EXHIBIT 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT AND RATIFICATION OF GUARANTY
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND RATIFICATION OF GUARANTY
(this "First Amendment"), dated as of November 10, 2003, among OPRYLAND HOTEL -
FLORIDA LIMITED PARTNERSHIP, a Florida limited partnership, and OPRYLAND HOTEL -
TEXAS LIMITED PARTNERSHIP, a Delaware limited partnership (collectively,
"Co-Borrowers"), Xxxxxxx Entertainment Company, a Delaware corporation ("Parent
Guarantor"), the Lenders from time to time party to the Credit Agreement
referred to below (collectively, the "Lenders"), DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent (the "Administrative Agent") and the
undersigned Subsidiary Guarantors. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, Co-Borrowers, Parent Guarantor, the Administrative Agent and
the Lenders entered into that certain Credit Agreement, dated as of May 22, 2003
(as amended hereby and as further amended, modified or supplemented from time to
time, the "Credit Agreement");
WHEREAS, Parent Guarantor is considering issuing senior unsecured notes
in an aggregate principal amount not to exceed $300,000,000.00 (as more
particularly described herein, the "Senior Notes");
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of August 4, 2003 (the "Merger Agreement"), among Parent Guarantor, Get
Merger Sub, Inc., a wholly owned subsidiary of Parent Guarantor ("GET Sub") and
ResortQuest International, Inc., a Delaware corporation ("RZT"), it is
anticipated that GET Sub will be merged with and into RZT with RZT continuing as
the surviving corporation and a wholly owned subsidiary of Parent Guarantor (the
"Merger");
WHEREAS, Parent Guarantor desires to use the proceeds of the Senior
Notes to prepay certain Indebtedness of Co-Borrowers, Parent Guarantor and
certain of its Subsidiaries, including, upon consummation of the Merger, certain
Indebtedness of RZT;
WHEREAS, Co-Borrowers, Parent Guarantor and the Subsidiary Guarantors
have requested that the Administrative Agent and the Lenders consent to the
issuance of the Senior Notes and agree to waive or modify certain provisions of
the Credit Agreement in connection therewith; and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto wish to amend certain provisions of the Credit Agreement as
provided herein.
NOW, THEREFORE, in consideration of the foregoing, the agreements
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
I. Conditions to the Effectiveness of this First Amendment.
This First Amendment will be effective on the date on which all of the
following conditions shall have been satisfied:
1. each of the Co-Borrowers, Parent Guarantor, the Administrative
Agent, the Lenders and the Subsidiary Guarantors shall have executed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent in accordance with Section 13.1 of the Credit Agreement;
2. the Administrative Agent shall have received copies, each
certified by the general partner, secretary or assistant secretary, as
applicable, of each Co-Borrower, Subsidiary Guarantor and Parent Guarantor, of
(a) the Organizational Documents of each such Person and (b) consents,
resolutions or other required actions authorizing the execution and delivery by
such Person of this First Amendment and all other documents being executed and
delivered in connection herewith to which such Person is a party, and such
consents, resolutions or other actions shall be in form and substance reasonably
satisfactory to the Administrative Agent;
3. the Administrative Agent shall have received opinions from
counsel to Co-Borrowers, Parent Guarantor and the Subsidiary Guarantors, each
dated the date hereof and addressed to the Administrative Agent and the Lenders,
which opinions shall cover such matters under the laws of such jurisdictions as
the Administrative Agent may require and shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent; and
4. Co-Borrowers and Parent Guarantor shall have paid (a) to the
Administrative Agent all costs, fees and expenses (including, without
limitation, the legal fees and expenses of Xxxxxxxxx Traurig, LLP) payable to
the Administrative Agent to the extent then due and (b) to the Administrative
Agent for the account of the Lenders, a non-refundable amendment fee (the
"Amendment Fee"), in consideration of this First Amendment, in an amount, for
each Lender, equal to the product of (i) 12.5 basis points and (ii) the sum of
such Lender's Term Loan Commitment and Revolving Loan Commitment.
II. Consents and Waivers.
1. Subject to and in accordance with the terms and conditions of
this First Amendment, the Lenders hereby consent to (a) the issuance of up to
$300,000,000.00 of Senior Notes and (b) the execution and delivery by the
Co-Borrowers and the Subsidiary Guarantors of guarantees of payment
(collectively, the "Note Guarantees") in respect of such Senior Notes, on the
following terms:
(a) the Senior Notes shall be general unsecured obligations
of Parent Guarantor;
(b) the Note Guarantees shall be unsecured and pari passu
in right of payment with the Loans and the Guaranty;
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(c) the Senior Notes will mature no earlier than the first
anniversary of the Maturity Date;
(d) a portion of the proceeds of the Senior Notes (the "Note
Deposit") will be deposited, upon receipt by Parent Guarantor, with a collateral
agent (the "Collateral Agent") for the benefit of the holders of the Senior
Notes pursuant to a pledge agreement (the "Pledge Agreement"), to secure Parent
Guarantor's obligation to make the Special Redemption Payment (as hereinafter
defined);
(e) the Indenture (the "Indenture") pursuant to which the
Senior Notes will be issued will provide that if the Merger is not consummated
on or before May 31, 2004 (the "Termination Date"), Parent Guarantor will be
required to redeem a specified aggregate principal amount of Senior Notes at
101% of their aggregate principal amount, plus accrued and unpaid interest and
liquidated damages, if any, thereon to the date of redemption (such aggregate
redemption consideration being referred to herein as the "Special Redemption
Payment" and such date of redemption being referred to herein as the "Special
Redemption Date");
(f) the Net Debt/Equity Proceeds of the Senior Notes together
with Unrestricted Cash On Hand will be sufficient to make the payments and
deposits described in Section II hereof and, if applicable, to make the Special
Redemption Payment (if and to the extent that the Note Deposit is less than the
Special Redemption Payment);
(g) Parent Guarantor hereby agrees to apply the Net
Debt/Equity Proceeds of the Senior Notes to, among other things, make the
payments and deposits described in Section II hereof and, upon consummation of
the Merger and release of the Note Deposit to Parent Guarantor, to apply the
Note Deposit to repayment of the RZT Debt, as hereinafter defined; and
(h) the Senior Notes, the Indenture, the Note Guarantees,
the Pledge Agreement and all other documents, instruments and agreements
evidencing the issuance of the Senior Notes and the other transactions described
in this paragraph 1 (collectively, the "Senior Note Documents") shall be
consistent with the terms and provisions set forth in this paragraph 1 and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent.
2. The Administrative Agent and the Lenders hereby waive the
provisions of the second sentence of Section 2.21(a) of the Credit Agreement
solely in respect of the application of the Net Debt/Equity Proceeds of the up
to $300,000,000.00 of Senior Notes described in the preceding paragraph 1;
provided that:
(a) such Net Debt/Equity Proceeds are applied immediately
upon receipt (except in the case of the Nashville Mezzanine Loan, applied no
later than five Business Days after receipt) by Parent Guarantor to, among other
things, (i) prepay the Nashville Mezzanine Loan in full, (ii) prepay the
Subordinated Loans in full and (iii) make the Note Deposit with the Collateral
Agent;
(b) in the event that more than $225,000,000.00 of Senior
Notes is issued (any Senior Notes in excess of the first $225,000,000.00 of
Senior Notes being referred to herein as "Additional Notes"), (i) the first
$25,000,000.00 of Net Debt/Equity Proceeds of such
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Additional Notes shall be applied, upon receipt by Parent Guarantor, to repay
the Term Loan Reduction Advance (or, if and to the extent received prior to the
making of the Term Loan Reduction Advance, such Net Debt/Equity Proceeds shall
be held by Parent Guarantor and applied to repay the Term Loan Reduction Advance
on the date it is made); (ii) the next $25,000,000.00 of Net Debt/Equity
Proceeds of such Additional Notes shall be deposited, upon receipt by Parent
Guarantor, in the Completion Reserve Account; and (iii) any remaining portion of
Net Debt/Equity Proceeds of such Additional Notes may be utilized by Parent
Guarantor for general corporate purposes.
(c) on the date of issuance of the Senior Notes, Parent
Guarantor shall deposit cash in the Completion Reserve Account, as necessary to
provide that the sum of (i) the amount on deposit in the Completion Reserve
Account as of such date, without taking into account any Net Debt/Equity
Proceeds of Additional Notes required to be deposited in the Completion Reserve
Account pursuant to the preceding clause 2(b)(ii), and (ii) the Aggregate
Available Commitment as of such date is equal to at least 100% of the Cost to
Complete; and
(d) in the event that the Merger is not consummated on or
before the Termination Date, Parent Guarantor shall make the deposit required by
Section V.2 hereof.
3. The Administrative Agent and the Lenders hereby waive the
provisions of Section 6.14(b) of the Credit Agreement solely insofar as is
necessary (a) to permit the application of Net Debt/Equity Proceeds of the
Senior Notes described in paragraph 1 of this Section II to the prepayment of
the Subordinated Loans in full prior to the first anniversary of the Effective
Date and to the prepayment in full of the Nashville Mezzanine Loan, (b) provided
that the Note Deposit is made with the Collateral Agent and the Merger is
consummated in accordance with the Merger Agreement, to permit the prepayment of
the RZT Debt (as hereinafter defined) and (c) in the event the Note Deposit is
made with the Collateral Agent and the Merger is not consummated on or prior to
the Termination Date, to permit the Special Redemption Payment to be made on the
Special Redemption Date.
4. The Administrative Agent and the Lenders hereby acknowledge
that (a) upon consummation of the Merger, Parent Guarantor may directly or
indirectly assume certain Indebtedness of RZT in the maximum aggregate amount of
$93,000,000.00 (the "RZT Debt") for a period not in excess of one Business Day
and (b) the Note Deposit will be pledged to the Collateral Agent pursuant to the
Pledge Agreement. The Administrative Agent and the Lenders hereby waive the
provisions of Sections 6.14(a) and 6.19(a) of the Credit Agreement solely
insofar as the same would otherwise prohibit (i) the direct or indirect
assumption of the RZT Debt by Parent Guarantor upon consummation of the Merger
for a period not in excess of one Business Day and (ii) the Pledge Agreement and
the Liens created thereby.
5. The effectiveness of each of the consents and waivers in this
Section II is subject to (a) the condition precedent that the Administrative
Agent shall have received, in form and substance reasonably satisfactory to the
Administrative Agent, a copy of a consent to prepayment of the Subordinated
Loans executed and delivered by each of the Subordinated Lenders and (b) the
condition subsequent that true, complete and correct copies of each of the
Indenture, the Pledge Agreement, the Note Guarantees and all other material
Senior Note
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Documents shall be provided to the Administrative Agent within five Business
Days after issuance of the Senior Notes.
III. Amendments to the Credit Agreement With Regard to the Senior Notes.
1. Upon issuance of the Senior Notes and application of the Net
Debt/Equity Proceeds thereof as required by Section II hereof, all references in
the Credit Agreement to "Nashville Loans" shall mean the Nashville Senior Loan
only, and clause (iii) of Section 6.14(b) of the Credit Agreement shall be
deleted.
2. Upon issuance of the Senior Notes and application of the Net
Debt/Equity Proceeds thereof as required by Section II hereof, Parent Guarantor
shall furnish or cause to be furnished to the Administrative Agent for the
benefit of the Lenders and other Holders of Secured Obligations:
(a) Instruments of Adherence, substantially in the form
attached hereto as Exhibit A, executed by Xxxxxxx Hotels, LLC, Opryland
Hospitality, LLC and Opryland Hotel - Texas, LLC (collectively, the "Mezzanine
Entity Instruments of Adherence");
(b) all financing statements, searches of public records,
Organizational Documents, certifications and such other documents as the
Administrative Agent shall reasonably require in connection with the Mezzanine
Entity Instruments of Adherence;
(c) copies, each certified by the managing member, secretary
or assistant secretary, as applicable, of Xxxxxxx Hotels, LLC, Opryland
Hospitality, LLC and Opryland Hotel - Texas, LLC, of (i) the Organizational
Documents of each such Person and (ii) consents or other required actions
authorizing the execution and delivery by such Person of the Mezzanine Entity
Instrument of Adherence to which such Person is a party, and all such consents
or other actions shall be in form and substance reasonably satisfactory to the
Administrative Agent; and
(d) opinions of counsel to Xxxxxxx Hotels, LLC, Opryland
Hospitality, LLC and Opryland Hotel - Texas, LLC, addressed to the
Administrative Agent, with respect to the authorization and enforceability of
the Mezzanine Entity Instruments of Adherence and such other matters as the
Administrative Agreement may require in connection therewith.
3. Section 6.14(b) of the Credit Agreement is hereby amended by
adding ", purchase, redeem or defease" after "prepay" in the sixth and seventh
lines thereof.
4. Upon issuance of the Senior Notes and application of the Net
Debt/Equity Proceeds thereof as required by Section II hereof, Section 6.25 of
the Credit Agreement shall be amended by deleting Section 6.25.4 thereof and
substituting the following therefor:
"6.25.4 Maximum Senior Leverage Ratio. As of the last day of
any Fiscal Quarter set forth below, Parent Guarantor shall not permit
the ratio of (i) the Aggregate Outstanding Credit Exposure minus the
cash balance in the Completion Reserve Account to (ii) aggregate
Adjusted Net Operating Income for the Opryland Hotel Florida and for
the Project to exceed the correlative ratio set forth below (the
Aggregate
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Outstanding Credit Exposure to be determined as of such date and
aggregate Adjusted Net Operating Income for the Opryland Hotel Florida
and for the Project to be determined with reference to the last full
four Fiscal Quarters preceding such date), provided that, for the
purpose of such calculation, for each of the first four Fiscal Quarters
ending after the Opening Date, Adjusted Net Operating Income for the
Project shall be annualized (by multiplying Adjusted Net Operating
Income related to the Project for the period from the Opening Date to
the last day of such Fiscal Quarter by a fraction, the numerator of
which is 365 and the denominator of which is the number of days in the
period from the Opening Date through the last day of such Fiscal
Quarter):
TEST DATE MAXIMUM SENIOR LEVERAGE RATIO
--------- -----------------------------
Fiscal Quarter ending June 30, 2003 5.0 to 1.0
Fiscal Quarter ending September 30, 2003 5.25 to 1.0
Fiscal Quarter ending December 31, 2003 5.75 to 1.0
Fiscal Quarter ending March 31, 2004 6.75 to 1.0
Fiscal Quarter ending June 30, 2004 5.75 to 1.0
Fiscal Quarter ending September 30, 2004 5.25 to 1.0
Fiscal Quarter ending December 31, 2004 4.75 to 1.0
Fiscal Quarters ending March 31, 2005 and thereafter 4.0 to 1.0
"
5. Upon issuance of the Senior Notes and application of the Net
Debt/Equity Proceeds thereof as required by Section II hereof, the Credit
Agreement shall be amended as follows:
(a) The following shall be deleted from Section 2.21(a): "(i)
100% of all Net Cash Proceeds of Asset Sales and (ii)";
(b) The last sentence of Section 2.21(a) shall be deleted;
(c) Sections 2.21(b) and (c) thereof shall be deleted and the
following shall be substituted therefor:
"(b) If as of the last day of any calendar month after
the Effective Date, the sum of the amount held in the Completion
Reserve Account plus the then-undrawn amount of the Restricted RL
Commitment is less than 100% of the Cost to Complete, Parent Guarantor
and Co-Borrowers shall, on or before the tenth Business Day after each
such date, deposit or cause to be deposited the amount of such
shortfall, in cash, into the Completion Reserve Account. Not later than
thirty (30) days after the end of each calendar month prior to the
Final Completion Date, Co-Borrowers and Parent
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Guarantor shall deliver to the Administrative Agent a detailed
statement of the aggregate amount of Available Sources and the Cost to
Complete as of the end of the preceding calendar month. Such statement
shall be accompanied by a certificate from an Authorized Officer of
Parent Guarantor, dated as of the date of delivery, certifying that
such statement is true, correct and complete in all material respects
as of its date.
(c) Subject to Section 6.43, Texas Co-Borrower shall be
permitted to request funds from the Completion Reserve Account for the
purpose of paying or reimbursing Co-Borrowers for Approved Construction
Costs in accordance with the procedures for disbursements from the
Completion Reserve Account set forth in Section 4.2 hereof; provided,
however, that in no event shall the amount held in the Completion
Reserve Account ever be reduced to less than $10,000,000.00 prior to
the Final Completion Date, except that, subject to Section 6.43, such
$10,000,000.00 may be used from and after the date which is one day
after the Substantial Completion Date for the purpose of paying any
costs required to satisfy the Completion Conditions, other than Project
Operating Expenses for the 6 month period ending on the Final
Completion Date. In addition, if at any time prior to the Final
Completion Date, the sum of the amount held in the Completion Reserve
Account plus the then-undrawn amount of the Restricted RL Commitment is
both (i) greater than 120% of the then Cost to Complete and (ii)
greater than $10,000,000.00, and provided that no Default or Unmatured
Default has then occurred and is continuing, then, subject to Section
6.43, any such excess funds may, at Texas Co-Borrower's election, be
released and applied 50% to repayment of the Term Loans with the
remaining 50% to be released to Co-Borrowers to be used for general
corporate purposes in accordance with the terms hereof. Each repayment
of Term Loans pursuant to this Section 2.21(c) shall effect a pro rata
reduction in the then remaining scheduled amounts of mandatory
repayments in respect of Term Loans pursuant to Section 2.2(c)."
(d) Section 6.43(d) of the Credit Agreement shall be deleted and
the following substituted therefor:
"Notwithstanding anything to the contrary in this Agreement,
in no event shall the amount held in the Completion Reserve Account
ever be reduced to less than $15,000,000.00 (other than by application
of such amount to the Secured Obligations pursuant to Section 2.21(f))
prior to the first to occur of (i) the date on which the Project is
open for business to the general public and accepting guests on a
regular daily and nightly basis, provided that as of such date Adjusted
Net Operating Income for Opryland Hotel Florida for the last full
twelve months most recently ended is at least $30,000,000.00 and (ii)
the date on which all Post-Closing Requirements have been met in
accordance with this Section 6.43."
"Restricted RL Commitment" means (a) prior to the increase in the
Revolving Loan Commitments contemplated by Section IV.1(a) of this First
Amendment, the Aggregate Available Commitment and (b) from and after such
increase in the Revolving Loan Commitments, the $25,000,000.00 portion of the
Aggregate Revolving Loan Commitment that has not been advanced and
simultaneously applied to repayment of certain Term Loans pursuant to Section
IV.1(c) of this First Amendment.
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IV. Amendments to Credit Agreement With Regard to the Merger.
1. Upon the date (the "Merger Effective Date") on which (a) the
Nashville Mezzanine Loan and the Subordinated Loans shall have been prepaid in
full, (b) the Merger shall have been consummated and the RZT Debt shall have
been repaid in full and (c) the Administrative Agent shall have received
delivery of the RZT Pledge Agreements and the RZT Instruments of Adherence (as
such terms are defined in paragraph 2 of this Section IV) and all other items
required by paragraphs 2 and 3 of this Section IV, the following provisions of
this First Amendment shall become effective:
(a) On the date (the "Reallocation Date") which is (i) the
last day of the Interest Period in effect on the Merger Effective Date with
respect to the largest principal amount of LIBO Rate Loans outstanding as of the
Merger Effective Date or (ii) if none of the Loans is a LIBO Rate Loan as of the
Merger Effective Date, the fifth Business Day after the Merger Effective Date,
the aggregate Revolving Loan Commitments of the RL Lenders shall be increased
from $25,000,000.00 to $50,000,000.00 and in connection therewith, Schedule 2 of
the Credit Agreement shall be deemed amended by deleting the schedule of
Revolving Loan Commitments contained therein and inserting in lieu thereof the
schedule of Revolving Loan Commitments attached hereto as Exhibit B. Until the
Final Completion Date has occurred (which, for the purpose of this sentence
shall be deemed to have occurred notwithstanding that the condition described in
clause (b) of the definition of "Completion" may not have occurred), the
Restricted RL Commitment shall be available, subject to all applicable terms and
provisions of the Credit Agreement, solely for the purpose of funding the
Completion Reserve Account.
(b) The principal balance of Revolving Loans outstanding
immediately prior to the increase in Revolving Loan Commitments pursuant to the
preceding subparagraph (a) shall be reallocated among the RL Lenders such that
from and after such increase in Revolving Loan Commitments, the outstanding
principal balance of Revolving Loans due and payable to each RL Lender shall be
equal to such RL Lender's Pro Rata Revolving Loans Share of the Aggregate
Outstanding Credit Exposure with respect to Revolving Loans. On the Reallocation
Date, those RL Lenders whose Revolving Loan Commitment has increased as shown on
Schedule 2 shall advance the funds necessary to effect the increase in their
respective Pro Rata Revolving Loans Shares to the Administrative Agent and the
funds so advanced shall be immediately thereafter distributed among the RL
Lenders whose Pro Rata Revolving Loans Share has decreased as necessary to
accomplish the required reallocation of outstanding Revolving Loans. The funds
so advanced shall be Floating Rate Advances until converted to LIBO Rate
Advances. To the extent such reallocation results in certain RL Lenders
receiving funds which are applied to LIBO Rate Advances prior to the last day of
the applicable Interest Period, then Co-Borrowers shall pay to the
Administrative Agent for the account of the affected RL Lenders any amounts
payable with respect thereto pursuant to Section 3.4 of the Credit Agreement.
(c) Immediately after the transactions contemplated by the
preceding subparagraphs (a) and (b), $25,000,000.00 of the Aggregate Available
Commitment shall be advanced to Co-Borrowers (such advance, the "Term Loan
Reduction Advance"), and Co-Borrowers hereby direct that such amount be so
advanced by simultaneously applying same to
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repayment of the Term Loans then held by the RL Lenders whose Revolving Loan
Commitments were increased pursuant to the preceding subparagraph (a), such
repayment to be applied to such Term Loans pro rata in accordance with the
respective principal amounts thereof. Each such Term Lender's Term Loan
Commitment shall be permanently reduced by the amount of such repayment. Such
repayment of Term Loans shall not reduce the amount of, nor affect Co-Borrowers'
obligation to make payment of, any mandatory repayments pursuant to Section
2.2(c) of the Credit Agreement.
(d) On the Reallocation Date, Co-Borrowers shall execute and
deliver to the Administrative Agent new Revolving Notes for each RL Lender whose
Revolving Loan Commitment has changed as provided in this Section IV.1, so that
the maximum principal amount of such RL Lender's Revolving Note shall equal its
Revolving Loan Commitment. The Administrative Agent shall promptly deliver such
replacement Revolving Notes to the respective RL Lenders in exchange for the RL
Notes replaced thereby, which shall be surrendered by such RL Lenders. Such new
Revolving Notes shall provide that they are replacements of the surrendered RL
Notes and that they do not constitute a novation, shall be dated as of the
Reallocation Date and shall otherwise be in the form of the replaced Revolving
Notes. On the date of issuance of new Revolving Notes pursuant to this Section
IV.1(d), Co-Borrowers shall deliver an opinion of counsel, addressed to the RL
Lenders and the Administrative Agent, relating to the due authorization,
execution and delivery of such RL Notes and the enforceability thereof. The
surrendered Revolving Notes shall be cancelled and returned to Co-Borrowers.
(e) The definition of "Collateral" in Article I of the
Credit Agreement shall be amended by inserting "the Collateral, as defined in
the RZT Pledge Agreement," immediately following "Accounts,".
(f) Section 6.14(a)(vi) of the Credit Agreement shall be
amended by deleting "$50,000,000.00" and inserting in lieu thereof
"$100,000,000.00".
(g) Section 6.14(a)(vii) of the Credit Agreement shall be
amended by deleting "$15,000,000.00" and inserting in lieu thereof
"$25,000,000.00".
(h) Section 6.14(a)(xii) of the Credit Agreement shall be
amended by deleting "$10,000,000.00" and inserting in lieu thereof
"$20,000,000.00".
(i) Clause (iv) of the first sentence of Section 6.18(a) of
the Credit Agreement shall be deleted and the following substituted therefor:
"(iv) Investments ("Clause (iv) Investments"; which,
for the purposes of this clause (iv), shall not include periodic
capital contributions by Parent Guarantor to Opryland Hotel Nashville,
LLC for the sole purpose of managing short-term cash-flow fluctuations,
unless the aggregate amount of all such capital contributions is in
excess of the aggregate amount of dividends made by Opryland Hotel
Nashville, LLC to Parent Guarantor in any Facility Year, in which event
such excess amount shall be included in "Investments" for such Facility
Year, for purposes of this clause (iv)) by Parent Guarantor in any new
ventures or in Subsidiaries of Parent Guarantor that are not
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Subsidiary Guarantors, not in excess of the following limitations (the
"Investment Limitations"):
(A) $40,000,000.00 in the aggregate for any Facility
Year until the Final Completion Date occurs (provided that, if the
aggregate amount of Clause (iv) Investments made in any such Facility
Year is less than $40,000,000.00, the difference obtained by
subtracting such aggregate amount from $40,000,000.00 (each, a "Clause
A Carryforward Amount") shall be deemed added to the $40,000,000.00
amount first set forth in this clause (A) for each subsequent Facility
Year until the Final Completion Date occurs, subject to the limitation
that the aggregate amount of all such Clause A Carryforward Amounts
shall not exceed $20,000,000.00); and
(B) from and after the Final Completion Date,
$50,000,000.00 in the aggregate for the Facility Year in which the
Final Completion Date occurs and for each Facility Year thereafter
(provided that, if the aggregate amount of Clause (iv) Investments made
in any such Facility Year is less than $50,000,000.00, the difference
obtained by subtracting such aggregate amount from $50,000,000.00
(each, a "Clause B Carryforward Amount") shall be deemed added to the
$50,000,000.00 amount first set forth in this clause (B) for each
subsequent Facility Year, subject to the limitation that the aggregate
amount of all such Clause B Carryforward Amounts shall not exceed
$20,000,000.00)."
(j) Clause (iii) of Section 6.18(b) shall be deleted and the
following substituted therefor:
"(iii) Capital Expenditures (in addition to those
described in the preceding clauses (i) and (ii)), including Capital
Expenditures in respect of the Restaurant Facility, which in the
aggregate, together with Investments which are permitted under clause
(iv) of Section 6.18(a), are not in excess of the Investment
Limitations."
(k) Schedule 5.1 of the Credit Agreement shall be amended by
deleting the ownership chart attached thereto and inserting in lieu thereof the
ownership chart attached hereto as Exhibit C.
2. On the Merger Effective Date, as required by Section 6.18(a)
of the Credit Agreement, Parent Guarantor shall furnish or cause to be furnished
to the Administrative Agent for the benefit of the Lenders and other Holders of
Secured Obligations:
(a) pledge agreements (collectively, the "RZT Pledge
Agreements"), substantially in the form attached hereto as Exhibit D, executed
by Parent Guarantor, RZT and each Subsidiary of RZT (collectively, the "RZT
Subsidiaries");
(b) Instruments of Adherence, substantially in the form
attached hereto as Exhibit A, executed by RZT and each of the RZT Subsidiaries
(collectively, the "RZT Instruments of Adherence"). The RZT Instruments of
Adherence shall be in lieu of the requirement contained in Section 6.18(a) of
the Credit Agreement that each direct and indirect wholly-owned Subsidiary
execute a guaranty of payment substantially in the form of the Guaranty;
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(c) all financing statements, searches of public records,
Organizational Documents, certifications, stock certificates and such other
documents as the Administrative Agent shall reasonably require in connection
with the RZT Pledge Agreements and the RZT Instruments of Adherence;
(d) copies, each certified by the general partner, managing
member, secretary or assistant secretary, as applicable, of Parent Guarantor,
RZT and the RZT Subsidiaries, of (i) the Organizational Documents of each such
Person and (ii) consents, resolutions or other required actions authorizing the
execution and delivery by such Person of the RZT Pledge Agreements and the RZT
Instruments of Adherence to which such Person is a party, and such consents,
resolutions or other actions shall be in form and substance reasonably
satisfactory to the Administrative Agent; and
(e) opinions of respective counsel to Parent Guarantor, RZT
and each of the RZT Subsidiaries, addressed to the Administrative Agent and the
Lenders in form and substance reasonably satisfactory to the Administrative
Agent, with respect to the authorization and enforceability of the RZT Pledge
Agreements and the RZT Instruments of Adherence and such other matters as the
Administrative Agreement may require in connection therewith.
V. Miscellaneous Provisions.
1. If the Senior Note Documents are not executed and delivered
and the Senior Notes are not issued on or prior to December 31, 2003, the
Lenders shall retain the Amendment Fee, and this First Amendment, except for the
provisions of paragraph 3 of Section III and paragraphs 4, 5 and 6 of this
Section V, shall be void and of no force and effect.
2. In the event the Senior Notes are issued, and the Merger is
not consummated on or prior to the Termination Date, then, on the Special
Redemption Date, Parent Guarantor shall immediately deposit or cause to be
deposited into the Completion Reserve Account all Net Debt/Equity Proceeds of
the Senior Notes, net of the payments described in clauses (i) and (ii) of
paragraph 2(a) of Section II hereof and the Special Redemption Payment.
3. The waivers and consents set forth herein are limited
precisely as written, shall not extend to or affect any right or obligation not
expressly waived, and shall not be deemed a consent or waiver to, or
modification of, any other term or condition in the Credit Agreement, the Loan
Documents or any of the documents referred to herein or therein. Except as
expressly waived and consented to or amended hereby, the Credit Agreement
remains in full force and effect and is hereby ratified and confirmed in all
respects, it being understood that the Administrative Agent and the Lenders
hereby expressly reserve all of their rights and remedies under the Credit
Agreement, as amended hereby.
4. In order to induce the Lenders to enter into this First
Amendment, Co-Borrowers and Parent Guarantor hereby represent and warrant to
each of the Lenders that (a) all of the representations and warranties contained
in the Credit Agreement are true and correct on and as of the date hereof
(unless such representations and warranties relate to a specific earlier date,
in which case such representations and warranties shall be true and correct as
of such earlier date) and (b) there exists no Default on and as of the date
hereof.
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5. By signing below, Parent Guarantor and each of the Subsidiary
Guarantors (a) acknowledges, consents and agrees to the execution and delivery
by Co-Borrowers of this First Amendment, (b) ratifies and confirms its
obligations under the Guaranty, which remains unmodified and in full force and
effect, (c) acknowledges and agrees that its obligations under the Guaranty are
not released, diminished, waived, modified, impaired or affected in any manner
by this First Amendment or by any of the transactions contemplated hereby, (d)
represents and warrants that it has received and reviewed this First Amendment
and (e) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, the Guaranty as a result of this First Amendment
or otherwise.
6. All costs and out-of-pocket expenses incurred by the
Administrative Agent in connection with this First Amendment and the
transactions contemplated hereby shall be reimbursed to the Administrative Agent
by Co-Borrowers and Parent Guarantor, on demand.
7. This First Amendment may not be amended, modified or otherwise
changed in any manner except by a writing executed by all of the parties hereto.
8. This First Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. This First Amendment may be signed in any number of
counterparts by the parties hereto, all of which taken together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOW IMMEDIATELY]
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IN WITNESS WHEREOF, Co-Borrowers, Parent Guarantor, the Administrative
Agent, the Lenders and the Subsidiary Guarantors have executed this First
Amendment as of the date first above written.
CO-BORROWER:
OPRYLAND HOTEL - FLORIDA LIMITED
PARTNERSHIP, a Florida limited partnership
By: Opryland Hospitality, LLC, its general
partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
CO-BORROWER:
OPRYLAND HOTEL - TEXAS LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Opryland Hospitality, LLC, its general
partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
PARENT GUARANTOR:
XXXXXXX ENTERTAINMENT COMPANY,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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LENDERS:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Individually and as the Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal / Portfolio Manager
CIBC INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
CIBC World Markets Corp., AS AGENT
iSTAR DB SELLER, LLC, a Delaware limited
liability company
By: iStar Financial Inc., a Maryland
corporation, its sole Class A member
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
XXXXXXX XXXXX CAPITAL, a Division of
Xxxxxxx Xxxxx Business Financial
Services Inc.
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
subject to final documentation to be
received on Monday October 20th, 2003
MIDFIRST BANK, a Federally Chartered
Savings Association
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
RESTORATION FUNDING CLO, LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital
Management, LP.
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: Highland Capital Management, L.P., as
authorized representatives of
the Board
15
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital
Management, LP.
GLENEAGLES TRADING LLC
By:
------------------
By: /s/ Xxx X. Xxxxxx
---------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
ELF FUNDING TRUST I
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital
Management, LP.
BLUE SQUARE FUNDING LIMITED SERIES 3
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
16
KZH HIGHLAND - 2 LLC
By: /s/ Hi Hua
----------------------------------
Name: Hi Hua
Title: Authorized Agent
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital
Management, LP.
ING PRIME RATE TRUST
By: Acltus Investment Management, Inc.,
as its investment manager
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
ING SENIOR INCOME FUND
By: Acltus Investment Management, Inc.,
as its investment manager
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
17
SUBSIDIARY GUARANTORS:
CCK HOLDINGS, LLC, a Delaware limited
liability company
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
CORPORATE MAGIC, INC., a Texas corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX CREATIVE GROUP, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX INVESTMENTS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX PROGRAM SERVICES, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
18
XXXXX XXX XXXX TOURS, INC., a Tennessee
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OLH, G.P., a Tennessee general partnership
By: Xxxxxxx Entertainment Company, a
general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
OLH HOLDINGS, LLC, a Delaware limited
liability company
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OPRYLAND ATTRACTIONS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OPRYLAND PRODUCTIONS, INC., a Tennessee
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
19
OPRYLAND THEATRICALS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
WILDHORSE SALOON ENTERTAINMENT VENTURES,
INC., a Tennessee corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
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