EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this "FIRST SUPPLEMENTAL INDENTURE"),
dated as of November 20, 2003, among the subsidiaries listed on Schedule I
attached hereto (each a "GUARANTEEING SUBSIDIARY"), all subsidiaries of Gaylord
Entertainment Company (or its permitted successor), a Delaware corporation (the
"COMPANY"), and U.S. Bank National Association, a national banking corporation
(or its permitted successor), as trustee under the Indenture referred to below
(the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company and the other Guarantors party thereto have
heretofore executed and delivered to the Trustee an indenture (the "INDENTURE"),
dated as of November 12, 2003 providing for the issuance of 8% Senior Notes due
2013 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this First Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee.
(a) The Guaranteeing Subsidiary, along with all other Guarantors,
jointly and severally, and fully and unconditionally, guarantees to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company hereunder or thereunder,
that:
(i) the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal of, premium, if any, and interest and Liquidated Damages,
if any, on the Notes, if lawful (subject in all cases to any applicable grace
period provided herein), and all other obligations of the Company to the Holders
or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and the
principal of, premium, if any, and interest
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and Liquidated Damages, if any, on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Notes, if lawful (subject in all cases to any applicable
grace period provided herein)
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors shall be jointly and severally obligated to
pay the same immediately. The Guaranteeing Subsidiary agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent
permitted under applicable law, its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a Guarantor.
(c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture,
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that this Note Guarantee shall not be discharged except
by complete performance of the obligations contained in the Notes and the
Indenture.
(d) The Guaranteeing Subsidiary agrees that if any Holder or the Trustee is
required by any court or otherwise to return to the Company, the Guarantors, or
any custodian, trustee, liquidator or other similar official acting in relation
to any of the Company or the Guarantors, any amount paid by any of them to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(e) The Guaranteeing Subsidiary agrees that the Guaranteeing Subsidiary
shall not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(f) The Guaranteeing Subsidiary agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six of the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article Six of the Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of this
Note Guarantee.
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(g) The Guaranteeing Subsidiary shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of Holders under the Note Guarantee.
(h) The Guaranteeing Subsidiary confirms, pursuant to Section 10.02 of the
Indenture, that it is the intention of such Guaranteeing Subsidiary that its
Note Guarantee not constitute (i) a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to its Note Guarantee or (ii) an unlawful distribution under any
applicable state law prohibiting shareholder distributions by an insolvent
subsidiary to the extent applicable to its Note Guarantee, and, to effectuate
the foregoing intention, agrees hereby irrevocably that the obligations of such
Guaranteeing Subsidiary will be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Guaranteeing
Subsidiary that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article Ten of the Indenture, result in the obligations of such
Guaranteeing Subsidiary under its Note Guarantee not constituting a fraudulent
transfer or conveyance or such an unlawful shareholder distribution.
3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.
(a) A Guarantor may not sell or otherwise dispose of all or substantially
all of its assets, or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person, other than the Company
or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no
Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any
such consolidation or merger (if other than the Guarantor) is
a corporation or limited liability company organized or
existing under the laws of the United States, any state
thereof or the District of Columbia and assumes all the
obligations of that Guarantor under the Indenture, its Note
Guarantee and the Registration Rights Agreement pursuant to a
supplemental indenture reasonably satisfactory to the Trustee;
or
(B) such sale or other disposition or consolidation
or merger complies with Section 4.10 of the Indenture.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the
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Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by a Guarantor, such successor
Person shall succeed to and be substituted for a Guarantor with the same effect
as if it had been named herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees to be endorsed upon all
of the Notes issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee. All the Note Guarantees so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with the
terms of the Indenture as though all of such Note Guarantees had been issued at
the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (i) and (ii) of Section 4(a) above, nothing contained in
the Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
5. Release.
(a) Any Guarantor will be released and relieved of any obligations under
its Note Guarantee, (i) in connection with any sale or other disposition of all
of the Capital Stock of that Guarantor to a Person that is not (either before or
after giving effect to such transaction) an Affiliate of the Company, if the
sale of all such Capital Stock of that Guarantor complies with Section 4.10 of
the Indenture; (ii) if the Company properly designates that Guarantor as an
Unrestricted Subsidiary under the Indenture or (iii) solely in the case of a
Note Guarantee created pursuant to the second sentence of Section 4.18(a) of the
Indenture, upon the release or discharge of the Guarantee which resulted in the
creation of such Note Guarantee pursuant to Section 4.18(b) of the Indenture,
except a discharge or release by or as a result of payment under such Guarantee.
Upon delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that one of the foregoing requirements has been
satisfied and the conditions to the release of a Guarantor under this Section 5
have been satisfied, the Trustee shall execute any documents reasonably required
in order to evidence the release of such Guarantor from its obligations under
its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
and Liquidated Damages, if any, on the Notes and for the other obligations of
any Guarantor under the Indenture as provided in Article Ten of the Indenture.
6. No Recourse Against Others. Pursuant to Section 12.07 of the
Indenture, no director, officer, employee, incorporator or stockholder of the
Guaranteeing Subsidiary shall have any liability for any obligations of such
Guaranteeing Subsidiary under the Notes, the Indenture, the Note Guarantees or
for any claim based on, in respect of, or by reason of, such obligations or
their creation.
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7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
8. Counterparts. The parties may sign any number of copies of this
First Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: November 20, 2003
ABBOTT & ANDREWS REALTY, LLC, a
Florida limited liability company
ABBOTT REALTY SERVICES, INC., a Florida
corporation
ABBOTT RESORTS, LLC, a Florida limited
liability company
ACCOMMODATIONS CENTER, INC., a
Colorado corporation
ADVANTAGE VACATION HOMES BY STYLES, LLC,
a Florida limited liability company
B&B ON THE BEACH, INC., a North Carolina
corporation
BASE MOUNTAIN PROPERTIES INC., a Delaware
corporation
BLUEBILL PROPERTIES LLC, a Florida limited
liability company
BLUEBILL VACATION PROPERTIES, LLC, a
Florida limited liability company
BRINDLEY & BRINDLEY REALTY & DEVELOPMENT,
INC., a North Carolina corporation
COASTAL REAL ESTATE SALES, LLC, a Florida
limited liability company
COASTAL RESORTS INTERNATIONAL, LLC, a
Florida limited liability company
COASTAL RESORTS MANAGEMENT, INC., a
Delaware corporation
COASTAL RESORTS REALTY LLC, a Delaware
limited liability company
COATS, REID & WALDRON, INC., a Delaware
corporation
COLLECTION OF FINE PROPERTIES, INC., a
Colorado corporation
COLUMBINE MANAGEMENT COMPANY, a Colorado
corporation
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COVE MANAGEMENT SERVICES, INC., a
California corporation
CRW PROPERTY MANAGEMENT, INC., a Delaware
corporation
EXCLUSIVE VACATION PROPERTIES, INC., a
Delaware corporation
FIRST RESORT SOFTWARE, INC., a Colorado
corporation
FLORIDA RESIDENTIAL RENTALS, LLC, a Florida
limited liability company
HIGH COUNTRY RESORTS, INC., a Delaware
corporation
HOUSTON AND O'LEARY COMPANY, a Colorado
corporation
K-T-F ACQUISITION CO., a Delaware
corporation
MAUI CONDOMINIUM AND HOME REALTY, INC.,
a Hawaii corporation
MOUNTAIN VALLEY PROPERTIES, INC.,
a Delaware corporation
NAPLES/MARCO VACATION ACCOMMODATIONS, LLC,
a Florida limited liability company
PEAK SKI RENTALS, LLC, a Colorado limited
liability company
PLANTATION RESORT MANAGEMENT, INC., a
Delaware corporation
PRISCILLA MURPHY REALTY, LLC, a Florida
limited liability company
PRISCILLA MURPHY VACATION RENTALS, LLC, a
Florida limited liability company
R&R RESORT RENTAL PROPERTIES, INC., a North
Carolina corporation
REP HOLDINGS, LTD., a Hawaii corporation
RESORT PROPERTY MANAGEMENT, INC., a Utah
corporation
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RESORTQUEST HILTON HEAD, INC., a Delaware
corporation
RESORTQUEST INTERNATIONAL, INC., a Delaware
corporation
RESORT RENTAL VACATIONS, LLC, a Tennessee
limited liability company
RIDGEPINE, INC., a Delaware corporation
RYAN'S GOLDEN EAGLE MANAGEMENT INC., a
Montana corporation
SCOTTSDALE RESORT ACCOMMODATIONS, INC., a
Delaware corporation
STEAMBOAT PREMIER PROPERTIES, a Delaware
corporation
STYLES ESTATES, LLC, a Florida limited
liability company
TELLURIDE RESORT ACCOMMODATIONS, INC., a
Colorado corporation
TEN MILE HOLDINGS, LTD., a Colorado
corporation
THE MANAGEMENT COMPANY, INC., a Georgia
corporation
THE MAURY PEOPLE, INC., a Massachusetts
corporation
THE TOPS'L GROUP, INC., a Florida
corporation
TOPS'L CLUB OF NW FLORIDA, LLC, a Florida
limited liability company
TRUPP-HODNETT ENTERPRISES, INC., a Georgia
corporation
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UNIVERSAL VACATION ACQUISITION CO., LLC, a
Delaware limited liability company
By: /s/ A. Key Foster
---------------------------------------
Name: A. Key Foster
Title: Vice President and Treasurer
OFFICE AND STORAGE LLC, a Hawaii limited
liability company
By: /s/ David C. Kloeppel
---------------------------------------
Name: David C. Kloeppel
Title: Manager
RQI HOLDINGS, LTD., a Hawaii corporation
By: /s/ James S. Olin
---------------------------------------
Name: James S. Olin
Title: Executive Vice President
GAYLORD ENTERTAINMENT COMPANY
By: /s/ David C. Kloeppel
---------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President and
Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ Frank Leslie
---------------------------------------
Name: Frank Leslie
Title: Vice President
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RESORTQUEST HAWAII, LLC, a Hawaii limited
liability company
By: /s/ James S. Olin
---------------------------------------
Name: James S. Olin
Title: Executive Vice President
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SCHEDULE I
1. ResortQuest International, Inc. (Delaware)
2. Abbott & Andrews Realty, LLC (Florida)
3. Abbott Realty Services, Inc. (Florida)
4. Abbott Resorts, LLC (Florida)
5. Accommodations Center, Inc. (Colorado)
6. Advantage Vacation Homes By Styles, LLC (Florida)
7. B & B on the Beach, Inc. (North Carolina)
8. Base Mountain Properties, Inc. (Delaware)
9. Bluebill Properties, LLC (Florida)
10. Bluebill Vacation Properties, LLC (Florida)
11. Brindley & Brindley Realty & Development, Inc. (North Carolina)
12. Coastal Real Estate Sales, LLC (Florida)
13. Coastal Resorts International, LLC (Florida)
14. Coastal Resorts Management, Inc. (Delaware)
15. Coastal Resorts Realty, LLC (Delaware)
16. Coates, Reid & Waldron, Inc. (Delaware)
17. Collection of Fine Properties, Inc. (Colorado)
18. Columbine Management Company (Colorado)
19. Cove Management Services, Inc. (California)
20. CRW Property Management, Inc. (Delaware)
21. Exclusive Vacation Properties, Inc. (Delaware)
22. First Resort Software, Inc. (Colorado)
23. Florida Residential Rentals, LLC (Florida)
24. High Country Resorts, Inc. (Delaware)
25. Houston and O'Leary Company (Colorado)
26. K-T-F Acquisition Co. (Delaware)
27. Maui Condominium and Home Realty, Inc. (Hawaii)
28. Mountain Valley Properties, Inc. (Delaware)
29. Naples/Marco Vacation Accommodations, LLC (Florida)
30. Office and Storage LLC (Hawaii)
31. Peak Ski Rentals LLC (Colorado)
32. Plantation Resort Management, Inc. (Delaware)
33. Priscilla Murphy Realty, LLC (Florida)
34. Priscilla Murphy Vacation Rentals, LLC (Florida)
35. R & R Resort Rental Properties, Inc. (North Carolina)
36. REP Holdings, Ltd. (Hawaii)
37. Resort Property Management, Inc. (Utah)
38. ResortQuest Hawaii, LLC (Hawaii)
39. ResortQuest Hilton Head, Inc. (Delaware)
40. Resort Rental Vacations, LLC (Tennessee)
41. Ridgepine, Inc. (Delaware)
42. RQI Holdings, Ltd. (Hawaii)
43. Ryan's Golden Eagle Management, Inc. (Montana)
44. Scottsdale Resort Accommodations, Inc. (Delaware)
45. Steamboat Premier Properties, Inc. (Delaware)
46. Styles Estates, LLC (Florida)
47. Telluride Resort Accommodations, Inc. (Colorado)
48. Ten Mile Holdings, Ltd. (Colorado)
49. THE Management Company (Georgia)
50. The Maury People, Inc. (Massachusetts)
51. The Tops'l Group, Inc. (Florida)
52. Tops'l Club of NW Florida, LLC (Florida)
53. Trupp-Hodnett Enterprises, Inc. (Georgia)
54. Universal Vacation Acquisition Co., LLC (Delaware)