Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of June 1, 2005 (the
"First Amendment"), is by and among GAYLORD ENTERTAINMENT COMPANY, a Delaware
corporation (together with any permitted successors and assigns, the
"Borrower"), the Guarantors (as defined in the Credit Agreement), the Lenders
(as defined in the Credit Agreement), BANK OF AMERICA, N.A., as Administrative
Agent and L/C Issuer, BANC OF AMERICA SECURITIES LLC, as Joint Lead Arranger and
Joint Book Manager, DEUTSCHE BANK SECURITIES, INC., as Joint Lead Arranger and
Joint Book Manager and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Syndication
Agent and is an amendment to that certain Credit Agreement dated as of March 9,
2005 by and among the Borrower, the Guarantors, Lenders, the Administrative
Agent, the L/C Issuer, the Joint Lead Arrangers, the Joint Book Managers and the
Syndication Agent (as the same may have been further amended, restated,
supplemented or otherwise modified prior to the date hereof, the "Credit
Agreement").
WITNESSETH
WHEREAS, the Borrower and each of the Guarantors have requested and the
Lenders and Administrative Agent have agreed to amend the Credit Agreement on
the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged by the parties hereto, the parties hereto agree as
follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
Section 8.11(e) of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
"(a) Investments in Persons Other Than Wholly Owned Subsidiaries. Excluding
those Investments existing as of the Closing Date which are described in
Schedule 6.13(c), item 1, and Schedule 8.02, item 4, permit the Investments
of the Borrower and the other Loan Parties in Persons other than Wholly
Owned Subsidiaries of the Borrower to, at any time, exceed an amount equal
to ten percent (10.0%) of Consolidated Total Assets."
2. CONDITIONS PRECEDENT. The effectiveness of this First Amendment is
subject to receipt by the Administrative Agent of each of the following, each in
form and substance satisfactory to the Administrative Agent:
(a) a counterpart of this First Amendment duly executed by the
Borrower, the Guarantors and Required Lenders; and
(b) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
Upon satisfaction of the foregoing conditions precedent, the provisions of
this First Amendment shall be effective as of the Closing Date.
3. REPRESENTATIONS. The Borrower and each of the Guarantors collectively
represent and warrant to the Administrative Agent and the Lenders that:
(a) Authorization. The Borrower and each of the Guarantors,
respectively, has the right and power and has obtained all authorizations
necessary to execute and deliver this First Amendment and to perform its
respective obligations hereunder and under the Credit Agreement, as amended
by this First Amendment, in accordance with their respective terms. This
First Amendment has been duly executed and delivered by a duly authorized
officers of the Borrower and each Guarantor, respectively, and each of this
First Amendment and the Credit Agreement, as amended by this First
Amendment, is a legal, valid and binding obligation of the Borrower and
each Guarantor (each as applicable), enforceable against the Borrower and
each Guarantor (each as applicable) in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency, and
other similar laws affecting the rights of creditors generally and by
equitable principles generally.
(b) Compliance with Laws, etc. The execution and delivery by the
Borrower and each of the Guarantors of this First Amendment and the
performance by the Borrower and/or the Guarantors of this First Amendment
and the Credit Agreement, as amended by this First Amendment, in accordance
with their respective terms, does not and will not, by the passage of time,
the giving of notice or otherwise: (i) require any approval (other than
those already obtained) by any Governmental Authority or violate any law
(including any Environmental Law) which is applicable to a Borrower, any
Guarantors, any Consolidated Party, the Credit Documents or the
transactions contemplated herein or therein; (ii) conflict with, result in
a breach of or constitute a default under the organizational documents of
any Borrower, any of the Guarantors or any other Consolidated Party, or any
indenture, agreement/or other instrument to which any Borrower, any of the
Guarantors or any other Consolidated Party is a party or by which it or any
of its respective properties may be bound; or (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property
now owned or hereafter acquired by any Borrower, any Guarantor or any other
Consolidated Party other than in favor of the Administrative Agent for the
benefit of the Lenders; and
(c) No Default. After giving effect to this First Amendment, no
Default or Event of Default has occurred and is continuing as of the date
hereof.
4. REAFFIRMATION OF REPRESENTATIONS. The Borrower and each of the
Guarantors hereby repeat and reaffirm all representations and warranties made by
such party to the Administrative Agent and the Lenders in the Credit Agreement
and the other Credit Documents to which it is a party on and as of the date
hereof (other than any representation or warranty expressly relating to an
earlier date) with the same force and effect as if such representations and
warranties were set forth in this First Amendment in full.
5. REAFFIRMATION OF GUARANTY. Each of the Guarantors hereby reaffirms its
continuing obligations to the Administrative Agent and the Lenders under the
Credit Agreement and agrees that the transactions contemplated by this First
Amendment shall not in any way affect the validity and enforceability of their
respective guaranty obligations thereunder or reduce, impair or discharge the
obligations of such Guarantors thereunder.
6. SEVERABILITY. If any provision of any of this First Amendment or of the
Credit Agreement, as amended hereby, is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
7. CERTAIN REFERENCES. Each reference to the Credit Agreement in any of the
Credit Documents shall be deemed to be a reference to the Credit Agreement as
amended by this First Amendment and this First Amendment shall be deemed a
Credit Document for purposes of the application of provisions of the Credit
Agreement generally applicable thereto (including, without limitation, any
arbitration provisions or waiver provisions).
8. BENEFITS. This First Amendment shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
9. DEFAULT. The failure of the Borrower or any of the Guarantors to perform
any of their respective obligations under this First Amendment or the material
falsity of any representation or warranty made herein shall, at the option of
the Administrative Agent and/or Lenders (as determined in accordance with the
Credit Agreement) after expiration of any applicable cure period, constitute an
Event of Default under the Credit Documents.
10. NO NOVATION. The parties hereto intend this First Amendment to evidence
the amendments to the terms of the existing indebtedness of the Borrower and
Guarantors to the Lenders as specifically set forth herein and do not intend for
such amendments to constitute a novation in any manner whatsoever.
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11. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
12. NO IMPLIED AGREEMENTS. Except as expressly herein amended, the terms
and conditions of the Credit Agreement and the other Credit Documents remain in
full force and effect. The amendments contained herein shall be deemed to have
prospective application only, unless otherwise specifically stated herein.
13. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this First Amendment to produce or account for more
than one such counterpart for each of the parties hereto. Delivery by facsimile
by any of the parties hereto of an executed counterpart of this First Amendment
shall be as effective as an original executed counterpart hereof and shall be
deemed a representation that an original executed counterpart hereof will be
delivered. Each counterpart hereof shall be deemed to be an original and shall
be binding upon all parties, their successors and assigns.
14. BINDING EFFECT. This First Amendment shall become effective as of the
date hereof at such time when all of the conditions set forth in Section 2
hereof have been satisfied or waived by the Lenders and it shall have been
executed by the Borrower, the Guarantors and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of the Required Lenders, and
thereafter this First Amendment shall be binding upon and inure to the benefit
of the Borrower, the Guarantors, the Administrative Agent and each Lender and
their respective successors and assigns.
15. RELEASE. Each Loan Party hereby represents and warrants that it has no
claims, counterclaims, offsets, or defenses to the Credit Agreement or any of
the Credit Documents, or to the performance of their respective obligations
thereunder and, in consideration of the Lenders' and Administrative Agent's
willingness to grant the amendment referenced herein, hereby releases the
Administrative Agent, the Lenders, the Sole Lead Arranger, the Sole Book
Manager, the Syndication Agent and the Documentation Agent and each of their
respective officers, employees, representatives, agents, counsel and directors
from any and all actions, causes of action, claims, demands, damages and
liabilities of whatever kind or nature, in law or in equity, now known or
unknown, suspected or unsuspected to the extent that any of the foregoing arises
from any action or failure to act on or prior to the date hereof.
16. DEFINITIONS. All capitalized terms not otherwise defined herein are
used herein with the respective definitions given them in the Credit Agreement.
The interpretive provisions set forth in Sections 1.02 through 1.06 of the
Credit Agreement shall apply to this First Amendment as though set forth herein.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this First Amendment to be duly executed and delivered as of the date written
above.
BORROWER:
GAYLORD ENTERTAINMENT COMPANY
By: /s/ David C. Kloeppel
------------------------------------
David C. Kloeppel
Executive Vice President
GUARANTORS:
OPRYLAND HOTEL NASHVILLE, LLC
By: /s/ David C. Kloeppel
------------------------------------
David C. Kloeppel
Executive Vice President
OPRYLAND HOTEL-FLORIDA LIMITED
PARTNERSHIP
By: Opryland Hospitality, LLC,
its general partner
BY: /s/ David C. Kloeppel
------------------------------------
David C. Kloeppel
Executive Vice President
OPRYLAND HOTEL-TEXAS LIMITED PARTNERSHIP
BY: OPRYLAND HOSPITALITY, LLC,
ITS GENERAL PARTNER
By: /s/ David C. Kloeppel
------------------------------------
David C. Kloeppel
Executive Vice President
GAYLORD NATIONAL, LLC
By: /s/ David C. Kloeppel
------------------------------------
David C. Kloeppel
Executive Vice President
RESORTQUEST INTERNATIONAL, INC.
By: /s/ David C. Kloeppel
------------------------------------
David C. Kloeppel
Executive Vice President
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., in its
respective capacities as Administrative
Agent and L/C Issuer
By: /s/ Roger C. Davis
------------------------------------
Name: Roger C. Davis
Title: Senior Vice President
BANK OF AMERICA, N.A., in its capacity
as a Lender
By: /s/ Roger C. Davis
------------------------------------
Name: Roger C. Davis
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
in its capacity as a Lender and in its
capacity as Syndication Agent
By: /s/ George R. Reynolds
------------------------------------
Name: George R. Reynolds
Title: Vice President
By: /s/ James Rolison
------------------------------------
Name: James Rolison
Title: Director
KEY BANK, NATIONAL ASSOCIATION, in
its capacity as a Lender and in its
capacity as Co-Documentation Agent
By: /s/ Michael M. Pomposelli
------------------------------------
Name: Michael M. Pomposelli
Title: Relationship Manager
WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as a Lender and in
its capacity as Co-Documentation Agent
By: /s/ David M. Blackman
------------------------------------
Name: David M. Blackman
Title: Managing Director
WELLS FARGO BANK, NATIONAL ASSOCIATION,
in its capacity as a Lender and in its
capacity as Co-Documentation Agent
By: /s/ Kent Howard
------------------------------------
Name: Kent Howard
Title: Senior Vice President
CITICORP NORTH AMERICA INC., in its
capacity as a Lender and in its
capacity as Managing Agent
By: /s/ Jeanne M. Craig
------------------------------------
Name: Jeanne M. Craig
Title: Vice President
CIBC INC., in its capacity as a Lender
By: /s/ Dean J. Decker
------------------------------------
Name: Dean J. Decker
Title: Managing Director
CIBC World Markets Corp.,
AS AGENT
CALYON NEW YORK BRANCH, in its capacity
as a Lender
By: /s/ Jan Hazelton
------------------------------------
Name: Jan Hazelton
Title: Director
By: /s/ David Bowers
------------------------------------
Name: David Bowers
Title: Director
MIDFIRST BANK, A FEDERALLY CHARTERED
SAVINGS ASSOCIATION, in its capacity
as a Lender
By: /s/ Todd G. Wright
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Name: Todd G. Wright
Title: Vice President
EMIGRANT SAVINGS BANK, in its capacity
as a Lender
By: /s/ Patricia Goldstein
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Name: Patricia Goldstein
Title: Senior Executive Vice President
BANK MIDWEST, N.A., in its capacity
as a Lender
By: /s/ Timothy B. Kenney
------------------------------------
Name: Timothy B. Kenney
Title: Senior Vice President
UNITED OVERSEAS BANK LIMITED
LOS ANGELES AGENCY, in its capacity
as a Lender
By: /s/ Hoong Chen
------------------------------------
Name: Hoong Chen
Title: First VP and General Manager