SIXTH SUPPLEMENTAL INDENTURE
Exhibit 4.1
SIXTH SUPPLEMENTAL INDENTURE (“Sixth Supplemental Indenture”), dated as of October
6, 2009, among Xxxxxxx Entertainment Company, a Delaware corporation (the “Company”), the
Guarantors identified on the signature pages hereto (the “Guarantors”) and U.S. Bank National
Association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee have entered into an Indenture, dated as
of November 12, 2003, governing the Company’s 8% Senior Notes due 2013 (the “Notes”), as heretofore
supplemented by the First Supplemental Indenture, dated as of November 20, 2003; the Second
Supplemental Indenture, dated as of November 29, 2004; the Third Supplemental Indenture, dated as
of December 30, 2004; the Fourth Supplemental Indenture, dated as of June 16, 2005; the Fifth
Supplemental Indenture, dated as of January 12, 2007; and the Supplemental Indenture, dated as of
September 29, 2009 (collectively, the “Original Indenture”); and
WHEREAS, under Section 9.02 of the Original Indenture, the Company, the Guarantors and the
Trustee may amend the Original Indenture with the consent of the Holders of at least a majority in
principal amount of Notes then outstanding voting as a single class pursuant to the terms set forth
therein; and
WHEREAS, Holders of a majority in principal amount of Notes outstanding voting as a single
class have consented to the amendments set forth herein in connection with the tender offer and
consent solicitation of the Company commencing on September 23, 2009, with respect to the Notes
(the “Tender Offer”); and
WHEREAS, the Company and the Guarantors desire to enter into this Sixth Supplemental Indenture
on the date set forth above for the purpose of making the amendments set forth herein, which
amendments will become operative as set forth in Section 4 herein; and
WHEREAS, all other conditions and requirements necessary to make this Sixth Supplemental
Indenture a valid, binding and legal instrument enforceable in accordance with its terms have been
performed and fulfilled by the parties hereto, and the execution and delivery thereof have been in
all respects duly authorized by the parties hereto.
NOW, THEREFORE, for and in consideration of the foregoing premises, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
1. DEFINITIONS. For all purposes of the Original Indenture and this Sixth Supplemental
Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) References. The terms “herein,” “hereof” and other words of similar import refer
to the Original Indenture and this Sixth Supplemental Indenture as a whole and not to any
particular article, section or other subdivision; and
(b) Capitalized Terms. All capitalized terms used in this Sixth Supplemental
Indenture but not defined herein shall have the meanings assigned to such terms in the Original
Indenture.
2. ELIMINATION AND AMENDMENT OF CERTAIN DEFINED TERMS IN ARTICLE I OF THE ORIGINAL INDENTURE.
From and as of the Operational Time (as defined in
Section 4(b) of this Supplemental Indenture),
any defined terms appearing in Article I of the Original Indenture or elsewhere in the Original
Indenture, and all references thereto, that are used solely in the sections, subsections or
provisions of the Original Indenture deleted from the Original Indenture by virtue of Section 3 of
this Sixth Supplemental Indenture shall be deleted in their entireties from Section 1.01 of the
Original Indenture.
3. AMENDMENT OF CERTAIN PROVISIONS OF ARTICLES 4, 5 AND 6 AND OTHER RELATED PROVISIONS OF THE
ORIGINAL INDENTURE.
(a) Amendment of Article 4 of Original Indenture. From and as of the Operational Time
(as defined in Section 4(b) of this Supplemental Indenture), Article 4 of the Original Indenture
shall be amended by deleting Sections 4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.16, 4.18,
4.19 and 4.21 in their entireties, together with any references thereto in the Original Indenture.
(b) Amendment of Section 5.01 of Original Indenture. From and as of the Operational
Time (as defined in Section 4(b) of this Supplemental Indenture), Section 5.01 of the Original
Indenture shall be amended by
(i) Adding “and” after “;” at the end of clause (ii) of Section 5.01(a);
(ii) Deleting clause (iii) of Section 5.01(a) in its entirety;
(iii) Re-designating clause (iv) of Section 5.01(a) as clause (iii); and
(iv) Deleting Section 5.01(b) in its entirety.
(c) Amendment of Article 6 of the Original Indenture. From and as of the Operational
Time, Article 6 of the Original Indenture shall be amended by: (i) deleting clauses (iii), (iv),
(v), (vi), (vii) and (viii) of Section 6.01(a) in their entireties, together with any references
thereto in the Original Indenture; and (ii) renumber (ix) and (x) to be (iii) and (iv),
respectively.
(d) Amendment of Additional Provisions of Original Indenture. From and as of the
Operational Time, any and all additional provisions of the Original Indenture shall be deemed
amended to reflect the intentions of the amendments provided for in this Section 3 and elsewhere
herein.
4. EFFECT OF SIXTH SUPPLEMENTAL INDENTURE; OPERATION OF AMENDMENTS.
(a) Effect of Sixth Supplemental Indenture. In accordance with Section 9.04 of the
Original Indenture, upon the execution of this Sixth Supplemental Indenture, the Original Indenture
shall be modified in accordance herewith, and this Sixth Supplemental Indenture shall form a part
of the Original Indenture for all purposes; and every Holder of the Notes heretofore authenticated
and delivered under the Original Indenture shall be bound hereby. Except as modified by this Sixth
Supplemental Indenture, the Original Indenture and the Notes, and the rights of the Holders of the
Notes thereunder, shall remain unchanged and in full force and effect.
(b) Operation of Amendments. The provisions of this Sixth Supplemental Indenture
shall not become operative until the date and time (such date and time, the “Operational Time”) the
Company notifies (in writing) U.S. Bank National Association, as depositary for the Notes under the
Tender Offer (the “Depositary”), that the Company has purchased Notes tendered and not withdrawn
pursuant to the Tender Offer on the Initial Payment Date (as defined in the Offer to Purchase and
Consent Solicitation
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Statement dated September 23, 2009 related to the Tender Offer). In the event
the Company notifies (in writing) the Depositary that it has withdrawn or terminated the Tender
Offer prior to the Operational Time, this Sixth Supplemental Indenture shall be terminated and be
of no force or effect and the Original Indenture shall not be modified hereby. The Company shall
promptly notify the Trustee in writing of any notice it gives to the Depositary.
5. MATTERS CONCERNING THE TRUSTEE. The Trustee accepts the trusts of the Original Indenture,
as amended and supplemented by this Sixth Supplemental Indenture, and agrees to perform the same,
but only upon the terms and conditions set forth in the Original Indenture, as amended and
supplemented by this Sixth Supplemental Indenture, to which the parties hereto and the Holders from
time to time of the Notes agree and, except as expressly set forth in the Original Indenture, as
amended and supplemented by this Sixth Supplemental Indenture, shall incur no liability or
responsibility in respect thereof. Without limiting the generality of the foregoing, the recitals
contained herein shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness, and the Trustee makes no representation as to the validity or
sufficiency of this Sixth Supplemental Indenture or any consents thereto.
6. RATIFICATION AND CONFIRMATION OF THE ORIGINAL INDENTURE. Except as expressly amended
hereby, the Original Indenture is in all respects ratified and confirmed and all the terms,
provisions and conditions thereof shall be and remain in full force and effect.
7. MISCELLANEOUS.
(a) Binding Effect. All agreements of the Company in this Sixth Supplemental
Indenture shall be binding upon the Company’s successors. All agreements of the Trustee in this
Sixth Supplemental Indenture shall be binding upon its successors.
(b) Governing Law. This Sixth Supplemental Indenture shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be governed by and
construed in accordance with the laws of the State of New York.
(c) Conflict with Trust Indenture Act of 1939. If and to the extent that any
provision of this Sixth Supplemental Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310-317 of the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), by operation of Section 318(c) of the Trust Indenture Act, the imposed duties shall control.
(d) Headings for Convenience of Reference. The titles and headings of the sections of
this Sixth Supplemental Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
(e) Counterparts. This Sixth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but such counterparts
shall constitute but one and the same agreement.
(f) Severability. In case any provision of this Sixth Supplemental Indenture shall be
determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof or of the Original Indenture shall not in any way be affected or
impaired thereby.
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(g) Effect Upon Original Indenture. This Sixth Supplemental Indenture shall form a
part of the Original Indenture for all purposes, and every holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company, the Guarantors and the Trustee have caused this Sixth
Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized
and their respective corporate seals, duly attested, to be hereunto affixed all as of the day and
the year first above written.
| COMPANY: | ||||||
| XXXXXXX ENTERTAINMENT COMPANY | ||||||
| By: | /s/ Xxxxxx X. Xxxx
|
|||||
| Name: Xxxxxx X. Xxxx | ||||||
| Title: Executive Vice President | ||||||
| GUARANTORS: | ||||||
| XXXXXXX PROGRAM SERVICES, INC. | ||||||
| XXXXX XXX XXXX TOURS, INC. | ||||||
| WILDHORSE SALOON ENTERTAINMENT VENTURES, INC. |
||||||
| GAYLORD INVESTMENTS, INC. | ||||||
| OLH HOLDINGS, LLC | ||||||
| OPRYLAND HOSPITALITY, LLC | ||||||
| OPRYLAND PRODUCTIONS, INC. | ||||||
| OPRYLAND THEATRICALS, INC. | ||||||
| CORPORATE MAGIC, INC. | ||||||
| GAYLORD CREATIVE GROUP, INC. | ||||||
| CCK HOLDINGS, LLC | ||||||
| OLH, G.P. | ||||||
| OPRYLAND HOTEL—FLORIDA LIMITED PARTNERSHIP |
||||||
| OPRYLAND HOTEL—TEXAS LIMITED PARTNERSHIP |
||||||
| OPRYLAND HOTEL—TEXAS, LLC | ||||||
| XXXXXXX NATIONAL, LLC | ||||||
| OPRYLAND HOTEL NASHVILLE, LLC | ||||||
| XXXXXXX FINANCE, INC. | ||||||
| XXXXXXX DESTIN RESORTS, LLC | ||||||
| XXXXX XXX XXXX, LLC | ||||||
| XXXXXXX HOTELS, INC. | ||||||
| OPRYLAND ATTRACTIONS, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxx
|
|||||
| Name: Xxxxxx X. Xxxx | ||||||
| Title: Vice President | ||||||
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| TRUSTEE: | ||||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxxxxxxx | ||||||
| Title: Vice President | ||||||
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