ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of Borrower, Parent Guarantor or any Subsidiary Guarantor to the Lenders
or the Administrative Agent under or in connection with this Agreement, any
Advance, or any certificate or material written or documentary information
delivered in connection with this Agreement or any other Loan Document shall be
false in any material respect on the date as of which made or deemed remade in
accordance with the terms hereof.
7.2 (a) Nonpayment of principal of or interest on any Loan, any
Unpaid Drawing (or interest thereon), any commitment fee, undrawn fee, Letter of
Credit Fee, Facing Fee or Agency Fee payable to the Administrative Agent or any
Lender under any of the Loan Documents (i) within five Business Days after the
date such payment is due or (ii) on the Maturity Date (or such earlier date on
which all of the Obligations may become due or may be declared due hereunder) or
(b) nonpayment of any Obligations (other than those described in the preceding
clause (a)), payable to the Administrative Agent or any of the Lenders under any
of the Loan Documents, (i) within five Business Days after written notice from
the Administrative Agent to Borrower that the same has not been paid when due or
(ii) on the Maturity Date (or such earlier date on which all of the Obligations
may become due or may be declared due hereunder).
7.3 The breach by Borrower or Parent Guarantor of any of the terms
or provisions of Sections 2.22, 6.2, 6.6 (provided that a breach of any covenant
in Section 6.6 with respect to the furnishing of information, evidence or
certificates of insurance shall not be a Default until the same remains
unremedied for ten (10) days after receipt of written notice thereof from the
Administrative Agent to Borrower or Parent Guarantor), 6.13, 6.14, 6.15, 6.16,
6.17, 6.18 (provided that a Default shall not occur in respect of any breach of
the covenant in the last sentence of Section 6.18(a) to deliver documentation
with respect to new Subsidiary Guarantors unless such breach is not remedied
within ten (10) days after receipt of written notice thereof from the
Administrative Agent to Borrower or Parent Guarantor), 6.19, 6.20, 6.22, 6.23,
6.24, 6.25, 6.33, 6.34, 6.35 (provided that a breach of Section 6.35(b)(i) shall
not be a Default unless the same is also a breach of Section 6.35(c)(ii) or the
same remains unremedied for ten (10) days after receipt of written notice
thereof from the Administrative Agent to Borrower or Parent Guarantor; a breach
of Section 6.35(b)(iv) shall not be a Default unless the same results in a
material impairment of the Florida Hotel Ground Lease or the Lien of the
Mortgage or the same remains unremedied for ten (10) Business Days after receipt
of written notice thereof from the Administrative Agent to Borrower; a breach of
Section 6.35(c)(i) shall not be a Default unless the same is also a breach of
Section 6.35(c)(ii) or the same remains unremedied for ten (10) Business Days
after receipt of written notice thereof from the Administrative Agent to
Borrower; and a breach of Section 6.35(f) shall not be a Default unless the same
remains unremedied for ten (10) Business Days after receipt of written notice
thereof from the Administrative Agent to Borrower or Parent Guarantor), 6.36,
6.37, 6.39 or 6.40.
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7.4 The breach by Borrower or Parent Guarantor (other than a
breach which constitutes a Default under another Section of this Article VII) of
any of the terms or provisions of this Agreement or any of the other Loan
Documents which (a) if a default in the payment of money as and when due, is not
remedied within five (5) Business Days after written notice from the
Administrative Agent to Borrower or Parent Guarantor, or (b) if any other breach
or default, is not remedied for thirty (30) days after receipt of written notice
from the Administrative Agent thereof to Borrower or Parent Guarantor, provided
that if Borrower or Parent Guarantor commence to remedy such non-monetary breach
or default within such thirty (30) day time period, such thirty (30) day time
period for cure shall be extended for such time as is reasonably necessary to
complete such cure so long as Borrower or Parent Guarantor are diligently
pursuing the completion of such cure, but in no event shall the time period for
cure be extended for a period in excess of ninety (90) days after Borrower's or
Parent Guarantor's receipt of the initial written notice of breach or default.
7.5 Borrower, Parent Guarantor or any of their Subsidiaries shall
(a) default in any payment of any Indebtedness (other than the Obligations)
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created or (b) default in the observance or
performance of any agreement or condition relating to any Indebtedness (other
than the Obligations) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether
any notice is required), any such Indebtedness to become due or required to be
repurchased prior to its stated maturity, provided that (x) it shall not be a
Default or Event of Default under this Section 7.5 unless the aggregate
principal amount of all Indebtedness as described in preceding clauses (a) and
(b) is at least $10,000,000.00.
7.6 Borrower, any Property Manager, Parent Guarantor or any
Subsidiary Guarantor shall (i) have an order for relief entered with respect to
it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal bankruptcy laws as now
or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
7.7 Without the application, approval or consent of Borrower, any
Property Manager, Parent Guarantor or any Subsidiary Guarantor, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for
Borrower, any Property Manager, Parent Guarantor or any Subsidiary Guarantor or
any of its Property, or a proceeding described in Section 7.6(iv) shall be
instituted against Borrower, any Property Manager, Parent Guarantor or any
Subsidiary
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Guarantor and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall, other than
in a Non-Material Condemnation, condemn, seize or otherwise appropriate, or take
custody or control of, all or any portion of the Property of Borrower or Parent
Guarantor.
7.9 One or more of the following shall occur: (i) any money
judgment (other than a money judgment covered by insurance as to which the
insurance company has acknowledged coverage), writ or warrant of attachment, or
similar process is entered against Borrower, Parent Guarantor, any Subsidiary
Guarantor or the Opryland Hotel Florida and shall remain undischarged,
unvacated, unbonded or unstayed for a period of thirty (30) days or in any event
later than five (5) days prior to the date of any proposed sale thereunder, (ii)
a federal, state, local or foreign tax Lien is filed against Borrower, Parent
Guarantor, any Subsidiary Guarantor or the Opryland Hotel Florida which is not
discharged of record, bonded over or otherwise secured to the satisfaction of
the Administrative Agent within thirty (30) days after the filing thereof, or
(iii) an Environmental Lien is filed against Borrower, Parent Guarantor, any
Subsidiary Guarantor or the Opryland Hotel Florida, and the aggregate amount of
any or all of the foregoing with respect to Borrower and the Opryland Hotel
Florida exceeds $250,000.00 or with respect to Borrower, Parent Guarantor and
Subsidiary Guarantors, taken together, exceeds $5,000,000.00.
7.10 The occurrence of any "Default" or "Event of Default", as
defined in any Loan Document (other than this Agreement).
7.11 Nonpayment by Borrower of any Rate Management Obligation when
due or the breach by Borrower of any material term, provision or condition
contained in any Rate Management Transaction and the expiration of the cure
period, if any, applicable thereto under the provisions of the Rate Management
Transaction.
7.12 The Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or Parent Guarantor or any Subsidiary
Guarantor shall fail to comply with any of the terms or provisions of the
Guaranty or shall deny that it has any further liability thereunder, or shall
give notice to such effect.
7.13 Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document.
7.14 The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions; ERISA") shall at any time not be true
and correct.
7.15 Substantial Completion does not occur on or prior to June 30,
2004.
7.16 There shall occur any Change of Control not consented to by
the Majority Lenders.
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7.17 There shall occur an Event of Default under (and as defined
in) the Florida Hotel Ground Lease.
7.18 The Florida Master Ground Lease shall expire, be terminated or
otherwise cease to be in full force and effect and Florida Master Lessor shall
fail or refuse for any reason to recognize the Florida Hotel Ground Lease as a
direct lease, pursuant to the terms of the Omnibus Amendment as in effect on the
date hereof.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
(a) If any Default described in Section 7.6 or 7.7 occurs
with respect to Borrower, Parent Guarantor, any Property Manager or any
Subsidiary Guarantor, the Revolving Loan Commitment and the obligations of the
Lenders to issue Letters of Credit and make Revolving Loans and Swingline Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the
Administrative Agent or any Lender, and Borrower shall immediately pay to the
Administrative Agent an additional amount of cash, to be held as cash collateral
by Administrative Agent for the benefit of the Issuing Banks as security for
Borrower's and Parent Guarantor's reimbursement obligations in respect of all
Letters of Credit then outstanding, which amount (the "Letter of Credit
Collateral Amount") shall be equal to the aggregate Stated Amount of such
Letters of Credit. If any other Default occurs, the Administrative Agent shall
upon the direction of, and may, with the consent of Majority Lenders, take any
or all of the following actions: (i) terminate or suspend the Revolving Loan
Commitment and the obligations of the Lenders to issue Letters of Credit and
make Revolving Loans and Swingline Loans hereunder, or (ii) declare the
Obligations to be due and payable, whereupon the Obligations, including, without
limitation, the Letter of Credit Collateral Amount, shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which Borrower and Parent Guarantor hereby expressly waive or (iii) terminate
any Letter of Credit which may be terminated in accordance with its terms.
(b) The Administrative Agent may, and, at the request of
the Majority Lenders shall, at any time or from time to time while any Default
exists and is continuing apply any funds deposited in any of the Accounts to the
payment of the Secured Obligations and any other amounts as shall from time to
time have become due and payable by Borrower to the Lenders under the Loan
Documents.
(c) At any time while any Default is continuing, neither
Borrower nor any Person claiming on behalf of or through Borrower shall have any
right to withdraw any of the funds held in any Account. After all of the
Obligations have been indefeasibly paid in full and the Revolving Loan
Commitment has been terminated, any funds remaining in the Accounts shall be
returned by the Administrative Agent to Borrower or paid to whomever may be
legally entitled thereto at such time.
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(d) If, after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to Borrower or Parent Guarantor) and before any
judgment or decree for the payment of the Obligations due shall have been
obtained or entered, the Majority Lenders (in their sole discretion) shall so
direct, then the Administrative Agent shall, by notice to Borrower, rescind and
annul such acceleration and/or termination.
8.2 All Remedies. Upon the occurrence and during the continuance
of a Default, the Administrative Agent and the Lenders shall have all rights and
remedies set forth herein, in the Loan Documents, at law and in equity and the
Administrative Agent and the Lenders shall have the right (but not the
obligation) to pursue one or more of such rights and remedies concurrently or
successively, it being the intent hereof that all such rights and remedies shall
be cumulative, and that no remedy shall be to the exclusion of any other.
8.3 Intentionally Reserved.
8.4 Enforcement. Borrower and Parent Guarantor each acknowledge
that in the event Borrower or Parent Guarantor fails to perform, observe or
discharge any of its obligations or liabilities under this Agreement or any
other Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the Lenders; therefore, Borrower and Parent Guarantor
each agree that the Administrative Agent and the Lenders shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
8.5 Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of an Advance notwithstanding the existence
of a Default or the inability of Borrower or Parent Guarantor to satisfy the
conditions precedent to such Advance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Administrative Agent, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties made herein and all obligations, covenants and agreements of Borrower
and Parent Guarantor in respect of taxes, indemnification and expense
reimbursement shall survive the execution and delivery of this Agreement and the
other Loan Documents, the making and repayment of the Advances and the
termination of this Agreement and shall not be
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limited in any way by the passage of time or occurrence of any event and shall
expressly cover time periods when the Administrative Agent or any of the Lenders
may have come into possession or control of any Property of Borrower or Parent
Guarantor.
9.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to any Borrower or Parent Guarantor in violation of any limitation or
prohibition provided by any applicable statute or regulation unless the same has
resulted from the failure of such Lender to comply with any requirements imposed
upon such Lender by applicable Law.
9.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among Borrower, Parent Guarantor, the Administrative
Agent and the Lenders and supersede all prior agreements and understandings
among Borrower, Parent Guarantor, the Administrative Agent and the Lenders
relating to the subject matter hereof.
9.5 Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. Borrower and Parent Guarantor are jointly and
severally liable and obligated for each other's obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns, provided, however, that the parties hereto expressly agree that the
Joint Book Running Managers, Co-Lead Arrangers and Syndication Agent (each, an
Initial Lender Affiliate, and collectively, the "Initial Lender Affiliates")
shall enjoy the benefits of the provisions of Sections 9.6, 9.10, 10.10, 10.18
and 10.20 to the extent specifically set forth therein and shall have the right
to enforce such provisions on their own behalf and in their own names to the
same extent as if each were a party to this Agreement.
9.6 Expenses; Indemnification. (a) Borrower and Parent Guarantor
shall reimburse the Administrative Agent for any costs and out-of-pocket
expenses (including reasonable attorneys' fees) paid or incurred by the
Administrative Agent (but excluding overhead and internal costs) in connection
with the preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents, in connection
with disbursements hereunder and otherwise with respect to the Opryland Hotel
Florida. Borrower and Parent Guarantor agree to reimburse the Administrative
Agent and the Lenders for any costs and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Administrative
Agent and the Lenders, but excluding internal administrative overhead except for
legal fees hereafter referred to in this sentence) paid or incurred by the
Administrative Agent and the Lenders, which
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attorneys may be employees of the Administrative Agent or any Lender in
connection with the collection and enforcement of the Loan Documents in the
event of a Default. Expenses required to be reimbursed by Borrower and Parent
Guarantor under this Section 9.6 include, without limitation, the cost and
expense of obtaining an Appraisal of the Opryland Hotel Florida, provided that
so long as no Default shall exist that is continuing Borrower and Parent
Guarantor shall not be required to pay for an Appraisal other than (i) the
initial Appraisal by Cushman & Wakefield obtained by the Administrative Agent
prior to the Effective Date and (ii) a single further Appraisal of the Opryland
Hotel Florida which the Administrative Agent may commission in its sole
discretion.
(b) Borrower and Parent Guarantor hereby further agree to
indemnify the Administrative Agent, the Initial Lender Affiliates, each Lender,
their respective Affiliates, and each of their agents, shareholders, directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Administrative Agent,
any Initial Lender Affiliate, any Lender or any affiliate is a party thereto)
which any of them may pay or incur arising out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Advance
hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of Borrower and Parent Guarantor under this
Section 9.6 shall survive the termination of this Agreement.
9.7 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10 Nonliability of Lenders. The relationship between Borrower on
the one hand and the Lenders and the Administrative Agent on the other hand
shall be solely that of borrower and lender. None of the Administrative Agent,
any Initial Lender Affiliate, or any Lender shall have any fiduciary
responsibilities to Borrower, Parent Guarantor or any Subsidiary Guarantor. None
of the Administrative Agent, any Initial Lender Affiliate, or any Lender
undertakes any responsibility to Borrower, Parent Guarantor or any Subsidiary
Guarantor to review or inform Borrower, Parent Guarantor or any Subsidiary
Guarantor of any matter in connection with any phase of Borrower's business or
operations.
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Borrower agrees that none of the Administrative Agent, any Initial Lender
Affiliate, or any Lender shall have liability to Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by Borrower in connection with,
arising out of, or in any way related to, the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. None of the Administrative Agent, any Initial Lender
Affiliate, or any Lender shall have any liability with respect to, and Borrower
hereby waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by Borrower, Parent Guarantor or any Subsidiary
Guarantor in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11 Confidentiality. (a) Subject to the provisions of Section
9.11(b) and Section 12.4, each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of Parent Guarantor (other
than to its employees, officers, directors, auditors, advisors or counsel or to
another Lender, provided such Persons shall be subject to the provisions of this
Section 9.11 to the same extent as such Lender) any confidential information
with respect to Parent Guarantor or any of its Subsidiaries which is now or in
the future furnished pursuant to this Agreement or any other Loan Document,
provided that any Lender may disclose any such information (a) as has become
generally available to the public other than by virtue of a breach of this
Section by such Lender, (b) to the extent such information was legally in
possession of such Lender prior to its receipt from or on behalf of Parent
Guarantor or any of its Subsidiaries and was from a source not known to such
Lender to be (x) bound by a confidentiality agreement with Parent Guarantor or
(y) otherwise prohibited from transmitting such information to such Lender by a
contractual, legal or fiduciary obligation, (c) such information becomes
available to such Lender from a source other than Parent Guarantor or any of its
Subsidiaries and such source is not known to such Lender to be (x) bound by a
confidentiality agreement with Parent Guarantor or (y) otherwise prohibited from
transmitting such information to such Lender by a contractual, legal or
fiduciary obligation, (d) as may be required or reasonably appropriate in any
report, statement or testimony submitted to, or in response to a request from,
any municipal, state or Federal governmental or regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board,
the Federal Deposit Insurance Corporation, the NAIC or similar organizations
(whether in the United States or elsewhere) or their successors, (e) as may be
required or reasonably appropriate in response to any summons or subpoena or in
connection with any litigation, (f) in order to comply with any Requirements of
Law applicable to such Lender, (g) to the Administrative Agent or any other
Lender, (h) to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors; provided
that such contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, and (i) to any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of the Notes or Revolving Loan Commitment or any interest
therein by such Lender, provided that such prospective transferee shall have
agreed to be subject to the provisions of this Section 9.11.
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(b) Borrower hereby acknowledges and agrees that each
Lender may, but only in connection with the transactions contemplated by this
Agreement and the other Loan Documents or the participation of such Lender
pursuant to this Agreement and the other Loan Documents, share with any of its
affiliates any information related to Parent Guarantor or any of its
Subsidiaries (including, without limitation, any nonpublic customer information
regarding the creditworthiness of Parent Guarantor and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 9.11 to
the same extent as such Lender).
(c) Notwithstanding anything herein to the contrary,
confidential information shall not include, and the Administrative Agent and
each Lender may disclose without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Administrative Agent or such Lender
relating to such tax treatment and tax structure; provided that with respect to
any document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as other
information, this sentence shall apply only to such portions of the document or
similar item that relate to the tax treatment or tax structure of the Loan and
transactions contemplated hereby.
9.12 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the
Advances provided for herein.
9.13 Disclosure. Borrower, Parent Guarantor and each Lender hereby
(i) acknowledge and agree that Deutsche Bank Trust Company Americas, Deutsche
Banc Alex. Brown Inc. and/or their respective Affiliates from time to time may
hold investments in, make other loans to or have other relationships with
Borrower, Parent Guarantor and any of their Affiliates, and (ii) waive any
liability of Deutsche Bank Trust Company Americas, Deutsche Banc Alex. Brown
Inc. and/or their respective Affiliates to Borrower, Parent Guarantor or any
Lender, respectively, arising out of or resulting from such investments, loans
or relationships.
9.14 Marshalling; Payments Set Aside. Neither the Administrative
Agent nor any Lender shall be under any obligation to marshal any assets in
favor of Borrower or Parent Guarantor, any other party or against or in payment
of any or all of the Secured Obligations. To the extent that Borrower or Parent
Guarantor makes a payment or payments to the Administrative Agent or the Lenders
or any such Person receives payment from the proceeds of the Collateral or
exercises its rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
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9.15 Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. The rights hereunder of
Borrower and Parent Guarantor and any interest therein, may not be assigned
without the written consent of all Lenders, which may be granted or withheld in
the sole discretion of each.
9.16 Inconsistencies. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually inconsistent with the terms and conditions of any other Loan Document,
this Agreement shall govern. Notwithstanding anything to the contrary contained
herein, the existence of (and the Lenders' review of), the Organizational
Documents shall not be deemed to be an approval by the Administrative Agent or
the Lenders of any of the actions that may be permitted to be taken by Borrower,
Parent Guarantor or any other Person thereunder to the extent such actions
violate the terms hereof. In addition to the foregoing, none of the terms or
provisions hereof shall be deemed to be waived or modified by virtue of the fact
that such terms and provisions conflict with, or contradict, any of the terms
and provisions of the Organizational Documents.
9.17 Disclaimer by Lender. Neither the Administrative Agent nor the
Lenders nor any Initial Lender Affiliate shall be liable to any contractor,
subcontractor, supplier, laborer, architect, engineer, tenant or other party for
services performed or materials supplied in connection with any work performed
at the Opryland Hotel Florida or any other Property. Neither the Administrative
Agent nor the Lenders nor any Initial Lender Affiliate shall be liable for any
debts or claims accruing in favor of any such parties against Borrower, Parent
Guarantor or others or against any Property. Neither Borrower nor Parent
Guarantor shall be an agent of either the Administrative Agent or the Lenders or
any Initial Lender Affiliate for any purposes and neither the Lenders nor the
Administrative Agent nor any Initial Lender Affiliate shall be deemed partners
or joint venturers with Borrower, Parent Guarantor or any other Person. Neither
the Administrative Agent nor the Lenders nor any Initial Lender Affiliate shall
be deemed to be in privity of contract with any contractor or provider of
services to the Opryland Hotel Florida, nor shall any payment of funds directly
to a contractor or subcontractor or provider of services be deemed to create any
third party beneficiary status or recognition of same by either the
Administrative Agent or the Lenders or any Initial Lender Affiliate, and
Borrower and Parent Guarantor each agree to hold the Administrative Agent, the
Lenders and the Initial Lender Affiliates harmless from any of the damages and
expenses resulting from such a construction of the relationship of the parties
or any assertion thereof.
9.18 Time is of the Essence. Time is of the essence of each and
every term and provision of this Agreement and the other Loan Documents.
9.19 Protective Advances. The Administrative Agent may from time to
time, before or after the occurrence and during the continuance of a Default,
subject to the prior written approval of the Majority Lenders, make such
disbursements and advances pursuant to the Loan Documents (which disbursements
and advances shall be deemed to be "Loans" made hereunder) which the
Administrative Agent, in its
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reasonable discretion, deems necessary or desirable to preserve or protect the
Collateral or any portion thereof or to enhance the likelihood or maximize the
amount of repayment of the Secured Obligations ("Protective Advances"). The
Administrative Agent shall notify Borrower, Parent Guarantor and each Lender in
writing of each such Protective Advance, which notice (each a "Protective
Advance Notice") shall include a description of the purpose of such Protective
Advance, the aggregate amount of such Protective Advance, each Lender's Pro Rata
Share thereof and the date each Lender shall be required to pay its Pro Rata
Share of the Protective Advance (the "Protective Advance Date"), which
Protective Advance Date shall be not less than two (2) Business Days after
delivery of the Protective Advance Notice. Each Lender agrees to pay to the
Administrative Agent its Pro Rata Share of any Protective Advance on the
Protective Advance Date in the manner set forth herein for a funding of an
Advance. Borrower or Parent Guarantor agree to pay the Administrative Agent,
upon demand, the principal amount of all outstanding Protective Advances,
together with interest thereon at the rate set forth in Section 2.11 applicable
in the event of a Default. If Borrower or Parent Guarantor fail to make payment
in respect of any Protective Advance within three (3) Business Days after the
date Borrower or Parent Guarantor receive written demand therefor from the
Administrative Agent, such failure shall constitute a Default. All outstanding
principal of, and interest on, Protective Advances shall constitute Secured
Obligations secured by the Collateral until paid in full by Borrower or Parent
Guarantor. Upon the making of a Protective Advance, the Administrative Agent
shall be subrogated to any and all rights, equal or superior titles, liens and
equities, owned or claimed by any owner or holder of said outstanding liens,
charges and indebtedness, however remote, regardless of whether said liens,
charges and indebtedness are acquired by assignment or have been released of
record by the holder thereof upon payment.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LENDERS
10.1 Appointment. The Lenders hereby designate Deutsche Bank Trust
Company Americas as Administrative Agent to act as specified herein and in the
other Loan Documents. Each Lender hereby irrevocably authorizes, and each holder
of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Loan Documents and any other instruments
and agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
10.2 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Loan Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other Loan
Documents or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined
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by a court of competent jurisdiction in a final and non-appealable decision).
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Loan Document a fiduciary relationship in respect of any Lender or the
holder of any Note; and nothing in this Agreement or any other Loan Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Loan Document except as expressly set forth herein or therein.
10.3 Lack of Reliance on the Administrative Agent. (a)
Independently and without reliance upon the Administrative Agent, each Lender
and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of Borrower, Parent Guarantor and the Subsidiary
Guarantors in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of such Persons and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. The Administrative Agent shall not be responsible
to any Lender or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any other Loan Document
or in any document, certificate or other writing delivered in connection
herewith or therewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of
this Agreement or any other Loan Document or the financial condition of
Borrower, Parent Guarantor or the Subsidiary Guarantors, or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Loan Document, or the
financial condition of Borrower, Parent Guarantor or the Subsidiary Guarantors
or the existence or possible existence of any Default or Unmatured Default.
(b) The Administrative Agent does not represent, warrant
or guaranty to the Lenders the performance of Borrower, Parent Guarantor or any
Subsidiary Guarantor, any architect, any project managers, any contractor,
subcontractor or provider of materials or services in connection with the
construction of the Texas Project and Borrower and Parent Guarantor shall remain
solely responsible for all aspects of the Texas Project, including but not
limited to the quality and suitability of the plans and specifications, the
supervision of the work of construction, the qualifications, financial condition
and performance of all architects, engineers, contractors, subcontractors,
suppliers, consultants and property managers and the accuracy of all
applications for payment.
10.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Majority Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Loan Document, the Administrative Agent shall be entitled
to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Majority Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender or
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holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Loan Document in accordance
with the instructions of the Majority Lenders.
10.5 Reliance. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent in good faith believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Loan Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent (which may be
counsel for Borrower or Parent Guarantor).
10.6 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by Borrower or Parent Guarantor, the Lenders will
reimburse and indemnify the Administrative Agent, in proportion to their
respective "percentages" as used in determining the Majority Lenders, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Loan Document, in any way relating to or arising out of this Agreement or
any other Loan Document; provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).
10.7 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans, or issue or participate in Letters of
Credit, under this Agreement, the Administrative Agent shall have the rights and
powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Majority Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with Borrower, Parent
Guarantor or any Subsidiary Guarantor or any Affiliate of any such Person as if
it were not performing the duties specified herein, and may accept fees and
other consideration from any such Person for services in connection with this
Agreement or any other Loan Document and otherwise without having to account for
the same to the Lenders.
10.8 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
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10.9 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Loan Documents at any time by giving 15
Business Days' prior written notice to Borrower, Parent Guarantor and the
Lenders. Any such resignation by the Administrative Agent hereunder shall also
constitute its resignation as the Swingline Lender, if applicable, in which case
the Swingline Lender shall not be required to make any additional Swingline
Loans hereunder and shall maintain all of its rights as the Swingline Lender
with respect to Swingline Loans made by it prior to the date of such
resignation. Such resignation shall take effect upon the appointment of a
successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below. Furthermore, Administrative Agent may be removed by
the Majority Lenders in the event that Administrative Agent committed a willful
breach of, or was grossly negligent in the performance of, its material
obligations hereunder (as determined by a court of competent jurisdiction in a
final, non-appealable decision).
(b) Upon any such notice of resignation by the
Administrative Agent, Borrower and Parent Guarantor shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial Lender or
trust company reasonably acceptable to the Majority Lenders (it being understood
and agreed that any Lender is deemed to be acceptable to the Majority Lenders),
provided that, if a Default or an Unmatured Default exists at the time of such
resignation, the Majority Lenders shall appoint such successor Administrative
Agent.
(c) If a successor Administrative Agent shall not have
been so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of Borrower and Parent Guarantor (which consent shall not be
unreasonably withheld), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as Borrower, Parent Guarantor or the Majority Lenders, as the case may be,
appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been
appointed pursuant to clause (b) or (c) above by the 30th Business Day after the
date such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Majority
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Loan Document until such time, if any, as
Borrower, Parent Guarantor or the Majority Lenders, as the case may be, appoint
a successor Administrative Agent as provided above.
10.10 Other Agents. None of the Co-Lead Arrangers nor the Joint Book
Running Managers nor the Syndication Agent shall have any liabilities or
obligations hereunder in their respective capacities as such.
10.11 Lender Default. If any Lender (a "Defaulting Lender") fails to
fund its Pro Rata Share of any Advance on or before the time required pursuant
to this Agreement, or fails to fund its Pro Rata Share of any amount due under
Section 10.14(d) or the last sentence of Section 10.12 on or before the time
required thereunder or fails to pay the Administrative Agent, within twenty (20)
days of demand (which demand shall be accompanied by invoices or other
reasonable back up information demonstrating the
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amount owed), such Lender's Pro Rata Share of any out-of-pocket costs, expenses
or disbursements incurred or made by the Administrative Agent pursuant to the
terms of this Agreement (the aggregate amount which the Defaulting Lender fails
to pay or fund is herein referred to as the "Default Amount"; and each such
failure by a Lender is referred to herein as a "Lender Default"), then, in
addition to the rights and remedies that may be available to the Non-Defaulting
Lenders at law and in equity:
(a) The Defaulting Lender's right to participate in the
administration of the Obligations and the Loan Documents, including without
limitation, any rights to vote upon, consent to or direct any action of the
Administrative Agent or the Lenders shall be suspended and such rights shall not
be reinstated unless and until such default is cured, provided, however, that if
the Administrative Agent is a Defaulting Lender, the Administrative Agent shall
continue to have all rights provided for in this Agreement and the Loan
Agreement with respect to the administration of the Loans, unless the Majority
Lenders vote to remove and replace the Administrative Agent, in which event the
Majority Lenders shall notify the Administrative Agent, Borrower, Parent
Guarantor and the other Lenders of the identity of the successor Administrative
Agent so chosen by the Majority Lenders and such successor Administrative Agent
shall assume all the rights and duties of Administrative Agent hereunder as of
the date such notice is given;
(b) If and to the extent the Default Amount includes an
amount which, if advanced by the Defaulting Lender, would be applied to
interest, fees or other amounts due to the Lenders under the Loan Documents
(such portion of the Default Amount is herein referred to as the "Lender Payment
Portion"), the Administrative Agent may, and shall upon the direction of the
Majority Lenders, treat as advanced by the Defaulting Lender to itself (with a
corresponding automatic increase in the Defaulting Lender's Loan balance, and
without necessity for executing any further documents) the Lender Payment
Portion, whereupon a corresponding offset shall be made against the Default
Amount;
(c) If and to the extent any Default Amount remains
(after taking into account the deemed advance and application made under Section
10.11(b) above), any or all of the Non-Defaulting Lenders shall be entitled (but
shall not be obligated) to fund all or part of the remaining Default Amount (the
"Funded Default Amount"), and collect from the Defaulting Lender or from amounts
otherwise payable to the Defaulting Lender interest at the Default Rate on the
Funded Default Amount for the period from the date on which the payment was due
until the date on which payment is made (less any interest actually paid by
Borrower on the Funded Default Amount from time to time, which payments shall be
applied by the Administrative Agent pari passu to the Non-Defaulting Lenders
which shall have so funded the Funded Default Amount);
(d) So long as any Default Amount remains outstanding,
the Defaulting Lender's interest in the Obligations and the Loan Documents and
proceeds thereof shall be subordinated to the interest of the Non-Defaulting
Lenders in the Obligations and the Loan Documents in the manner set forth in
Section 10.11(e) below, without necessity for executing any further documents,
provided that such Defaulting Lender's interest in the Obligations and the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Default Amount (and all interest which has accrued pursuant to Section 10.11(c)
above) shall be repaid
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(or, if not funded by the Non-Defaulting Lenders, advanced to the Administrative
Agent for disbursement in accordance with this Agreement) in full;
(e) To achieve such subordination, that portion of all
amounts received by the Administrative Agent on account of the Obligations which
would otherwise be payable to the Defaulting Lender on account of its interest
in the Obligations shall be applied by the Administrative Agent as follows:
(i) first to pay pari passu to the
Non-Defaulting Lenders the Funded Default Amount, together with interest thereon
payable under Section 10.11(c) above, until the Funded Default Amount and all
interest thereon has been repaid in full (with collections from Borrower being
deemed earned by the Defaulting Lender to the extent of its Pro Rata Share
thereof and paid over to the Non-Defaulting Lenders for application first to
interest (in accordance with Section 10.13(c) above and then to principal upon
the Funded Default Amount); then
(ii) second, the remainder, if any, shall be
deemed earned by the Defaulting Lender to the extent of its Pro Rata Share
thereof and held in escrow by the Administrative Agent for distribution as
follows:
(A) upon payment in full of all the
Secured Obligations, without foreclosure, deed-in-lieu of foreclosure (or other
similar disposition of the Collateral) or other enforcement proceedings with
respect to the Secured Obligations, the funds held in escrow shall be promptly
disbursed to the Defaulting Lender; and
(B) upon completion of any foreclosure,
deed-in-lieu of foreclosure (or other similar disposition of the Collateral) or
other enforcement proceedings with respect to the Secured Obligations the funds
held in trust shall be promptly disbursed as follows:
(1) first, to the Non-Defaulting
Lenders and their Affiliates which
are Holders of Secured Obligations
pari passu in the amount of all
Secured Obligations which have not
been paid and satisfied by the
foreclosure, deed-in-lieu of
foreclosure (or other similar
disposition of the Collateral) or
other enforcement proceedings with
respect to the Secured Obligations
in order to compensate the
Non-Defaulting Lenders for any
failure to recover the full amount
of the Secured Obligations upon
completion of any such disposition
of the Collateral or other
enforcement action; and
(2) second, any remaining funds shall
be disbursed to the Defaulting
Lender.
(f) Each Non-Defaulting Lender shall have the right, but
not the obligation, in its sole discretion, to acquire such Defaulting Lender's
Pro Rata Share of the Advances and the Obligations, together with the Funded
Default Amount, in which case the following provisions shall apply:
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(i) If more than one Non-Defaulting Lender
exercises such right, each such Non-Defaulting Lender shall have the right to
acquire (in proportion to such acquiring Lenders' respective Pro Rata Shares (or
upon agreement thereof, any other proportion)) the Defaulting Lender's Pro Rata
Share in the Advances and the Obligations, together with all of the Funded
Default Amount (being deemed a portion of the Obligations advanced by the
Non-Defaulting Lenders which funded the Funded Default Amount). Such right to
purchase shall be exercised by written notice from the applicable Non-Defaulting
Lender(s) electing to exercise such right to the Defaulting Lender and the
Administrative Agent (an "Exercise Notice"), copies of which shall also be sent
concurrently to the other Lenders. The Exercise Notice shall specify (A) the
Purchase Price for the Pro Rata Share of the Defaulting Lender, determined in
accordance with Section 10.11(f)(ii) below, and (B) the date on which such
purchase is to occur, which shall be any Business Day which is not less than
fifteen (15) days after the date on which the Exercise Notice is given, provided
that if such Defaulting Lender shall have cured its default in full (including
all interest and other amounts due in connection therewith) to the satisfaction
of the Administrative Agent within said fifteen (15) day period, then the
Exercise Notice shall be of no further effect and the applicable Non-Defaulting
Lenders shall no longer have a right to purchase such Defaulting Lender's Pro
Rate Share or the Funded Default Amount. Upon any such purchase of the Pro Rata
Share of a Defaulting Lender and as of the date of such purchase (the "Purchase
Date"), (X) the Non-Defaulting Lenders purchasing the Defaulting Lender's Pro
Rata Share shall also purchase the Funded Default Amount in equivalent
proportions from the Non-Defaulting Lenders which funded the same, for a
purchase price equal to par plus interest accrued and unpaid thereon under the
provisions of Section 10.11(c) ("Default Amount Accrued Interest"), (Y) the
Non-Defaulting Lenders purchasing the Defaulting Lender's Pro Rata Share shall
promptly advance to the Administrative Agent their proportionate shares of any
unfunded portion of the Default Amount, and (Z) the Defaulting Lender's interest
in the Loans and the Obligations, and its rights hereunder as a Lender arising
from and after the Purchase Date (but not its rights and liabilities in respect
thereof or under the Loan Documents or this Agreement for obligations,
indemnities and other matters arising or matters occurring before the Purchase
Date) shall terminate on the Purchase Date, and the Defaulting Lender shall
promptly execute all documents reasonably requested to surrender and transfer
such interest. Without in any manner limiting the remedies of the Lenders, the
obligations of a Defaulting Lender to sell and assign its Pro Rata Share under
this Section 10.11(f) shall be specifically enforceable by the Administrative
Agent and/or the other Lenders, by an action brought in any court of competent
jurisdiction for such purpose, it being acknowledged and agreed that, in light
of the disruption in the administration of the Advances and the other terms of
the Loan Documents that a Defaulting Lender may cause, damages and other
remedies at law are not adequate.
(ii) The purchase price for the Pro Rata Share of
the Advances and the Obligations of a Defaulting Lender (the "Purchase Price")
shall be equal to one hundred percent (100%) of the sum of all of the Defaulting
Lender's Advances (including advances for Protective Advances) under the Loans
outstanding as of the Purchase Date, less the Default Amount Accrued Interest
and costs and expenses incurred by the Administrative Agent and the Lenders
directly as a result of the Defaulting Lender's default hereunder, court costs
and the fees and expenses of attorneys, paralegals, accountants and other
similar advisors, and if such amounts are not then known, there shall be
deducted from the Purchase Price and placed into escrow with the Administrative
Agent an amount equal to 200% of the Administrative Agent's reasonable estimate
of such costs, to be held for disbursement to pay such costs as incurred, with
any
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remainder being returned to the Defaulting Lender upon payment in full of all
the Secured Obligations. The Lenders hereby acknowledge that the Lenders
purchasing the Defaulting Lender's Pro Rata Share are entitled to do so at the
price set forth in this Section 10.11(f)(ii) due to the risk that the
Obligations and Collateral may further decline in value after such purchase as a
result of the Defaulting Lender's default.
Nothing herein contained shall be deemed or construed to waive, diminish or
limit, or prevent or stop any Lender from exercising or enforcing, any rights or
remedies which may be available at law or in equity as a result of or in
connection with any default under this Agreement by a Lender. In addition, no
Lender shall be deemed to be a Defaulting Lender if such Lender refuses to fund
its Pro Rata Share of any Advance being made after any bankruptcy-related
Default under Section 7.6 or Section 7.7 of this Agreement due to the lack of
bankruptcy court approval for such Advance.
10.12 Authority. The Administrative Agent, as described herein,
shall have all rights with respect to collection and administration of the
Obligations, the security therefor and the exercise of remedies with respect
thereto, except to the extent otherwise expressly set forth herein. The Lenders
agree that the Administrative Agent shall make all determinations as to whether
to grant or withhold approvals under the Loan Documents and as to compliance
with the terms and conditions of the Loan Documents, except to the extent
otherwise expressly set forth therein or herein. The Administrative Agent will
simultaneously deliver to the Lenders copies of any default notices sent to
Borrower, Parent Guarantor or any Subsidiary Guarantor under the terms of the
Loan Documents and will promptly provide to the Lenders copies of any material
notices received from Borrower, Parent Guarantor or any Subsidiary Guarantor,
including without limitation notices received under Section 6.18 (and copies of
the documents received by the Administrative Agent thereunder). The
Administrative Agent shall not, however, take the following actions without
first obtaining the consent of requisite Lenders, as set forth below:
(a) The Administrative Agent shall not, without first
obtaining the consent of the Unanimous Lenders, take any of the following
actions:
(i) amend the interest rate, any date on which
interest is due, or the Maturity Date set forth in the Loan Documents;
(ii) release any collateral for the Secured
Obligations, or release any guaranty, indemnity agreement or any Person
(including, without limitation, any Subsidiary Guarantor) with respect to any
such guaranty or indemnity agreement (except for the release of any Subsidiary
Guarantor from the Guaranty upon consummation of an Asset Sale with respect to
such Subsidiary Guarantor or substantially all of its assets and except for
releases otherwise expressly permitted pursuant to the Loan Documents upon
satisfaction of all applicable conditions specified therein), or waive or
release any indemnity obligations of Borrower, Parent Guarantor or any guarantor
(including, without limitation, any Subsidiary Guarantor) to the Lenders under
the Loan Documents;
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(iii) increase the amount of the Revolving Loan
Commitment, except with respect to any increase in the Revolving Loan Commitment
as may occur from time to time pursuant to Section 2.19 hereof;
(iv) forgive or reduce any principal, interest or
fees due under the Obligations or extend the time for payment of any such
principal, interest or fees;
(v) consent to the further encumbrance or
hypothecation of all or any portion of the Opryland Hotel Florida or any other
Collateral except to the extent expressly permitted under the Loan Documents;
(vi) modify, waive or consent to any assignment
in violation of Section 12.1(i);
(vii) change the Pro Rata Share of any Lender,
except in connection with a transfer of a Lender's interest permitted under the
Loan Agreement or in connection with an increase in the Revolving Loan
Commitment pursuant to Section 2.19 hereof;
(viii) modify or amend this Section 10.12; or
(ix) modify or amend the definition of "Unanimous
Lenders" or "Majority Lenders" herein.
(b) The Administrative Agent shall not, without first
obtaining the consent of the Majority Lenders, take any of the following
actions:
(i) exercise (or refrain from exercising) rights
or remedies with respect to any Default, including any action with respect to
the exercise of remedies or the realization, operation or disposition of any
Collateral, provided, however, that the Administrative Agent may deliver
consents contemplated by the Loan Documents and waivers of provisions (other
than material provisions, including without limitation, any of the provisions
specifically enumerated in Section 7.3 hereof) of the Loan Documents;
(ii) amend, supplement or otherwise modify in any
material respect any of the Loan Documents or execute a written waiver of any
material provision of the Loan Documents (including, without limitation, any of
the provisions specifically enumerated in Section 7.3 hereof), provided that
such amendment, supplement, modification or waiver does not require the consent
of all the Lenders under Section 10.12(a) above;
(iii) consent to the transfer by Borrower or
Parent Guarantor of all or any part of its direct or indirect interest in the
Opryland Hotel Florida or any other Collateral, except to the extent expressly
permitted under the Loan Documents;
(iv) consent to any Change of Control;
(v) agree to cause an additional or updated
Appraisal to be ordered at the Lenders' expense;
110
(vi) modify, amend or waive any requirement in
Section 6.25; or
(vii) consent to or take action with respect to
any matter specified herein to require the consent or approval of the Majority
Lenders.
(c) The consent of the Swingline Lender shall be required
for any action, waiver, consent, amendment or other agreement which would have
the effect of altering any of the Swingline Lender's rights or obligations with
respect to Swingline Loans.
(d) The consent of each Issuing Bank shall be required
for any action, waiver, consent, amendment or other agreement which would have
the effect of altering any provision of Sections 2.20 through 2.20.4 or altering
its rights or obligations with respect to Letters of Credit.
As to any matters which are subject to the consent of any or all of the
Lenders, as set forth above or elsewhere in this Agreement, the Administrative
Agent shall not be permitted or required to exercise any discretion or to take
any action except upon the receipt of the written consent or instruction with
respect to such action by the requisite Lenders, which written consent or
instruction shall be binding upon the Lenders. Notwithstanding anything
contained herein to the contrary, it is understood and agreed that the Lenders'
right to consent to or disapprove any particular matter shall be limited to the
extent that the Lenders' or Administrative Agent's rights to consent to or
disapprove of such matter are limited in the Loan Documents.
As to any matter which is subject to a vote of the Lenders hereunder,
any of the Lenders may require the Administrative Agent to initiate such a vote.
In such event, the Administrative Agent shall conduct a vote in accordance with
the provisions of the next paragraph. The Administrative Agent shall be bound by
the results of such vote, so long as the action voted in favor of is permissible
under the Loan Documents and under applicable law, and subject to the obligation
of each Lender to contribute its Pro Rata Share of all expenses and liabilities
incurred in connection therewith as more fully set forth below.
All communications from the Administrative Agent to the Lenders
requesting the Lenders' approval (i) shall be given in the form of a written
notice to each Lender, (ii) shall be accompanied by a description of the matter
as to which such approval is requested and (iii) shall include, if appropriate,
the recommendation of the Administrative Agent, if any.
Subject to the foregoing limitations, each Lender hereby appoints and
constitutes the Administrative Agent as its agent with full power and authority
to exercise on behalf of such Lender any and all rights and remedies which such
Lender may have with respect to, and to the extent necessary under applicable
law for, the enforcement of the Loan Documents, including the right to exercise,
or to refrain from exercising, any and all remedies afforded to such Lender by
the Loan Documents or which such Lender may have as a matter of law.
Subject to the last sentence of this paragraph, each Lender shall be
responsible for its Pro Rata Share of any reasonable out-of-pocket costs,
expenses or liabilities incurred by the Administrative Agent in connection with
the Obligations, the protection of any security for the Secured Obligations, the
enforcement of the Loan Documents or the management or operation of any
Collateral after acquisition of title thereto. Each Lender shall, within twenty
(20) days after a written demand therefor accompanied with a description of the
amounts payable, contribute its
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respective Pro Rata Share of the out-of-pocket costs and expenses incurred by
the Administrative Agent in accordance with the terms of this Agreement,
including, but not limited to, fees of receivers or trustees, court costs, title
company charges, filing and recording fees, appraisers' fees and expenses of
attorneys.
10.13 Borrower Default. Promptly after the Administrative Agent
acquires actual knowledge that a Default has occurred, the Administrative Agent
shall evaluate the circumstances of such Default, its impact on Borrower, Parent
Guarantor and Subsidiary Guarantors and the courses of action available to the
Lenders, which may include such responses as entering into a forbearance
agreement for a period of time, establishing certain additional credit or
collateral safeguards in exchange for a waiver of such Default or determining
the timing and order of enforcement of the remedies available to the Lenders.
Unless expressly directed in writing to the contrary by the Majority Lenders,
the Administrative Agent is expressly authorized to discuss such Default and
possible resolutions with Borrower, Parent Guarantor and Subsidiary Guarantors
and to refrain from exercising any rights and remedies while conducting such
evaluation, provided that the Administrative Agent shall not enter into any
written forbearance agreement with Borrower, Parent Guarantor or any Subsidiary
Guarantor without the prior consent of the Majority Lenders. The foregoing
provisions shall not limit the right, power or authority of the Administrative
Agent to take actions pursuant to and in accordance with Section 8.1 or Section
9.19.
The Administrative Agent shall, upon completing such evaluation and if
the Administrative Agent deems it appropriate, forward to each Lender a written
proposal outlining the course of action that the Administrative Agent
recommends, if any.
If the Majority Lenders so approve the Administrative Agent's proposal,
the Administrative Agent shall seek to implement such proposal in due course in
the same manner the Administrative Agent generally implements similar proposals
for loans held for its own account.
The Lenders agree to cooperate in good faith and in a commercially
reasonable manner in connection with the exercise by the Administrative Agent of
the rights granted to the Lenders by law and the Loan Documents, including, but
not limited to, providing necessary information to the Administrative Agent with
respect to the Obligations, preparing and executing necessary affidavits,
certificates, notices, instruments and documents and participating in the
organization of applicable entities to hold title to the Opryland Hotel Florida.
Each Lender agrees that it shall subscribe to and accept its Pro Rata Share of
the ownership interests in any entity organized to hold title to the Opryland
Hotel Florida or any other Collateral. The Administrative Agent is hereby
authorized to act for and on behalf of the Lenders in all day-to-day matters
with respect to the exercise of rights described herein such as the supervision
of attorneys, accountants, appraisers or others acting for the benefit of all of
the Lenders in connection with litigation, foreclosure, realization of all or
any security given as collateral for the Secured Obligations or other similar
actions.
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10.14 Acquisition of Collateral. If the Administrative Agent (or its
nominee or designee), on behalf of the Lenders, acquires the Opryland Hotel
Florida or any other Collateral either by foreclosure or deed in lieu of
foreclosure, then the Lenders agree to negotiate in good faith to reach
agreement among themselves in writing relating to the ownership, operation,
maintenance, marketing, and sale of the Opryland Hotel Florida. The Lenders
agree that such agreement shall be consistent with the following:
(a) The Collateral will not be held as a long term
investment but will be marketed in an attempt to sell the Collateral in a time
period consistent with the regulations applicable to national banks for owning
real estate. Current Appraisals of the Collateral shall be obtained by the
Administrative Agent, such Appraisals shall be furnished to the Lenders from
time to time during the ownership period at the Lenders' expense (without
diminishing or releasing any obligation of Borrower or Parent Guarantor to pay
for such costs) and an appraised value shall be established and updated from
time to time based on such Appraisals.
(b) Decision-making with respect to the day to day
operations of the Opryland Hotel Florida will be delegated to management and
leasing agents. All agreements with such management and leasing agents will be
subject to the approval of the Majority Lenders. All material decisions reserved
to the owner in such agreements will also be subject to the approval of the
Majority Lenders. The day to day supervision of such agents shall be done by the
Administrative Agent.
(c) Except as provided in the immediately following
sentence, all decisions as to whether to sell the Opryland Hotel Florida and any
other Collateral shall be subject to the approval of all the Lenders.
Notwithstanding the foregoing, the Lenders agree that if the Administrative
Agent receives a bona fide "all cash" (as determined by the Administrative Agent
in its discretion) offer for the purchase of the Opryland Hotel Florida or other
Collateral which has been approved in writing by the Majority Lenders and such
offer equals or exceeds one hundred percent (100%) of the most recent appraised
values of the Opryland Hotel Florida and/or such other Collateral, as
applicable, as established by an Appraisal or Appraisals that have been
completed within six months of such offer, then the Administrative Agent is
irrevocably authorized to accept such offer on behalf of all the Lenders.
(d) All expenses incurred by the Administrative Agent and
the Lenders in connection with the Opryland Hotel Florida shall be allocated
among the Lenders pro rata in accordance with their respective Pro Rata Shares.
In the event any Lender does not pay its Pro Rata Share of such expenses, such
Lender shall be subject to the terms of Section 10.11 above.
(e) All proceeds received by the Administrative Agent or
any Lender from the operation, sale or other disposition of the Opryland Hotel
Florida and any other Collateral (net of expenses incurred by the Administrative
Agent in connection therewith and any reserves deemed reasonably necessary by
the Majority Lenders for potential obligations of the Lenders with respect to
the Opryland Hotel Florida and subject to Section 10.11 above) shall be paid to
the Lenders in accordance with each Lender's Pro Rata Share from time to time
upon authorization by the Majority Lenders.
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(f) All expenditures and other actions taken with respect
to the Opryland Hotel Florida and any other Collateral shall at all times be
subject to the regulations and requirements pertaining to national banks
applicable thereto. Without limiting the generality of the foregoing, all
necessary approvals from regulatory authorities in connection with any
expenditure of funds by the Lenders shall be a condition to such expenditure.
10.15 Documents. Except as otherwise expressly provided herein, it
is acknowledged and agreed that (a) the Administrative Agent has not and shall
not provide to the other Lenders documents, other than Loan Documents delivered
as of the Effective Date, received from Borrower and Parent Guarantor with
respect to the satisfaction of the conditions set forth in Section 4.1 or the
conditions precedent to the initial or any subsequent Advances, but that such
documents are or shall be available for inspection by each Lender, and (b) the
determination by each Lender of whether the conditions precedent set forth in
Sections 4.1 and 4.2 have been satisfied shall be for the benefit of each such
Lender only, and may not be relied on by any other party.
10.16 Receipt and Maintenance of Loan Documents. Each Lender
acknowledges that it has received, reviewed and approved the form of the Loan
Documents delivered as of the Effective Date. Borrower and Parent Guarantor
shall deliver to the Administrative Agent and to each of the Lenders party
hereto on the Effective Date executed original counterparts of all of the Loan
Documents, other than the originals of the Notes, each of which shall be
delivered to the Lender named therein.
10.17 No Representations. Each Lender acknowledges and agrees that
the Administrative Agent has not made any representations or warranties, express
or implied, with respect to any aspect of the Loans, including, without
limitation (i) the existing or future solvency or financial condition or
responsibility of Borrower, Parent Guarantor and the Subsidiary Guarantors, (ii)
the payment or collectibility of the Obligations, (iii) the validity,
enforceability or legal effect of the Loan Documents, or the Mortgage Title
Insurance Policy or the Surveys furnished by Borrower, or (iv) the validity or
effectiveness of the liens created by the Mortgage or any other liens or
security interests required by this Agreement.
10.18 No Relation. The relationship between the Administrative
Agent, the Co-Lead Arrangers, Joint Book-Running Managers, Syndication Agent and
the other Lenders is not intended by the parties to create, and shall not
create, any trust, joint venture or partnership relation between them.
10.19 Standard of Care. The Administrative Agent shall be liable to
the Lenders for any loss or liability sustained in connection with its
management and administration of the Obligations, or in connection with the
exercise of any rights and remedies under the Loan Documents or at law, only if,
and to the extent, such loss or liability results from the gross negligence or
willful misconduct of such Administrative Agent or any of its employees,
officers, agents or directors or a breach of the Administrative Agent's express
obligations under this Agreement.
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10.20 No Responsibility for Loans, Etc. Except as otherwise provided
in this Agreement (including Section 10.21), none of the Administrative Agent,
the Initial Lender Affiliates or any of their respective shareholders,
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any Advance
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified herein; (iv) the
validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; or (v) the value,
sufficiency, creation, perfection or priority of any interest in any collateral
security. Neither the Administrative Agent nor any of the Initial Lender
Affiliates shall have any duty to disclose to the Lenders information that is
not required to be furnished to it by Borrower or Parent Guarantor.
10.21 Payments After Default. Subject to the provisions of Section
10.11 regarding the subordination of any Defaulting Lender's interest, after the
occurrence of a Default, the Administrative Agent shall apply all payments in
respect of any Obligations and all proceeds of Collateral in the following
order:
(i) first, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Administrative
Agent;
(ii) second, to pay principal of and interest on
any Protective Advance for which the Administrative Agent has not then been paid
by Borrower or Parent Guarantor or reimbursed by the Lenders;
(iii) third, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Lenders (other than
Rate Management Obligations);
(iv) fourth, to the ratable payment, on a pari
passu basis, of (a) principal and interest on the Loans and on Unpaid Drawings
(such application to be made first to interest and then to principal) together
with the Letter of Credit Collateral Amount and (b) Secured Rate Management
Obligations; and
(v) fifth, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 10.21 is set forth
solely to determine the rights and priorities of the Administrative Agent and
the Lenders as among themselves. As between Borrower, Parent Guarantor and
Subsidiary Guarantors, on the one hand, and the Administrative Agent and Lenders
on the other, after the occurrence of a Default the Administrative Agent and
Lenders may apply all payments in respect of any Secured Obligations, and all
proceeds of Collateral, to the Secured Obligations, including, without
limitation, the Letter of Credit Collateral Amount, in such order and manner as
the Administrative Agent and Lenders may elect in their sole and absolute
discretion. The order of
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priority set forth in clauses (i) through (iii) of this Section 10.21 may be
changed by the Majority Lenders with the prior written consent of the
Administrative Agent.
10.22 Payments Received. All payments received by the Administrative
Agent from Borrower or Parent Guarantor for the account of the Lenders shall be
disbursed to the applicable Lenders no later than the next Business Day
following the day such payment is received in good funds by the Administrative
Agent. If payments received by the Administrative Agent from Borrower or Parent
Guarantor are not disbursed to the applicable Lenders the same day as they are
received, such funds shall be invested overnight by the Administrative Agent and
each Lender will receive its Pro Rata Share of any interest so earned. The
Lenders acknowledge that the Administrative Agent does not guarantee any
particular level of return on the overnight funds and that the Administrative
Agent will invest such funds as it deems prudent from time to time.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if Borrower, Parent Guarantor or any
Subsidiary Guarantor becomes insolvent, however evidenced, or any Default
occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of Borrower, Parent Guarantor or any
Subsidiary Guarantor may be offset and applied toward the payment of the Secured
Obligations owing to such Lender, whether or not the Secured Obligations, or any
part thereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit Exposure (other
than (x) payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5, (y)
payments to the Swingline Lender in respect of a Swingline Loan, either by
Borrower or by the Lenders, pursuant to a Mandatory Advance or participation in
respect of Swingline Loans, as contemplated by Section 2.1(c) and (z) payments
in respect of Unpaid Drawings or Letter of Credit Participations, as
contemplated by Sections 2.20.4 and 2.20.3) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure (other than
Swingline Loans and Letter of Credit Outstandings) held by the other Lenders so
that after such purchase each Lender will hold its applicable Pro Rata Share of
the Aggregate Outstanding Credit Exposure (other than Swingline Loans and Letter
of Credit Outstandings). If any Lender, whether in connection with setoff or
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action necessary
to provide that the Administrative Agent and all Lenders share in the benefits
of such collateral in accordance with the provisions of Section 2.12(b).
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of Borrower, Parent
Guarantor, Subsidiary Guarantors, the Administrative Agent and the Lenders and
their respective successors and assigns, except that (i) Borrower, Parent
Guarantor and Subsidiary Guarantors shall not have the right to assign their
respective rights or obligations under the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 12.3. The
parties to this Agreement acknowledge that clause (ii) of this Section 12.1
relates only to absolute assignments and does not prohibit assignments creating
security interests, including, without limitation, financings in the nature of
repurchase agreements and any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 12.3. The Administrative Agent may treat the Person which made any Loan
or which holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 12.3; provided, however, that the
Administrative Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person. Any assignee of
the rights to any Loan or any Note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of any Loan (whether or not a Note
has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held by
such Lender, any Revolving Loan Commitment of such Lender or any other interest
of such Lender under the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Outstanding Credit Exposure and the
holder of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
the Loan Documents.
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12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Advance or Revolving Loan Commitment
in which such Participant has an interest which (a) forgives principal,
interest, fees or reduces the interest rate or fees payable with respect to any
such Loan or Revolving Loan Commitment (except in connection with a waiver of
applicability of any post-Default increase in interest rates), extends the
Maturity Date, postpones any date fixed for any required payment of principal
of, or interest on any Loan in which such Participant has an interest, or any
regularly-scheduled payment of fees on any such Advance or Revolving Loan
Commitment, (b) releases any guarantor of any such Advance (except in connection
with an Asset Sale in accordance with the terms hereof) or all or substantially
all of any collateral, if any, securing any such Advance; (c) increases the
amount of the participant's participation over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an increase in
any Revolving Loan Commitment (or the available portion thereof) or Loan shall
be permitted without the consent of any participant if the participant's
participation therein is not increased as a result thereof) or (d) consents to
the assignment or transfer by Borrower or Parent Guarantor of any of their
obligations under this Agreement. Notwithstanding the foregoing, Borrower and
Parent Guarantor and the other Lenders shall be entitled to rely upon any
actions taken by a Lender in its capacity as such, whether or not within the
scope of such Lender's authority under any agreement between the Lender and a
Participant.
12.2.3 Benefit of Setoff. Borrower and Parent Guarantor agree that
each Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Subject to satisfaction of the
applicable requirements and conditions set forth in this Section 12.3, any
Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or other entities
("Purchasers") all or any part of its rights and obligations under the Loan
Documents, subject to the following:
(i) such assignment shall be substantially in
the form of Exhibit D or in such other form as may be agreed to by the
Administrative Agent;
(ii) the consent, not to be unreasonably withheld
or delayed, of Borrower, Parent Guarantor, the Administrative Agent and the
Swingline Lender, shall be required prior to an assignment becoming effective,
and, unless each of Borrower, Parent
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Guarantor and the Administrative Agent otherwise consents, each assignment with
respect to an Eligible Assignee which is not a Lender or an Affiliate thereof
shall be in an amount not less than the lesser of (A) $1,000,000 or (B) the sum
(calculated as at the date of such assignment) of the assigning Lender's
Available Commitment and Outstanding Credit Exposure; provided, however, that
(1) the consent of Borrower and Parent Guarantor shall not be required for an
assignment from one Lender to another Lender or an Affiliate thereof; (2) the
consent of Borrower and Parent Guarantor shall not be required in connection
with any such assignments occurring in connection with the primary syndication
of this facility and (3) if a Default has occurred and is continuing, no consent
of Borrower and Parent Guarantor to any assignment shall be required;
(iii) Unless the Administrative Agent and the
Swingline Lender otherwise consents, a Lender shall not be permitted to assign
less than the entire remaining amount of the assigning Lender's Available
Commitment and Outstanding Credit Exposure if upon completion of such assignment
the remaining amount (calculated as at the date of such assignment) of the
assigning Lender's Available Commitment and Outstanding Credit Exposure shall be
less than $1,000,000; and
(iv) No Lender shall assign all or any part of
its rights and obligations under the Loan Documents without the Administrative
Agent's consent, which shall not be unreasonably withheld, or to any Person
other than an Eligible Assignee.
This Section 12.3 relates only to absolute assignments and does not
prohibit assignments creating security interests, including, without limitation,
financings in the nature of repurchase agreements and any pledge or assignment
by any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank; provided, however, that no such financing,
pledge or assignment creating a security interest shall release the transferor
Lender from its obligations hereunder unless and until the parties thereto have
complied with the provisions of this Section 12.3.
12.3.2 Transfers. Notwithstanding any other provision hereof, Lenders
consent to each Lender's pledge (a "Pledge") of its interest in the Loans and
the Collateral to any Eligible Assignee which has extended a credit facility to
such Lender (a "Loan Pledgee"), on the terms and conditions set forth in this
paragraph. Upon written notice by the Lender to Administrative Agent that the
Pledge has been effected, Administrative Agent agrees to acknowledge receipt of
such notice and thereafter agrees: (a) to give Loan Pledgee written notice of
any default by Lenders under this Agreement and any amendment, modification,
waiver or termination of any of Lenders' rights under this Agreement; (b) that
Administrative Agent shall deliver to Loan Pledgee such estoppel certificate(s)
as Loan Pledgee shall reasonably request; and (c) that, upon written notice (a
"Redirection Notice") to Administrative Agent by Loan Pledgee that a Lender is
in default, beyond applicable cure periods, under such Lender's obligations to
Loan Pledgee pursuant to the applicable credit agreement between such Lender and
Loan Pledgee (which notice need not be joined in or confirmed by Lenders), and
until such Redirection Notice is withdrawn or rescinded by Loan Pledgee, any
payments to which such Lender is entitled from time to time pursuant to this
Agreement, or any other agreements that relate to the Loans, shall be paid or
directed to Loan Pledgee. The relevant Lender hereby unconditionally and
absolutely releases Administrative
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Agent and the Lenders from any liability to the relevant Lender on account of
Administrative Agent's or any Lender's compliance with any Redirection Notice
reasonably believed by Administrative Agent or Lenders to have been delivered in
good faith. Loan Pledgee shall be permitted fully to exercise its rights and
remedies against the relevant Lender, and realize on any and all collateral
granted by such Lender to Loan Pledgee (and accept an assignment in lieu of
foreclosure as to such collateral), in accordance with applicable law and the
provisions of this Agreement. In such event, Lenders shall recognize Loan
Pledgee, and its successors and assigns which are Eligible Assignees as the
successor to the applicable Lender's rights, remedies and obligations under this
Agreement and the Loan Documents. The rights of Loan Pledgee under this
paragraph shall remain effective unless and until Loan Pledgee shall have
notified Administrative Agent in writing that its interest in the Loans has
terminated. Notwithstanding any provisions herein to the contrary, if a conduit
("Conduit") which is not an Eligible Assignee provides financing to a Lender
then such Conduit will be a permitted "Loan Pledgee" despite the fact it is not
an Eligible Assignee if the following conditions are satisfied: (i) the loan
(the "Conduit Inventory Loan") made by the Conduit to a Lender to finance the
acquisition and holding of such Lender's Loan will require a third party (the
"Conduit Credit Enhancer") to provide credit enhancement; (ii) the Conduit
Credit Enhancer will be an Eligible Assignee; (iii) the applicable Lender will
pledge its interest in the Loan to the Conduit as collateral for the Conduit
Inventory Loan; (iv) the Conduit Credit Enhancer and the Conduit will agree
that, if the applicable Lender defaults under the Conduit Inventory Loan, or if
the Conduit is unable to refinance its outstanding commercial paper even if
there is no default by the applicable Lender, the Conduit Credit Enhancer will
purchase the Conduit Inventory Loan from the Conduit, and the Conduit will
assign the pledge of the applicable Lender's interest in the relevant Loan to
the Conduit Credit Enhancer; and (v) the Conduit will not have any greater right
to acquire the interests in the Loan pledged by the relevant Lender, by
foreclosure or otherwise, than would any other purchaser that is not an Eligible
Assignee at a foreclosure sale conducted by a Loan Pledgee.
12.3.3 Effect; Effective Date. Upon (a) delivery to the
Administrative Agent of an assignment, together with any consents required by
Section 12.3.1, and (b) payment of a non-refundable assignment fee of $3,500 to
the Administrative Agent for processing such assignment (unless such fee is
waived by the Administrative Agent), such assignment shall become effective on
the effective date specified in such assignment. On and after the effective date
of such assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and the
transferor Lender shall be discharged and released with respect to the
percentage of the Revolving Loan Commitment and Outstanding Credit Exposure
assigned to such Purchaser, without any further consent or action by Borrower,
Parent Guarantor, the Lenders or the Administrative Agent. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the transferor
Lender, the Administrative Agent, Borrower and Parent Guarantor shall make
appropriate arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Revolving Loan Commitment and Outstanding
Credit Exposure, as adjusted pursuant to such assignment.
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12.4 Dissemination of Information. Borrower and Parent Guarantor
each authorize each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by operation of law
(each a "Transferee") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of Borrower, Parent
Guarantor and Subsidiary Guarantors; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.14 with
respect to Borrowing Notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of Borrower, Parent Guarantor, the Administrative Agent or any
Lender, at its address or facsimile number set forth on the signature pages
hereof, or (b) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Administrative Agent, Borrower and Parent Guarantor in accordance with the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by certified mail, return receipt
requested, when delivered at the address specified in this Section, as indicated
by the return receipt, or (iii) if given by any other means, when delivered (or,
in the case of electronic transmission, received) at the address specified in
this Section; provided that notices to the Administrative Agent under Article II
shall not be effective until received.
13.2 Change of Address. Borrower, Parent Guarantor, the
Administrative Agent and any Lender may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by Borrower, Parent
Guarantor, the Administrative Agent and the Lenders and each
121
party has notified the Administrative Agent by facsimile transmission or
telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (EXCLUDING THE NEW
YORK LIEN LAW AND WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS), BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. BORROWER AND PARENT GUARANTOR EACH
HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK OR ANY UNITED STATES FEDERAL
OR FLORIDA STATE COURT SITTING IN FLORIDA, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND BORROWER AND PARENT GUARANTOR EACH
HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST BORROWER, PARENT GUARANTOR OR ANY SUBSIDIARY
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
BORROWER OR PARENT GUARANTOR AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR
ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK.
15.3 WAIVER OF JURY TRIAL. BORROWER, PARENT GUARANTOR, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIPS ESTABLISHED THEREUNDER.
122
* * *
123
IN WITNESS WHEREOF, Borrower, Parent Guarantor, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
ADDRESSES: BORROWER:
One Gaylord Drive OPRYLAND HOTEL - FLORIDA LIMITED
Nashville, Tennessee 37214 PARTNERSHIP, a Florida limited partnership
Attention: Chief Financial Officer
By: Opryland Hospitality, LLC, its general
partner
By: /s/ DAVID C. KLOEPPEL
-----------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
PARENT GUARANTOR:
One Gaylord Drive GAYLORD ENTERTAINMENT
Nashville, Tennessee 37214 COMPANY, a Delaware corporation
Attention: Chief Financial Officer
By: /s/ DAVID C. KLOEPPEL
-------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President and
Chief Financial Officer
LENDERS:
Deutsche Bank DEUTSCHE BANK TRUST COMPANY
200 Crescent Court, Suite 550 AMERICAS, Individually and as
Dallas, Texas 75201 Administrative Agent
Attention: Robert J. Krenek
By: /s/ GEORGE R. REYNOLDS
--------------------------------------
Name: George R. Reynolds
Title: Vice President
Bank of America BANK OF AMERICA, N.A.
901 Main Street, 64th Floor
TXI-492-64-01
Dallas, Texas 75202 By: /s/ ROGER C. DAVIS
Attention: Roger C. Davis --------------------------------------
Name: Roger C. Davis
Title: Principal, Portfolio Manager
124
EXHIBIT 10.15
FIRST AMENDMENT TO CREDIT AGREEMENT AND RATIFICATION OF GUARANTY
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND RATIFICATION OF GUARANTY
(this "First Amendment"), dated as of December 17, 2003, among OPRYLAND HOTEL -
FLORIDA LIMITED PARTNERSHIP, a Florida limited partnership ("Borrower"), and
GAYLORD ENTERTAINMENT COMPANY, a Delaware corporation ("Parent Guarantor"), the
Lenders from time to time party to the Credit Agreement referred to below,
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (the
"Administrative Agent") and the undersigned Subsidiary Guarantors. All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Deutsche Bank Trust Company Americas ("DB") and Bank of
America, N.A. ("BofA", and together with DB, collectively, the "Original
Lenders"), Borrower, Parent Guarantor and the Administrative Agent entered into
that certain Credit Agreement, dated as of November 20, 2003 (as amended hereby
and as further amended, modified or supplemented from time to time, the "Credit
Agreement");
WHEREAS, Borrower, Parent Guarantor and the Original Lenders desire to
amend the Credit Agreement as set forth in this First Amendment.
NOW, THEREFORE, in consideration of the foregoing, the agreements
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
I. Amendments to the Credit Agreement.
1. The aggregate Revolving Loan Commitment is hereby increased
from $65,000,000.00 to $100,000,000.00 and in connection therewith, (a) each of
CIBC Inc., Fleet National Bank, Midfirst Bank and Citicorp North America, Inc.
(collectively, the "New Lenders"; the Original Lenders and the New Lenders being
hereinafter referred to collectively as the "Lenders") hereby agrees to
participate, severally, in the aggregate Revolving Loan Commitment, as increased
hereby, in accordance with the schedule of Revolving Loan Commitments ("Revised
Schedule 1") attached hereto and (b) Schedule 1 of the Credit Agreement is
hereby deleted and Revised Schedule 1 is hereby substituted therefor. From and
after the date hereof, each New Lender shall have all of the rights and
obligations of a "Lender" under the Credit Agreement and the other Loan
Documents and shall be bound by all of the terms and provisions thereof.
2. The principal balance of Revolving Loans outstanding, if any,
immediately prior to the increase in the aggregate Revolving Loan Commitment
pursuant to the preceding Paragraph 1 shall be reallocated among the Lenders
such that, as of the date hereof, the outstanding principal balance of Revolving
Loans due and payable to each Lender shall be equal to such Lender's Pro Rata
Share of the Aggregate Outstanding Credit Exposure with respect to Revolving
Loans. On the date hereof, the New Lenders shall advance the funds necessary to
effect such reallocation to the Administrative Agent and the funds so advanced
shall be
immediately thereafter distributed among the Original Lenders as necessary to
accomplish the required reallocation of outstanding Revolving Loans. Any funds
so advanced shall be Floating Rate Advances until converted to LIBO Rate
Advances. To the extent such reallocation results in certain Lenders receiving
funds which are applied to LIBO Rate Advances prior to the last day of the
applicable Interest Period, then Borrower shall pay to the Administrative Agent
for the account of the affected Lenders any amounts payable with respect thereto
pursuant to Section 3.4 of the Credit Agreement. Each Lender's participation in
Letters of Credit and Unpaid Drawings, if any, outstanding as of the date hereof
is hereby adjusted to reflect such Lender's respective Pro Rata Share thereof,
as contemplated by Section 2.20.3(a) of the Credit Agreement.
3. On the date hereof, Borrower shall execute and deliver to the
Administrative Agent a new or renewal Revolving Note (collectively the "New
Notes") for each Lender in a principal amount equal to such Lender's Revolving
Loan Commitment as provided in Revised Schedule 1. The Administrative Agent
shall promptly deliver such New Notes to the respective Lenders, and the two
Revolving Notes (the "Original Notes") dated as of November 20, 2003, each in
the principal amount of $32,500,000, held, respectively, by the Original
Lenders, shall be surrendered by the Original Lenders to the Administrative
Agent. Each New Note shall contain such provisions with respect to payment of or
exemption from Florida intangibles tax and documentary stamp tax as the
Administrative Agent shall require, and in furtherance thereof, (a) the
$7,500,000 portion of BofA's Original Note that is not renewed by the New Note
delivered to BofA on the date hereof is hereby deemed to have been assigned to
CIBC Inc. and renewed by the New Note delivered to CIBC Inc. and (b) the
$7,500,000 portion of DB's Original Note that is not renewed by the New Note
delivered to DB on the date hereof is hereby deemed to have been assigned to
Citicorp North America, Inc. and renewed by the New Note delivered to Citicorp
North America, Inc.
4. Any undrawn fees and Letter of Credit Fees pursuant to
Sections 2.5(a) and 2.20.6(a) of the Credit Agreement, respectively, paid or
payable for periods on or after the date hereof shall be distributed to each
Lender in accordance with its respective Pro Rata Share, it being understood
that any undrawn fees and Letter of Credit Fees paid or payable for periods
prior to but not including the date hereof shall be distributed only to the
Original Lenders in accordance with their respective Pro Rata Shares prior to
the date hereof.
5. The following is hereby inserted in the first sentence of
Section 2.5(a) of the Credit Agreement, after "Aggregate Available Commitment":
"(calculated, for the purposes of this Section 2.5(a) without regard to the
outstanding principal amount of Swingline Loans, if any)".
6. Section 2.19 and Exhibit F of the Credit Agreement are hereby
deleted. The following defined terms in the Credit Agreement are hereby deleted:
"Incremental Lender", Incremental Loan Commitment Requirements", "Incremental
Revolving Loan Commitment", "Incremental Revolving Loan Commitment Agreement",
and "Incremental Revolving Loan Commitment Date".
7. The definition of "Floating Rate" is hereby amended and
restated in its entirety as follows: "Floating Rate" means, for any day, a rate
per annum equal to (a) the Alternate Base Rate for such day plus (b) in the case
of Swingline Loans, 1.75%, and in the case of Loans other
than Swingline Loans, 2.25%, in each case changing when and as the Alternate
Base Rate changes.
8. Schedule 2.20 of the Credit Agreement is hereby deleted and
the revised Schedule 2.20 attached hereto is hereby substituted therefor.
II. Conditions to the Effectiveness of this First Amendment.
This First Amendment will be effective on the date on which all of the
following conditions shall have been satisfied:
1. Borrower, Parent Guarantor, the Administrative Agent, the
Lenders and the Subsidiary Guarantors shall have executed a counterpart hereof
(whether the same or different counterparts) and shall have delivered (including
by way of facsimile transmission) the same to the Administrative Agent in
accordance with Section 13.1 of the Credit Agreement;
2. Borrower shall have provided the Administrative Agent with an
amendment to the Mortgage, executed by Borrower and in form and substance
satisfactory to the Administrative Agent;
3. Borrower shall have provided the Administrative Agent with an
endorsement to the Mortgage Title Insurance Policy with respect to the amended
Mortgage, in form and substance satisfactory to the Administrative Agent, which
endorsement shall increase the Mortgage Title Insurance Policy coverage by the
amount of the increase in the aggregate Revolving Loan Commitment pursuant to
this First Amendment, with all premiums and title charges paid in full on or
before the date of issuance;
4. the Administrative Agent shall have received copies, each
certified by the general partner, secretary or assistant secretary, as
applicable, of Borrower, each Subsidiary Guarantor and Parent Guarantor, of (a)
the Organizational Documents of each such Person and (b) consents, resolutions
or other required actions authorizing the execution and delivery by such Person
of this First Amendment and all other documents being executed and delivered in
connection herewith to which such Person is a party, and such consents,
resolutions or other actions shall be in form and substance reasonably
satisfactory to the Administrative Agent;
5. the Administrative Agent shall have received opinions from
counsel to Borrower, Parent Guarantor and the Subsidiary Guarantors, each dated
the date hereof and addressed to the Administrative Agent and the Lenders, which
opinions shall cover such matters under the laws of such jurisdictions as the
Administrative Agent may require and shall otherwise be in form and substance
reasonably satisfactory to the Administrative Agent; and
6. Borrower and Parent Guarantor shall have paid to the
Administrative Agent all costs, fees and expenses (including, without
limitation, the legal fees and expenses of Greenberg Traurig, LLP) payable to
the Administrative Agent to the extent then due.
III. Miscellaneous Provisions.
1. The amendments set forth herein are limited precisely as
written and shall not be deemed a modification of any other term or condition in
the Credit Agreement, the Loan Documents or any of the documents referred to
herein or therein. Except as expressly amended hereby, the Credit Agreement
remains in full force and effect and is hereby ratified and confirmed in all
respects, it being understood that the Administrative Agent and the Lenders
hereby expressly reserve all of their rights and remedies under the Credit
Agreement, as amended hereby.
2. In order to induce the Lenders to enter into this First
Amendment, Borrower and Parent Guarantor hereby represent and warrant to each of
the Lenders that (a) all of the representations and warranties contained in the
Credit Agreement are true and correct on and as of the date hereof (unless such
representations and warranties relate to a specific earlier date, in which case
such representations and warranties shall be true and correct as of such earlier
date) and (b) there exists no Default on and as of the date hereof.
3. By signing below, Parent Guarantor and each of the Subsidiary
Guarantors (a) acknowledges, consents and agrees to the execution and delivery
by Borrower of this First Amendment, (b) ratifies and confirms its obligations
under the Guaranty, which remains unmodified and in full force and effect, (c)
acknowledges and agrees that its obligations under the Guaranty are not
released, diminished, waived, modified, impaired or affected in any manner by
this First Amendment or by any of the transactions contemplated hereby, (d)
represents and warrants that it has received and reviewed this First Amendment
and (e) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, the Guaranty as a result of this First Amendment
or otherwise.
4. All costs and out-of-pocket expenses incurred by the
Administrative Agent in connection with this First Amendment and the
transactions contemplated hereby shall be reimbursed to the Administrative Agent
by Borrower and Parent Guarantor, on demand.
5. This First Amendment may not be amended, modified or otherwise
changed in any manner except by a writing executed by all of the parties hereto.
6. This First Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This First Amendment may be signed in any number of
counterparts by the parties hereto, all of which taken together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOW IMMEDIATELY]
IN WITNESS WHEREOF, Borrower, Parent Guarantor, the Administrative
Agent, the Lenders and the Subsidiary Guarantors have executed this First
Amendment as of the date first above written.
BORROWER:
OPRYLAND HOTEL - FLORIDA LIMITED
PARTNERSHIP, a Florida limited partnership
By: Opryland Hospitality, LLC, its general
partner
By: /s/ DAVID C. KLOEPPEL
----------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
PARENT GUARANTOR:
GAYLORD ENTERTAINMENT
COMPANY, a Delaware corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title:Executive Vice President and Chief
Financial Officer
LENDERS:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as
Administrative Agent
By: /s/ JAMES G. ROLISON
----------------------------------------
Name: James G. Rolison
Title: Director
BANK OF AMERICA, N.A.
By: /s/ ROGER DAVIS
----------------------------------------
Name: Roger Davis
Title: Principal
CIBC INC.
By: /s/ PAUL J. CHAKMAK
---------------------------------------
Name: Paul J. Chakmak
Title: Managing Director
CIBC World Markets Corp.,
as AGENT
FLEET NATIONAL BANK
By: /s/ LORI Y. LITOW
----------------------------------------
Name: Lori Y. Litow
Title: Director
MIDFIRST BANK, a Federally Chartered
Savings Association
By: /s/ TODD WRIGHT
----------------------------------------
Name: Todd Wright
Title: Vice President
CITICORP NORTH AMERICA, INC.
By: /s/ DAVID BOUTON
----------------------------------------
Name: David Bouton
Title: Vice President
SUBSIDIARY GUARANTORS:
CCK HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
CORPORATE MAGIC, INC.,
a Texas corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
GAYLORD CREATIVE GROUP, INC.,
a Delaware corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
GAYLORD HOTELS, LLC,
a Delaware limited liability company
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
GAYLORD INVESTMENTS, INC.,
a Delaware corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
GAYLORD PROGRAM SERVICES, INC.,
a Delaware corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
GRAND OLE OPRY TOURS, INC.,
a Tennessee corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OLH, G.P., a Tennessee general partnership
By: Gaylord Entertainment Company, a
general partner
By: /s/ DAVID C. KLOEPPEL
------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OLH HOLDINGS, LLC, a Delaware limited
liability company
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OPRYLAND ATTRACTIONS, INC.,
a Delaware corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OPRYLAND HOSPITALITY, LLC,
Tennessee limited liability company
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OPRYLAND HOTEL - TEXAS, LLC,
a Delaware limited liability company
By: Gaylord Hotels, LLC, its sole member
By: /s/ DAVID C. KLOEPPEL
------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President and
Chief Financial Officer
OPRYLAND PRODUCTIONS, INC.,
a Tennessee corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OPRYLAND THEATRICALS, INC.,
a Delaware corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
WILDHORSE SALOON
ENTERTAINMENT VENTURES, INC., a
Tennessee corporation
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
OPRYLAND HOTEL-TEXAS LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: /s/ DAVID C. KLOEPPEL
----------------------------------------
Name: David C. Kloeppel
Title: Executive Vice President
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
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 & O'LEARY COMPANY, a
Colorado corporation
K-T-F ACQUISITION CO., a Delaware
corporation
MAUI CONDO 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
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
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
RESORTQUEST HAWAII, LLC, a Hawaii
limited liability company
By: /s/ JAMES S. OLIN
----------------------------------------
Name: James S. Olin
Title: Executive Vice President
REVISED SCHEDULE 1
LENDER REVOLVING LOAN COMMITMENT
------ -------------------------
Deutsche Bank Trust Company Americas $25,000,000.00
Bank of America, N.A. $25,000,000.00
CIBC Inc. $12,500,000.00
Fleet National Bank $15,000,000.00
MidFirst Bank $10,000,000.00
Citicorp North America, Inc. $12,500,000.00
REVISED SCHEDULE 2.20
EXISTING LETTERS OF CREDIT
LC STATED EXPIRY STANDBY /
ISSUING LENDER NUMBER ACCOUNT PARTY AMOUNT BENEFICIARY DATE TRADE LC
- --------------- --------- ---------------------------------- --------- ------------------------------ ---------- ---------
Bank of America 3028402 Gaylord Entertainment 250,000 Zurich American Insurance 2/1/2004 Standby
Company Co.
Bank of America 3044998 Gaylord Entertainment 997,000 Federal Insurance Company 1/1/2004 Standby
Company
Bank of America 1462 Gaylord Entertainment 175,000 Reliance Insurance Company 2/1/2004 Standby
Company
Bank of America 3059940 ResortQuest International 2,300,000 Travelers Indemnity 12/15/2004 Standby
Company
Bank of America 3059939 ResortQuest International 600,000 Royal Indemnity Company 5/13/2004 Standby
Bank of America 3059937 ResortQuest International 294,000 Royal Indemnity Company 4/1/2004 Standby
Bank of America 3059938 Coastal Resorts International Inc. 10,000 Airlines Reporting Corporation 5/15/2004 Standby
Bank of America 3059941 ResortQuest International 1,035,000 Travelers Indemnity Company 1/1/2005 Standby
Bank of America 3058190 ResortQuest International 5,000,000 Paymentech, LP 8/13/2004 Standby
Deutsche Bank
Trust Company The Travelers Indemnity
Americas S-15534 ResortQuest International 620,000 Company 11/24/04 Standby