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EXHIBIT 4.3
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated to be effective as of September 30, 1997, is entered into among GAYLORD
ENTERTAINMENT COMPANY, a Delaware corporation, NEW GAYLORD ENTERTAINMENT
COMPANY, a Delaware corporation (collectively, for purposes of this First
Amendment, "Borrower"), the banks listed on the signature pages hereof
(collectively, "Lenders"), and NATIONSBANK OF TEXAS, N.A., as Administrative
Lender (in said capacity, "Administrative Lender").
BACKGROUND
A. Borrower, Lenders and Administrative Lender heretofore entered into
that certain Credit Agreement, dated as of August 19, 1997 (the "Credit
Agreement"; the terms defined in the Credit Agreement and not otherwise defined
herein shall be used herein as defined in the Credit Agreement).
B. Borrower, Lenders and Administrative Lender desire to make an
amendment to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower, Lenders
and Administrative Lender covenant and agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. The definition of "Permitted Debt"
set forth in Article I of the Credit Agreement is hereby amended to read in its
entirety as follows:
"`Permitted Debt' means, without duplication, (a) unsecured
Debt not to exceed $20,000,000 in aggregate principal amount, (b) Debt
secured by Liens permitted by clause (g) of the definition of
"Permitted Liens", provided, such Debt does not exceed $20,000,000 in
aggregate principal amount, (c) Existing Debt and extensions, renewals
and refinancings (but not increases) thereof, (d) Debt pursuant to or
in connection with Film Contracts, (e) trade payables incurred in the
ordinary course of the Companies' respective businesses, (f) Debt and
Contingent Debt pursuant to this Agreement, (g) intercompany Debt
between Companies, (h) Debt in respect of interest swap agreements and
other similar agreements designed to hedge against fluctuations in
interest rates, (i) Acquisition Consideration consisting of Debt
incurred to the seller of assets acquired in an Acquisition or assumed
pursuant to any single Acquisition not to exceed (A) during fiscal year
1997, the remainder of (1) $100,000,000 minus (2) the aggregate
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amount of cash Acquisition Consideration paid for any such Acquisition
during such fiscal year, (B) during fiscal year 1998, the remainder of
(1) $125,000,000 minus (2) the aggregate amount of cash Acquisition
Consideration paid for any such Acquisition during such fiscal year,
and (C) during each fiscal year thereafter, the remainder of (1)
$150,000,000 minus (2) the aggregate amount of cash Acquisition
Consideration paid for any such Acquisition during such fiscal year,
and (j) Contingent Debt in respect of operating lease obligations and
other obligations (excluding Debt other than Permitted Debt) of any
Company incurred in the ordinary course of business."
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, Borrower represents and warrants that, as of the
date hereof and after giving effect to the amendment contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as though made on and as of such date, except to the extent that any
such representation or warranty relates expressly to a specified date or is no
longer correct because of a change in circumstances permitted by the Loan
Documents;
(b) no event has occurred and is continuing which constitutes a Default
or Event of Default;
(c) Borrower has full power and authority to execute and deliver this
First Amendment and the Credit Agreement, as amended hereby, and this First
Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of Borrower, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable debtor
relief laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this First
Amendment or the Credit Agreement, as amended by this First Amendment, will
contravene or conflict with any Law to which Borrower or any of its Subsidiaries
is subject or any indenture, agreement or other instrument to which Borrower or
any of its Subsidiaries or any of their respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any Tribunal or other Person, is required for the execution,
delivery or performance by Borrower of this First Amendment or the
acknowledgement of this First Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective
as of September 30, 1997, subject to the following:
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(a) Administrative Lender shall have received counterparts of this
First Amendment executed by Determining Lenders;
(b) Administrative Lender shall have received counterparts of this
First Amendment executed by Borrower, and within 10 Business Days of the
effective date hereof, acknowledged by each Guarantor (after giving effect to
the Gaylord Restructuring and the Westinghouse Merger); and
(c) Administrative Lender shall have received, in form and substance
satisfactory to Administrative Lender and its counsel, such other documents,
certificates and instruments as Administrative Lender reasonably shall require.
4. GUARANTOR ACKNOWLEDGEMENT. By signing below, each of the Guarantors
(i) acknowledges, consents and agrees to the execution and delivery of this
First Amendment, (ii) acknowledges and agrees that its obligations in respect of
its Guaranty are not released, diminished, waived, modified, impaired or
affected in any manner by this First Amendment or any of the provisions
contemplated herein, (iii) ratifies and confirms its obligations under its
Guaranty, and (iv) acknowledges and agrees that it has no claims or offsets
against, or defenses or counterclaims to, its Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this First
Amendment.
(b) The Credit Agreement, as amended by this First Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses of the Administrative Lender in connection with the
preparation, reproduction, execution and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Lender with respect thereto and with respect to advising the Lenders as to their
rights and responsibilities under the Credit Agreement, as amended by this First
Amendment).
7. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
8. GOVERNING LAW: BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon Borrower and each Lender and their respective successors
and assigns.
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9. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of this
First Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to be effective as of the date first above written.
GAYLORD ENTERTAINMENT COMPANY
By:
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Name:
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Title:
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NEW GAYLORD ENTERTAINMENT
COMPANY
By:
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Name:
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Title:
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NATIONSBANK OF TEXAS, N.A.
as a Lender, Swing Line Bank, Issuing
Bank and as Administrative Lender
By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED, ATLANTA
AGENCY
By:
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Name:
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Title:
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SUNTRUST BANK, NASHVILLE, N.A.
By:
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Name:
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Title:
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FIRST AMERICAN NATIONAL BANK
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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BANQUE PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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THE SAKURA BANK, LIMITED
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By:
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Name:
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Title:
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COMERICA BANK
By:
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Name:
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Title:
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By:
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Name:
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Title:
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THE SANWA BANK, LIMITED
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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WACHOVIA BANK, N.A.
By:
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Name:
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Title:
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BANK OF TOKYO MITSUBISHI TRUST
COMPANY
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED:
IDEA ENTERTAINMENT, INC.
By:
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Name:
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Title:
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CNR, INC.
By:
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Name:
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Title:
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GAYLORD BROADCASTING COMPANY, L.P.
By: Gaylord Communications, Inc.,
its General Partner
By:
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Name:
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Title:
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OPRYLAND ATTRACTIONS, INC.
By:
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Name:
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Title:
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OLH, L.P.
By: Opryland Hospitality, Inc.
By:
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Name:
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Title:
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OPRYLAND MUSIC GROUP, INC.
By:
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Name:
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Title:
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