EXHIBIT 10.27
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment"), dated as of December 7, 1998
is by and among RESORTQUEST INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), those Subsidiaries of the Borrower as may from time to time become
a party thereto (collectively the "Guarantors"), THE PERSONS IDENTIFIED AS
"EXISTING LENDERS" ON THE SIGNATURE PAGES HERETO (the "Existing Lenders"), THE
PERSONS IDENTIFIED AS "NEW LENDERS" ON THE SIGNATURE PAGES HERETO (the "New
Lenders" and, together with the Existing Lender, the "Lenders"), SOCIETE
GENERALE, as Co-Agent and NATIONSBANK, N.A., a national banking association as
Agent for the Lenders (the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of May 26, 1998 (as
amended by a letter agreement (the "First Amendment") dated as of September 30,
1998, the "Existing Credit Agreement"), among the Borrower, the Guarantors, the
Existing Lenders and the Agent, the Existing Lenders have extended commitments
to make certain credit facilities available to the Borrower; and
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, the following terms used in this
Amendment, including its preamble and recitals, have the following
meanings:
"Amended Credit Agreement" means the Existing Credit Agreement
as amended by the Second Amendment.
"Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment, including
its preamble and recitals, have the meanings provided in the Amended
Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Credit Agreement is hereby amended in accordance with this
Part II. Except as so amended, the Existing Credit Agreement shall continue in
full force and effect.
SUBPART 2.1. Amendment to First WHEREAS Paragraph. The first
WHEREAS paragraph on page 1 is amended by deleting the reference to
"$30,000,000" contained therein with a reference to "$55,000,000".
SUBPART 2.2. Amendment to Section 1. The definition of "Lender"
contained in Section 1.1 is amended in its entirety so that such
definition now reads as follows:
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto or any of the Persons identified as a
"New Lender" on the signature pages of the Second Amendment, and
any Person which may become a Lender by way of assignment in
accordance with the terms hereof, together with their successors
and permitted assigns.
SUBPART 2.3. Additional Amendment to Section 1.1. Subsections
(iv), (v) and (vi) of the definition of "Permitted Acquisition" in
Section 1.1 are amended in their entirety so that such subsections now
read as follows:
(iv) the Borrower shall have delivered to the Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving
effect to the Acquisition on a Pro Forma Basis, the Credit Parties
will be in compliance with all of the covenants set forth in
Section 7.11, and the Borrower shall have delivered to the Lender
a certificate that, upon giving effect to the Acquisition, the
Borrower shall have liquidity (i.e. unused availability of Loans
plus cash and Cash Equivalents) of at least $5,000,000, (v) the
aggregate consideration (including cash and non-cash
consideration) and any assumption of liabilities for (A) all such
Acquisitions occurring during any calendar year shall not exceed
$75,000,000 (computed on a non-cumulative basis except that unused
amounts during any such calendar year up to $25,000,000 may be
carried forward to the next calendar year), and (B) any single
Acquisition occurring after the Closing Date shall not exceed 20%
of Consolidated Net Worth and (vi) the aggregate cash
consideration for (A) all such Acquisitions occurring during any
calendar year shall not exceed $40,000,000 (computed on a
non-cumulative basis except that unused amounts during any such
calendar year up to $10,000,000 may be carried forward to the next
calendar year) and (B) for any single Acquisition occurring after
the Closing Date shall not exceed 10% of Consolidated Net Worth.
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SUBPART 2.4. Additional Amendment to Section 1.1. Section 1.1 is
amended by adding the following definition of "Second Amendment" in the
appropriate alphabetical order:
"Second Amendment" means that certain Second Amendment, dated
as of December 7, 1998, amending the Existing Credit Agreement.
SUBPART 2.5. Additional Amendment to Section 1.1. The definition
of "Revolving Committed Amount" is amended in its entirety so that such
definition now reads as follows:
"Revolving Committed Amount" means FIFTY-FIVE MILLION DOLLARS
($55,000,000) or such lesser amount as the Revolving Committed
Amount may be reduced pursuant to Section 3.4.
SUBPART 2.6. Additional Amendment to Section 1.1. The definition
of "Swingline Loan" is amended in its entirety so that such definition
now reads as follows:
"Swingline Loan" shall have the meaning assigned to such term
in Section 2.3(a).
SUBPART 2.7. Amendment to Section 7.11(c). Section 7.11(c) is
amended in its entirety so that such Section now reads as follows:
(c) Consolidated Net Worth. At all times the Consolidated Net
Worth of the Consolidated Parties shall be greater than or equal
to the sum of $90,000,000, increased on a cumulative basis as of
the end of each fiscal quarter of the Consolidated Parties,
commencing with the fiscal quarter ending December 31, 1998 by an
amount equal to 75% of Consolidated Net Income (to the extent
positive) for the fiscal quarter then ended plus 100% of the Net
Cash Proceeds from any Equity Issuance occurring after the Closing
Date.
SUBPART 2.8. Amendment to Section 8.1. Section 8.1 is amended by
adding the following subsection (f) and making the appropriate
grammatical changes:
(f) any Indebtedness (the "Replacement Indebtedness") that
refinances or replaces the Indebtedness of Abbott Realty Services,
Inc. set forth on Schedule 8.1 (the "Abbott Indebtedness") and any
Guaranty Obligations of the Borrower in connection with the
Replacement Indebtedness; provided, however, (i) the Replacement
Indebtedness must be on terms no less favorable to Abbott Realty
Services, Inc. as the terms of the Abbott Indebtedness, (ii) the
principal amount of the Replacement Indebtedness shall not exceed
the aggregate principal amount of the Abbott Indebtedness and
(iii) the collateral securing the Replacement
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Indebtedness shall be the same collateral (unless any such
collateral is released) that secures the Abbott Indebtedness.
SUBPART 2.9. Amendment to Section 10.7. Section 10.7 is amended by
adding the following paragraph at the end of such Section:
Societe Generale, in its capacity as Co-Agent, shall have no
duties or obligations whatsoever under this Credit Agreement or
any of the other Credit Documents.
SUBPART 2.10. Amendment to Section 11.3(b). The last paragraph of
Section 11.3(b) is amended in its entirety so that such paragraph now
reads as follows:
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of such assignment, have the obligations, rights,
and benefits of a Lender hereunder and the assigning Lender shall,
to the extent of such assignment, relinquish its rights (except
for any indemnification rights which by the terms hereof expressly
survive the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the
Commitments hereunder) and be released from its obligations under
this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required,
new Revolving Notes are issued to the assignor and the assignee.
If the assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the
Borrower and the Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section 3.11.
SUBPART 2.11. Amendment to Section 11.6(d). Section 11.6(d) is
amended in its entirety so that such Section now reads as follows:
(d) without the consent of the Swingline Lender, no provision
of Section 2.3 may be amended; and
SUBPART 2.12. Additional Amendment to Section 11.6. Section 11.6
is amended by adding the following paragraph at the end of such
Section:
Notwithstanding the foregoing provisions of this Section 11.6,
this Credit Agreement and the Credit Documents may be amended to
increase the Revolving Committed Amount from $55,000,000 to
$100,000,000 with the consent of the Agent, the Borrower and the
Lender or Lenders (including any new Lenders) providing such
increased amount; provided, however, under no circumstances shall
the Commitment of any Lender be increased without the consent of
such Lender.
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SUBPART 2.13. Amendment to Schedule 2.1(a). Schedule 2.1(a) of the
Existing Credit Agreement is hereby deleted in its entirety and a new
schedule in the form of Schedule 2.1(a) attached hereto is substituted
therefor. Upon the Amendment Effective Date, the Persons identified as
"New Lenders" on the signature pages to the Second Amendment shall
become parties to the Amended Credit Agreement and shall have the
rights and obligations of the Lenders thereunder and under the other
Credit Documents.
SUBPART 2.14. Amendments to Schedules 6.12, 6.16, 6.19(a), 7.6 and
8.1. Schedule 6.12, Schedule 6.16, Schedule 6.19(a), Schedule 7.6 and
Schedule 8.1 of the Existing Credit Agreement are hereby deleted in
their entirety and new schedules in the form of Schedule 6.12, Schedule
6.16, Schedule 6.19(a), Schedule 7.6 and Schedule 8.1 attached hereto
are substituted therefor.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment Effective Date. This Amendment shall be and
become effective as of the date hereof (the "Amendment Effective Date")
when all of the conditions set forth in this Part III shall have been
satisfied, and thereafter this Amendment shall be known, and may be
referred to, as the "Second Amendment."
SUBPART 3.2. Execution of Counterparts of Amendment. The Agent
shall have received counterparts (or other evidence of execution,
including telephonic message, satisfactory to the Agent) of this
Amendment, which collectively shall have been duly executed on behalf
of each of the Borrower, the Guarantors, the Agent, the Co-Agent and
the Lenders.
SUBPART 3.3. Execution and Delivery of New Notes. Each Lender
shall have received a new Note or Notes, as the case may be, each in
the principal amount of its respective Commitments and duly executed on
behalf of the Borrower.
SUBPART 3.4. Authority. The Agent shall have received copies of
resolutions of the Board of Directors of the Borrower approving and
adopting this Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof, certified by a secretary or
assistant secretary of the Borrower to be true and correct and in force
and effect as of the date hereof.
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PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment to any
Part or Subpart are, unless otherwise specified, to such Part or
Subpart of this Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement.
This Amendment is a Credit Document executed pursuant to the Existing
Credit Agreement and shall (unless otherwise expressly indicated
therein) be construed, administered and applied in accordance with the
terms and provisions of the Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such time as
this Amendment shall become effective pursuant to the terms of Subpart
3.1, all references in the Existing Credit Agreement to the "Agreement"
and all references in the other Credit Documents to the "Credit
Agreement" shall be deemed to refer to the Existing Credit Agreement as
amended by this Amendment.
SUBPART 4.4. Representations and Warranties of the Borrower. The
Borrower hereby represents and warrants that (a) the conditions
precedent to the initial Loans were satisfied as of the Closing Date
(assuming satisfaction or waiver, if applicable, of all requirements in
such conditions that an item be in form and/or substance reasonably
satisfactory to the Agent or any Lenders or that any event or action
have been completed or performed to the reasonable satisfaction of the
Agent or any Lenders), (b) the representations and warranties contained
in Section 6 of the Existing Credit Agreement (as amended by the First
Amendment and by this Amendment) are correct in all material respects
on and as of the date hereof (except for those which expressly relate
to an earlier date) as though made on and as of such date and after
giving effect to the amendments contained herein and (c) no Default or
Event of Default exists under the Existing Credit Agreement on and as
of the date hereof and after giving effect to the amendments contained
herein.
SUBPART 4.5. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed
to be an original and all of which shall constitute together but one
and the same agreement.
SUBPART 4.6. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
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SUBPART 4.7. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[The remainder of this page has been left blank intentionally]
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Each of the parties hereto has caused a counterpart of this Amendment
to be duly executed and delivered as of the date first above written.
BORROWER: RESORTQUEST INTERNATIONAL, INC.
a Delaware corporation
By: /s/ John K. Lines
-----------------------------------------
Name: John K. Lines
---------------------------------------
Title: Sr. VP & Secretary & General Counsel
--------------------------------------
GUARANTORS: FIRST RESORT SOFTWARE, INC.,
a Colorado corporation
By: /s/ John K. Lines
-----------------------------------------
Name: John K. Lines
---------------------------------------
Title: Sr. VP & Secretary
--------------------------------------
B&B ON THE BEACH, INC.,
a North Carolina corporation
By: /s/ John K. Lines
-----------------------------------------
Name: John K. Lines
---------------------------------------
Title: Sr. VP & Secretary
--------------------------------------
BRINDLEY & BRINDLEY REALTY &
DEVELOPMENT, INC., a North Carolina
corporation
By: /s/ John K. Lines
-----------------------------------------
Name: John K. Lines
---------------------------------------
Title: Sr. VP & Secretary
--------------------------------------
COASTAL RESORTS REALTY L.L.C.,
a Delaware limited liability company
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
COASTAL RESORTS MANAGEMENT, INC.,
a Delaware corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
COLLECTION OF FINE PROPERTIES, INC.,
a Colorado corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
TEN MILE HOLDINGS, LTD.,
a Colorado corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
HOTEL CORPORATION OF THE PACIFIC, INC.,
a Hawaii corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
HOUSTON AND O'LEARY COMPANY,
a Colorado corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
MAUI CONDOMINIUM & HOME REALTY, INC.,
a Hawaii corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
THE MAURY PEOPLE, INC.,
a Massachusetts corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
HOWEY ACQUISITION, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
REALTY CONSULTANTS, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
RESORT PROPERTY MANAGEMENT, INC.,
a Utah corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
TELLURIDE RESORT ACCOMMODATIONS, INC.,
a Colorado corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
TRUPP-HODNETT ENTERPRISES, INC.,
a Georgia corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
THE MANAGEMENT COMPANY,
a Georgia corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
WHISTLER CHALETS LIMITED,
a British Columbia corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
ABBOTT & ANDREWS REALTY, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
ABBOTT REALTY SERVICES, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
ABBOTT RESORTS, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
PLANTATION RESORT MANAGEMENT, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
TOPS'L SALES GROUP, INC.,
a Florida corporation
By: /s/ John K. Lines
--------------------------------
Name: John K. Lines
------------------------------
Title: Sr. VP & Secretary
-----------------------------
EXISTING LENDERS: NATIONSBANK, N. A.,
individually in its capacity as a
Lender and in its capacity as Agent
By: /s/ Richard G. Parkhurst, Jr.
------------------------------
Name: Richard G. Parkhurst, Jr.
----------------------------
Title: Senior Vice President
---------------------------
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
NEW LENDERS: SOCIETE GENERALE,
individually in its capacity as a
Lender and in its capacity as Co-Agent
By: /s/ Maureen E. Kelly
-----------------------------
Name: Maureen E. Kelly
---------------------------
Title: Director
--------------------------
UNION PLANTERS BANK, N.A.
By: /s/ Victoria E. [illegible]
-----------------------------
Name: Victoria E. [illegible]
---------------------------
Title: Vice President
--------------------------
SCHEDULE 2.1(a)
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Lender Revolving Commitment
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NationsBank, N.A. $25,000,000
Independence Center, 15th Floor
NC1-001-15-04
101 North Tryon Street
Charlotte, North Carolina 28255
Attn: Agency Services
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Societe Generale $20,000,000
One Montgomery St., Suite 3220
San Francisco, CA 94104
Attn: Mary Brickley (Credit Contact)
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, CA 90067
Attn: Doris Yun (Operations Contact)
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First Tennessee Bank National Association $5,000,000
National Department
165 Madison Avenue
Memphis, TN 38103
Attn: Jim Moore
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Union Planters Bank, N.A. $5,000,000
6200 Poplar Avenue
4th Floor
Memphis, TN 38119
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Totals: $55,000,000
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