Debt", (h) Liens arising as a result of the filing of
financing statements for informational purposes only, (i) Liens
against The Opryland Hotel as a result of the CMBS Event, (j) Liens to
secure the Obligation hereunder, and (k) extensions, renewals and
replacements of Existing Liens.
(11) The definition of "Termination Date" set forth in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"Termination Date" means July 31, 2000, or the earlier date
of termination in whole of the Commitments of all Lenders pursuant to
Section 2.4 or 6.2.
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(12) Section 1.1 of the Credit Agreement is hereby amended by
deleting the following defined terms therefrom: "Funded Debt to Capitalization
Ratio", "Total Capital", "Interest Charges", "Net Worth", "Index Debt Rating",
"Initial Adjustment Date", and "Initial Pricing Period".
(13) All references in the Credit Agreement and the other Loan
Documents to "NationsBank" are hereby amended to refer to "Bank of America".
(14) Section 2.3(a) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(a) Commitment Fee. Subject to the provisions of Section
8.13, Borrower shall pay to Administrative Lender, for the ratable
account of Lenders, a Commitment Fee at a per annum rate equal to the
product of 0.375% and the average daily unused portion of the Total
Commitment. The Commitment Fee shall be payable quarterly in arrears
on each Quarterly Date and on the Termination Date. For purposes of
calculation of the Commitment Fee, (i) outstanding Swing Line Loans
from time to time will not reduce the unused portion of the Total
Commitment and (ii) outstanding Letters of Credit from time to time
will reduce the unused portion of the Total Commitment."
(15) Section 2.4(b) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(b) On the Termination Date, the Total Commitment shall
automatically be reduced to zero. On the date of the CMBS Event, the
Total Commitment shall be automatically reduced to $275,000,000."
(16) Section 2.7(b)(i) of the Credit Agreement is hereby amended by
adding the following at the end of said Section:
"Borrower shall, on the date of the CMBS Event, prepay
Revolving Credit Loans in an aggregate principal amount equal to the
Net Proceeds received by Borrower from the CMBS Event. On the date of
receipt of Net Proceeds by any Company from the sale or disposition of
any assets (other than any such sales or dispositions permitted under
clauses (a) through (e) of Section 4.11), Borrower shall prepay
Revolving Credit Loans in an aggregate principal amount equal to 100%
of such Net Proceeds."
(17) Section 4.1 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.1. INTENTIONALLY OMITTED"
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(18) Section 4.2 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.2. INTENTIONALLY OMITTED"
(19) Section 4.3 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.3. Capital Expenditures. Borrower shall not, nor shall
it permit any other Company to, made or commit to make any Capital
Expenditures in an aggregate for all Companies in excess of (a)
$125,000,000 during fiscal year 1999 and (b) the remainder of
$190,000,000 minus the Investments made by all Companies pursuant to
clause (iv) of the definition of Permitted Investments and the
Acquisition Consideration paid by all Companies during the period from
January 1, 2000 through the Termination Date."
(20) Section 4.4 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.4. INTENTIONALLY OMITTED"
(21) Section 4.6 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.6. Acquisitions. Borrower shall not, nor shall it permit
any other Company to, directly or indirectly, make any Acquisitions;
provided, however, if immediately prior to and after giving effect to
the proposed Acquisition there shall exist no Default or Event of
Default, Borrower or any of its Subsidiaries may make Acquisitions so
long as (i) Administrative Lender shall have received written notice
of such proposed Acquisition at least ten days prior to the date of
such Acquisition, which shall include an Officer's Certificate setting
forth the covenant calculations therein both immediately prior to and
after giving effect to such proposed Acquisition, (ii) the assets,
property or business acquired in such proposed Acquisition shall be in
a business or activity described in Section 5.16, (iii) if such
Acquisition results in a Material Subsidiary, such Subsidiary shall
simultaneously with or immediately following such Acquisition comply
with Section 3.1(g), and (iv) during the period from and including
January 1, 2000 though the Termination Date, the aggregate Acquisition
Consideration for such period shall not exceed the remainder of
$190,000,000 minus the Capital Expenditures and Permitted Investments
made by all Companies during such period.
(22) Section 4.11 of the Credit Agreement is hereby amended in its
entirety to read as follows:
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"4.11. Disposition of Assets. Borrower shall not, nor shall
it permit any other Company to, sell, lease, transfer or otherwise
dispose of any of its assets, including any equity in any of its
assets (each a "Disposition") except (a) Dispositions of inventory in
the ordinary course of business, (b) Dispositions of obsolete or
worn-out assets, (c) Dispositions of Cash and Cash Equivalents in the
ordinary course of business, (d) Dispositions of any asset for full
and fair consideration and in which the Net Proceeds do not exceed
$100,000, (e) Disposition of The Opryland Hotel concurrently with the
occurrence of the CMBS Event for full and fair consideration and
provided the Net Proceeds thereof are applied to repay Revolving
Credit Loans as required pursuant to Section 2.7(b)(i) and (f) other
Dispositions of assets (other than The Opryland Hotel) for full and
fair consideration and provided the Net Proceeds thereof are applied
to repay Revolving Credit Loans as required pursuant to Section
2.7(b)(i); provided, however, no Company shall make any Disposition
permitted by this Section 4.11 if a Default or Event of Default exists
or would result therefrom."
(23) Section 4.7 of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"No Company shall enter into any agreement, contract or
otherwise whereby such Company is prohibited from, or would otherwise
be in default of as a result of, creating, assuming, incurring or
suffering to exist, directly or indirectly, any Lien on any of its
assets. The Lenders agree that the CBS Stock may be held by a
collateral agent for the benefit of the Lenders pursuant to
documentation and under terms and conditions satisfactory to the
Administrative Lender."
(24) Article IV of the Credit Agreement is hereby further amended
by adding the following new Sections 4.16 and 4.17 thereto to read as follows:
"4.16. Collateral Coverage Ratio. Borrower shall not permit
the Collateral Coverage Ratio at any time (a) prior to the date of the
CMBS Event, to exceed 1.00 to 1 and (b) on and after the date of the
CMBS Event, to exceed 0.50 to 1.
"4.17. Dividends. Borrower shall not, nor shall it permit
any other Company to, directly or indirectly declare, pay or make any
Dividends except (a) Dividends payable by a Subsidiary to Borrower and
(b) Dividends not to exceed $17,000,000 in aggregate amount during the
period form and including January 1, 2000 through and including the
Termination Date; provided, however, no Company shall pay or make any
Dividend permitted by this Section 4.17 unless there shall exist no
Default or Event of Default prior to or after giving effect to any
such proposed Dividend."
(25) The first sentence of Section 5.8 of the Credit Agreement is
hereby amended to read as follows:
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"No Company is engaged principally in the business of
extending credit secured directly or indirectly, in whole or in part,
by margin stock (within the meaning of Regulation U ("Regulation U")
of the Board of Governors of the Federal Reserve System), and no
proceeds of any Loan or Letter of Credit hereunder has been used or
shall be used, directly or indirectly, to purchase or carry the CBS
Stock within the meaning of Regulation U."
(26) Article VI of the Credit Agreement is hereby amended by adding
a Section 6.1(l) thereto to read as follows:
"(l) CBS Stock. Administrative Lender shall fail to have a
perfected first priority Lien in the CBS Stock.
(27) Schedule I to the Credit Agreement is hereby amended to be in
the form of Schedule I attached hereto.
(28) The Officer's Certificate-Financial in the form of Exhibit N
to the Credit Agreement is hereby amended to be in the form of Exhibit N
attached hereto.
(29) The Pledge Agreement is hereby added as Exhibit T to the
Credit Agreement to be in the form of Exhibit T attached hereto.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, Borrower represents and warrants that after
giving effect to the amendments contemplated by the foregoing Section 1:
(1) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as though made on and as of such date, except to the extent that
any such representation or warranty relates expressly to a specified date or is
no longer correct because of a change in circumstances permitted by the Loan
Documents;
(2) no event has occurred and is continuing which constitutes a
Default or Event of Default;
(3) Borrower has full power and authority to execute and deliver
this Fifth Amendment, the $161,875,000 replacement Revolving Credit Note
payable to the order of Bank of America, N.A., the $43,750,000 replacement
Revolving Credit Note payable to the order of Wells Fargo Bank (Texas),
National Association, the $52,500,000 replacement Revolving Credit Note payable
to the order of SunTrust Bank, Nashville, N.A., the $30,625,000 replacement
Revolving Credit Note payable to the order of Credit Lyonnais New York Branch,
the $26,250,000 replacement Revolving Credit Note payable to the order of
Wachovia Bank, N.A., the $17,500,000 replacement Revolving Credit Note payable
to the order of Paribas, the
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$17,500,000 replacement Revolving Credit Note payable to the order of The Bank
of New York, the $17,500,000 replacement Revolving Credit Note payable to the
order of The Industrial Bank of Japan, Limited, Atlanta Agency, the $8,750,000
replacement Revolving Credit Note payable to the order of The Sakura Bank,
Limited, the $17,500,000 replacement Revolving Credit Note payable to the order
of The Sanwa Bank, Limited, the $17,500,000 replacement Revolving Credit Note
payable to the order of First Union National Bank, the $17,500,000 replacement
Revolving Credit Note payable to the order of Comerica Bank, the $17,500,000
replacement Revolving Credit Note payable to the order of First American
National Bank, the $8,750,000 replacement Revolving Credit Note payable to the
order of Bank of Tokyo Mitsubishi Trust Company, the $8,750,000 replacement
Revolving Credit Note payable to the order of The Bank of Nova Scotia, the
$8,750,000 replacement Revolving Credit Note payable to the order of The Fuji
Bank, Limited, Atlanta Agency, the $8,750,000 replacement Revolving Credit Note
payable to the order of Bank One, Oklahoma, National Association, and the
$43,750,000 replacement Revolving Credit Note payable to the order of General
Electric Capital Corporation (collectively, the "Replacement Revolving Credit
Notes"), the Pledge Agreement, and the Credit Agreement, as amended hereby, and
this Fifth Amendment, the Replacement Revolving Credit Notes, the Pledge
Agreement and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of Borrower, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable debtor
relief laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(4) neither the execution, delivery and performance of this Fifth
Amendment, the Replacement Revolving Credit Notes, the Pledge Agreement or the
Credit Agreement, as amended by this Fifth Amendment, will contravene or
conflict with any Law to which Borrower or any of its Subsidiaries is subject
or any indenture, agreement or other instrument to which Borrower or any of its
Subsidiaries or any of their respective property is subject; and
(5) no authorization, approval, consent, or other action by,
notice to, or filing with, any Tribunal or other Person (other than the Board
of Directors of Borrower), is required for the execution, delivery or
performance by Borrower of this Fifth Amendment, the Replacement Revolving
Credit Notes or the Pledge Agreement or the acknowledgment of this Fifth
Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Fifth Amendment shall be
effective as of February 3, 2000, subject to the following:
(1) Administrative Lender shall have received counterparts of this
Fifth Amendment executed by Determining Lenders;
(2) Administrative Lender shall have received counterparts of this
Fifth Amendment executed by Borrower and acknowledged by each Guarantor;
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(3) each Lender shall have received its Replacement Revolving
Credit Note, duly executed by Borrower;
(4) Administrative Lender shall have received the Pledge
Agreement, duly executed by Borrower, stock certificates evidencing the CBS
Stock, executed, blank stock powers and related UCC-1 financing statements;
(5) Administrative Lender shall have received certified
resolutions of the Board of Directors of Borrower approving the execution,
delivery and performance of this Fifth Amendment, the Replacement Revolving
Credit Notes and the Pledge Agreement and all other documents related thereto;
(6) Administrative Lender shall have received from Borrower, for
the account of each Lender that consented to this Fifth Amendment by 5:00 p.m.,
Dallas time, January 27, 2000, an amendment fee equal to the product of 0.05%
and each Lender's Commitment (after giving effect to the reduction of each
Lender's Commitment as contemplated by this Fifth Amendment);
(7) Administrative Lender shall have received an opinion of
counsel to Borrower in form and substance satisfactory to Administrative Lender
and its Special Counsel; and
(8) Administrative Lender shall have received, in form and
substance satisfactory to Administrative Lender and its counsel, such other
documents, certificates and instruments as Administrative Lender reasonably
shall require.
4. GUARANTOR ACKNOWLEDGMENT. By signing below, each of the
Guarantors (i) acknowledges, consents and agrees to the execution and delivery
of this Fifth Amendment, (ii) acknowledges and agrees that its obligations in
respect of its Guaranty are not released, diminished, waived, modified,
impaired or affected in any manner by this Fifth Amendment or any of the
provisions contemplated herein, (iii) ratifies and confirms its obligations
under its Guaranty, and (iv) acknowledges and agrees that it has no claims or
offsets against, or defenses or counterclaims to, its Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(1) Upon the effectiveness of this Fifth Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit Agreement, as amended or
modified by this Fifth Amendment.
(2) The Credit Agreement, as amended or modified by this Fifth
Amendment, and all other Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all costs and expenses of the Administrative Lender in connection with the
preparation, reproduction,
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execution and delivery of this Fifth Amendment and the other instruments and
documents to be delivered hereunder (including the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Lender with respect
thereto and with respect to advising the Lenders as to their rights and
responsibilities under the Credit Agreement, as amended by this Fifth
Amendment).
7. EXECUTION IN COUNTERPARTS. This Fifth Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
8. GOVERNING LAW: BINDING EFFECT. This Fifth Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon Borrower and each Lender and their respective successors
and assigns.
9. HEADINGS. Section headings in this Fifth Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Fifth Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FIFTH AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment to be effective as of the date first above written.
GAYLORD ENTERTAINMENT COMPANY
By:
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Name:
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Title:
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BANK OF AMERICA, N.A., as a Lender, Swing
Line Bank, Issuing Bank and as Administrative
Lender
By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED, ATLANTA AGENCY
By:
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Name:
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Title:
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SUNTRUST BANK, NASHVILLE, N.A.
By:
------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-17-
18
FIRST AMERICAN NATIONAL BANK
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-18-
19
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-19-
20
PARIBAS
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-20-
21
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-21-
22
FIRST UNION NATIONAL BANK
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-22-
23
THE SAKURA BANK, LIMITED
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-23-
24
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-24-
25
COMERICA BANK
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-25-
26
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-26-
27
THE SANWA BANK, LIMITED
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-27-
28
THE BANK OF NOVA SCOTIA
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-28-
29
WACHOVIA BANK, N.A.
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-29-
30
BANK OF TOKYO MITSUBISHI TRUST COMPANY
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-30-
31
BANK ONE, OKLAHOMA, NATIONAL ASSOCIATION
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-31-
32
ACKNOWLEDGED AND AGREED:
IDEA ENTERTAINMENT, INC.
By:
--------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
GAYLORD BROADCASTING COMPANY, L.P.
By: Gaylord Communications, Inc.,
its General Partner
By:
--------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
OPRYLAND ATTRACTIONS, INC.
By:
--------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
OLH, G.P.
By: Opryland Hospitality, Inc.
By:
-------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ACUFF-ROSE MUSIC PUBLISHING, INC.
(formerly known as OPRYLAND MUSIC
GROUP, INC.)
-32-
33
By:
-------------------------------------------
Name:--------------------------------------
Title:-------------------------------------
-33-
34
Commitment Commitment
Lender (Prior to CMBS Event) (After CMBS Event) Specified Percentage
- ----------------------------------------------------- ------------------ ------------------ --------------------
Bank of America, N.A. $ 161,875,000.00 $ 84,791,666.70 30.83333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Wells Fargo Bank (Texas), National Association $ 43,750,000.00 $ 22,916,666.60 8.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
SunTrust Bank, Nashville, N.A. $ 52,500,000.00 $ 27,500,000.00 10.00000000%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Credit Lyonnais New York Branch $ 30,625,000.00 $ 16,041,666.65 5.83333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Wachovia Bank, N.A. $ 26,250,000.00 $ 13,750,000.00 5.00000000%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Banque Paribas $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
The Bank of New York $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
The Industrial Bank of Japan, Limited, Atlanta Agency $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
The Sakura Bank, Limited $ 8,750,000.00 $ 4,583,333.45 1.66666667%
- ----------------------------------------------------- ------------------ ------------------ --------------------
The Sanwa Bank, Limited $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
First Union National Bank $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Comerica Bank $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
First American National Bank $ 17,500,000.00 $ 9,166,666.60 3.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Bank of Tokyo Mitsubishi Trust Company $ 8,750,000.00 $ 4,583,333.45 1.66666667%
- ----------------------------------------------------- ------------------ ------------------ --------------------
The Bank of Nova Scotia $ 8,750,000.00 $ 4,583,333.45 1.66666667%
- ----------------------------------------------------- ------------------ ------------------ --------------------
The Fuji Bank, Limited, Atlanta Agency $ 8,750,000.00 $ 4,583,333.45 1.66666667%
- ----------------------------------------------------- ------------------ ------------------ --------------------
Bank One, Oklahoma, National Association $ 8,750,000.00 $ 4,583,333.45 1.66666667%
- ----------------------------------------------------- ------------------ ------------------ --------------------
General Electric Capital Corporation $ 43,750,000.00 $ 22,916,666.60 8.33333333%
- ----------------------------------------------------- ------------------ ------------------ --------------------
TOTALS $ 525,000,000.00 $ 275,000,000.00 100.00000000%
- ----------------------------------------------------- ------------------ ------------------ --------------------