EXHIBIT 99.2
LIMITED WAIVER
As of September 8, 2003
RESORTQUEST INTERNATIONAL, INC.
0000 Xxxxxxx 00 Xxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of January 22, 2001 among ResortQuest International, Inc. ("Borrower"),
the Guarantors (as defined therein), the Lenders (as defined therein), Citibank,
N.A., as administrative agent for the Lenders (in such capacity, "Agent"), Bank
of America, N.A., as documentation agent, and Credit Lyonnais New York Branch,
as syndication agent, as amended by a certain First Amendment to Amended and
Restated Credit Agreement dated as of October 30, 2001, a certain Letter
Amendment dated as of January 24, 2003 and a certain Second Amendment to Amended
and Restated Credit Agreement dated as of March 14, 2003 (collectively, the
"Credit Agreement"). Capitalized terms used in this Limited Waiver (this
"Limited Waiver") without definition shall have the respective meanings ascribed
to them in the Credit Agreement.
Borrower has entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Xxxxxxx Entertainment Company ("Xxxxxxx") pursuant to which a
wholly-owned subsidiary of Xxxxxxx will merge with and into Borrower, with
Borrower as the surviving corporation (the "Merger").
Borrower wishes to enter into a certain First Amendment to Merchant
Services Bankcard Agreement (the "Merchant Services Bankcard Agreement") among
Xxxxxxx, Borrower, JPMorgan Chase Bank and Chase Merchant Services, L.L.C.,
whereby Borrower will agree, among other things, to indemnify, hold harmless and
reimburse Xxxxxxx for any liability or loss charged against or suffered by
Gaylord under the Merchant Services Bankcard Agreement because of Borrower's
failure to fulfill its obligations under the Merchant Services Bankcard
Agreement (the "Bankcard Processing Guarantee").
In connection with the transactions contemplated by the Merger
Agreement and the Merchant Services Bankcard Agreement, Borrower has requested
that Agent and the Lenders waive compliance by Borrower for a limited period
with the provisions of Sections 3.3(b), 7.11(a), 7.11(b), 7.11(c), 7.11(e), 8.1
and 8.4 of the Credit Agreement and, subject to the terms and conditions of this
Limited Waiver, Agent and the Lenders are willing to agree to waive such
compliance.
At the request of Borrower, and in consideration of the mutual
undertakings herein expressed, Agent and the Lenders hereby agree to the
following waivers, which shall apply only during the period (the "Waiver
Period") commencing on August 4, 2003 and ending on the earlier to occur of (i)
the Maturity Date, (ii) the date of any suspension or termination of the Merger
Agreement or any determination by either party thereto not to proceed with the
Merger or (iii) the expiration or termination of the Forbearance Period (as
defined in that certain Consent and Forbearance Agreement dated as of September
8, 2003 among Borrower, the Guarantors and the Noteholders (the "Noteholders'
Consent and Forbearance Agreement"):
(a) compliance by Borrower with the provisions of Section
3.3(b) [Mandatory Prepayments] of the Credit Agreement to the extent
that the same would require Borrower to prepay Loans with the Net Cash
Proceeds of loans and extensions of credit in an aggregate principal
amount not to exceed $15,000,000 (the "Xxxxxxx Loan") made to Borrower
pursuant to that certain Subordinated Loan and Reimbursement Agreement
dated September 8, 2003 (the "Xxxxxxx Loan Agreement") between
Borrower and Xxxxxxx;
(b) compliance by Borrower with the financial covenants
set forth in Sections 7.11(a) [Fixed Charge Coverage Ratio], 7.11(b)
[Consolidated Leverage Ratio], 7.11(c) [Consolidated Net Worth] and
7.11(e) [Minimum Consolidated EBITDA] of the Credit Agreement;
(c) compliance by Borrower with the provisions of Section
8.1 [Indebtedness] of the Credit Agreement to the extent that any
default or Event of Default would occur thereunder by reason of the
Xxxxxxx Loan or the Bankcard Processing Guarantee; and
(d) compliance by Borrower with the provisions of Section
8.4 [Consolidation, Merger, Dissolution, Etc.] of the Credit Agreement
to the extent any default or Event of Default would occur thereunder by
reason of Borrower having entered into the Merger Agreement.
In consideration of the foregoing, Borrower agrees that:
(1) Prior to the consummation of the Merger, Borrower
shall (i) pay in full in cash all Obligations under the Credit
Documents, (ii) cause to be surrendered for cancellation or 100% cash
collateralized all Letters of Credit then outstanding, (iii) give
written notice to Agent and the Lenders that all Commitments have been
terminated, (iv) perform and satisfy in full all other obligations
required to be performed and satisfied by Borrower under the Credit
Agreement and (v) pay all costs and expenses of Agent in connection
with the preparation of this Limited Waiver and the consummation of the
Merger, including, without limitation, the reasonable fees and expenses
of counsel with respect thereto and with respect to advising Agent and
the Lenders as to their rights and responsibilities under the Credit
Documents;
(2) The Credit Parties shall promptly execute and deliver
such documents, instruments and certificates as Agent may request so as
to cause or evidence the satisfaction in full of their respective
obligations under the Credit Documents;
(3) Borrower shall not, without the prior written consent
of Required Lenders, amend or modify the Merger Agreement (or enter
into any agreement to terminate, or which could result in the
termination of, the Merger Agreement) or the Loan Documents (as defined
in the Xxxxxxx Loan Agreement);
(4) Each of the following shall constitute an Event of
Default under the Credit Documents: (i) any event of default under the
Loan Documents (as defined in the Xxxxxxx Loan Agreement), (ii) the
Subordinated Indebtedness (as defined in the Xxxxxxx Loan Agreement)
has matured or is due and payable, and (iii) any Forbearance Default
(as defined in the Noteholders' Consent and Forbearance Agreement in
effect on September 8, 2003 and without giving effect to any
subsequent amendment, modification or waiver of such agreement).
2
The effectiveness of this Limited Waiver shall be contingent upon
Borrower's delivery to Agent of fully executed and effective Noteholders'
Consent and Forbearance Agreement, in form and substance satisfactory to Agent,
whereby the Noteholders (y) waive compliance by Borrower with the provisions of
Sections 10.4, 10.5 and 10.6 of the Note Purchase and Guarantee Agreement during
the Waiver Period, and (z) waive any Default or Event of Default (as such terms
are defined in the Note Purchase and Guarantee Agreement) arising under Section
11(l) thereof as a result of Borrower's failure to comply with Sections 7.11,
8.1 or 8.4 of the Credit Agreement during the Waiver Period.
Without limiting the generality of the provisions of Sections 11.4 and
11.6 of the Credit Agreement, the waivers set forth herein shall be limited
precisely as written, and nothing in this Limited Waiver shall be deemed to (a)
constitute a waiver of (i) any other Event of Default or (ii) any other term,
provision or condition of the Credit Documents or any other instrument or
agreement referred to in any of them, or (b) prejudice any right or remedy that
Agent or any Lender may now have or may have in the future under or in
connection with the Credit Agreement, the other Credit Documents or any other
instrument or agreement referred to in any of them or in equity or at law.
Except as expressly set forth in this Limited Waiver, the terms, provisions and
conditions of the Credit Agreement and the other Credit Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
In order to induce Agent and the Lenders to enter into this Limited
Waiver, Borrower, by its execution of a counterpart of this Limited Waiver,
further represents and warrants that after giving effect to this Limited Waiver
(a) no Event of Default or potential Event of Default shall exist under the
Credit Agreement, (b) all representations and warranties contained in the Credit
Agreement and the other Credit Documents shall be true, correct and complete in
all material respects on and as of the date hereof except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date, and (c) Borrower shall have performed all agreements to be
performed on its part as set forth in the Credit Documents. Any default by
Borrower in the performance of its obligations under this Limited Waiver
(including, without limitation, the obligations set forth in subparagraphs (1)
through (4) of the sixth paragraph hereof) shall constitute an Event of Default
under the Credit Agreement.
By its execution of a counterpart of this Limited Waiver, each
Guarantor acknowledges that it has read this Limited Waiver and consents to the
terms hereof and further confirms and agrees that, notwithstanding the
effectiveness of this Limited Waiver, the obligations of such Guarantor under
each Credit Document to which it is a party shall not be impaired or affected
and the each such Credit Document is, and shall continue to be, in full force
and effect and is hereby confirmed and ratified in all respects.
This Limited Waiver shall constitute a Credit Document and may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument.
This Limited Waiver shall be effective upon satisfaction of the
condition precedent set forth in the seventh paragraph hereof and then only when
executed and delivered by Agent and Borrower, and consented to by each Guarantor
and the percentage of Lenders specifically required to consent hereto pursuant
to Section 11.6 of the Credit Agreement.
THIS LIMITED WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
3
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[Balance of Page Intentionally Left Blank]
4
If the foregoing accurately sets forth our agreement, please sign and
return the enclosed copy of this Limited Waiver.
AGENT:
CITIBANK, N.A.
in its capacity as Agent
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
CONFIRMED AND AGREED:
BORROWER:
RESORTQUEST INTERNATIONAL, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
[Signatures Continued on Next Page]
S-1
GUARANTORS:
FIRST RESORT SOFTWARE, INC.,
a Colorado corporation
ADVANTAGE VACATION HOMES BY STYLES, INC.,
a Delaware corporation
STYLES ESTATES, LTD., INC.,
a Delaware corporation
B&B ON THE BEACH, INC.,
a North Carolina corporation
XXXXXXXX & XXXXXXXX REALTY & DEVELOPMENT, INC.,
a North Carolina corporation
BLUEBILL PROPERTIES, INC.,
a Delaware corporation
BLUEBILL VACATION PROPERTIES, INC.,
a Delaware corporation
XXXXXX, XXXX & XXXXXXX, INC.,
a Delaware corporation
CRW PROPERTY MANAGEMENT, INC.,
a Delaware corporation
COASTAL RESORTS REALTY, L.L.C.,
a Delaware limited liability company
COASTAL RESORTS MANAGEMENT, INC.,
a Delaware corporation
COLLECTION OF FINE PROPERTIES, INC.,
a Colorado corporation
TEN MILE HOLDINGS, LTD.,
a Colorado corporation
HOTEL CORPORATION OF THE PACIFIC, INC.,
a Hawaii corporation
HOUSTON AND X'XXXXX COMPANY,
a Colorado corporation
MAUI CONDOMINIUM & HOME REALTY, INC.,
a Hawaii corporation
THE MAURY PEOPLE, INC.,
a Massachusetts corporation
XXXXX ACQUISITION, INC.,
a Florida corporation
[Signatures Continued on Next Page]
S-2
XXXXXXXXX XXXXXX REALTY, INC.,
a Florida corporation
REALTY CONSULTANTS, INC.,
a Florida corporation
RESORT PROPERTY MANAGEMENT, INC.,
a Utah corporation
SHORELINE RENTALS, INC.,
a Delaware corporation
TELLURIDE RESORT ACCOMMODATIONS, INC.,
a Colorado corporation
XXXXX-XXXXXXX ENTERPRISES, INC.,
a Georgia corporation
THE MANAGEMENT COMPANY, INC.,
a Georgia corporation
WORTHY OWNER RENTAL GROUP, INC.,
a South Carolina corporation
XXXXXX & XXXXXXX REALTY, INC.,
a Florida corporation
XXXXXX REALTY SERVICES, INC.,
a Florida corporation
XXXXXX RESORTS, INC.,
a Florida corporation
PLANTATION RESORT MANAGEMENT, INC.,
a Delaware corporation
THE TOPS'L GROUP, INC.,
a Florida corporation
R & R RESORT RENTAL PROPERTIES, INC.,
a North Carolina corporation
(The following signature is on behalf of each of the foregoing Guarantors)
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
[Signatures Continued on Next Page]
S-3
LENDERS:
CITICORP NORTH AMERICA, INC.,
as a Lender and an Issuing Lender
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as a Lender and an Issuing Lender
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:
---------------------------------
Name:
Title:
UNION PLANTERS BANK,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
S-4
