EXHIBIT 10.16
SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second Amendment") is dated as of March 14, 2003 and entered into by and among
RESORTQUEST INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), the
Guarantors (as defined in the Credit Agreement, as hereinafter defined), the
financial institutions listed on the signature pages hereof (the "Lenders"), and
CITIBANK, N.A., as administrative agent for the Lenders (in such capacity, the
"Agent"), and is made with reference to that certain Amended and Restated Credit
Agreement dated as of January 22, 2001 (as amended by that certain First
Amendment to Amended and Restated Credit Agreement, dated October 30, 2001,
collectively, the "Credit Agreement"), by and among the Borrower, the
Guarantors, the Lenders (as defined therein), BANK OF AMERICA, N.A., as
Documentation Agent, CREDIT LYONNAIS NEW YORK BRANCH, as Syndication Agent, and
the Agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the Borrower and the Lenders desire to amend the Credit
Agreement in the manner set forth below,
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Consolidated EBITDA" in its entirety and substituting
therefor the following:
"`Consolidated EBITDA' means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(A) Consolidated Interest Expense for such period, (B) total federal, state,
local and foreign income, value added and similar taxes for such period and (C)
depreciation and amortization expense for such period, all as determined in
accordance with GAAP; provided, however:
(1) that the calculation of Consolidated EBITDA shall exclude
non-cash charges occurring in the fiscal quarter ended September 30, 2001 in an
aggregate amount not to exceed $2,500,000 resulting from (y) the write-down of
the value of the Borrower's existing reservation system, and (z) the recognition
of deferred acquisition costs;
(2) that the calculation of Consolidated EBITDA for the fiscal
quarter ended December 31, 2002 shall exclude the following: (x) charges of
$2,585,865.65 for severance and employee related expenses; (y) charges of
$1,243,244.44 relating to other items, including (i) expenses incurred in the
consolidation of shared service centers, (ii) the closing of the Shoreline, Ohio
office and other property consolidations, and (iii) legal costs related to a
management contract dispute in Hawaii and an indirect lawsuit in Destin,
Florida; and (z) charges of $10,593,977.09 in connection with the writedown of
First Resort software;
(3) that the calculation of Consolidated EBITDA for the fiscal
quarters ending in calendar year 2003 shall exclude charges in an aggregate
amount not to exceed $810,000 for expenses related to the relocation of the
Borrower's corporate headquarters to Destin, Florida; and
(4) that at the option of the Borrower, Consolidated EBITDA for any
period shall also include Consolidated EBITDA attributable to each acquisition
made during such period in an amount equal to:
(y) when computing Consolidated EBITDA for use in determining
the Fixed Charge Coverage Ratio, the greater of (i) the actual
Consolidated EBITDA attributable to the Property acquired for the
period from the acquisition date to the applicable calculation date,
or (ii) an amount equal to (A) Consolidated EBITDA computed on a pro
forma basis with respect to the Property acquired as if the
acquisition date had occurred 12 months prior to the applicable
calculation date, divided by (B) twelve (12), multiplied by (C) the
number of full calendar months that have elapsed between the actual
acquisition date and the applicable calculation date; and
(z) when computing Consolidated EBITDA for any other purpose,
an amount equal to Consolidated EBITDA computed on a pro forma basis
with respect to the Property acquired as if the acquisition date had
occurred 12 months prior to the applicable calculation date."
B. The definition of "Note Purchase and Guarantee Agreement" in
Section 1.1 of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting therefor the following:
"`Note Purchase and Guarantee Agreement' means the Note Purchase and
Guarantee Agreement among the Credit Parties and the Noteholders, as amended by
that certain Modification Agreement dated as of July 24, 2000, that certain
Second Modification Agreement dated as of October 30, 2001 and that certain
Third Modification Agreement dated as of March 14, 2003."
C. The definition of "Permitted Investments" in Section 1.1 of the
Credit Agreement is hereby amended by (a) deleting clause (viii) and replacing
it with "(viii) Permitted Acquisitions made on or before December 31, 2002;",
(b) deleting the period at the end of clause (ix) thereof and inserting "; and",
and (c) inserting a new clause (x) thereafter as follows:
"(x) the investment of (i) up to $37,500 as an initial capital
contribution to and (ii) up to an additional $50,000 in the aggregate in
debt or equity investments in a limited liability company to be
established between the Borrower and Wells Fargo Ventures, LLC for the
purpose of engaging in the business of residential mortgage lending."
1.2 AMENDMENT TO SECTION 3: OTHER PROVISIONS RELATING TO CREDIT
FACILITIES
Section 3.5 of the Credit Agreement is hereby amended by adding
thereto as a new clause (e) the following:
"(e) Contingent Amendment Fee. If the Obligations are not paid in
full on or before the Maturity Date, the Borrower shall pay to the
Agent, on the Maturity Date, for distribution to each Lender in
proportion to such Lender's Revolving Commitment Percentage, an
amendment fee in the aggregate amount of $200,000.00. For the
purposes
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of this Section 3.5(e), any refinancing of the Obligations on or
prior to the Maturity Date in which any Lender participates or
otherwise holds an interest shall not constitute payment in full of
the Obligations."
1.3 AMENDMENTS TO SECTION 7: AFFIRMATIVE COVENANTS
A. Section 7.11(a) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
"(a) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio,
as of the last day of each fiscal quarter of the Consolidated Parties
ending during any of the periods set forth below, shall be greater than or
equal to the correlative ratio indicated:
MINIMUM FIXED
PERIOD CHARGE COVERAGE RATIO
----------------------- ---------------------
Closing Date - 09/30/01 2.50 to 1.0
10/01/01 - 12/31/01 2.30 to 1.0
01/01/02 - 03/31/02 1.90 to 1.0
04/01/02 - 06/30/02 1.75 to 1.0
07/01/02 - 09/30/02 1.60 to 1.0
10/01/02 - 12/31/02 1.75 to 1.0
1/01/03 - 3/31/03 1.53 to 1.0
4/01/03 - 6/30/03 1.45 to 1.0
7/01/03 - 9/30/03 1.54 to 1.0
10/01/03 - 12/31/03 1.72 to 1.0
01/01/04 and thereafter 3.00 to 1.0
"
B. Section 7.11(b) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
"(b) Consolidated Leverage Ratio. The Consolidated Leverage Ratio,
as of the last day of each fiscal quarter of the Consolidated Parties
ending during any of the periods set forth below, shall be less than or
equal to the correlative ratio indicated:
MAXIMUM CONSOLIDATED
PERIOD LEVERAGE RATIO
------------------------ --------------------
Closing Date - 06/30/01 2.50 to 1.0
7/01/01 -- 9/30/01 3.00 to 1.0
10/01/01 - 12/31/01 4.25 to 1.0
01/01/02 - 03/31/02 5.15 to 1.0
04/01/02 - 06/30/02 5.15 to 1.0
07/01/02 - 09/30/02 5.15 to 1.0
10/01/02 - 12/31/02 4.30 to 1.0
1/01/03 - 3/31/03 5.13 to 1.0
4/01/03 - 6/30/03 4.78 to 1.0
7/01/03 - 9/30/03 4.54 to 1.0
10/01/03 - 12/31/03 3.51 to 1.0
01/01/04 and thereafter 2.50 to 1.0
"
C. Section 7.11(d) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
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"(d) Consolidated Capital Expenditures. The Borrower shall not
permit Consolidated Capital Expenditures for any fiscal year to exceed the
lesser of (i) 4% of Consolidated Revenues or (ii) $10,000,000.
Notwithstanding the foregoing,
(y) Consolidated Capital Expenditures (other than Software
Expenditures permitted pursuant to the last sentence of this Section
7.11(d)) incurred during calendar year 2002 shall not in any event
exceed $6,900,000 in the aggregate, and
(z) Consolidated Capital Expenditures incurred from and after
January 1, 2003 shall not in any event exceed $6,000,000 in the
aggregate.
In addition to the Consolidated Capital Expenditures permitted under the
foregoing provisions of this Section 7.11(d), so long as no Default or
Event of Default has occurred and is continuing or would be caused
thereby, the Consolidated Parties shall also have the right to make
Software Expenditures in an aggregate amount not to exceed $15,000,000
during the period commencing on June 30, 2000 and ending on December 31,
2002."
D. Section 7.11(e) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefore the following:
"(e) Minimum Consolidated EBITDA. The Consolidated EBITDA, as of the
last day of each fiscal quarter of the Consolidated Parties set forth
below, shall greater than or equal to the correlative dollar amount
indicated:
Fiscal Quarter Minimum Consolidated EBITDA
------------------------ ---------------------------
10/01/01 - 12/31/01 Negative ($11,700,000)
01/01/02 - 03/31/02 $6,200,000
04/01/02 - 06/30/02 $6,200,000
07/01/02 - 09/30/02 $9,000,000
10/01/02 - 12/31/02 Negative ($7,750,000)
1/01/03 - 3/31/03 $4,500,000
4/1/03 - 6/30/03 $4,600,000
7/1/03 - 9/30/03 $12,630,000
10/01/03 and thereafter Negative ($5,890,000)
"
1.4 AMENDMENT TO EXHIBIT 7.1(C): FORM OF OFFICER'S CERTIFICATE
Exhibit 7.1(c) to the Credit Agreement is hereby amended by deleting
it in its entirety and substituting therefor the Form of Officer's Certificate
attached hereto as Schedule 1.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Second Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Second
Amendment Effective Date"), except paragraph (ii) of paragraph C:
A. On or before the Second Amendment Effective Date, the Borrower
shall deliver to the Agent executed copies of this Second Amendment (with
sufficient originally executed copies for each Lender and its counsel) dated the
Second Amendment Effective Date.
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B. On or before the Second Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by the Agent, acting on behalf of the Lenders, and its counsel shall
be satisfactory in form and substance to the Agent and such counsel, and the
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as the Agent may reasonably request.
C. (i) On or before the Second Amendment Effective Date, the
Borrower shall have paid to each Lender who has consented to and
joined in the execution of this Second Amendment, by wire transfer
of immediately available federal funds, an amendment fee equal to
the product of (y) the Commitment of such Lender and (z) 0.70%.
(i) Although not a condition to the effectiveness of Section 1 of
this Second Amendment on the Second Amendment Effective Date, on or
before June 13, 2003, the Borrower shall pay to each Lender who has
consented to and joined in the execution of this Second Amendment,
by wire transfer of immediately available federal funds, an
amendment fee equal to the product of (y) the Commitment of such
Lender and (z) 0.70%.
D. The Borrower, the Noteholders and the other parties to the Third
Modification Agreement (defined below) shall have executed and delivered the
Third Modification Agreement, in form and substance satisfactory to the Agent,
and the Agent shall have received a copy thereof, as originally in effect,
certified as true and complete by an officer of the Borrower, and the same shall
be in full force and effect.
E. This Second Amendment shall have become effective in accordance
with Section 5.E hereof.
F. All costs, fees and expenses of Shearman & Sterling, counsel to
the Agent, in connection with the waivers and modifications to the Credit
Agreement shall have been paid by the Borrower.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Second Amendment and to amend the Credit Agreement in the manner provided
herein, each of the Credit Parties hereby represents to the Agent and the
Lenders that the following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each of the Credit Parties has all
requisite corporate power and authority to enter into this Second Amendment and
to carry out the transactions contemplated by, and perform its obligations
under, the Credit Agreement as amended by this Second Amendment (the "Amended
Agreement").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Second Amendment and the performance of the Amended Agreement by the Credit
Parties have been duly authorized by all necessary corporate action on the part
of the Credit Parties, as applicable.
C. NO CONFLICT. Neither the execution and delivery of this Second
Amendment, nor the consummation of the transactions contemplated herein, nor
performance of and compliance with the terms and provisions thereof by such
Credit Party will (a) violate or conflict with any provision of its articles or
certificate of incorporation or bylaws or other organizational or governing
documents of such
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Credit Party, (b) violate, contravene or materially conflict with any
Requirement of Law or any other law, regulation (including, without limitation,
Regulation U or Regulation X), order, writ, judgment, injunction, decree or
permit applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any Material Agreement to
which it is a party or by which it may be bound, or (d) result in or require the
creation of any Lien (other than those contemplated in or created in connection
with the Credit Documents) upon or with respect to its properties.
D. GOVERNMENTAL CONSENTS. The execution and delivery by the Credit
Parties of this Second Amendment and all other operative documents being
delivered in connection herewith and the performance by the Credit Parties of
the Credit Party Obligations under the Amended Agreement do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any Governmental Authority.
E. BINDING OBLIGATION. This Second Amendment has been duly executed
and delivered by each of the Credit Parties, and the Second Amendment and the
Amended Agreement will be legally valid and binding obligations of the Credit
Parties, enforceable against the Credit Parties, in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. GOVERNMENTAL REGULATION; SECURITIES ACTIVITIES. Neither the
making of the Loans pursuant to the Amended Agreement nor the granting of a
security interest in any Collateral pursuant to the Collateral Documents
violates Regulations T, U or X of the Board of Governors of the Federal Reserve
System. It is not necessary in connection with the execution and delivery of the
Amended Agreement to register the Loans under the Securities Act of 1933, as
amended, or to qualify any indenture under the Trust Indenture Act of 1939, as
amended.
G. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in this Second Amendment
and Section 6 of the Credit Agreement are and will be true, correct and complete
in all material respects on and as of the Second Amendment Effective Date to the
same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
H. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Second Amendment that would constitute an Event of Default or a default which,
with the giving of notice or passage of time, or both, would constitute an Event
of Default.
I. THIRD MODIFICATION AGREEMENT. The Borrower has delivered to the
Agent a true and correct copy of the Third Modification Agreement dated as of
even date herewith (the "Third Modification Agreement") by and among the
Borrower, the Guarantors (as defined therein) and the Noteholders. The Third
Modification Agreement is in full force and effect and all conditions precedent
to its effectiveness have been satisfied in full or otherwise complied with by
the Borrower and the Guarantors. Other than as expressly set forth in the Third
Modification Agreement, (i) there are no other agreements or understandings
between the Borrower and any Guarantors and the Noteholders with respect to the
Note Purchase and Guarantee Agreement and (ii) no defaults or events of default
exist or will exist thereunder immediately after giving effect to the Third
Modification Agreement and this Agreement. The financial covenants set forth in
the Senior Note Documents, after giving effect to the Third Modification
Agreement, are not more restrictive than the financial covenants set forth in
Section 7.11 of the Credit Agreement.
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J. COMPLIANCE WITH THIS AGREEMENT AND THE THIRD MODIFICATION
AGREEMENT. The Borrower and the Guarantors shall have performed and complied
with all agreements and conditions contained in this Agreement and the Third
Modification Agreement that are required to be performed or complied with by
such parties on or prior to, and such performance and compliance shall remain in
effect on, the Second Amendment Effective Date.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each of the Credit Parties hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Second Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Second Amendment. Each Credit Party hereby confirms that each Credit Document to
which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Credit Party Obligations",
"Guarantied Obligations" and "Secured Obligations," as the case may be (in each
case as such terms are defined in the applicable Credit Document), including
without limitation the payment and performance of all such "Credit Party
Obligations", "Guarantied Obligations" or "Secured Obligations," as the case may
be, now or hereafter existing under or in respect of the Amended Agreement.
Each Credit Party acknowledges and agrees that any of the Credit
Documents to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Second Amendment.
Each Credit Party (other than the Borrower) acknowledges and agrees
that (i) notwithstanding the conditions to effectiveness set forth in this
Second Amendment, such Credit Party is not required by the terms of the Credit
Agreement or any other Credit Document to consent to the amendments to the
Credit Agreement effected pursuant to this Second Amendment and (ii) nothing in
the Credit Agreement, this Second Amendment or any other Credit Document shall
be deemed to require the consent of such Credit Party to any future amendments
to the Credit Agreement.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
CREDIT DOCUMENTS.
(i) On and after the Second Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement,
and each reference in the other Credit Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to
the Amended Agreement.
(ii) Except as specifically amended by this Second Amendment, the
Credit Agreement and the other Credit Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Second
Amendment shall not, except as expressly provided herein, constitute
a waiver of any provision of, or operate as a waiver of any right,
power or remedy of the Agent or any Lender under, the Credit
Agreement or any of the other Credit Documents.
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(iv) This Second Amendment shall constitute a Credit Document. Any
failure to comply with the covenants contained herein within the
time periods applicable thereto, including the payment obligations
contained in Sections 2C and 2F, shall entitle the Agent to declare
an Event of Default under the Credit Agreement.
B. FEES AND EXPENSES. The Borrower acknowledges that all costs, fees
and expenses as described in Section 11.5 of the Credit Agreement incurred by
the Agent and its counsel with respect to this Second Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Borrower. The foregoing shall not be construed to diminish or limit the
obligations of the Borrower set forth in Section 11.5 of the Credit Agreement.
C. HEADINGS. Section and subsection headings in this Second
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Second Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK).
E. COUNTERPARTS; EFFECTIVENESS. This Second 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 an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Second Amendment shall become
effective (other than Section 1 hereof, which shall only become effective upon
the satisfaction of each of the conditions set forth in Section 2 hereof) upon
(i) the execution of a counterpart hereof by the Borrower, each of the Lenders
comprising the percentage of Lenders specifically required pursuant to Section
11.6 of the Credit Agreement and each of the Credit Parties, and (ii) receipt by
the Borrower and the Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
F. RELEASE. Each of the Borrower and the Guarantors releases the
Agent, the Lenders, and the Agent's and the Lenders' respective officers,
employees, representatives, agents, managers, counsel, and directors from any
and all actions, causes of action, claims, demands, damages and liabilities of
whatever kind or nature, in law or equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act on or prior to the date hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWER: RESORTQUEST INTERNATIONAL, INC.
a Delaware corporation
By: /s/ David K. Selberg
------------------------------------
Name: David K. Selberg
Title: Vice President & Treasurer
GUARANTORS: FIRST RESORT SOFTWARE, INC., a Colorado
corporation
ADVANTAGE VACATION HOMES BY STYLES, INC., a Delaware
corporation
STYLES ESTATES, LTD., INC., a Delaware
corporation
B&B ON THE BEACH, INC., a North Carolina
corporation
BRINDLEY & BRINDLEY REALTY &
DEVELOPMENT, INC., a North Carolina corporation
BLUEBILL PROPERTIES, INC., a Delaware
corporation
BLUEBILL VACATION PROPERTIES, INC., a
Delaware corporation
COATES, REID & WALDRON, INC., a Delaware
corporation
CRW PROPERTY MANAGEMENT, INC., a
Delaware corporation
COASTAL RESORTS REALTY, L.L.C., a
Delaware limited liability company
COASTAL RESORTS MANAGEMENT, INC., a
Delaware corporation
COLLECTION OF FINE PROPERTIES, INC., a
Colorado corporation
TEN MILE HOLDINGS, LTD., a Colorado corporation
S-1
HOTEL CORPORATION OF THE PACIFIC, INC., a
Hawaii corporation
HOUSTON AND O'LEARY COMPANY, a Colorado
corporation
MAUI CONDOMINIUM & HOME REALTY, INC., a
Hawaii corporation
THE MAURY PEOPLE, INC., a Massachusetts
corporation
HOWEY ACQUISITION, INC., a Florida
corporation
PRISCILLA MURPHY REALTY, INC., a Florida
corporation
REALTY CONSULTANTS, INC., a Florida
corporation
RESORT PROPERTY MANAGEMENT, INC., a Utah
corporation
SHORELINE RENTALS, INC., a Delaware
corporation
TELLURIDE RESORT ACCOMMODATIONS,
INC., a Colorado corporation
TRUPP-HODNETT ENTERPRISES, INC., a Georgia
corporation
THE MANAGEMENT COMPANY, INC., a Georgia
corporation
WORTHY OWNER RENTAL GROUP, INC., a South
Carolina corporation
ABBOTT & ANDREWS REALTY, INC., a Florida
corporation
ABBOTT REALTY SERVICES, INC., a Florida
corporation
ABBOTT RESORTS, INC., a Florida
corporation
PLANTATION RESORT MANAGEMENT, INC., a
Delaware corporation
THE TOPS'L GROUP, INC., a Florida
corporation
S-2
R & R RESORT RENTAL PROPERTIES, INC., a
North Carolina corporation
(The following signature is on behalf of each of the
foregoing Guarantors)
By: /s/ David K. Selberg
------------------------------------
Name: David K. Selberg
Title: Vice President & Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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LENDERS: CITIBANK, N.A., as Agent
By: /s/ Harry Vlandis
------------------------------------
Name: Harry Vlandis
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as a Lender and an Issuing Lender
By: /s/ David Colmie
------------------------------------
Name: David Colmie
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ David Bowers
------------------------------------
Name: David Bowers
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as a Lender and an Issuing Lender
By: /s/ Harry Vlandis
------------------------------------
Name: Harry Vlandis
Title: Senior Vice President
UNION PLANTERS BANK,
as a Lender
By: /s/ Victoria E. Docaur
------------------------------------
Name: Victoria E. Docauer
Title: Senior Vice President
S-4
SCHEDULE 1
EXHIBIT 7.1(C)
FORM OF
OFFICER'S CERTIFICATE
TO: CITIBANK, N.A., as Agent
390 Greenwich Street
New York, New York 10013
Attn: Larry Farley
RE: Amended and Restated Credit Agreement dated as of January 22, 2001 among
ResortQuest International, Inc., a Delaware corporation (the "Borrower"),
the Credit Parties party thereto, the Lenders named therein,
Citibank, N.A., as Agent, Bank of America, N.A., as Documentation Agent,
Credit Lyonnais New York Branch, as Syndication Agent, and Salomon Smith
Barney Inc., as Arranger (as the same may be amended, modified, extended
or restated from time to time, the "Credit Agreement")
DATE : _____________, 20__
Pursuant to the terms of the Credit Agreement, I, ___________________,
chief financial officer of ResortQuest International, Inc. hereby certify on
behalf of all the Credit Parties that the statements below are accurate and
complete in all respects (all capitalized terms used below shall have the
respective meanings set forth in the Credit Agreement):
(a) I have reviewed the terms of the Credit Agreement and the terms
of the other Credit Documents, and I have made, or have caused to be made
under my supervision, a review in reasonable detail of the transactions
and condition of the Consolidated Parties during the accounting period
covered by the attached financial statements.
(b) Attached hereto as Schedule 1 are calculations demonstrating
compliance by the Credit Parties with the financial covenants contained in
Section 7.11 of the Credit Agreement.
(c) The examination described in paragraph (a) above did not
disclose, and we have no knowledge of, the existence of any condition or
event which constitutes a Default or Event of Default under the Credit
Agreement.
(d) The monthly/quarterly/annual financial statements for the fiscal
month/quarter/year ended __________ which accompany this certificate
fairly present in all material respects the financial condition of the
Consolidated Parties or the Borrower and its Subsidiaries, as applicable,
and have been prepared in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments.
Exh.7.1(c)-1
RESORTQUEST INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
Exh.7.1(c)-2
SCHEDULE 1 TO OFFICER'S CERTIFICATE
1. Fixed Charge Coverage Ratio
(a) Consolidated EBITDA $
----------------
(b) Consolidated Rent Expense $
----------------
(c) [(a)+(b)] $
----------------
(d) Consolidated Interest Expense $
----------------
(e) Consolidated Scheduled Funded Debt Payments $
----------------
(f) Consolidated Rent Expense $
----------------
(g) Dividends $
----------------
(h) Major Earnout Payments: $
----------------
(i) Net Aston Guaranty Payments: $
----------------
(j) [(d)+(e)+(f)+(g)+(h)+(i)]: $
----------------
(k) Fixed Charge Coverage Ratio [(c)/(i)]: :1.0
-----------------
2. Consolidated Leverage Ratio
(a) Funded Indebtedness of the Consolidated
Parties $
----------------
(b) Consolidated EBITDA of the Consolidated
Parties $
----------------
(c) Consolidated Leverage Ratio [(a)/(b)] :1.0
-----------------
3. Consolidated Net Worth
(d) Actual Consolidated Net Worth as of the end
of the fiscal period referred to above $
----------------
(e) Base Consolidated Net Worth: $ 90,000,000
(f) .75 x cumulative Consolidated Net Income (to
the extent positive) subsequent to the
Closing Date $
----------------
(g) Net Cash Proceeds from Equity Issuance
subsequent to the Closing Date $
----------------
(h) Consolidated Net Worth required by Section
7.11(c) [(b)+(c)+(d)] $
----------------
Exh.7.1(c)-3
4. Consolidated Capital Expenditures
(i) Consolidated Capital Expenditures for the
twelve month period ending as of the end of
the fiscal period referred to above: $
----------------
(j) The lesser of $10,000,000 or 4% of
Consolidated Revenues of the Consolidated
Parties: $
----------------
(k) Software Expenditures for period commencing
on June 30, 2000 and ending as of the end of
the fiscal period referred to above (for
fiscal periods ending on or before December
31, 2002 only): $
----------------
5. Consolidated Capital Expenditures for Calendar
Year 2002
(l) Consolidated Capital Expenditures (other
than Software Expenditures) for the period
commencing January 1, 2002 and ending as of
the end of the fiscal period referred to
above (not to exceed $6,900,000 in calendar
year 2002): $
----------------
(m) Software Expenditures for period commending
on June 30, 2000 and ending as of the end of
the fiscal period referred to above: $
----------------
6. Consolidated Capital Expenditures for Period from
and after January 1, 2003
(n) Consolidated Capital Expenditures for the
period commencing January 1, 2003 and ending
as of the end of the fiscal period referred
to above (not to exceed $6,000,000 in the
aggregate for the period from and after
January 1, 2003): $
----------------
7. Minimum Consolidated EBITDA for Period from
October 1, 2001 to December 31, 2001, Calendar
Year 2002 and Period from and after January 1,
2003
(o) Consolidated EBITDA of the Consolidated
Parties as of the end of the fiscal period
referred to above: $
----------------
Exh.7.1(c)-4