Exhibit 10.30
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this "AMENDMENT"), dated as of June 1, 1999, is
by and among RESORTQUEST INTERNATIONAL, INC., a Delaware corporation (the
"BORROWER"), the Subsidiaries of the Borrower party hereto (collectively the
"GUARANTORS"), the Lenders party hereto (the "LENDERS"), SOCIETE GENERALE, as
Co-Agent (the "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, a Second Amendment (the "SECOND AMENDMENT") dated as of December 7, 1998
and a Third Amendment dated as of April 16, 1999 (the "THIRD AMENDMENT"), the
"EXISTING CREDIT AGREEMENT"), among the Borrower, the Guarantors, the Lenders,
the Co-Agent and the Agent, the Lenders have extended commitments to make
certain credit facilities available to the Borrower;
WHEREAS, the Borrower has requested that each of the Lenders (other
than First Tennessee Bank National Association ("FIRST TENNESSEE")) (each an
"OTHER LENDER") agree to the termination of the Commitment of First Tennessee
without a pro rata reduction of the Commitment of such Other Lender, the
repayment of all outstanding Loans of First Tennessee without a pro rata
repayment of the Loans of such Other Lender and the release of First Tennessee
from its obligations as a Lender under the Credit Documents without a
corresponding release of such Other Lender from its obligations under the Credit
Documents;
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement to permit the issuance of senior secured notes and the sharing of
collateral by the noteholders and the Lenders on a PARI PASSU basis;
WHEREAS, the Credit Parties and the Other Lenders have agreed to the
release of First Tennessee and 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 this Amendment.
"AMENDMENT EFFECTIVE DATE" is defined in SUBPART 4.1.
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
AND WAIVER
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 SECTION 1.1. Section 1.1 is amended by adding
the following definition of "ADDITIONAL CREDITORS" in the appropriate
alphabetical order:
"ADDITIONAL CREDITORS" shall have the meaning assigned to such
term in the Intercreditor Agreement.
SUBPART 2.2. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "ADDITIONAL FACILITY
DOCUMENTS" in the appropriate alphabetical order:
"ADDITIONAL FACILITY DOCUMENTS" shall have the meaning assigned to
such term in the Intercreditor Agreement.
SUBPART 2.3. ADDITIONAL AMENDMENT TO SECTION 1.1. The definition of
"CHANGE OF CONTROL" contained in Section 1.1 is amended in its entirety so
that such definition now reads as follows:
"CHANGE OF CONTROL" means the occurrence of any of the following
events: (i) any Person or two or more Persons acting in concert shall
have acquired "beneficial ownership," directly or indirectly, of, or
shall have acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation, will result in
its or their acquisition of, control over, Voting Stock of the Borrower
(or other securities convertible into such Voting Stock) sufficient to
elect a majority of the Borrower's Board of Directors or (ii) during
any period of up to 24 consecutive months, commencing after the Closing
Date, individuals who at the beginning of such 24 month period were
directors of the Borrower (together with any new director whose
election by the Borrower's Board of Directors or whose nomination for
election by the Borrower's shareholders was approved by a vote of at
least two-thirds of the directors then still in office who either were
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directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors of the Borrower then
in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange
Commission under the Securities Act of 1934.
SUBPART 2.4. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "COLLATERAL AGENT" in the
appropriate alphabetical order:
"COLLATERAL AGENT" means NationsBank, N.A., as collateral agent
for the Lenders, the Noteholders and the Additional Creditors pursuant
to the Intercreditor Agreement.
SUBPART 2.5. ADDITIONAL AMENDMENT TO SECTION 1.1. The definition of
"COLLATERAL DOCUMENTS" contained in Section 1.1 is amended in its entirety
so that such definition now reads as follows:
"COLLATERAL DOCUMENTS" means a collective reference to the
Security Agreement, the Pledge Agreement, any collateral documents
executed pursuant to Section 7.12 and such other documents executed and
delivered in connection with the attachment and perfection of the
Collateral Agent's security interests in the assets of the Credit
Parties, including without limitation, UCC financing statements and
patent and trademark filings.
SUBPART 2.6. ADDITIONAL AMENDMENT TO SECTION 1.1 The definition of
"CREDIT DOCUMENTS" contained in Section 1.1 is amended in its entirety so
that such definition now reads as follows:
"CREDIT DOCUMENTS" means a collective reference to this Credit
Agreement, the Revolving Notes, the LOC Documents, each Joinder
Agreement, the Agent's Fee Letter, the Collateral Documents, the
Intercreditor Agreement and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and
"CREDIT DOCUMENT" means any one of them.
SUBPART 2.7. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "FOURTH AMENDMENT EFFECTIVE
DATE" in the appropriate alphabetical order:
"FOURTH AMENDMENT EFFECTIVE DATE" means June 16, 1999.
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SUBPART 2.8. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "INTERCREDITOR AGREEMENT" in
the appropriate alphabetical order:
"INTERCREDITOR AGREEMENT" means the Intercreditor and Collateral
Agency Agreement, dated as of June 1, 1999, by and among the Collateral
Agent, the Noteholders, the Agent, the Lenders and the Additional
Creditors, as amended, modified, supplemented or restated from time to
time.
SUBPART 2.9. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "NOTE PURCHASE AND GUARANTEE
AGREEMENT" in the appropriate alphabetical order:
"NOTE PURCHASE AND GUARANTEE AGREEMENT" means the Note Purchase
and Guarantee Agreement, dated as of June 1, 1999, among the Credit
Parties and the Noteholders, as amended, modified, supplemented or
restated from time to time.
SUBPART 2.10. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "NOTEHOLDERS" in the
appropriate alphabetical order:
"NOTEHOLDERS" means the noteholders party from time to time to the
Note Purchase and Guarantee Agreement.
SUBPART 2.11. ADDITIONAL AMENDMENT TO SECTION 1.1. Clause (i) of the
definition of "PERMITTED LIENS" contained in Section 1.1 is amended in its
entirety so that such clause now reads as follows:
"PERMITTED LIENS" means:
(i) Liens in favor of the Collateral Agent to secure the
Credit Party Obligations and the obligations of the Credit
Parties under the Senior Note Documents;
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SUBPART 2.12. ADDITIONAL AMENDMENT TO SECTION 1.1 The definition of
"PLEDGE AGREEMENT" contained in Section 1.1 is amended in its entirety so
that such definition now reads as follows:
"PLEDGE AGREEMENT" means the amended and restated pledge agreement
dated as of June 1, 1999 executed and delivered by the Borrower and the
Guarantors in favor of the Collateral Agent, for the benefit of the
Secured Parties on a PARI PASSU basis, to secure the Secured
Obligations, as amended, modified, restated or supplemented from time
to time.
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SUBPART 2.13. ADDITIONAL AMENDMENT TO SECTION 1.1 The definition of
"REVOLVING COMMITTED AMOUNT" contained in Section 1.1 is amended in its
entirety so that such definition now reads as follows:
"REVOLVING COMMITTED AMOUNT" means FIFTY MILLION DOLLARS
($50,000,000) or such lesser amount as the Revolving Committed Amount
may be reduced pursuant to Section 3.4.
SUBPART 2.14. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "SECURED DOCUMENTS" in the
appropriate alphabetical order:
"SECURED DOCUMENTS" means the Credit Documents, the Senior Note
Documents and the Additional Facility Documents.
SUBPART 2.15. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "SECURED OBLIGATIONS" in the
appropriate alphabetical order:
"SECURED OBLIGATIONS" means the Credit Party Obligations, the
obligations of the Credit Parties under the Senior Note Documents and
the Additional Facility Documents and all other obligations of the
Credit Parties secured by the Collateral Documents.
SUBPART 2.16. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "SECURED PARTIES" in the
appropriate alphabetical order:
"SECURED PARTIES" means the Lenders, the Noteholders, the
Additional Creditors and their successors and permitted assigns.
SUBPART 2.17. ADDITIONAL AMENDMENT TO SECTION 1.1 The definition of
"SECURITY AGREEMENT" contained in Section 1.1 is amended in its entirety so
that such definition now reads as follows:
"SECURITY AGREEMENT" means the amended and restated security
agreement dated as of June 1, 1999 executed and delivered by the
Borrower and the Guarantors in favor of the Collateral Agent, for the
benefit of the Secured Parties on a PARI PASSU basis, to secure the
Secured Obligations, as amended, modified, restated or supplemented
from time to time.
SUBPART 2.18. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "SENIOR NOTE DOCUMENTS" in the
appropriate alphabetical order:
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"SENIOR NOTE DOCUMENTS" means the Note Purchase and Guarantee
Agreement, the Senior Notes, the Collateral Documents and all other
mortgages, security agreements, documents, certificates and instruments
relating to, arising out of, or in any way connected therewith or any
of the transactions contemplated thereby.
SUBPART 2.19. ADDITIONAL AMENDMENT TO SECTION 1.1. Section 1.1 is
amended by adding the following definition of "SENIOR NOTES" in the
appropriate alphabetical order:
"SENIOR NOTES" means the $50,000,000 9.06% Guaranteed Senior
Secured Notes issued by the Borrower to the Noteholders pursuant to the
Note Purchase and Guarantee Agreement.
SUBPART 2.20. AMENDMENT TO SECTION 3.3(b). Section 3.3(b) is amended in
its entirety so that such section now reads as follows:
3.3 PREPAYMENTS.
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(b) MANDATORY PREPAYMENTS.
(i) If at any time, (A) the sum of the aggregate
principal amount of outstanding Revolving Loans PLUS LOC
Obligations outstanding PLUS the aggregate principal amount
of outstanding Swingline Loans shall exceed the Revolving
Committed Amount, (B) the aggregate amount of LOC Obligations
outstanding shall exceed the LOC Committed Amount or (C) the
aggregate amount of Swingline Loans outstanding shall exceed
the Swingline Committed Amount, the Borrower shall
immediately make payment on the Loans and/or to cash
collateral account in respect of the LOC Obligations, in an
amount sufficient to eliminate such excess.
(ii) ISSUANCES OF EQUITY OR DEBT. Immediately upon
receipt by a Consolidated Party of proceeds from any Equity
Issuance or Debt Issuance, the Borrower shall prepay the
Loans in an aggregate amount equal to 100% of the Net Cash
Proceeds of such Equity Issuance or Debt Issuance to the
Lenders (such prepayment to be applied as set forth in clause
(iv) below).
(iii) ASSET DISPOSITIONS. Immediately upon receipt by a
Consolidated Party of proceeds from any Asset Disposition,
the Borrower shall forward 100% of the Net Cash Proceeds of
such
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Asset Disposition to the Collateral Agent as a prepayment of
the Loans and the Senior Notes (such prepayment to be applied
as set forth in clause (iv) below). Notwithstanding the
foregoing, the Borrower shall not be required to forward to
the Collateral Agent as a prepayment of the Loans Net Cash
Proceeds of Asset Dispositions which do not exceed $500,000,
in the aggregate, during the term of this Credit Agreement.
(iv) APPLICATION OF MANDATORY PREPAYMENTS. All amounts
required to be paid pursuant to Section 3.3(b)(i) and (ii)
shall be applied as follows: FIRST to Revolving Loans, SECOND
to Swingline Loans and THIRD (after all Revolving Loans and
Swingline Loans have been repaid) to a cash collateral
account in respect of LOC Obligations. All amounts required
to be paid pursuant to Section 3.3(b)(iii) shall be applied
pro rata to (A) the Senior Notes and (B) to the Loans and LOC
Obligations as follows: FIRST to Revolving Loans, SECOND to
Swingline Loans and THIRD (after all Revolving Loans and
Swingline Loans have been repaid) to a cash collateral
account in respect of LOC Obligations; PROVIDED, HOWEVER,
each of the Noteholders shall have a right to decline to
accept a mandatory prepayment pursuant to Section 3.3(b)(iii)
in accordance with the terms of the Note Purchase and
Guarantee Agreement, in which case such declined prepayment
shall be allocated and offered pro rata among the Noteholders
that accept such prepayment or, if none of the Noteholders
accept such re-allocated prepayment, then pro rata among the
Lenders in accordance with the foregoing terms of this
Section 3.3(b)(iv). Within the parameters of the applications
(to Loans) set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities. All prepayments
of Loans and LOC Obligations under this Section 3.3(b) shall
be subject to Section 3.12.
SUBPART 2.21. AMENDMENT TO SECTION 6.22. Section 6.22 is amended in its
entirety so that such section now reads as follows:
6.22 FIRST PRIORITY LIEN.
The Collateral Agent on behalf of the Lenders and the Noteholders
will hold a first priority Lien, subject to no other Liens other than
Permitted Liens, in the Collateral.
SUBPART 2.22. AMENDMENT TO SECTION 7.6. Section 7.6 is amended in its
entirety so that such section now reads as follows:
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7.6 INSURANCE.
(a) Each Credit Party will at all times maintain in full
force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions
as are in accordance with normal industry practice (or as
otherwise required by the Collateral Documents). The Collateral
Agent shall be named as loss payee or mortgagee, as its interest
may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and
each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent
instruments furnished to the Collateral Agent, that it will give
the Collateral Agent thirty (30) days prior written notice before
any such policy or policies shall be altered or canceled, and that
no act or default of any Credit Party or any other Person shall
affect the rights of the Collateral Agent or the Secured Parties
under such policy or policies. The present insurance coverage of
the Credit Parties is outlined as to carrier, policy number,
expiration date, type and amount on SCHEDULE 7.6.
(a) In case of any material loss, damage to or destruction of
the Collateral of any Credit Party or any part thereof, such
Credit Party shall promptly give written notice thereof to the
Collateral Agent generally describing the nature and extent of
such damage or destruction. In case of any loss, damage to or
destruction of the Collateral of any Credit Party or any part
thereof, such Credit Party, whether or not the insurance proceeds,
if any, received on account of such damage or destruction shall be
sufficient for that purpose, at such Credit Party's cost and
expense, will promptly repair or replace the Collateral of such
Credit Party so lost, damaged or destroyed; PROVIDED, HOWEVER,
that such Credit Party need not repair or replace the Collateral
of such Credit Party so lost, damaged or destroyed to the extent
the failure to make such repair or replacement (i) is desirable to
the proper conduct of the business of such Credit Party in the
ordinary course and otherwise in the best interest of such Credit
Party; and (ii) would not materially impair the rights and
benefits of the Collateral Agent or the Secured Parties under the
Collateral Documents, any other Credit Document or any Hedging
Agreement. In the event a Credit Party shall receive any proceeds
of such insurance in a net amount in excess of $100,000, such
Credit Party will immediately pay over such proceeds to the
Collateral Agent, for a pro rata payment on the obligations of the
Credit Parties under the Secured Documents; PROVIDED, HOWEVER,
that the Collateral Agent agrees to release such insurance
proceeds to such Credit Party for replacement or restoration of
the portion of the Collateral of such Credit Party lost, damaged
or destroyed if, but only if, (A) no Default or
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Event of Default shall have occurred and be continuing at the time
of release, (B) written application for such release is received
by the Collateral Agent from such Credit Party within 30 days of
receipt of such proceeds and (C) the Collateral Agent has received
evidence reasonably satisfactory to it that the Collateral lost,
damaged or destroyed has been or will be replaced or restored to
its condition immediately prior to the loss, destruction or other
event giving rise to the payment of such insurance proceeds.
SUBPART 2.23. AMENDMENT TO SECTION 7.12. Section 7.12 is amended in its
entirety so that such section now reads as follows:
7.12 ADDITIONAL CREDIT PARTIES.
As soon as practicable and in any event within 30 days after
any Person becomes a Material Subsidiary of any Credit Party, the
Borrower shall provide the Collateral Agent with written notice
thereof setting forth information in reasonable detail describing
all of the assets of such Person and shall (a) if such Person is a
Domestic Subsidiary of a Credit Party, cause such Person to
execute a Joinder Agreement in substantially the same form as
EXHIBIT 7.12, (b) cause 100% (if such Person is a Domestic
Subsidiary of a Credit Party) or 65% (if such Person is a direct
Material Foreign Subsidiary of a Credit Party) of the Capital
Stock of such Person to be delivered to the Collateral Agent
(together with undated stock powers, if any, signed in blank) and
pledged to the Collateral Agent pursuant to an appropriate pledge
agreement(s) in substantially the form of the Pledge Agreement and
otherwise in form acceptable to the Collateral Agent and (c) cause
such Person to (i) if such Person is a Domestic Subsidiary, to
pledge all of its assets to the Collateral Agent pursuant to a
security agreement in substantially the form of Security Agreement
and otherwise in a form acceptable to the Collateral Agent, (d) if
such Person has any Subsidiaries (i) deliver all of the Capital
Stock of such Domestic Subsidiaries and 65% of the Capital Stock
of such Material Foreign Subsidiaries (together with undated stock
powers signed in blank) to the Collateral Agent and (ii) execute a
pledge agreement in substantially the form of the Pledge Agreement
and otherwise in a form acceptable to the Collateral Agent and (e)
if such Person owns or leases any real property in the United
States of America execute any and all necessary mortgages, deeds
of trust, deeds to secure debt, leasehold mortgages, collateral
assignments or other appropriate real estate collateral
documentation in a form, content and scope satisfactory to the
Collateral Agent and (ii) deliver such other documentation as the
Collateral Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1
financing statements, real estate title insurance policies,
environmental reports, landlord's waivers, certified resolutions
and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above
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and the perfection of the Collateral Agent's Liens thereunder),
all in form, content and scope reasonably satisfactory to the
Collateral Agent.
SUBPART 2.24. AMENDMENT TO SECTION 7.14. Section 7.14 is amended in its
entirety so that such section now reads as follows:
7.14 COLLATERAL.
If, subsequent to the Closing Date, a Credit Party shall (a)
acquire any material real property or lease any material real
property or (b) acquire any intellectual property, securities
instruments, chattel paper or other personal property required to
be delivered to the Collateral Agent as Collateral hereunder or
under any of the Collateral Documents, the Borrower shall notify
the Collateral Agent of same in each case as soon as practicable
after the acquisition thereof or execution of such lease
agreement, as appropriate. Each Credit Party shall take such
action as requested by the Collateral Agent and at its own
expense, to ensure that the Collateral Agent has a first priority
perfected Lien in all owned real property (and in such leased real
property as requested by the Collateral Agent, the Required
Lenders or the Noteholders holding more than 50% of the
outstanding principal amount of the Senior Notes) and all personal
property of the Credit Parties (whether now owned or hereafter
acquired), subject only to Permitted Liens.
SUBPART 2.25. AMENDMENT TO SECTION 8.1. Section 8.1 is amended by
adding the following subsection (g) thereto and making the appropriate
punctuation changes:
8.1 INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party to
contract, create, incur, assume or permit to exist any
Indebtedness, except:
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(g) Indebtedness arising under the Senior Notes and the other
Senior Note Documents, including, without limitation, any
guarantee obligations of the Guarantors under the Senior Note
Documents; provided, however, the aggregate principal amount of
the Senior Notes shall not exceed $50,000,000.
SUBPART 2.26. AMENDMENT TO SECTION 8.10. Section 8.10 is amended in its
entirety so that such section now reads as follows:
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8.10 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit, other than pursuant to
the Senior Note Documents, any Consolidated Party to, directly or
indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any
such Person to (a) pay dividends or make any other distributions
to any Credit Party on its Capital Stock or with respect to any
other interest or participation in, or measured by, its profits,
(b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit
Party, (e) grant a lien on its properties or assets whether now
owned or hereafter acquired or (f) act as a Guarantor and pledge
its assets pursuant to the Credit Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except
(in respect of any of the matters referred to in clauses (a)-(f)
above) for such encumbrances or restrictions existing under or by
reason of (i) this Credit Agreement and the other Credit
Documents, or (ii) applicable law. The Credit Parties will not
permit the Senior Note Documents to contain financial covenants
that are more restrictive than the financial covenants set forth
in Section 7.11. The Credit Parties and the Lenders acknowledge
and agree that, as of the Fourth Amendment Effective Date, the
financial covenants set forth in the Senior Note Documents are not
more restrictive than the financial covenants set forth in Section
7.11.
SUBPART 2.27. AMENDMENT TO SECTION 9.1(g). Section 9.1(g) is amended in
its entirety so that such subsection now reads as follows:
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of
the following specified events (each an "EVENT OF DEFAULT"):
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(g) DEFAULTS UNDER OTHER AGREEMENTS.
(i) Any Credit Party shall default in the performance or
observance (beyond the applicable grace period with respect
thereto, if any) of any material obligation or condition of
any contract or lease which has a Material Adverse Effect;
(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) in
excess of $500,000 in the aggregate for the Consolidated
Parties taken as a whole, (A) any Consolidated Party shall
(1) default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such
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Indebtedness, or (2) the occurrence and continuance of a
default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or
permit, the holder or holders of such Indebtedness (or
trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of
time is required), any such Indebtedness to become due prior
to its stated maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment, prior to
the stated maturity thereof; or
(iii) Any default under the Senior Note Documents or the
Additional Facility Documents shall occur and the applicable
grace period (if any) with respect to such default shall have
expired without such default being cured by the Credit
Parties in a manner acceptable to the necessary percentage of
Noteholders or Additional Creditors, as applicable, or
permanently waived by the necessary percentage of Noteholders
or Additional Creditors, as applicable.
SUBPART 2.28. AMENDMENT TO SECTION 11.5. Section 11.5 is amended in its
entirety so that such subsection now reads as follows:
11.5 EXPENSES; INDEMNIFICATION.
(a) The Borrower agrees to pay on demand all costs and
expenses of the Agent and the Collateral Agent in connection with
the syndication, preparation, execution, delivery, administration,
modification, and amendment of this Credit Agreement, the other
Credit Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agent and the Collateral Agent with
respect thereto and with respect to advising the Agent and the
Collateral Agent as to their rights and responsibilities under the
Credit Documents. The Borrower further agrees to pay on demand all
costs and expenses of the Agent, the Collateral Agent and the
Lenders, if any (including, without limitation, reasonable
attorneys' fees and expenses and the cost of internal counsel), in
connection with the enforcement (whether through negotiations,
legal proceedings, or otherwise) of the Credit Documents and the
other documents to be delivered hereunder.
(b) The Borrower agrees to indemnify and hold harmless the
Agent, the Collateral Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees,
agents, and advisors (each, an "INDEMNIFIED PARTY") from and
against any and all claims, damages, losses (other than losses
created by a Lender's internal interest
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rate management policies and practices), liabilities, costs, and
expenses (including, without limitation, reasonable attorneys'
fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation
of defense in connection therewith) the Credit Documents, any of
the transactions contemplated herein or the actual or proposed use
of the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 11.5
applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees not to
assert any claim against the Agent, the Collateral Agent, any
Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys, agents, and advisers,
on any theory of liability, for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to the
Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 11.5 shall survive the
repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments
hereunder.
SUBPART 2.29. AMENDMENTS TO SCHEDULES. SCHEDULE 2.1(a), SCHEDULE 6.12
and SCHEDULE 7.6 of the Existing Credit Agreement are hereby deleted in
their entirety and new schedules in the form of SCHEDULE 2.1(a), SCHEDULE
6.12 and SCHEDULE 7.6 are substituted therefor.
PART III
RELEASE OF FIRST TENNESSEE
SUBPART 3.1. TERMINATION OF COMMITMENT AND RELEASE. Notwithstanding
anything to the contrary in the Credit Documents, the Credit Parties and the
Lenders hereby consent to the termination of the Commitment of First
Tennessee, the repayment of all outstanding Loans, fees and other amounts
owing by the Credit Parties to First Tennessee pursuant to the Credit
Documents and the release of First Tennessee from its obligations
-13-
as a Lender under the Credit Documents (collectively, the "Release of First
Tennessee"). Each of the Other Lenders agrees that, notwithstanding anything
to the contrary in the Credit Documents, the Release of First Tennessee may
be consummated without any pro rata reduction of the Commitment of such
Other Lender, any pro rata repayment of the outstanding Loans, fees and
other amounts owing to such Other Lender under the Credit Documents or any
release of such Other Lender from its obligations as a Lender under the
Credit Documents. The Credit Parties and the Lenders agree that, upon
receipt by First Tennessee of the payment referenced in SUBPART 4.9, First
Tennessee shall no longer be a Lender for purposes of the Credit Documents.
SUBPART 3.2. REAFFIRMATION OF AMENDMENTS. Each of the Credit Parties
and the Other Lenders hereby agrees that, notwithstanding the fact that
First Tennessee did not execute the Second Amendment and the Third Amendment
and notwithstanding the terms of Section 11.6 of the Credit Agreement, the
amendments and agreements set forth in the Second Amendment and the Third
Amendment are binding on such party, are effective as of the date of the
Second Amendment and the Third Amendment, respectively, and are in full
force and effect on the date hereof.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. 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 IV shall have been satisfied,
and thereafter this Amendment shall be known, and may be referred to, as the
"FOURTH AMENDMENT."
SUBPART 4.2. 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 and the Lenders (including an acknowledgment
signature of First Tennessee).
SUBPART 4.3. AUTHORITY. The Agent shall have received copies of
resolutions of the Board of Directors of each Credit Party approving and
adopting this Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof, certified by a secretary or an
assistant secretary of each Credit Party to be true and correct and in force
and effect as of the date hereof.
SUBPART 4.4. INTERCREDITOR AGREEMENT. The Collateral Agent shall have
received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the Agent) of the Intercreditor Agreement, which
collectively shall have been duly executed on behalf of each of the
Collateral Agent, the Noteholders, the Lenders and the Agent.
-14-
SUBPART 4.5. SENIOR NOTE DOCUMENTS. The Agent shall have received
executed copies, certified by a secretary or an assistant secretary of the
Borrower, of each of the Senior Note Documents.
SUBPART 4.6. COLLATERAL DOCUMENTS. The Collateral Agent shall have
received (a) counterparts (or other evidence of execution, including
telephonic message, satisfactory to the Collateral Agent) of the Security
Agreement and the Pledge Agreement executed on behalf of each of the Credit
Parties, (b) such UCC financing statements and intellectual property filings
as are necessary, in the Collateral Agent's reasonably discretion, to
perfect the security interests in the Collateral, (c) such other documents
and instruments relating to the perfection of the Collateral Agent's
security interest in the Collateral as the Collateral Agent may reasonably
request.
SUBPART 4.7. INSURANCE CERTIFICATES. The Agent shall have received
copies of certificates of insurance evidencing any insurance policies of the
Credit Parties updated since the Closing Date and meeting the requirements
set forth in the Credit Documents, including, but not limited to, naming the
Collateral Agent as sole loss payee on behalf of the Secured Parties.
SUBPART 4.8. OPINION OF COUNSEL. The Collateral Agent shall have
received (a) an opinion or opinions of counsel to the Credit Parties, dated
as of the Amendment Effective Date, addressed to the Collateral Agent and
the Secured Parties, in form and substance satisfactory to the Collateral
Agent and (b) a reliance letter from counsel to the Credit Parties with
respect to any opinion given by such counsel to the Noteholders permitting
the Collateral Agent and the Lenders to rely on such opinion.
SUBPART 4.9. PAYOFF OF FIRST TENNESSEE. First Tennessee shall have
received (by wire transfer directly from the Borrower or the Agent) payment
in full of all outstanding Loans, fees and other amounts owed by the Credit
Parties to First Tennessee.
SUBPART 4.10. FURTHER ASSURANCES. The Agent and the Collateral Agent
shall have received such other documents, instruments and certificates as
the Agent or the Collateral Agent may reasonably request.
PART V
MISCELLANEOUS
SUBPART 5.1. CROSS-REFERENCES. References in this Amendment to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 5.2. 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.
-15-
SUBPART 5.3. REFERENCES IN OTHER CREDIT DOCUMENTS. At such time as this
Amendment shall become effective pursuant to the terms of SUBPART 4.1, all
references in the Existing Credit Agreement and the other Credit Documents
to the "Credit Agreement" shall be deemed to refer to the Existing Credit
Agreement as amended by this Amendment.
SUBPART 5.4. 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 or modified by this Amendment or the
Intercreditor Agreement) 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 5.5. ACKNOWLEDGMENT OF GUARANTORS. The Guarantors acknowledge
and consent to all of the terms and conditions of this Fourth Amendment and
agree that this Fourth Amendment and all documents executed in connection
herewith do not operate to reduce or discharge the Guarantors' obligations
under the Credit Documents
SUBPART 5.6. 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 5.7. 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.
SUBPART 5.8. 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/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President & CFO
--------------------------
GUARANTORS: FIRST RESORT SOFTWARE, INC.,
a Colorado corporation
By:/s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
B&B ON THE BEACH, INC.,
a North Carolina corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
BRINDLEY & BRINDLEY REALTY &
DEVELOPMENT, INC., a North Carolina corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
COASTAL RESORTS REALTY L.L.C.,
a Delaware limited liability company
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
COASTAL RESORTS MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
COLLECTION OF FINE PROPERTIES, INC.,
a Colorado corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
TEN MILE HOLDINGS, LTD.,
a Colorado corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
HOTEL CORPORATION OF THE PACIFIC, INC.,
a Hawaii corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
HOUSTON AND O'LEARY COMPANY,
a Colorado corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
MAUI CONDOMINIUM & HOME REALTY, INC.,
a Hawaii corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
THE MAURY PEOPLE, INC.,
a Massachusetts corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
HOWEY ACQUISITION, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
REALTY CONSULTANTS, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
RESORT PROPERTY MANAGEMENT, INC.,
a Utah corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
TELLURIDE RESORT ACCOMMODATIONS, INC.,
a Colorado corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
TRUPP-HODNETT ENTERPRISES, INC.,
a Georgia corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
THE MANAGEMENT COMPANY,
a Georgia corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
WHISTLER CHALETS LTD.,
a British Columbia corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
ABBOTT & ANDREWS REALTY, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
ABBOTT REALTY SERVICES, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
ABBOTT RESORTS, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
PLANTATION RESORT MANAGEMENT, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
TOPS'L SALES GROUP, INC.,
a Florida corporation
By: /s/ Jeffery M. Jarvis
-----------------------------
Name: Jeffery M. Jarvis
---------------------------
Title: Sr. Vice President
--------------------------
LENDERS: NATIONSBANK, N. A.,
individually in its capacity as a
Lender and in its capacity as Agent
and as Collateral Agent
By: /s/ John E. Ball
-----------------------------
Name: John E. Ball
---------------------------
Title: SVP
--------------------------
SOCIETE GENERALE,
individually in its capacity as a
Lender and in its capacity as Co-Agent
By: /s/ J. Blaine Shaum
-----------------------------
Name: J. Blaine Shaum
---------------------------
Title: Managing Director
--------------------------
UNION PLANTERS BANK, N.A.
By: /s/ Elizabeth Rouse
-----------------------------
Name: Elizabeth Rouse
---------------------------
Title: Vice-President
--------------------------
Acknowledged and consented to for purposes of Subpart 3.1 only:
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ James H. Moore, Jr.
--------------------------
Name: James H. Moore, Jr.
------------------------
Title: Vice President
-----------------------
SCHEDULE 2.1(a)
- ------------------------------------------------------------------------------------
LENDER REVOLVING COMMITMENT
- ------------------------------------------------------------------------------------
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
- ------------------------------------------------------------------------------------
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)
- ------------------------------------------------------------------------------------
Union Planters Bank, N.A. $5,000,000
6200 Poplar Avenue
4th Floor
Memphis, TN 38119
- ------------------------------------------------------------------------------------
Totals: $50,000,000
- ------------------------------------------------------------------------------------
SCHEDULE 7.6
See Attached