EXHIBIT 10.1
Xxxxxxx Entertainment Company
and
the Guarantors listed on Schedule B hereto
$225,000,000
6.75% Senior Notes due 2014
PURCHASE AGREEMENT
dated November 17, 2004
Deutsche Bank Securities Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc.
CIBC World Markets Corp.
XXXXXXX - PURCHASE AGREEMENT
November 17, 2004
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
CIBC WORLD MARKETS CORP.
As Initial Purchasers
c/o DEUTSCHE BANK SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Introductory. Xxxxxxx Entertainment Company, a Delaware
corporation (the "COMPANY"), proposes to issue and sell to the several Initial
Purchasers named in Schedule A (the "INITIAL PURCHASERS"), acting severally and
not jointly, the respective amounts set forth in such Schedule A of $225,000,000
aggregate principal amount of the Company's 6.75% Senior Notes due 2014 (the
"NOTES"). Deutsche Bank Securities Inc., Banc of America Securities LLC,
Citigroup Global Markets Inc. and CIBC World Markets Corp. have agreed to act as
the several Initial Purchasers in connection with the offering and sale of the
Notes.
The Notes will be issued pursuant to an indenture, dated as of
November 30, 2004 (the "INDENTURE"), among the Company, the Guarantors (as
defined below) and U.S. Bank National Association, as trustee (the "TRUSTEE").
Notes issued in book-entry form will be issued in the name of Cede & Co., as
nominee of The Depository Trust Company (the "DTC") pursuant to a letter of
representations, to be dated as of the Closing Date (as defined in Section 2)
(the "LETTER OF REPRESENTATIONS"), among the Company, the Trustee and DTC.
The holders of the Notes will be entitled to the benefits of a
registration rights agreement, dated as of November 30, 2004 (the "REGISTRATION
RIGHTS AGREEMENT"), among the Company, the Guarantors and the Initial
Purchasers, pursuant to which the Company and the Guarantors will agree to file
a registration statement with the Commission registering the Exchange Securities
(as defined below) under the Securities Act of 1933, as amended (the "SECURITIES
ACT," which term, as used herein, includes the rules and regulations of the
Securities and Exchange Commission (the "COMMISSION") promulgated thereunder).
Pursuant to the Registration Rights Agreement, each of the Company and the
Guarantors will agree to file with the Commission, under the circumstances set
forth therein, a registration statement under the Securities Act relating to
another series of debt securities of the Company with terms substantially
identical to the Notes (the "EXCHANGE NOTES") to be offered in exchange for the
Notes (the "EXCHANGE OFFER") and to the extent required by the Registration
Rights Agreement, a shelf registration statement pursuant to Rule 415 of the
Securities Act relating to the resale by certain holders of the Notes, and in
each case, to use its best efforts to cause such registration statements to be
declared effective.
XXXXXXX - PURCHASE AGREEMENT
1
The payment of principal of, premium and Liquidated Damages
(as defined in the Indenture), if any, and interest on the Notes and the
Exchange Notes will be fully and unconditionally guaranteed on a senior
unsecured basis, jointly and severally by the Company's domestic subsidiaries as
set forth in Schedule B hereof and any other subsidiary of the Company,
including those that are formed or acquired after the Closing Date, that
executes an additional guarantee in accordance with the terms of the Indenture,
and their respective successors and assigns (collectively, the "GUARANTORS"),
pursuant to their guarantees (the "GUARANTEES") set forth in the Indenture and
the notation of guarantee. The Notes and the Guarantees attached thereto are
herein collectively referred to as the "SECURITIES"; and the Exchange Notes and
the Guarantees attached thereto are herein collectively referred to as the
"EXCHANGE SECURITIES".
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and in the Offering Memorandum (as defined below) and agrees that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers (the "SUBSEQUENT PURCHASERS") at
any time after the date of this Agreement. The Securities are to be offered and
sold to or through the Initial Purchasers without being registered with the
Commission under the Securities Act, in reliance upon exemptions therefrom.
Pursuant to the terms of the Securities and the Indenture, investors that
acquire Securities shall be deemed to have agreed that Securities may only be
resold or otherwise transferred, after the date hereof, if such Securities are
registered for sale under the Securities Act or if an exemption from the
registration requirements of the Securities Act is available (including the
exemption afforded by Rule 144A ("RULE 144A") or Regulation S ("REGULATION S")
thereunder).
The Company has prepared and will deliver to each Initial
Purchaser, copies of the Offering Memorandum, dated November 17, 2004,
describing the terms of the Securities, each for use by such Initial Purchaser
in connection with its solicitation of offers to purchase the Securities. As
used herein, the "OFFERING MEMORANDUM" shall mean, with respect to any date or
time referred to in this Agreement, the Company's Offering Memorandum, dated
November 17, 2004, including amendments or supplements thereto and any
information incorporated by reference therein, in the most recent form that has
been prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of offers to purchase Securities.
The Company and the Guarantors hereby confirms their
agreements with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties.
Each of the Company and the Guarantors hereby represents, warrants and
covenants to each Initial Purchaser as follows:
(a) No Registration Required
Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 2 hereof and with
the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this
XXXXXXX - PURCHASE AGREEMENT
2
Agreement and the Offering Memorandum to register the Securities under
the Securities Act or, until such time as the registration statement
registering the Exchange Securities is declared effective by the
Commission, to qualify the Indenture under the Trust Indenture Act of
1939 (the "TRUST INDENTURE ACT," which term, as used herein, includes
the rules and regulations of the Commission promulgated thereunder).
(b) No Integration of Offerings or General Solicitation
Neither the Company nor any Guarantor has, directly or indirectly,
solicited any offer to buy or offered to sell, or will, directly or
indirectly, solicit any offer to buy or offer to sell, in the United
States or to any United States citizen or resident, any security which
is or would be integrated with the sale of the Securities in a manner
that would require the Securities to be registered under the Securities
Act. None of the Company, its affiliates (as such term is defined in
Rule 501 under the Securities Act (each, an "AFFILIATE"), or any person
acting on its or any of their behalf (other than the Initial
Purchasers, as to whom the Company and the Guarantors make no
representation or warranty) has engaged or will engage, in connection
with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502
under the Securities Act. With respect to those Securities sold in
reliance upon Regulation S: (i) none of the Company, the Guarantors,
their respective Affiliates, or any person acting on their behalf
(other than the Initial Purchasers, as to whom neither the Company nor
any Guarantor makes any representation or warranty) has engaged or will
engage in any directed selling efforts within the meaning of Regulation
S; and (ii) each of the Company, the Guarantors, and their respective
Affiliates and any person acting on their behalf (other than the
Initial Purchasers, as to whom neither the Company nor any Guarantor
makes any representation or warranty) has complied and will comply with
the offering restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A
The Securities are eligible for resale pursuant to Rule 144A and will
not be, at the Closing Date, of the same class as securities listed on
a national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934 (as amended, the "EXCHANGE Act", which
term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder) or quoted in a U.S. automated
interdealer quotation system.
(d) The Offering Memorandum
The Offering Memorandum does not, and at the Closing Date will not,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that this representation, warranty and agreement shall not
apply to statements in or omissions from the Offering Memorandum made
in reliance upon and in conformity with information furnished to the
Company in writing by any Initial Purchaser through Deutsche Bank
Securities Inc. expressly for use in the Offering Memorandum. The
Offering Memorandum, as of its date, contains all the information
XXXXXXX - PURCHASE AGREEMENT
3
specified in, and meeting the requirements of, Rule 144A. The Company
has not distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Initial Purchasers' distribution
of the Securities, any offering material in connection with the
offering and sale of the Securities other than the Offering Memorandum.
(e) The Purchase Agreement
This Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company and each
Guarantor, enforceable in accordance with its terms, except as rights
to indemnification hereunder may be limited by applicable law and
except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors generally or by
general equitable principles and except as rights to indemnification
under the Registration Rights Agreement may be limited by applicable
law.
(f) The Registration Rights Agreement
At the Closing Date, the Registration Rights Agreement will be duly
authorized, executed and delivered by, and will be a valid and binding
agreement of, the Company and each Guarantor, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
generally or by general equitable principles and except as rights to
indemnification under the Registration Rights Agreement may be limited
by applicable law.
(g) The Letter of Representations
At the Closing Date, the Letter of Representations will have been
duly authorized, executed and delivered by, and (assuming the due
authorization, execution and delivery thereof by the other parties
thereto) will be a valid and binding agreement of, the Company,
enforceable in accordance with its terms except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
and remedies of creditors generally or by general equitable principles.
(h) Authorization of the Securities and the Exchange Securities
(i) The Notes to be purchased by the Initial Purchasers from the
Company are in the form contemplated by the Indenture, have been duly
authorized for issuance and sale pursuant to this Agreement and the
Indenture and, at the Closing Date, will have been duly executed by the
Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor,
will constitute valid and binding agreements of the Company,
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws relating to or
affecting the rights and remedies of creditors generally or by general
equitable principles
XXXXXXX - PURCHASE AGREEMENT
4
and will be entitled to the benefits of the Indenture. (ii) The
Exchange Notes have been duly and validly authorized for issuance by
the Company, and when issued and authenticated in accordance with the
terms of the Indenture, the Registration Rights Agreement and the
Exchange Offer, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws relating to or affecting enforcement of the rights and
remedies of creditors generally or by general equitable principles and
will be entitled to the benefits of the Indenture. (iii) The Guarantees
of the Notes are and, when issued, the Exchange Notes will be, in the
respective forms contemplated by the Indenture, have been duly
authorized for issuance and sale pursuant to this Agreement and the
Indenture and, at the Closing Date, will have been duly executed by
each of the Guarantors and, when the Notes have been authenticated in
the manner provided for in the Indenture and delivered against payment
of the purchase price therefor, will constitute valid and binding
agreements of the Guarantors, enforceable in accordance with their
terms, except as (x) the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws relating to or affecting the rights
and remedies of creditors generally or by general equitable principles
and (y) the authorization, execution, delivery and enforcement of the
Guarantee of any Guarantor incorporated in the State of Tennessee may
be limited by Tennessee corporate law relating to the adequacy of
capital, and the Guarantees will be entitled to the benefits of the
Indenture.
(i) Authorization of the Indenture
The Indenture has been duly authorized by the Company and each
Guarantor and, at the Closing Date, will have been duly executed and
delivered by the Company and each Guarantor and will constitute a valid
and binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its terms,
except as (i) the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws relating to or affecting the rights and remedies of
creditors generally or by general equitable principles and (ii) the
authorization, execution and delivery by any Guarantor incorporated in
the State of Tennessee, and enforcement of the Indenture against any
Guarantor incorporated in the State of Tennessee, may be limited by
Tennessee corporate law relating to the adequacy of capital.
(j) Description of the Securities and the Indenture
The Notes, the Exchange Notes, the Guarantees of the Notes and the
Guarantees of the Exchange Notes and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Offering Memorandum.
(k) Incorporated Documents
The portions of documents incorporated by reference in the Offering
Memorandum, when they were filed or last amended as of the date hereof,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents, as amended as of the date
XXXXXXX - PURCHASE AGREEMENT
5
hereof, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(l) No Material Adverse Change
Except as otherwise disclosed in the Offering Memorandum, subsequent
to the respective dates as of which information is given in the
Offering Memorandum: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or
in the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity (any such change
is called a "MATERIAL ADVERSE CHANGE"); (ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction
or agreement not in the ordinary course of business; and (iii) there
has been no dividend or distribution of any kind declared, paid or made
by the Company or, except for dividends paid to the Company or its
other subsidiaries, any of its subsidiaries on any class of capital
stock or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
(m) Compliance with Xxxxxxxx-Xxxxx Act of 2002
The Company and, to the best of its knowledge, its officers and
directors are in compliance in all material respects with applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the "XXXXXXXX-XXXXX
ACT") that are effective as of the date hereof.
(n) Independent Accountants of the Company
Xxxxx & Young LLP, who have expressed their opinion with respect to
the Company's financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules
filed with the Commission included in the Offering Memorandum are
independent public or certified public accountants within the meaning
of Regulation S-X under the Securities Act and the Exchange Act.
(o) Financial Statements
The historical financial statements of the Company and its
consolidated subsidiaries and the related notes thereto included in the
supplemental F-pages to the Offering Memorandum present fairly in all
material respects the consolidated financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the
results of their operations for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved. The historical financial data set forth in the
Offering Memorandum under the captions "Offering Memorandum Summary -
Summary Historical Consolidated Financial
XXXXXXX - PURCHASE AGREEMENT
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Information" and "Selected Consolidated Financial Information" are
presented on a basis consistent with that of the audited financial
statements contained in the Offering Memorandum.
(p) Accounting System
The Company maintains a system of internal controls over financial
reporting that is sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles as applied in the United States and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(q) Incorporation and Good Standing of the Company and its
Subsidiaries
Each of the Company and its subsidiaries has been duly incorporated
or organized and is validly existing as a corporation, limited
liability company, limited partnership or general partnership and is in
good standing under the laws of the jurisdiction of its incorporation
or organization and has corporate or other power and authority to own,
lease and operate its properties and to conduct its business as
described in the Offering Memorandum and, in the case of each of the
Company and the Guarantors, to enter into and perform its obligations,
as the case may be, under each of this Agreement, the Registration
Rights Agreement, the Letter of Representations, the Securities, the
Exchange Securities, and the Indenture.
Each of the Company and its subsidiaries is duly
qualified to transact business as a foreign corporation, limited
liability company or partnership, as applicable, and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to
so qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock or partnership or other ownership interests
of each subsidiary of the Company has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim except as set
forth in the Offering Memorandum. The Company does not own or control,
directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Schedule C hereto.
(r) Capitalization and Other Capital Stock Matters
At September 30, 2004, on a consolidated basis, after giving pro
forma effect to the issuance and sale of the Securities pursuant hereto
and the application of the net proceeds therefrom, the Company would
have an authorized and outstanding capitalization in each case as set
forth in the Offering Memorandum under the caption "Capitalization"
(other
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7
than for subsequent issuances of capital stock, if any, pursuant to
employee benefit plans described in the Offering Memorandum or upon
exercise of outstanding options described in the Offering Memorandum).
All of the outstanding shares of the Company's Common Stock, $.01 par
value (the "COMMON STOCK") have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the
outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company.
(s) Stock Exchange Listing
The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and is listed on the New York Stock Exchange (the "NYSE"),
and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the NYSE, nor has the
Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(t) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required
Except with respect to claims disclosed in the Offering Memorandum,
neither the Company nor any of its subsidiaries is (i) in violation of
its charter, by-laws or other constitutive document or (ii) is in
default (or, with the giving of notice or lapse of time, would be in
default) ("DEFAULT") under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound (including, without limitation, the
agreements listed in Schedule D), or to which any of the property or
assets of the Company or any of its subsidiaries is subject (each, an
"EXISTING INSTRUMENT"), or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses
(ii) and (iii) above, for any such Default or violation that would not,
individually or in the aggregate, result in a Material Adverse Change.
The Company's and each Guarantor's, as the case may
be, execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the Letter of Representations and the
Indenture, and the issuance and delivery of the Securities or the
Exchange Securities, and consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum (after giving effect
to the application of the net proceeds of the sale of the Notes) (i)
have been duly authorized by all necessary corporate or other action
and will not result in any violation of the provisions of the charter,
by-laws or other constitutive document of the Company or any of its
subsidiaries, (ii) will not conflict with or constitute a breach of, or
Default or a Debt Repayment Triggering Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to,
any Existing Instrument, except (x) for such conflicts, breaches,
Defaults, liens,
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charges or encumbrances as would not, individually or in the aggregate,
result in a Material Adverse Change and (y) that as to conflicts,
breaches, Defaults, Liens, charges or Debt Repayment Triggering Event
with respect to the Credit Agreement, dated as of November 20, 2003,
among Opryland Hotel-Florida Limited Partnership, as borrower, the
Company, as parent guarantor, certain lenders party thereto, and
Deutsche Bank Trust Company Americas, as administrative agent, with
Deutsche Bank Securities Inc. and Banc of America Securities LLC, as
joint book running managers and co-lead arrangers, and Bank of America,
N.A., as syndication agent (the "Credit Agreement"), this
representation will only be deemed to be made as of the Closing Date,
and (iii) assuming the accuracy of the representations, warranties and
covenants of the Initial Purchasers herein, will not result in any
violation of any law, administrative regulation or administrative or
court decree applicable to the Company or any of its subsidiaries.
No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's and each
Guarantor's, as the case may be, execution, delivery and performance of
this Agreement, the Registration Rights Agreement, the Letter of
Representations or the Indenture, or the issuance and delivery of the
Securities or the Exchange Securities, or consummation of the
transactions contemplated hereby and thereby and by the Offering
Memorandum, except such as have been obtained or made by the Company
and are in full force and effect under the Securities Act, applicable
state securities or blue sky laws, except such as may be required by
federal and state securities laws with respect to the Company's and
each Guarantor's obligations under the Registration Rights Agreement.
As used herein, a "DEBT REPAYMENT TRIGGERING EVENT" means any event or
condition which gives, or with the giving of notice or lapse of time
would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.
(u) No Material Actions or Proceedings
Except as otherwise disclosed in the Offering Memorandum, there are
no legal or governmental actions, suits or proceedings pending or, to
the best of the Company's knowledge, threatened (i) against or
affecting the Company or any of its subsidiaries, or (ii) which has as
the subject thereof any property owned or leased by, the Company or any
of its subsidiaries, and which action, suit or proceeding, if
determined adversely to the Company or any of its subsidiaries, as the
case may be, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement.
Except as otherwise disclosed in the Offering
Memorandum, no material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the best of the Company's
knowledge, is threatened or imminent.
(v) Intellectual Property Rights
XXXXXXX - PURCHASE AGREEMENT
9
Except as otherwise disclosed in the Offering Memorandum, the Company
and its subsidiaries own or possess sufficient trademarks, trade names,
patent rights, copyrights, licenses, approvals, trade secrets and other
similar rights (collectively, "INTELLECTUAL PROPERTY RIGHTS")
reasonably necessary to conduct their businesses as now conducted,
except where the failure to own or possess such rights would not
reasonably be expected to result in a Material Adverse Change; and the
expected expiration of any of such Intellectual Property Rights would
not result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received any notice of infringement or conflict
with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision,
would reasonably be expected to result in a Material Adverse Change.
(w) All Necessary Permits, etc
Except as otherwise disclosed in the Offering Memorandum, the Company
and each of its subsidiaries possess such valid and current
certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Change.
(x) Title to Properties
Except as otherwise disclosed in the Offering Memorandum, the Company
and each of its subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial statements
referred to in Section 1(o) above (or elsewhere in the Offering
Memorandum), in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects,
except as disclosed in the Offering Memorandum or such as do not
materially and adversely affect the value of such property and do not
materially interfere with the use made or proposed to be made of such
property by the Company or such subsidiary. The real property,
improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases,
with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the Company
or such subsidiary.
(y) Tax Law Compliance
The Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns or have properly
requested extensions thereof and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them except as may be
being contested in good faith and by appropriate proceedings. The
Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(o) above in
respect of all material federal, state and foreign income and
XXXXXXX - PURCHASE AGREEMENT
10
franchise taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally determined.
(z) Company Not an "Investment Company"
The Company has been advised of the rules and requirements under the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT"). The Company is not, and after receipt of payment for the
Securities and application of the net proceeds therefrom will not be,
an "investment company" within the meaning of the Investment Company
Act.
(aa) Insurance
Except as otherwise disclosed in the Offering Memorandum, the Company
and its subsidiaries are self-insured or are insured by recognized,
financially sound institutions with policies in such amounts and with
such deductibles and covering such risks as are generally deemed
adequate and customary for their businesses including, but not limited
to, policies covering real and personal property owned or leased by the
Company and its subsidiaries against theft, damage, destruction, acts
of vandalism and earthquakes. The Company has no reason to believe that
it or any subsidiary will not be able to (i) renew its existing
insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Change. Neither of the Company
nor any of its subsidiaries has been denied any insurance coverage,
which it has sought or for which it has applied. (bb) No Price
Stabilization or Manipulation. None of the Company, the Guarantors or
any of their affiliates has taken or will take, directly or indirectly,
any action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(bb) No Price Stabilization or Manipulation
None of the Company, the Guarantors or any of their affiliates has
taken or will take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(cc) Solvency
Each of the Company and the Guarantors is, and after giving effect to
the sale of the Notes and the application of the proceeds therefrom,
and the execution of the Guarantees to which each Guarantor is a party,
will be, Solvent. As used herein, the term "SOLVENT" means, with
respect to each of the Company and the Guarantors on a particular date,
that on such date (i) the fair market value of its assets is greater
than the total amount of its liabilities (including contingent
liabilities), (ii) the present fair salable value of its assets is
greater than the amount that will be required to pay its probable
liabilities on its debts as they become absolute and matured, (iii) it
is able to realize upon its assets and pay its debts and other
liabilities, including contingent obligations, as they mature and (iv)
it does not have unreasonably small capital with which to conduct its
business.
(dd) No Unlawful Contributions or Other Payments
XXXXXXX - PURCHASE AGREEMENT
11
Except as otherwise disclosed in the Offering Memorandum, neither the
Company nor any of its subsidiaries nor, to the best of the Company's
knowledge, any employee or agent of the Company or any of its
subsidiaries, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in
violation of any law or of the character necessary to be disclosed in
the Offering Memorandum in order to make the statements therein not
misleading.
(ee) Compliance with Environmental Laws
Except as otherwise disclosed in the Offering Memorandum or as would
not, individually or in the aggregate, result in a Material Adverse
Change: (i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, "MATERIALS OF ENVIRONMENTAL
CONCERN"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Materials of Environmental Concern (collectively, "ENVIRONMENTAL
LAWS"), which violation includes, but is not limited to, noncompliance
with any permits or other governmental authorizations required for the
operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries
received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the
Company or any of its subsidiaries is in violation of any Environmental
Law; (ii) there is no claim, action or cause of action filed with a
court or governmental authority, no investigation with respect to which
the Company has received written notice, and no written notice by any
person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties
arising out of, based on or resulting from the presence, or release
into the environment, of any Material of Environmental Concern at any
location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (collectively, "ENVIRONMENTAL
CLAIMS"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person
or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or
by operation of law; and (iii) to the best of the Company's knowledge,
there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of
any Environmental Law or form the basis of a potential Environmental
Claim against the Company or any of its subsidiaries or against any
person or entity whose liability for any Environmental Claim the
Company or any of its subsidiaries has retained or assumed either
contractually or by operation of law.
(ff) Periodic Review of Costs of Environmental Compliance
XXXXXXX - PURCHASE AGREEMENT
12
In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its
established reserves, the Company has reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, result in a Material Adverse Change, except to the extent
otherwise disclosed in the Offering Memorandum.
(gg) ERISA Compliance
Except as otherwise disclosed in the Offering Memorandum, the Company
and its subsidiaries and any "employee benefit plan" (as defined under
the Employee Retirement Income Security Act of 1974, as amended, and
the regulations and published interpretations thereunder (collectively,
"ERISA")) established or maintained by the Company, its subsidiaries or
its ERISA Affiliates (as defined below) are in compliance in all
material respects with ERISA. "ERISA AFFILIATE" means, with respect to
the Company or any of its subsidiaries, any member of any group of
organizations described in Section 414 of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations
thereunder (the "CODE") of which the Company or any of its subsidiaries
is a member. No "reportable event" (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of its ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of
its ERISA Affiliates, if such "employee benefit plan" were terminated,
would have any "amount of unfunded benefit liabilities" (as defined
under ERISA). Neither the Company, its subsidiaries nor any of its
ERISA Affiliates has incurred or reasonably expects to incur any
material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "employee benefit plan" or (ii)
Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit
plan" established or maintained by the Company, its subsidiaries or any
of its ERISA Affiliates that is intended to be qualified under Section
401 of the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such
qualification.
(hh) Repayment of Existing Indebtedness
The Company and the Guarantors are not aware of any fact that will
prevent the Company from repaying, within 30 business days of the
Closing Date in the manner contemplated in the Offering Memorandum, the
Amended and Restated Loan and Security Agreement, dated as of March 27,
2001, by and between Opryland Hotel Nashville, LLC, and Xxxxxxx Xxxxx
Mortgage Lending, Inc.
(ii) Taxes; Fees
XXXXXXX - PURCHASE AGREEMENT
13
There are no stamp or other issuance or transfer taxes or duties or
other similar fees or charges required to be paid in connection with
the execution and delivery of this Agreement or the issuance or sale of
the Securities.
(jj) Disclosure Controls and Procedures
The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 under the 1934 Act),
which: (i) are designed to ensure that material information relating to
the Company, including its consolidated subsidiaries, is made known to
the Company's principal executive officer and its principal financial
officer by others within those entities, particularly during the
periods in which the periodic reports required under the 1934 Act are
being prepared, (ii) have been evaluated for effectiveness as of the
end of the period covered by the Company's most recent annual or
quarterly report filed with the Commission, and (iii) are effective in
all material respects to perform the functions for which they were
established. Based on the evaluation of the Company's disclosure
controls and procedures described above, the Company is not aware of
(a) any significant deficiency in the design or operation of internal
controls which could adversely affect the Company's ability to record,
process, summarize and report financial data or any material weaknesses
in internal controls or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in
the Company's internal controls. Since the most recent evaluation of
the Company's disclosure controls and procedures described above, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls.
(kk) Regulation S
The Company, the Guarantors and their respective affiliates and all
persons acting on their behalf (other than the Initial Purchasers, as
to whom the Company and the Guarantors make no representation) have
complied with and will comply with the offering restrictions
requirements of Regulation S in connection with the offering of the
Securities outside the United States and, in connection therewith, the
Offering Memorandum will contain the disclosure required by Rule 902 of
the Securities Act. The Company is a "reporting issuer", as defined in
Rule 902 under the Securities Act.
Any certificate signed by an officer of the Company or any
Guarantor and delivered to the Initial Purchasers or to counsel for the Initial
Purchasers pursuant to this Agreement shall be deemed to be a representation and
warranty by the Company or such Guarantor to each Initial Purchaser as to the
matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities
The Company agrees to issue and sell to the several Initial
Purchasers, severally and not jointly, all of the Securities upon the
terms herein set forth. On the basis of the representations, warranties
and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Initial Purchasers listed in Schedule
A agree,
XXXXXXX - PURCHASE AGREEMENT
14
severally and not jointly, to purchase from the Company the aggregate
principal amount of Securities set forth opposite their names in
Schedule A, at a purchase price of 98.5% of the principal amount
thereof payable on the Closing Date.
(b) The Closing Date
Delivery of certificates for the Securities in definitive form to be
purchased by the Initial Purchasers and payment therefor shall be made
at the offices of Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to by the
Company and the Initial Purchasers) at 9:00 a.m. New York City time, on
November 30, 2004, or such other time and date, as the Initial
Purchasers shall designate by notice to the Company (the time and date
of such closing are called the "CLOSING DATE"). The Company hereby
acknowledges that circumstances under which the Initial Purchasers may
provide notice to postpone the Closing Date as originally scheduled
include, but are in no way limited to, any determination by the Company
or the Initial Purchasers to recirculate to investors copies of an
amended or supplemented Offering Memorandum or a delay as contemplated
by the provisions of Section 16.
(c) Delivery of the Securities
The Company shall deliver, or cause to be delivered, to Deutsche Bank
Securities Inc. for the accounts of the several Initial Purchasers
certificates for the Securities at the Closing Date against the
irrevocable release of a wire transfer of immediately available funds
for the aggregate amount of the purchase price therefor to such
accounts as the Company shall have specified in writing not less than
two business days prior to the Closing Date. The certificates for the
Securities shall be in such denominations and registered in the name of
Cede & Co., as nominee of the Depository, pursuant to the Letter of
Representations, and shall be made available for inspection on the
business day preceding the Closing Date at a location in New York City,
as the Initial Purchasers may designate. Time shall be of the essence,
and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers
Not later than 12:00 p.m. on the fourth business day following the
date of this Agreement, the Company shall deliver or cause to be
delivered copies of the Offering Memorandum in such quantities and at
such places as the Initial Purchasers shall reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers
Each Initial Purchaser severally and not jointly represents and
warrants to, and agrees with, the Company that it is a "qualified
institutional buyer" within the meaning of Rule 144A (a "QUALIFIED
INSTITUTIONAL BUYER").
SECTION 3. Additional Covenants
XXXXXXX - PURCHASE AGREEMENT
15
The Company and each Guarantor further covenant and agree with each
Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements
Prior to amending or supplementing the Offering Memorandum, the
Company shall furnish to the Initial Purchasers for review a copy of
each such proposed amendment or supplement, and the Company shall not
use any such proposed amendment or supplement to which the Initial
Purchasers reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and
Other Securities Act Matters
If, prior to the completion of the placement of the Securities by the
Initial Purchasers with the Subsequent Purchasers, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Offering Memorandum in order to make the statements
therein, in the light of the circumstances when the Offering Memorandum
is delivered to a purchaser, not misleading, or if in the opinion of
the Initial Purchasers or counsel for the Initial Purchasers it is
otherwise necessary to amend or supplement the Offering Memorandum to
comply with law, the Company and the Guarantors agree to promptly
prepare (subject to Section 3 hereof), file with the Commission and
furnish at their own expense to the Initial Purchasers, amendments or
supplements to the Offering Memorandum so that the statements in the
Offering Memorandum as so amended or supplemented will not, in the
light of the circumstances when the Offering Memorandum is delivered to
a purchaser, be misleading or so that the Offering Memorandum, as
amended or supplemented, will comply with law.
Following the consummation of the Exchange Offer or
the effectiveness of an applicable shelf registration statement and for
so long as the Securities are outstanding if, in the reasonable
judgment of the Initial Purchasers, the Initial Purchasers or any of
their affiliates (as such term is defined in the rules and regulations
under the Securities Act) are required to deliver a prospectus in
connection with sales of, or market-making activities with respect to,
such securities, to periodically amend the applicable registration
statement so that the information contained therein complies with the
requirements of Section 10 of the Securities Act, to amend the
applicable registration statement or supplement the related prospectus
or the documents incorporated therein when necessary to reflect any
material changes in the information provided therein so that the
registration statement and the prospectus will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances existing as of the date the prospectus is so delivered,
not misleading and to provide the Initial Purchasers with copies of
each amendment or supplement filed and such other documents as the
Initial Purchasers may reasonably request.
The Company and each Guarantor hereby expressly
acknowledge that the indemnification and contribution provisions of
Sections 8 and 9 hereof are specifically applicable and relate to each
offering memorandum, registration statement, prospectus,
XXXXXXX - PURCHASE AGREEMENT
16
amendment or supplement referred to in this Section 3.
(c) Copies of the Offering Memorandum
The Company agrees to furnish the Initial Purchasers, without charge,
as many copies of the Offering Memorandum and any amendments and
supplements thereto as they shall have reasonably requested.
(d) Blue Sky Compliance
The Company and each Guarantor shall cooperate with the Initial
Purchasers and counsel for the Initial Purchasers to qualify or
register the Securities for sale under (or obtain exemptions from the
application of) the Blue Sky or state securities laws of those
jurisdictions designated by the Initial Purchasers, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the
Securities. The Company and each Guarantor shall not be required to
qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where
it is not presently qualified or where it would be subject to taxation
as a foreign corporation. The Company and each Guarantor will advise
the Initial Purchasers promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Securities
for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or
exemption, the Company and the Guarantors shall use their best efforts
to obtain the withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds
The Company shall apply the net proceeds from the sale of the
Securities sold by it in the manner described under the caption "Use of
Proceeds" in the Offering Memorandum.
(f) DTC
The Company and each Guarantor will cooperate with the Initial
Purchasers and use their best efforts to permit the Securities to be
eligible for clearance and settlement through the facilities of DTC.
(g) Additional Issuer Information
Prior to the completion of the placement of the Securities by the
Initial Purchasers with the Subsequent Purchasers, the Company shall
file, on a timely basis, with the Commission and the New York Stock
Exchange all reports and documents required to be filed under Section
13 or 15 of the Exchange Act. Additionally, at any time when the
Company is not subject to Section 13 or 15 of the Exchange Act, for the
benefit of holders and beneficial owners from time to time of
Securities, the Company shall furnish, at its expense, upon request, to
holders and beneficial owners of Securities and prospective purchasers
of Securities information ("ADDITIONAL ISSUER INFORMATION") satisfying
the requirements of subsection (d)(4) of Rule 144A.
XXXXXXX - PURCHASE AGREEMENT
17
(h) Future Reports to the Initial Purchasers
At any time when the Company is not subject to Section 13 or 15 of
the Exchange Act, for so long as any Securities or Exchange Securities
remain outstanding, the Company will furnish to Deutsche Bank
Securities Inc. (i) as soon as practicable after the end of each fiscal
year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements
of income, stockholders' equity and cash flows for the year then ended
and the opinion thereon of the Company's independent public or
certified public accountants; (ii) as soon as practicable after the
filing thereof, copies of each proxy statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or
other report filed by the Company with the Commission, the NASD or any
securities exchange; and (iii) as soon as available, copies of any
report or communication of the Company mailed generally to holders of
its capital stock or debt securities (including the holders of the
Securities).
(i) No Integration
The Company and each Guarantor agree that they will not and will
cause their Affiliates not to make any offer or sale of securities of
the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the Securities Act, such
offer or sale would render invalid (for the purpose of (i) the sale of
the Securities by the Company to the Initial Purchasers, (ii) the
resale of the Securities by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration requirements
of the Securities Act provided by Section 4 thereof or by Rule 144A or
Regulation S thereunder or otherwise.
(j) Legended Securities
Each certificate for a Note will bear the legend contained in "Notice
to Investors" in the Offering Memorandum for the time period and upon
the other terms stated in the Offering Memorandum.
(k) PORTAL
The Company will use its best efforts to cause such Notes to be
eligible for the National Association of Securities Dealers, Inc.
PORTAL market (the "PORTAL MARKET").
(l) Rating of Securities
The Company and each Guarantor shall take all reasonable actions
necessary to enable Standard & Poor's Ratings Services, a division of
The McGraw Hill, Inc. Companies ("S&P"), and Xxxxx'x Investors Service,
Inc. ("MOODY'S") to provide their respective credit ratings to the
Securities.
(m) Future Agreement Not to Offer or Sell Additional Securities
XXXXXXX - PURCHASE AGREEMENT
18
During the period of 180 days following the date of the Offering
Memorandum, none of the Company or any Guarantor will, without the
prior written consent of Deutsche Bank Securities Inc. (which consent
may be withheld at the sole discretion of Deutsche Bank Securities
Inc.), directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open "put equivalent
position" within the meaning of Rule 16a-1 under the Exchange Act, or
otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Securities Act in respect of, any
debt securities of the Company or any Guarantor substantially similar
to the Securities or securities exchangeable for or convertible into
debt securities of the Company or any Guarantor substantially similar
to the Securities (other than as contemplated by this Agreement and to
register the Exchange Securities).
SECTION 4. Payment of Expenses
The Company and each Guarantor agree to pay all costs, fees and expenses
incurred in connection with the performance of their obligations hereunder and
in connection with the transactions contemplated hereby, including without
limitation (i) all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale
of the Securities to the Initial Purchasers, (iii) all fees and expenses of the
Company's and the Guarantors' counsel, independent public or certified public
accountants and other advisors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
the Offering Memorandum (including financial statements and exhibits), and all
amendments and supplements thereto, this Agreement, the Registration Rights
Agreement, the Indenture, the Letter of Representations, and the Notes and the
Guarantees, all filing fees, attorneys' fees and expenses incurred by the
Company, the Guarantors or the Initial Purchasers in connection with qualifying
or registering (or obtaining exemptions from the qualification or registration
of) all or any part of the Securities for offer and sale under the Blue Sky laws
and, if requested by the Initial Purchasers, preparing and printing a "Blue Sky
Survey" or memorandum, and any supplements thereto, advising the Initial
Purchasers of such qualifications, registrations and exemptions, (v) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for
the Trustee in connection with the Indenture, the Securities and the Exchange
Securities, (vi) any fees payable in connection with the rating of the
Securities or the Exchange Securities with the ratings agencies and the listing
of the Securities with the PORTAL market, (vii) any filing fees incident to, and
any reasonable fees and disbursements of counsel to the Initial Purchasers in
connection with the review by the National Association of Securities Dealers,
Inc., if any, of the terms of the sale of the Securities or the Exchange
Securities, and (viii) all fees and expenses (including reasonable fees and
expenses of counsel) of the Company and the Guarantors in connection with the
approval of the Securities by DTC for "book-entry" transfer, and the performance
by the Company and the Guarantors of their respective other obligations under
this Agreement. Except as provided in this Section 4, Section 6, Section 8 and
Section 9 hereof, the Initial Purchasers shall pay their own expenses, including
the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers
XXXXXXX - PURCHASE AGREEMENT
19
The obligations of the several Initial Purchasers to purchase and pay for the
Securities as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of the Company set
forth in Section 1 hereof as of the date hereof and as of the Closing Date as
though then made and to the timely performance by the Company of its covenants
and other obligations hereunder, and to each of the following additional
conditions:
(a) Accountants' Comfort Letter
The Initial Purchasers shall have received from Ernst & Young LLP,
independent public or certified public accountants for the Company, a
letter dated the date hereof addressed to the Initial Purchasers, in
form and substance satisfactory to the Initial Purchasers, containing
statements and information of the type ordinarily included in
accountant's "comfort letters" to Initial Purchasers, delivered
according to Statement of Auditing Standards Nos. 100, 72 and 76 (or
any successor bulletins), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change
For the period from and after the date of this Agreement and prior to
the Closing Date:
(i) in the reasonable judgment of the Initial Purchasers
there shall not have occurred any Material Adverse
Change; and
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or of any review for a possible
change that does not indicate the direction of the
possible change, in the rating accorded any
securities of the Company or any of its subsidiaries
by any "nationally recognized statistical rating
organization" as such term is defined for purposes of
Rule 436 under the Securities Act.
(c) Opinions of Counsel for the Company and Guarantors
On the Closing Date the Initial Purchasers shall have received (i)
the favorable opinion of Xxxx Xxxxx & Xxxx PLC, counsel for the
Company, dated as of such Closing Date, the form of which is attached
as Exhibit A, (ii) the favorable opinion of LeBoeuf, Lamb, Xxxxxx &
XxxXxx, L.L.P., special New York law counsel to the Company, dated as
of such Closing Date, substantially in the form attached as Exhibit C
and (ii) the favorable opinion of each counsel listed in Schedule B,
dated as of such Closing Date, substantially in the form attached as
Exhibit B.
(d) Opinion of Counsel for the Initial Purchasers
On the Closing Date the Initial Purchasers shall have received the
favorable opinion of Xxxxxxxx & Sterling LLP, counsel for the Initial
Purchasers, dated as of such Closing Date, with respect to such matters
as may be reasonably requested by the Initial Purchasers.
XXXXXXX - PURCHASE AGREEMENT
20
(e) Officers' Certificates
On the Closing Date the Initial Purchasers shall have received a
written certificate executed by the Chairman of the Board, Chief
Executive Officer or President of the Company and each of the
Guarantors and the Chief Financial Officer or Chief Accounting Officer
of the Company and each of the Guarantors, dated as of the Closing
Date, to the effect set forth in subsection (b)(ii) of this Section 5,
and further to the effect that:
(i) for the period from and after the date of this Agreement and
prior to the Closing Date there has not occurred any Material
Adverse Change;
(ii) the representations, warranties and covenants of the Company
and the Guarantors set forth in Section 1 of this Agreement
are true and correct with the same force and effect as though
expressly made on and as of the Closing Date; and
(iii) the Company and each Guarantor has complied with all the
agreements and satisfied all the conditions on its respective
part to be performed or satisfied at or prior to the Closing
Date.
(f) Bring-down Comfort Letters
On the Closing Date, the Initial Purchasers shall have received from
Ernst & Young LLP, independent public or certified public accountants
for the Company, a letter dated such date, in form and substance
satisfactory to the Initial Purchasers, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant
to subsection (a) of this Section 5, except that the specified date
referred to therein for the carrying out of procedures shall be no more
than three business days prior to the Closing Date.
(g) PORTAL Listing
At the Closing Date, the Notes shall have been designated for trading
on the PORTAL market.
(h) Registration Rights Agreement
The Company and each Guarantor shall have entered into the
Registration Rights Agreement and the Initial Purchasers shall have
received executed counterparts thereof.
(i) Credit Agreement
On or before the Closing Date, either (i) the Credit Agreement shall
have been amended to allow for the issuance of the Securities and such
amendment shall be in full force and effect or (ii) the Company shall
have received the necessary consents of the lenders party to the Credit
Agreement to allow for the issuance of the Securities.
(j) Additional Documents
XXXXXXX - PURCHASE AGREEMENT
21
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such information, documents
and opinions as they may reasonably require for the purposes of
enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the
conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time on or prior to the
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers' Expenses
If this Agreement is terminated by the Initial Purchasers pursuant to
Section 5 or Section 10, or if the sale to the Initial Purchasers of the
Securities on the Closing Date is not consummated because of any refusal,
inability or failure on the part of the Company or any Guarantor to perform any
agreement herein or to comply with any provision hereof, the Company and each
Guarantor agree to reimburse the Initial Purchasers (or such Initial Purchasers
as have terminated this Agreement with respect to themselves), severally, upon
demand for all out-of-pocket expenses that shall have been reasonably incurred
by the Initial Purchasers in connection with the proposed purchase and the
offering and sale of the Securities, including but not limited to fees and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges. Notwithstanding the foregoing, if this Agreement is
terminated pursuant to Section 16 hereof, the Company and the Guarantors shall
not be obligated to reimburse any defaulting Initial Purchaser on account of
such expenses.
SECTION 7. Offer, Sale and Resale Procedures
Each of the Initial Purchasers, on the one hand, and the Company and each of
the Guarantors, on the other hand, hereby establish and agree to observe the
following procedures in connection with the offer and sale of the Securities:
(a) Offers and sales of the Securities will be made only by
the Initial Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer
or sale shall only be made to (A) persons whom the offeror or seller
reasonably believes to be qualified institutional buyers (as defined in
Rule 144A under the Securities Act), or (B) non-U.S. persons outside
the United States to whom the offeror or seller reasonably believes
offers and sales of Securities may be made in reliance upon Regulation
S under the Securities Act, upon the terms and conditions set forth in
Annex I hereto, which Annex I is hereby expressly made a part hereof.
(b) The Securities will be offered by approaching prospective
Subsequent Purchasers on an individual basis. No general solicitation
or general advertising (within the meaning of Rule 502 under the
Securities Act) will be used in the United States in connection with
the offering of the Securities.
XXXXXXX - PURCHASE AGREEMENT
22
(c) Upon original issuance by the Company, and until such time
as the same is no longer required under the applicable requirements of
the Securities Act, the Securities (and all securities issued in
exchange therefor or in substitution thereof, other than the Exchange
Securities) shall bear the legend set forth in the Offering Memorandum
under the caption "Notice to Investors". Following the sale of the
Securities by the Initial Purchasers to Subsequent Purchasers pursuant
to the terms hereof, the Initial Purchasers shall not be liable or
responsible to the Company for any losses, damages or liabilities
suffered or incurred by the Company, including any losses, damages or
liabilities under the Securities Act, arising from or relating to any
resale or transfer of any Security.
SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchasers
Each of the Company and the Guarantors agrees to indemnify and hold
harmless each Initial Purchaser, its directors, officers and employees,
and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act and the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which such Initial
Purchaser or such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of the Company), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the Offering
Memorandum (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and to reimburse each Initial
Purchaser and each such controlling person for any and all expenses
(including the fees and disbursements of counsel chosen by Deutsche
Bank Securities Inc.) as such expenses are reasonably incurred by such
Initial Purchaser or such controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by
the Initial Purchasers expressly for use in the Offering Memorandum (or
any amendment or supplement thereto). The indemnity agreement set forth
in this Section 8(a) shall be in addition to any liabilities that the
Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers
Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company and each of its directors,
officers and employees and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act,
against any loss, claim, damage, liability or expense, as incurred, to
which the Company or any such director, officer or controlling person
may become subject, under the
XXXXXXX - PURCHASE AGREEMENT
23
Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of such Initial Purchaser), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or
alleged untrue statement of a material fact contained in the Offering
Memorandum (or any amendment or supplement thereto), or arises out of
or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Offering Memorandum (or
any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the
Initial Purchasers expressly for use therein; and to reimburse the
Company, or any such director, officer or controlling person for any
legal and other expenses reasonably incurred by the Company, or any
such director, officer or controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action. The Company hereby
acknowledges that the only information that the Initial Purchasers have
furnished to the Company expressly for use in the Offering Memorandum
(or any amendment or supplement thereto) are the statements set forth
in the first and second sentences of the fifth paragraph, the sixth
paragraph and the tenth paragraph, each under the caption "Plan of
Distribution" in the Offering Memorandum; and the Initial Purchasers
confirm that such statements are correct. The indemnity agreement set
forth in this Section 8(b) shall be in addition to any liabilities that
each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures
Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party for contribution or otherwise than
under the indemnity agreement contained in this Section 8 or to the
extent it is not prejudiced as a proximate result of such failure. In
case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between
the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel reasonably
XXXXXXX - PURCHASE AGREEMENT
24
satisfactory to the indemnifying party to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval
by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to
the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (together with local counsel), approved by the
indemnifying party (Deutsche Bank Securities Inc. in the case of
Section 8 and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice
of commencement of the action, in each of which cases the fees and
expenses of counsel reasonably incurred shall be at the expense of the
indemnifying party.
(d) Settlements
The indemnifying party under this Section 8 shall not be liable for
any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8 hereof, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent (i) if such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by
such indemnified party, unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
SECTION 9. Contribution
If the indemnification provided for in Section 8 is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result of any
XXXXXXX - PURCHASE AGREEMENT
25
losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company,
and the total discount received by the Initial Purchasers bear to the aggregate
initial offering price of the Securities. The relative fault of the Company, on
the one hand, and the Initial Purchasers, on the other hand, shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, on the one hand, or the
Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8 with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8 for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the discount
received by such Initial Purchaser in connection with the Securities distributed
by it. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11 of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 9 are several,
and not joint, in proportion to their respective commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any,
who controls an Initial Purchaser within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director or officer of
GAYLORD - PURCHASE AGREEMENT
26
the Company, and each person, if any, who controls the Company with the meaning
of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
SECTION 10. Termination of this Agreement
Prior to the Closing Date, this Agreement may be terminated by the Initial
Purchasers by notice given to the Company if at any time (i) trading or
quotation in the Company's securities shall have been suspended or limited by
the Commission or by the New York Stock Exchange, or trading in securities
generally on either the Nasdaq Stock Market or the New York Stock Exchange shall
have been suspended or limited, or minimum or maximum prices shall have been
generally established on any of such stock exchanges by the Commission or the
NASD; (ii) a general banking moratorium shall have been declared by any of
federal, New York, Delaware or Tennessee authorities; (iii) there shall have
occurred any outbreak or escalation of national or international hostilities or
any crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a
prospective substantial change in United States' or international political,
financial or economic conditions, as in the judgment of the Initial Purchasers
is material and adverse and makes it impracticable to market the Securities in
the manner and on the terms described in the Offering Memorandum or to enforce
contracts for the sale of securities; (iv) in the judgment of the Initial
Purchasers there shall have occurred any Material Adverse Change; or (v) the
Company shall have sustained a loss by strike, fire, flood, earthquake, accident
or other calamity of such character as in the judgment of the Initial Purchasers
may interfere materially with the conduct of the business and operations of the
Company regardless of whether or not such loss shall have been insured. Any
termination pursuant to this Section 10 shall be without liability on the part
of (a) the Company to any Initial Purchaser, except that the Company shall be
obligated to reimburse the expenses of the Initial Purchasers pursuant to
Sections 4 and 6 hereof, (b) any Initial Purchaser to the Company, or (c) of any
party hereto to any other party except that the provisions of Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery
The respective indemnities, agreements, representations, warranties and other
statements of the Company and each Guarantor, of their respective officers and
of the several Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Initial Purchaser, the Company, any Guarantor or any
of its or their partners, officers or directors or any controlling person, as
the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement.
SECTION 12. Notices
All communications hereunder shall be in writing and shall be mailed, hand
delivered, telecopied or emailed and confirmed to the parties hereto as follows:
GAYLORD - PURCHASE AGREEMENT
27
If to the Initial Purchasers:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Company or the Guarantors:
Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxx, Esq.
with a copy to:
Xxxx Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: X. Xxxxxxxx Xxxxxx, Xx., Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 13. Successors
This Agreement will inure to the benefit of and be binding upon the parties
hereto and to the benefit of the indemnified persons referred to in Section 8
and Section 9, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Securities as such from any of the Initial
Purchasers merely by reason of such purchase.
GAYLORD - PURCHASE AGREEMENT
28
SECTION 14. Partial Unenforceability
The invalidity or unenforceability of any Section, paragraph or provision of
this Agreement shall not affect the validity or enforceability of any other
Section, paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
SECTION 15. Governing Law Provisions
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE.
(a) Consent to Jurisdiction
Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby ("RELATED
PROCEEDINGS") may be instituted in the federal courts of the United
States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and
County of New York (collectively, the "SPECIFIED COURTS"), and each
party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding (except for proceedings
instituted in regard to the enforcement of a judgment of any such court
(a "RELATED JUDGMENT"), as to which such jurisdiction is
non-exclusive). Service of any process, summons, notice or document by
mail to such party's address set forth above shall be effective service
of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection
to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such suit, action or
other proceeding brought in any such court has been brought in an
inconvenient forum.
SECTION 16. Default of One or More of the Several Initial Purchasers
If any one or more of the several Initial Purchasers listed in Table 1 to
Schedule A shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on the Closing Date, and the aggregate number of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase does not exceed 10% of the aggregate number of
the Securities to be purchased on such date, then the other Initial Purchasers
listed in Table 1 of Schedule A shall be obligated, severally, in the
proportions that the number of Securities set forth opposite their respective
names in Table 1 of Schedule A bears to the aggregate number of Securities set
forth opposite the names of all such non-defaulting Initial Purchasers in such
Table 1, or in such other proportions as may be specified by the Initial
Purchasers with the consent of the non-defaulting Initial Purchasers, to
purchase the Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on such date. If any of
Initial Purchasers listed in Table 2 to Schedule A shall fail or refuse to
purchase Securities that it has agreed to purchase hereunder on the Closing
Date, and
GAYLORD - PURCHASE AGREEMENT
29
the aggregate number of Securities which such defaulting Initial Purchaser
agreed but failed or refused to purchase does not exceed 10% of the aggregate
number of the Securities to be purchased on such date, then the non-defaulting
Initial Purchaser listed in Table 2 of Schedule A shall be obligated to purchase
the Securities which such defaulting Initial Purchaser agreed but failed or
refused to purchase on such date. If any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities and the aggregate number of
Securities with respect to which such default occurs exceeds 10% of the
aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the non-defaulting Initial Purchasers and the
Company for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to
any other party except that the provisions of Section 4, Section 8 and Section 9
shall at all times be effective and shall survive such termination. In any such
case either the Initial Purchasers or the Company shall have the right to
postpone the Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Offering
Memorandum or any other documents or arrangements may be effected.
As used in this Agreement, the term "INITIAL PURCHASER" shall
be deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 16. Any action taken under this Section 16 shall not relieve
any defaulting Initial Purchaser from liability in respect of any default of
such Initial Purchaser under this Agreement.
SECTION 17. General Provisions
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom
the condition is meant to benefit.
SECTION 18. Tax Disclosure
Notwithstanding anything to the contrary contained herein, each of the Initial
Purchasers, the Company and the Guarantors shall be permitted to disclose the
tax treatment and tax structure of any transaction contemplated by this
Agreement or the Offering Memorandum (including any materials, opinions or
analyses relating to such tax treatment or tax structure, but without disclosure
of identifying information or, except to the extent relating to such tax
structure or tax treatment, any nonpublic commercial or financial information);
provided, however, that if such transaction is not consummated for any reason,
the provisions of this sentence shall cease to apply with respect to such
transaction.
[SIGNATURE PAGE FOLLOWS]
GAYLORD - PURCHASE AGREEMENT
30
If the foregoing is in accordance with your understanding of
our agreement kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
XXXXXXX ENTERTAINMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUBSIDIARY GUARANTORS:
CCK HOLDINGS, LLC
CORPORATE MAGIC, INC.
XXXXXXX CREATIVE GROUP, INC.
XXXXXXX HOTELS, LLC
GAYLORD INVESTMENTS, INC.
XXXXXXX NATIONAL, LLC
XXXXXXX PROGRAM SERVICES, INC.
XXXXX XXX XXXX TOURS, INC.
OLH HOLDINGS, LLC
OPRYLAND ATTRACTIONS, INC.
OPRYLAND HOSPITALITY, LLC
OPRYLAND PRODUCTIONS INC.
OPRYLAND THEATRICALS INC.
WILDHORSE SALOON ENTERTAINMENT
VENTURES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
GAYLORD - PURCHASE AGREEMENT
OLH, G.P.
By: Xxxxxxx Entertainment Company, a
general partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
OPRYLAND HOTEL-FLORIDA LIMITED PARTNERSHIP
By: Opryland Hospitality, LLC, its
general partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OPRYLAND HOTEL-TEXAS LIMITED PARTNERSHIP
By: Opryland Hospitality, LLC, its
general partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OPRYLAND HOTEL-TEXAS, LLC
By: Xxxxxxx Hotels, LLC, its Sole Member
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
RESORTQUEST INTERNATIONAL, INC.
XXXXXX & XXXXXXX REALTY, LLC
XXXXXX REALTY SERVICES, INC.
GAYLORD - PURCHASE AGREEMENT
XXXXXX RESORTS, LLC
ACCOMMODATIONS CENTER, INC.
ADVANTAGE VACATION HOMES BY STYLES, LLC
B&B ON THE BEACH, INC.
BASE MOUNTAIN PROPERTIES, INC.
BLUEBILL PROPERTIES, LLC
XXXXXXXX & XXXXXXXX REALTY & DEVELOPMENT, INC.
COASTAL REAL ESTATE SALES, LLC
COASTAL RESORTS MANAGEMENT, INC.
COASTAL RESORTS REALTY, LLC
XXXXXX, XXXX & XXXXXXX, INC.
COLLECTION OF FINE PROPERTIES, INC.
COLUMBINE MANAGEMENT COMPANY
COVE MANAGEMENT SERVICES, INC.
CRW PROPERTY MANAGEMENT, INC.
EXCLUSIVE VACATION PROPERTIES, INC.
FIRST RESORT SOFTWARE, INC.
HIGH COUNTRY RESORTS, INC.
HOUSTON AND X'XXXXX COMPANY
K-T-F ACQUISITION CO.
XXXX CONDOMINIUM AND HOME REALTY, INC.
MOUNTAIN VALLEY PROPERTIES, INC.
PEAK SKI RENTALS, LLC
PLANTATION RESORT MANAGEMENT, INC.
XXXXXXXXX XXXXXX REALTY, LLC
R&R RESORT RENTAL PROPERTIES, INC.
REALTY REFERRAL CONSULTANTS, LLC
REP HOLDINGS, LTD.
RESORT PROPERTY MANAGEMENT, INC.
RESORTQUEST HAWAII, LLC
RESORTQUEST HILTON HEAD, INC.,
RESORTQUEST SOUTHWEST FLORIDA, LLC
RESORT RENTAL VACATIONS, LLC
RIDGEPINE, INC.
XXXX'X GOLDEN EAGLE MANAGEMENT, INC.
SCOTTSDALE RESORT ACCOMMODATIONS, INC.
STEAMBOAT PREMIER PROPERTIES, INC.
STYLES ESTATES, LLC
GAYLORD - PURCHASE AGREEMENT
TELLURIDE RESORT ACCOMMODATIONS, INC.
TEN MILE HOLDINGS, LTD.
THE MANAGEMENT COMPANY
THE MAURY PEOPLE, INC.
THE TOPS'L GROUP, INC.
TOPS'L CLUB OF NW FLORIDA, LLC
XXXXX-XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OFFICE AND STORAGE LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Manager
RQI HOLDINGS, LTD.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Executive Vice President
GAYLORD - PURCHASE AGREEMENT
The foregoing Purchase Agreement is hereby confirmed and
accepted by the Initial Purchasers as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS, INC.
CIBC WORLD MARKETS CORP.
By: Deutsche Bank Securities Inc.
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
GAYLORD - PURCHASE AGREEMENT
SCHEDULE A
List of Initial Purchasers
Initial Purchasers Aggregate Principal Amount of Securities to be Purchased
------------------ --------------------------------------------------------
Deutsche Bank Securities Inc. ......................... $ 84,375,000
Banc of America Securities LLC......................... 84,375,000
Citigroup Global Markets Inc. ......................... 28,125,000
CIBC World Markets Corp. .............................. 28,125,000
Total......................................... $ 225,000,000
SCHEDULE A-1
GAYLORD - PURCHASE AGREEMENT
SCHEDULE B
List of Guarantors
See attached.
SCHEDULE C
LIST OF THE COMPANY'S SUBSIDIARIES
The following are 100% owned subsidiaries that are guarantors or borrowers under
our revolving credit facility or the Company's 8% senior secured notes due 2013.
1. Xxxxxxx National, LLC
2. Xxxxxxx Program Services, Inc.
3. Xxxxx Xxx Xxxx Tours, Inc.
4. Wildhorse Saloon Entertainment Ventures, Inc.
5. Gaylord Investments, Inc.
6. OLH Holdings, LLC 7. OLH, G.P.
8. Opryland Hotel-Florida Limited Partnership 9. Xxxxxxx Hotels, LLC
10. Opryland Hospitality, LLC
11. Opryland Hotel-Texas, LLC
12. Opryland Hotel-Texas Limited Partnership
13. Opryland Productions, Inc.
14. Opryland Theatricals, Inc.
15. Corporate Magic, Inc.
16. Opryland Attractions, Inc.
17. Gaylord Creative Group, Inc.
18. CCK Holdings, LLC
19. ResortQuest International, Inc.
20. Xxxxxx and Xxxxxxx Realty, LLC
21. Xxxxxx Realty Services, Inc.
22. Xxxxxx Resorts, LLC
23. Accommodations Center, Inc.
24. Advantage Vacation Homes By Styles, LLC
25. B & B on the Beach, Inc.
26. Base Mountain Properties, Inc.
27. Bluebill Properties, LLC
28. Xxxxxxxx & Xxxxxxxx Realty & Development, Inc.
29. Coastal Real Estate Sales, LLC
30. Coastal Resorts Management, Inc.
31. Coastal Resorts Realty, LLC
32. Xxxxxx, Xxxx & Xxxxxxx, Inc.
33. Collection of Fine Properties, Inc.
34. CRW Property Management, Inc.
35. Columbine Management Company
36. Cove Management Services, Inc.
37. Exclusive Vacation Properties, Inc.
38. First Resort Software, Inc.
39. High Country Resorts, Inc.
40. Houston & X'Xxxxx Company
SCHEDULE C-1
GAYLORD - PURCHASE AGREEMENT
41. K-T-F Acquisition Co.
42. Maui Condominium & Home Realty, Inc.
43. Mountain Valley Properties, Inc.
44. Office and Storage, LLC
45. Peak Ski Rentals, LLC
46. Plantation Resort Management, Inc.
47. Xxxxxxxxx Xxxxxx Realty, LLC
48. R & R Resort Rental Properties, Inc.
49. Realty Referral Consultants, LLC
50. REP Holdings, Ltd.
51. Resort Property Management, Inc.
52. ResortQuest Hawaii, LLC
53. ResortQuest Hilton Head, Inc.
54. ResortQuest Southwest Florida, LLC
55. Resort Rental Vacations, LLC
56. RQI Holdings, Ltd.
57. Ridgepine, Inc.
58. Xxxx'x Golden Eagle Management, Inc.
59. Scottsdale Resort Accommodations, Inc.
60. Steamboat Premier Properties, Inc.
61. Styles Estates, LLC
62. Telluride Resort Accommodations
63. Ten Mile Holdings, Ltd.
64. THE Management Company, Inc.
65. The Maury People, Inc.
66. Tops'1 Club of NW Florida, LLC
67. The Tops'1 Group, Inc.
68. Xxxxx-Xxxxxxx Enterprises, Inc.
The Company also owns majority interests in the following companies that are not
guarantors:
1. Country Music Television International, Inc.
2. Xxxxx-Xxxx Music, LLC
3. Xxxxx-Xxxx Music Publishing, LLC
4. Milene Music, LLC
5. Hickory Music, LLC
6. Springhouse Music, LLC
7. Xxxxxxx Digital, LLC
8. OHN Holdings Management, Inc.
9. OHN Management, Inc.
10. OHN Finance, LLC
11. OHN Holdings, LLC
12. OHN Finance Management, Inc.
13. Opryland Hotel Nashville, LLC (borrower under our Nashville Hotel Loan)
14. Word Entertainment (Canada), Inc.
15. ResortQuest Whistler Property Management, Inc.
SCHEDULE C-2
GAYLORD - PURCHASE AGREEMENT
16. Whistler Chalets Holding Corp.
17. Whistler Exclusive Property Management, Ltd.
The following is a list of companies for which the Company owns a minority
interest:
1. Bass Pro, Inc.
2. Flying Rhinoceros Holdings, Inc.
3. Nashville Hockey Club, LP
4. Promotional Broadcast Network, Inc.
5. Sound Track Channel, LLC
The Company owns certain minority interests in other entities that it acquired
as a result of its acquisition of ResortQuest International, Inc. These entities
are listed on Schedule 2.1(c) to that certain Agreement and Plan of Merger among
the Company, GET Merger Sub, Inc. and ResortQuest International, Inc. dated
August 4, 2003.
SCHEDULE C-3
GAYLORD - PURCHASE AGREEMENT
SCHEDULE D
List of Debt Instruments
1. Indenture, dated as of November 12, 2003, by and between the Company,
certain of its subsidiaries and U.S. Bank National Association, as
Trustee.
2. First Supplemental Indenture, dated as of November 20, 2003, by and
between the Company, certain of its subsidiaries and U.S. Bank National
Association, as Trustee.
3. Amended and Restated Loan and Security Agreement dated as of March 27,
2001, by and between Opryland Hotel Nashville, LLC, and Xxxxxxx Xxxxx
Mortgage Lending, Inc.
4. Credit Agreement, dated as of November 20, 2003, among Opryland
Hotel-Florida Limited Partnership, as borrower, the Company, as parent
guarantor, certain lenders party thereto, and Deutsche Bank Trust
Company Americas, as administrative agent, with Deutsche Bank
Securities Inc. and Banc of America Securities LLC, as joint book
running managers and co-lead arrangers, and Bank of America, N.A., as
syndication agent.
5. First Amendment to Credit Agreement and Ratification of Guaranty, dated
as of December 17, 2003, among Opryland Hotel-Florida Limited
Partnership, as borrower, the Company, as parent guarantor, certain
lenders party thereto, Deutsche Bank Trust Company Americas, as
administrative agent, and the certain subsidiary guarantors.
6. Opryland Hotel-Florida Ground Lease, dated as of March 3, 1999, by and
between Xentury City Development Company, L.L.C., and Opryland
Hotel-Florida Limited Partnership, as amended on October 4, 2001 and
May 20, 2003.
SCHEDULE D-1
GAYLORD - PURCHASE AGREEMENT
EXHIBIT A
FORM OF OPINION OF XXXX XXXXX & XXXX PLC
We have acted as counsel to Xxxxxxx Entertainment Company, a Delaware
corporation (the "Company") and the guarantors listed in Annex 1 attached hereto
(the "Tennessee and Delaware Guarantors"), in connection with the offering (the
"Offering") of $225,000,000 aggregate principal amount of the 6.75% Senior Notes
due 2014 (the "Notes") of the Company as described in the Offering Memorandum of
the Company, dated November 17, 2004 (the "Offering Memorandum"), and pursuant
to the terms of the Purchase Agreement dated November 17, 2004 among the
Company, the Guarantors party thereto and you (the "Purchase Agreement"). This
letter is provided pursuant to Section 5(c) of the Purchase Agreement. The terms
used in this opinion letter that are defined in the Purchase Agreement shall
have the same definitions as set forth therein, unless otherwise defined herein.
In connection with this opinion letter, we have examined the Offering
Memorandum, executed copies of the Purchase Agreement, the Indenture, the Notes,
the Guarantees, the Registration Rights Agreement, and the Letter of
Representations to be delivered on the date hereof (collectively, the
"Agreements"). We have also reviewed such corporate documents and records of the
Company and its subsidiaries, such certificates of public officials and such
other matters as we have deemed necessary or appropriate for purposes of this
opinion letter. As to various issues of fact, we have relied upon the
representations and warranties of the Company contained in the Purchase
Agreement and upon statements and certificates of officers of the Company and
certain of its subsidiaries without independent verification or investigation.
For purposes of the opinions on the good standing of the Company and its
subsidiaries, we have relied solely upon good standing certificates of recent
dates and a bring-down good standing letter from a commercial filing service
dated November __, 2004, confirming receipt of oral confirmation of good
standing as of such date.
We have assumed regarding agreements executed by parties other than the
Company and its subsidiaries that such agreements are, if applicable, the valid
and binding obligations of and enforceable against such parties. We have also
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures, the conformity to authentic original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the legal capacity of all natural persons. For purposes of this opinion, we
express no view as to the antifraud provisions of federal or state securities
laws except to the extent specified in the paragraph following numbered
Paragraph 20 of this letter.
The law covered by the opinions expressed herein is limited to the
federal law of the United States, the law of the State of Tennessee, the
Delaware General Corporation Law ("DGCL"), the Delaware Limited Liability
Company Act and the Delaware Revised Uniform Limited Partnership Act, and we are
not admitted to practice in the state of New York.
Based on the foregoing, and subject to the assumptions, limitations and
qualifications as set forth herein, we are of the opinion that:
EXHIBIT A-1
GAYLORD - PURCHASE AGREEMENT
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. Each of the Gaylord Tennessee and Delaware Guarantors (as defined on
Annex I) (other than OLH GP and Opryland Hotel-Texas Limited
Partnership) has been duly incorporated, formed or organized and is
validly existing as a corporation, limited liability company or other
organization in good standing under the laws of the State of Tennessee
or the State of Delaware, as applicable. Opryland Hotel - Texas Limited
Partnership is a limited partnership validly existing under the laws of
the State of Delaware. OLH GP is a general partnership validly existing
under the laws of the State of Tennessee. Each of the RZT Tennessee and
Delaware Guarantors (as defined on Annex I) is validly existing as a
corporation, limited liability company or other organization in good
standing under the laws of the State of Tennessee or the State of
Delaware, as applicable.
3. The Company and each of the Tennessee and Delaware Guarantors has
corporate, limited liability or other organization power and authority
under the laws of its state of organization to own, lease and operate
its properties and to conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under the
Agreements to which it is a party.
4. Each of the Tennessee and Delaware Guarantors is in good standing under
the laws of its respective jurisdictions of incorporation or formation.
The Company and each of the Tennessee and Delaware Guarantors are duly
qualified to do business and are in good standing as foreign
corporations, limited liability companies or limited partnerships in
the jurisdiction listed beside their names on Annex 1.
5. The Purchase Agreement has been duly authorized, executed and delivered
by the Company and the Tennessee and Delaware Guarantors (in the case
of Opryland Hospitality, LLC, such authorization being for itself and
in its capacity as general partner of Opryland Hotel-Florida Limited
Partnership, a Florida limited partnership).
6. The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and the Tennessee and Delaware Guarantors
(in the case of Opryland Hospitality, LLC, such authorization being for
itself and in its capacity as general partner of Opryland Hotel-Florida
Limited Partnership, a Florida limited partnership).
7. The Letter of Representations has been duly authorized, executed and
delivered by the Company.
8. The Indenture has been duly authorized, executed and delivered by the
Company and the Tennessee and Delaware Guarantors (in the case of
Opryland Hospitality, LLC, such authorization being for itself and in
its capacity as general partner of Opryland Hotel-Florida Limited
Partnership, a Florida limited partnership).
9. The Notes are in the form contemplated by the Indenture and have been
duly authorized by the Company for issuance and sale pursuant to the
Purchase Agreement and the Indenture.
EXHIBIT A-2
GAYLORD - PURCHASE AGREEMENT
10. The Exchange Notes have been duly and validly authorized for issuance
by the Company.
11. The Guarantees of the Notes and the Exchange Notes are in the form
contemplated by the Indenture, have been duly authorized for issuance
by each of the Tennessee and Delaware Guarantors pursuant to the
Indenture (in the case of Opryland Hospitality, LLC, such authorization
being for itself and in its capacity as general partner of Opryland
Hotel-Florida Limited Partnership, a Florida limited partnership), and
the Notations of Guarantees of the Notes have been duly executed by
each of the Tennessee and Delaware Guarantors.
12. The Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Offering Memorandum.
13. The statements contained in the Offering Memorandum under the captions
"Business - Legal Proceedings," "Material U.S. Federal Income Tax
Considerations" and "Notice to Investors" insofar as such statements
constitute matters of law, summaries of legal matters, documents or
legal proceedings, or legal conclusions, have been reviewed by us and
fairly present and summarize, in all material respects, the matters
referred to therein.
14. Assuming the accuracy of assumptions (i), (ii) and (iii) of Paragraph
(18) of this opinion, except for the registration of the Exchange Notes
and Exchange Guarantees under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under applicable state securities laws or Blue Sky laws in connection
with the purchase and distribution of the Notes and the Guarantees by
the Initial Purchasers or under applicable state securities or Blue Sky
laws in connection with the issuance of the Exchange Notes and the
Exchange Guarantees (as to which we express no opinion), no consent,
approval, authorization or other action by or filing with any federal,
Tennessee or Delaware court or governmental or regulatory authority is
required for the execution, delivery and performance of the Agreements
by the Company or any of the Tennessee and Delaware Guarantors, the
issuance and delivery of the Securities or the Exchange Securities or
consummation of the transactions contemplated hereby and thereby or, if
required, the requisite consent, approval or authorization has been
obtained, the requisite action has been taken or the requisite filing
has been made.
15. The issue and sale of the Notes being delivered on the date hereof by
the Company, the execution and delivery of the Agreements by the
Company and the Guarantors, as applicable, and the compliance by the
Company and the Guarantors with all of their obligations under the
Agreements and the consummation of the transactions contemplated hereby
and thereby, assuming the application of the net proceeds of the
Offering as described in the Offering Memorandum, will not result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or a Debt Repayment Trigger Event under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, or require the consent of any other party to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument listed on Schedule D to the Purchase Agreement
or which has been filed or incorporated by reference as an exhibit to
either (a) the Company's Annual Report on Form 10-K for the
EXHIBIT A-3
GAYLORD - PURCHASE AGREEMENT
year ended December 31, 2003 (but no opinion is given with respect to
Exhibits 10.26-10.41 (Executive Compensation Plans and Management
Contracts) or with respect to any matters which would require us to
perform a mathematical calculation or make a financial or accounting
determination) or (b) the Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2004 and June 30, 2004 (but no opinion is
given with respect to any matters which would require us to perform a
mathematical calculation or make a financial or accounting
determination) (the "Reviewed Instruments"). The issue and sale of the
Notes being delivered on the date hereof by the Company, the execution
and delivery of the Agreements by the Company and the Tennessee and
Delaware Guarantors, as applicable, and the compliance by the Company
and the Tennessee and Delaware Guarantors with all of their obligations
under the Agreements and the consummation of the transactions
contemplated hereby and thereby (i) will not result in any violation of
the provisions of the charter or by-laws or comparable organizational
documents of the Company or of any of the Tennessee and Delaware
Guarantors or (ii) to our knowledge will not result in any violation of
any applicable statute, judgment, order, rule or regulation known to us
of any court or federal, Tennessee or Delaware governmental agency or
body having jurisdiction over the Company or any of the Tennessee and
Delaware Guarantors or any of their properties or assets.
16. The Company is not, and after receipt of payment for the Securities
will not be, an "investment company" within the meaning of the
Investment Company Act.
17. To our knowledge, there is no litigation threatened or to which the
Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject
except as described in the Offering Memorandum, or if not described
therein, would not, individually or in the aggregate with all other
such actions, suits and proceedings be reasonably expected to have, if
adversely determined, a material adverse effect on the Company and its
subsidiaries considered as one enterprise.
18. Assuming (i) that the representations, warranties and covenants of the
Initial Purchasers in Section 2(e) of the Purchase Agreement are true,
(ii) the compliance of the Initial Purchasers with their agreements set
forth in the Purchase Agreement, (iii) that the offering and resale
procedures in Section 7 of the Purchase Agreement are observed, and
(iv) the accuracy of the representations made by the Company in the
Purchase Agreement and compliance by the Company with its agreements
made in the Purchase Agreement, no registration under the Act of the
Notes is required for the purchase of the Notes by the Initial
Purchasers as contemplated by the Purchase Agreement or the initial
resale of the Securities by the Initial Purchasers to Qualified
Institutional Buyers in accordance with the Purchase Agreement and no
qualification of an indenture under the Trust Indenture Act is required
with respect thereto, other than any registration or qualification that
may be required in connection with the Exchange Offer contemplated by
the Offering Memorandum or in connection with the Registration Rights
Agreement. We express no opinion, however, as to when or under what
circumstances any Notes initially sold by the Initial Purchasers may be
reoffered or resold.
19. We are of the opinion that the courts of the State of Tennessee and
federal courts sitting in the State of Tennessee would enforce the
choice of law provisions contained in the
EXHIBIT A-4
GAYLORD - PURCHASE AGREEMENT
Agreements that expressly provide that the terms and provisions thereof
will be governed by and construed in accordance with the laws of the
State of New York, unless giving effect to such provisions would
violate public policy of the state of Tennessee. In giving the opinion
in this paragraph, we have assumed that (i) some of the parties who
negotiated the Agreements were in the State of New York during those
negotiations, (ii) the Trustee has a place of business in the State of
New York, (iii) Deutsche Bank Securities has a place of business in the
state of New York, (iv) the Agreements were delivered in the State of
New York and (v) the purchase price of the Securities payable by the
Initial Purchasers to the Company pursuant to the Purchase Agreement
will be funded in the State of New York.
20. No taxes, fees and other charges are required under any regulations or
law of the State of Tennessee to be paid by the Company or the
Guarantors incorporated, formed or organized under the laws of the
State of Tennessee in connection with the execution, delivery and
performance of the Agreements.
We participated in the preparation of the Offering Memorandum, during
the course of which, among other things, we examined various documents and other
papers and participated in conferences with representatives of the Company, with
representatives of the Company's independent public accountants, and with your
representatives and your counsel, at which conferences the contents of the
Offering Memorandum and related matters were discussed. On the basis of the
information that was developed in the course of our above-described
participation, considered in the light of our understanding of applicable law
and the experience we have gained through our practice thereunder, no facts have
come our attention which lead us to believe that the Offering Memorandum, as of
the date of the Offering Memorandum or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state
such a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading (except we express no opinion as to the financial
statements and related notes and schedules, the pro forma financial statements
and related notes or other financial data contained in the Offering Memorandum).
In giving this opinion or undertaking the above-described representation, we
have not verified and are not passing upon and we do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum, except to the extent set forth in
Paragraph 13 of this opinion.
The opinions expressed above are further subject to the following qualifications
and limitations:
(a) The effect of laws, court decisions and legal or equitable
principles relating to, limiting or affecting the enforcement of
creditors' rights generally, including, without limitation, bankruptcy,
insolvency, reorganization and moratorium laws and laws relating to
fraudulent transfers or conveyances, preferences and equitable
subordination.
(b) The discretion of any court of competent jurisdiction in awarding
equitable remedies, including, but not limited to, specific performance
or injunctive relief.
(c) We note that a court might not permit the exercise of any right or
remedy provided in any of the Agreements if, under the circumstances
then existing, such
EXHIBIT A-5
XXXXXXX - PURCHASE AGREEMENT
exercise is deemed to be inconsistent with the covenant of good faith
and fair dealing implied under law to exist in all agreements or if the
party seeking to exercise such right or remedy fails to act in a
commercially reasonable manner or fails to fulfill other duties imposed
by statutes or judicial decisions.
(d) The unenforceability under certain circumstances of contractual
provisions respecting various self-help or summary remedies without
adequate notice or opportunity for hearing or correction.
(e) The unenforceability under certain circumstances of provisions
waiving vaguely or broadly stated rights and provisions stating that
rights or remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to or with any other right
or remedy, or that the election of some particular remedy or remedies
does not preclude recourse to other remedies.
(f) The availability or enforceability of particular remedies or
waivers in the Agreements may be limited by equitable principles,
provided that the qualification expressed in this clause (f) does not
in our opinion render the Agreements invalid as a whole or preclude (i)
the judicial enforcement of the Company's or any of the Tennessee and
Delaware Guarantors' obligation to repay the principal together with
interest thereon, as provided in the Indenture, the Guarantees or the
Notes (to the extent not deemed a penalty), or (ii) enforcement of such
obligations through normal legal proceedings.
(g) We express no opinion as to the enforceability of provisions
releasing a party from, or indemnifying a party against, liability for
its own wrongful or negligent acts or where such release or indemnity
is contrary to law or public policy.
(h) We express no opinion as to the validity, binding effect, or
enforceability of any provision of the Registration Rights Agreement or
Purchase Agreement relating to indemnification or contribution under
any federal or state securities laws or public policy.
Our opinion is rendered as of the date hereof and we assume no
obligation to advise you of changes in law or fact (or the effect thereof on the
opinions expressed herein) that hereafter may come to our attention.
As used herein, "known to us," "to our knowledge," "to the best of our
knowledge" and any similar phrase refers solely to the current, actual
knowledge, acquired during the course of our representation of the Company and
its subsidiaries, of those attorneys in this firm who have rendered substantive
legal services in connection with such representation, without investigation.
This letter may be relied upon by you only in connection with the
Offering and may not be provided to, used or relied upon by any other person for
any purpose whatsoever without in each instance our prior written consent.
EXHIBIT A-6
XXXXXXX - PURCHASE AGREEMENT
EXHIBIT B
FORM OF OPINION OF
LOCAL COUNSEL
We have acted as special _______ counsel to ______, a ______
corporation and one of the initial Guarantors (the "_______ Guarantor"), in
connection with the execution and delivery by the Guarantor of each of the
following documents (collectively, the "Subject Documents"):
1. The Purchase Agreement;
2. The Registration Rights Agreement dated as of November 30,
2004, by and among the Company, the Initial Guarantors, and the Initial
Purchasers (the "Registration Rights Agreement").
3. Indenture dated as of November 30, 2004, among the Company,
the Initial Guarantors, and U.S. Bank National Association, as trustee (the
"Indenture"); and
4. The respective Note Guarantees (collectively, the "Initial
Note Guarantees") endorsed on each of the following Notes:
(a) Xxxxxxx Entertainment Company, 6.75% Senior Note Due 2014,
executed by the Company and payable to Cede & Co., or its registered
assigns, in the principal sum of _______ Dollars ($_______) on November
15, 2014; and
(b) Xxxxxxx Entertainment Company, 6.75% Senior Note Due 2014,
executed by the Company and payable to Cede & Co., or its registered
assigns, in the principal sum of _______ Dollars ($_______) on November
15, 2014.
This opinion letter is delivered pursuant to Section 5(c) of
the Purchase Agreement. Each term defined in the Purchase Agreement is used
herein with the same meaning, unless otherwise defined herein or unless
reference to the definition of a specific term contained in another Subject
Document is made herein, in which event such term is used herein with the
meaning ascribed to such term in the Subject Document to which reference is so
made herein.
In connection with this opinion letter, we have reviewed
copies of the Subject Documents, each as executed by the _______ Guarantor. We
have also reviewed copies of (i) a certificate of active existence of the
_______ Guarantor as a domestic business corporation in the State of _______,
issued by the Secretary of State of the State of _______ on November ___, 2004
(the "_____ Guarantor Existence Certificate"), (ii) a certificate of account
status evidencing the ____ Guarantor's good standing with the office of ______
issued by ______ on November ___, 2004 (the "_____ Guarantor Good Standing
Certificate," and, collectively with the ______ Guarantor Existence Certificate,
the "_____ Guarantor Certificates"), (iii) the Articles of Incorporation of the
_____ Guarantor as filed in the Office of the Secretary of State of _____ on
______, and certified as being true and correct by the Secretary of State of
______ on November
EXHIBIT B-1
XXXXXXX - PURCHASE AGREEMENT
____, 2004 (the "______ Guarantor Articles"), (v) the Bylaws of the ______
Guarantor, adopted as of ______, and certified as being true and correct on the
date hereof by [Xxxxxx X. Xxxx, Vice President and Secretary] of the ______
Guarantor, on the date hereof (the "______ Guarantor Bylaws"), and (vi) certain
resolutions of the board of directors of the ______ Guarantor relating to the
authorization of the execution and delivery of the Subject Documents by the
______ Guarantor and related matters (the "______ Guarantor Resolutions," and,
collectively with the ______ Guarantor Certificates, the ______ Guarantor
Articles, the ______ Guarantor Bylaws, and the ____ Guarantor Resolutions, the
"______ Guarantor Corporate Documents").
We have also reviewed certificates of public officials,
certificates of officers of the ______ Guarantor, and such other instruments,
certificates, documents, agreements and written materials, and have considered
such questions of law, as we have deemed necessary or appropriate for the
purposes of rendering the opinions expressed herein. Except for review and
examination of the Subject Documents and the ______ Guarantor Corporate
Documents, we have made no independent investigation as to the organization,
existence or affairs of the ______ Guarantor.
In our examination, we have assumed the genuineness of all
signatures (including, without limitation, endorsements), the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the originals of such
copies. We have also assumed:
A. The fact that each of the Subject Documents has been
delivered by the ____ Guarantor to the other parties to the respective Subject
Documents in accordance with the applicable provisions thereof.
B. That Xxxxx X. Xxxxxxxx is, and was at the time of his
execution of each of the Subject Documents on behalf of the ______ Guarantor,
the duly elected or appointed ______ of the ______ Guarantor.
C. That each of the respective Notes on which the Initial
Guarantees are endorsed have been duly authenticated by the Trustee in
accordance with the Indenture and delivered to and paid for by the respective
Initial Purchasers in accordance with the terms of the Purchase Agreement.
D. That each of the Subject Documents has been duly
authorized, executed and delivered by all parties thereto (other than the ______
Guarantor).
OPINIONS
Based on the foregoing, and subject to the assumptions,
limitations and qualifications herein set forth, it is our opinion that:
1. The ______ Guarantor is validly existing as a corporation
in good standing under the laws of the State of Texas.
EXHIBIT B-2
XXXXXXX - PURCHASE AGREEMENT
2. The ______ Guarantor has the requisite corporate power and
authority under the laws of the State of ______ to enter into and perform its
obligations under each of the Subject Documents to which it is a party.
3. Each of the Purchase Agreement, the Registration Rights
Agreement and the Indenture has been duly authorized, executed and delivered by
the ______ Guarantor.
4. The Guarantees of the Notes and the Exchange Notes have
been duly authorized for execution and issuance by the ______ Guarantor.
5. Each of the Initial Note Guarantees has been duly
authorized, and executed and delivered by the ______ Guarantor.
6. Except for such consents, approvals, authorizations,
registrations or qualifications, if any, as may be required under ______ state
securities or "Blue Sky" laws, as to which we express no opinion, no consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency of the State of
______ is required for the ______ Guarantor's execution and delivery of, or for
the performance of its obligations under, the Subject Documents, or for the
______ Guarantor's execution and delivery of, or for the performance of its
obligations under, the Guarantees of the Notes and the Exchange Notes.
7. Neither the execution and delivery of the Subject Documents
by the ______ Guarantor, nor the performance by the Guarantor of its obligations
under the Transaction Documents: (i) will result in any violation of the
provisions of the ______ Guarantor Articles or the ____ Guarantor Bylaws, (ii)
will result in the creation of or imposition of any lien, charge or encumbrance
upon any property or assets of the ______ Guarantor that arises under or by
operation of any law or regulation of the State of ______, or (iii) to our
knowledge, will result in any violation of any applicable ______ law,
administrative regulation or administrative or court decree known to us and
generally applicable to the Guarantor, provided, that in rendering the opinion
in this clause (iii), we express no opinion with respect to compliance with
______ state securities or "Blue Sky" laws.
8. The choice of New York law stipulated to govern the Subject
Documents, as set forth respectively in Section ______ of the Indenture (with
respect to the Indenture, the Notes and the Guarantees), Section 15 of the
Purchase Agreement, and Section ______ of the Registration Rights Agreement, is
a valid and effective choice of law by the ______ Guarantor under the laws of
the State of ______ and would be enforced against the Guarantor to the extent
the parties have provided therein by a ______ court or a federal court sitting
in ______ and applying the existing law of the State of ______, except to the
extent that New York law contravenes the public policy of the State of ______.
Moreover, although the Subject Documents contain the choice of law provisions
referenced in the preceding sentence, in the event that the laws of the State of
______ were applied to govern the Subject Documents, the Subject Documents would
not violate any of the applicable usury laws of the State of ______.
9. No taxes, fees or other charges are required to be paid
under any laws or regulations of the State of ______ in connection with the
execution, delivery and performance of
EXHIBIT B-3
XXXXXXX - PURCHASE AGREEMENT
the Subject Documents, provided, that in rendering the opinion in this paragraph
9, we express no opinion with respect to any fees or other charges that may be
payable in connection with compliance with ______ state securities or "Blue Sky"
laws.
The opinions expressed herein are subject to the assumptions
set forth above and to the following assumptions, qualifications or limitations:
(a) The opinions expressed in paragraph 1 regarding the
corporate existence and good standing, of the ______ Guarantor under the laws of
the State of ______ are rendered solely on the basis of the issuance of the
______ Guarantor Existence Certificate by the Secretary of State of ______ and
the issuance of the ______ Guarantor Good Standing Certificate by the ______
[Comptroller of Public Accounts].
(b) In rendering the opinions expressed in paragraph 8, we
have assumed that at least one party to the transaction contemplated by the
Subject Documents (which may be the Company, any Initial Guarantor, any Initial
Purchaser or the Trustee) either (i) has its place of business, or, having more
than one place of business, its chief executive office or an office from which
it conducted a substantial part of the negotiations relating to the transaction
contemplated by the Purchase Agreement, in the State of New York, or (ii) is
required to perform a substantial part of its obligations relating to the
transaction contemplated by the Purchase Agreement, such as delivering payments,
in the State of New York.
(c) The opinions set forth herein are based solely upon the
current laws of the State of ______, and we express no opinion as to, and assume
no responsibility as to the applicability or the effect of, the laws of the
United States of America or of any other state or commonwealth.
(d) The opinions set forth herein are rendered as of the date
hereof. We undertake no obligation, and disclaim all obligation, to advise you
of any subsequent changes or developments in any law or facts which might affect
any matters or opinions set forth herein.
This opinion is rendered only to the Initial Purchasers, and
is solely for the benefit of the Initial Purchasers, and their respective
counsel, in connection with closing of the transaction contemplated by the
Purchase Agreement. This opinion may not be relied upon by you for any other
purpose, or furnished, quoted to or relied upon by any other person for any
purpose, without our prior written consent, except that (a) this opinion may be
furnished to a person pursuant to a subpoena, legal process or as otherwise
required under applicable law (it being understood that such person may not rely
upon this opinion without our prior written consent), and (b) this opinion may
be furnished to, and, subject to all of the assumptions, qualifications,
limitations and restrictions set forth herein, may be relied upon by, any person
becoming a Holder (as defined in the Indenture) after the date hereof.
EXHIBIT B-4
XXXXXXX - PURCHASE AGREEMENT
EXHIBIT C
FORM OF OPINION OF XXXXXXX, XXXX, XXXXXX & XXXXXX, L.L.P.
We have acted as special New York and Florida counsel to Xxxxxxx Entertainment
Company, a Delaware corporation (the "Company"), and Opryland Hotel - Florida
Limited Partnership, a Florida limited partnership ("Opryland"), and certain
other subsidiary guarantors listed on Exhibit A hereto (collectively, together
with Opryland, the "FL Subsidiary Guarantors"), in connection with the offering
of $225,000,000 aggregate principal amount of the 6.75% Senior Notes due 2014 of
the Company (the "Notes"), as described in the Offering Memorandum of the
Company, dated November 17, 2004 (the "Offering Memorandum"), and pursuant to
(i) a Purchase Agreement dated November 17, 2004 (the "Purchase Agreement")
among the Company, each of the Guarantors (listed on Exhibit B attached hereto
and as defined therein) and you, (ii) an Indenture dated as of November 30, 2004
(the "Indenture") among the Company, each of the Guarantors, and U.S. Bank
National Association, a national banking corporation, as trustee (the
"Trustee"), in connection with the issuance of the Notes, and (iii) the other
Transaction Documents (as hereinafter defined). This opinion letter is provided
pursuant to Section 5(c) of the Purchase Agreement. Capitalized terms not
otherwise defined herein shall have the meanings provided such terms in the
Transaction Documents.
In rendering the opinions expressed below, we have examined, among
other things, the following documents (the "Transaction Documents"), all of
which are dated as of November 30, 2004 (the "Closing Date") unless otherwise
noted:
1. The Notes in the aggregate principal amount of $225,000,000;
2. The Purchase Agreement;
3. The Indenture;
4. The Registration Rights Agreement by and among the Company, each of
the Guarantors, and each of the Initial Purchasers (the "Registration Rights
Agreement");
5. The Letter of Representations by and among the Company, the Trustee
and The Depository Trust Company (the "Letter of Representations");
6. The Form of Exchange Note to be issued in accordance with the
Registration Rights Agreement and the Indenture (as so issued, the "Exchange
Notes");
7. The Notation of Guarantee, in the Form attached as [ Exhibit "E" ]
to the Indenture and to be given in connection with the Notes by the Guarantors
to the Trustee, for the benefit of the Holders of the Notes (as so given, the
"Guarantee Notations"); and
8. The Form of Notation of Guarantee, attached as [ Exhibit "E" ] to
the Indenture and to be given in connection with the Exchange Notes by the
Guarantors to the Trustee, for the benefit of the Holders of the Notes (as so
given, the "Exchange Note Guarantee Notations").
Exhibit C-1
XXXXXXX - PURCHASE AGREEMENT
In addition, we have examined a Certificate of Authority issued by the
Florida Department of State dated November __, 2004, relating to the Company,
and [Certificates of Status issued by the Florida Department of State dated
various dates between November __ and __, 2004, relating to the FL Subsidiary
Guarantors [LIST EACH FLORIDA CERTIFICATE SEPARATELY]. We also have reviewed
such other instruments, certificates, documents, agreements, and written
materials, and have considered such questions of law, as we have deemed
necessary or appropriate for the purpose of rendering this opinion. As to any
facts material to our opinion, we have, when relevant facts were not
independently established by us, relied upon the aforesaid instruments,
certificates, documents, agreements, and written materials. We were not present
at the time the duly authorized representatives of the FL Subsidiary Guarantors
physically executed or delivered any of the Transaction Documents and have, with
your permission, relied upon certifications from certain officers of the FL
Subsidiary Guarantors regarding their execution and delivery of, and/or
witnessing of the actual execution and delivery of, inter alia, the Purchase
Agreement, the Indenture, and the Registration Rights Agreement, by such
representatives, in each case with the actual and present intent of each FL
Subsidiary Guarantor to create an immediately binding contract.
Except for examination of the documents enumerated herein, we have made
no independent investigation as to the organization, existence, or affairs of
the Company or the FL Subsidiary Guarantors. Without limiting the generality of
the foregoing, we have made no examination of dockets or other public records,
except as expressly set forth herein.
In performing our examination, we have assumed (and relied entirely
upon such assumption), without inquiry or other investigation: (a) the
completeness and authenticity of all documents submitted to us as originals; (b)
the conformity to authentic original documents of all documents submitted to us
as copies and the authenticity of the originals of all such copies; (c) the
genuineness of all signatures; (d) the legal competence of all natural persons
who are or act on behalf of parties to the Transaction Documents and each of the
documents contemplated thereby; (e) the legal existence and good standing of all
parties to the transaction, other than the FL Subsidiary Guarantors; (f) the
power and authority of each person (other than the FL Subsidiary Guarantors) to
execute, deliver and perform the Transaction Documents and the other document(s)
executed and delivered by such person in connection therewith and to do each
other act done or to be done by such person, including the taking of all
corporate, shareholder, partnership, limited liability company or other action
necessary to execute and deliver each such document and to perform all other
obligations and otherwise to effect the transactions contemplated thereby; (g)
the due authorization by each person (other than the FL Subsidiary Guarantors)
to execute, deliver, and perform the Transaction Documents and each other
document contemplated thereby to which such person is party and each other
document executed and delivered or to be executed and delivered by such person;
(h) the due execution and delivery by each person (other than the FL Subsidiary
Guarantors) of the Transaction Documents and each other document contemplated
thereby to which such person is a party and each other document executed and
delivered or to be executed and delivered by such person; (i) the legality,
validity, binding effect, and enforceability of the Transaction Documents as to
each person to the extent any Transaction Document is not governed by New York
or Florida law; (j) the legality, validity, binding effect and enforceability as
to each person (other than the Company and the Guarantors) of the Transaction
Documents; (k) the legality, validity, binding effect and
Exhibit C-2
XXXXXXX - PURCHASE AGREEMENT
enforceability as to each person of all other documents (other than the
Transaction Documents) contemplated by the Transaction Documents and each other
document executed and delivered by such person and each other act done or to be
done by such person in connection therewith; (l) the truth and accuracy of the
representations and warranties and other statements as to all matters of fact
(including factual conclusions and characterizations and descriptions of
purpose, intention or other states of mind) set forth in the Transaction
Documents and in the certificates of the Company and any of the Guarantors; (m)
that there have been no undisclosed modifications of any provision of any
document reviewed by us in connection with the rendering of this opinion and no
undisclosed prior waiver of any right or any remedy contained in any of the
documents; (n) that fair and adequate consideration has been given and received
by all parties (including the Guarantors); (o) that there is and will be an
economic benefit to each of the Guarantors from the transactions contemplated by
the Transaction Documents, which economic benefit is of reasonably equivalent
value to the obligations being guaranteed by such Guarantor; (p) that the
parties to the Transaction Documents (other than the Company and the Guarantors
to the extent set forth in the opinions given below) have complied with all laws
applicable to them that affect the transactions that are the subject of this
opinion; (q) that such transactions comply with all tests of good faith,
fairness, and conscionability required by law; (r) that routine procedural
matters, such as service of process or qualification to do business in the
relevant jurisdictions will be satisfied by the parties seeking to enforce the
Transaction Documents; (s) that all statutes, judicial and administrative
decisions, rules, and regulations constituting law for which we have assumed
responsibility are constitutional and are published in a generally accessible
manner; (t) that there are no other agreements or understandings among the
parties that would modify the terms of the transactions or the respective rights
or obligations of the parties to the Transaction Documents or the other
documents relating thereto; (u) that there has been no mutual mistake of fact or
fraud or duress with respect to the Transaction Documents; (v) that the Company
and each Guarantor possesses all licenses, permits, approvals and qualifications
necessary to enable it to perform its respective obligations under the
Transaction Documents on which we are opining; (w) that the Notes have been or
will be sold in the manner contemplated by the Offering Memorandum and in
accordance with the procedures specified in the Purchase Agreement and the
Indenture; (x) that each of the Notes has been authenticated as specified in the
Indenture, and the Notes have been duly executed and delivered against payment
of the purchase price therefor pursuant to the Purchase Agreement and as
provided in the Offering Memorandum and the Indenture; (y) that (1) each of the
Transaction Documents is in consideration of, or relates to an obligation
arising out of, a transaction covering in the aggregate not less than the
applicable amounts specified in Sections 5-1401 and 5-1402 of the General
Obligations Law of the State of New York; and (2) subject to the preceding
Clause (1), the choice of the law of the State of New York as the governing law
for the Transaction Documents will be recognized in the courts of the State of
New York as a valid choice of law in any action properly instituted to enforce
any such Transaction Document, except to the extent that provisions of
applicable law regarding enforcement of rights and remedies require the
application of the law of another jurisdiction; (z) that the legal requirements
of all jurisdictions outside the United States in which the Notes are offered or
sold or where any Holders of the Notes are domiciled will be complied with, and
all necessary consents, approvals, authorizations or orders of, or filings with,
any governmental body, agency or court under the laws of such jurisdictions have
been or will be obtained or made; (aa) that (1) the Transaction Documents (other
than the Exchange Notes and Guarantee Notations) have been duly executed and
delivered outside the State of Florida, and none of the
Exhibit C-3
XXXXXXX - PURCHASE AGREEMENT
Transaction Documents involves or relates to a mortgage that is or will be
recorded in the State of Florida, and (2) the Exchange Notes and the Exchange
Note Guarantee Notations, when issued in accordance with the procedures
specified in the Purchase Agreement and the Indenture, will be duly executed and
delivered outside of the State of Florida; and (bb) that the liquidated damages
provisions of the Registration Rights Agreement (I) are reasonable, compensatory
in nature, not unconscionable and not intended as security for the performance
of obligations thereunder, (II) are a good faith estimate of actual damages that
would be sustained in the event of a default, (III) bear a reasonable relation
to the actual amount of probable damage in the event of a default, (IV) are not
plainly disproportionate to the injury that may be sustained, and (V) are not
contrary to public policy, and that, in the view of the parties to the
Registration Rights Agreement, the actual damages in the event of a default
would be difficult to ascertain or estimate.
No opinion is expressed with respect to the status of title to any real
or personal property or other assets or with respect to the relative priority of
any liens or security interests, if any, created by the Transaction Documents.
Furthermore, we assume that all recording taxes and fees, documentary stamp
taxes, and intangible taxes that may be due or owing to any jurisdiction or
governmental or regulatory body (other than the State of New York or the State
of Florida) have been paid.
Whenever our opinion herein, with respect to the existence or absence
of facts or circumstances, indicates that it is based on our knowledge or
awareness, such indication signifies that, during the course of our
representation of the Company and the FL Subsidiary Guarantors in this matter
and as herein described, no information has come to the attention of the
individual lawyers in the firm who have devoted substantive attention to the
transaction to which this opinion relates which gave them actual, conscious
awareness, other than as herein described, that any opinions so qualified by
such indication of knowledge are incorrect, and no special or additional
investigation has been undertaken for the purpose thereof.
The opinion in paragraph 5 below is further qualified to the extent
that the validity, binding effect and enforceability of any provision of the
Transaction Documents, or any agreement or document contemplated thereby or
executed in connection therewith, or any rights granted pursuant to the
Transaction Documents, any agreement or document contemplated thereby or
executed in connection therewith, or obligations incurred thereunder, may be
subject to and affected by:
(a) applicable bankruptcy, receivership, rehabilitation,
insolvency, reorganization, moratorium, liquidation, or other
similar laws affecting creditors' rights generally;
(b) general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific
performance or injunctive relief (regardless of whether
considered in a proceeding in equity or at law) and the
exercise of equitable powers by a court of competent
jurisdiction (and no opinion is expressed herein as to any
specific or equitable relief of any kind or as to the
availability of equitable remedies); and
Exhibit C-4
XXXXXXX - PURCHASE AGREEMENT
(c) applicable state and Federal laws relating to fraudulent
conveyances or fraudulent transfers, and indemnification for
violations of securities laws, including, without limitation,
fraudulent conveyance laws that may result in the avoidance of
the obligations of the Guarantors under the Guarantee
Notations.
In addition, we express no opinion as to the enforceability of the following:
the "self-help" remedy and right to use collateral after default; contractual
provisions respecting various summary remedies without adequate notice or
opportunity for hearing or correction; any attempt in any Transaction Document
to exclude or limit the effect of UCC choice of law provisions; contractual
provisions waiving vaguely or broadly stated rights and contractual provisions
stating that rights or remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not
preclude recourse to other remedies. We also express no opinion as to the
enforceability or effectiveness of any provision in the Transaction Documents
which purports to limit the applicability or effect of federal laws.
Furthermore, we express no opinion as to the subject matter jurisdiction of the
United States Federal Courts. Certain other remedies, waivers and other
provisions of the Transaction Documents may not be enforceable, such as (and we
express no opinion concerning the validity, binding effect or enforceability
of): (i) provisions to the effect that failure to exercise, or delay in
exercising, rights or remedies will not operate as a waiver of any such right or
remedy; (ii) disclaimers, liability limitations with respect to third parties,
releases, legal or equitable discharge of defenses, liquidated damages
provisions (other than, subject to the assumptions and qualifications set forth
herein, the liquidated damages provisions set forth in Section 5 of the
Registration Rights Agreement), provisions purporting to waive the benefit of
statutory or common law rights, or provisions releasing a party from, or
indemnifying a party against, liability for its own wrongful or negligent acts,
or where such release or indemnity is contrary to law or public policy; (iii)
provisions that are determined to be a penalty or a forfeiture, including by
reason of a party being required or allowed to pay, deliver, receive, or recover
(or not to pay, deliver, receive, or recover) any amount or item; (iv)
provisions that may require a party to pay any consequential, special,
incidental, indirect, contingent, or exemplary damages or amounts; (v)
provisions that relate to any waiver of obligations; (vi) provisions that relate
to the conclusiveness or binding effect of any calculation or determination made
by any person; (vii) provisions that relate to any affiliate of a party; (viii)
provisions that relate to any oral agreement or waiver, or written but unsigned
agreement or waiver, by a party not satisfying applicable statutes of fraud;
(ix) provisions that require any amendment or waiver to be in writing, to the
extent that an oral agreement or waiver, or an implied agreement or waiver, by
trade practice or course of conduct has been created that modifies any such
provision; (x) provisions that purport to create rights of set-off in favor of
any party or that provide for set-off to be made otherwise than in accordance
with applicable laws; or (xi) any provision that violates public policy.
We express no opinion herein as to the laws of any jurisdiction other
than the laws of the States of Florida and New York, and the federal law of the
United States of America, and assume no responsibility for the applicability or
effect of any such other laws. Without limiting the generality of the foregoing,
we express no opinion concerning the following types of laws: creation (other
than as provided for in Opinions 2 and 3 below) or perfection of any lien,
encumbrance or collateral security interest under Article 9 of the Uniform
Commercial Code or otherwise; federal and state securities laws and regulations;
pension and employee benefit laws
Exhibit C-5
XXXXXXX - PURCHASE AGREEMENT
and regulations such as ERISA; federal and state tax laws (other than Florida
State tax laws to the extent set forth in the opinion in paragraph 8 below);
federal and state antitrust and unfair competition laws and regulations; federal
and state regulations concerning filing requirements (such as
Xxxx-Xxxxx-Xxxxxx); laws relating to compliance by the Trustee with fiduciary
duty requirements generally applicable to the parties in this transaction;
federal and state environmental laws and regulations; federal and state land use
laws and regulations; and local laws (including statutes, administrative
decisions, and rules and regulations of county, municipal, and political
subdivisions). We have assumed that, as to matters of title and priority, each
of the Company and the Guarantors has good title to or a sufficient interest in
the real and personal property covered by the Transaction Documents.
In rendering this opinion, we express no opinion as to any laws
regulating the types of investments which can be properly made by, or the legal
lending limits of, the Trustee, the Initial Purchasers, or any of the Holders of
the Notes, or compliance or the effect of noncompliance by the Trustee, the
Initial Purchasers, or any of the Holders of the Notes with any state or federal
laws or regulations applicable to the Trustee, the Initial Purchasers, or any of
the Holders of the Notes in connection with the transactions described in the
Transaction Documents. In addition, we express no opinion as to state or federal
taxes relating to the taxation of income or real or personal property that may
be imposed upon the Trustee, any of the Initial Purchasers, any of the Holders
of the Notes, or their successors and assigns, in connection with ownership of
the Notes, the Transaction Documents or the income derived therefrom.
Based upon and subject to the foregoing, and subject to the further
qualifications, limitations, restrictions and assumptions hereinafter set forth,
we are of the opinion that:
1. The Company is registered to transact business as a foreign
corporation in the State of Florida.
2. Opryland is a limited partnership which has been formed under the
Florida Revised Uniform Limited Partnership Act and its status is active.
Opryland has the partnership power to execute and deliver, and perform its
obligations under, the Transaction Documents to which it is a party. Assuming
that Opryland Hospitality, LLC, a Tennessee limited liability company, the
general partner of Opryland (the "General Partner") has taken all action
necessary under Tennessee law to authorize the execution, delivery, and
performance of the Transaction Documents by the General Partner as the general
partner of Opryland, then Opryland has taken all necessary action under its
certificate of limited partnership, its limited partnership agreement, and the
Florida Revised Uniform Limited Partnership Act to authorize the execution and
delivery of, and performance of its obligations under, the Transaction Documents
to which Xxxxxxxx is a party. [Xxxxxxxx has duly executed and delivered each of
the Transaction Documents (other than the Exchange Note Guarantee Notations) to
which it is a party.] No consent of or filing with the State of Florida, or any
regulatory authority or administrative body thereof, is required in connection
with the execution, delivery, and performance by Opryland of any Transaction
Document to which it is a party. The execution and delivery by Xxxxxxxx of the
Transaction Documents to which it is a party do not, and the performance of
Opryland of its obligations thereunder, will not, (i) violate or result in a
breach of Xxxxxxxx's certificate of limited partnership or limited partnership
agreement, (ii) result in the creation of or imposition of any material lien,
charge or encumbrance upon any property or assets of Opryland as a result of any
Exhibit C-6
XXXXXXX - PURCHASE AGREEMENT
applicable Florida statutory law or Florida state administrative regulation
known to us and generally applicable to Opryland, or (iii) to our knowledge,
result in any violation of any applicable Florida statutory law or Florida state
administrative regulation known to us and generally applicable to Opryland.
3. Each of the Florida Subsidiary Guarantor Corporations [NEED TO
DEFINE] set forth on the attached Exhibit C (collectively, the "Florida
Subsidiary Guarantor Corporations", and each a "Florida Subsidiary Guarantor
Corporation") is incorporated under the Florida Business Corporation Act and its
status is active. Each of the Florida Subsidiary Guarantor Corporations has the
corporate power to execute and deliver, and perform its obligations under, the
Transaction Documents to which it is a party. Each of the Florida Subsidiary
Guarantor Corporations has taken all necessary action under its Organizational
Documents and the Florida Business Corporation Act to authorize the execution
and delivery of, and performance of its respective obligations under, the
Transaction Documents to which it is a party. [Each of the Florida Subsidiary
Guarantor Corporations has duly executed and delivered each of the Transaction
Documents (other than the Exchange Note Guarantee Notations) to which it is a
party.] No consent of or filing with the State of Florida, any regulatory
authority or administrative body thereof, is required in connection with the
execution, delivery and performance by each of the Florida Subsidiary Guarantor
Corporations of any Transaction Documents to which it is a party. The execution
and delivery by each of the Florida Subsidiary Guarantor Corporations of the
Transaction Documents to which it is a party do not, and the performance of such
Florida Subsidiary Guarantor Corporation of its respective obligations
thereunder will not, (i) violate or result in a breach of the respective
Organizational Documents of such Florida Subsidiary Guarantor Corporation, (ii)
result in the creation of or imposition of any material lien, charge or
encumbrance upon any property or assets of such Florida Subsidiary Guarantor
Corporation as a result of any applicable Florida statutory law or Florida state
administrative regulation known to us and generally applicable to such Florida
Subsidiary Guarantor Corporation, or (iii) to our knowledge, result in any
violation of any applicable Florida statutory law or Florida state
administrative regulation known to us and generally applicable to such Florida
Subsidiary Guarantor Corporation.
4. Each of the Florida Subsidiary Guarantor LLCs [NEED TO DEFINE] set
forth on the attached Exhibit D (the "Florida Subsidiary Guarantor LLCs", and
each a "Florida Subsidiary Guarantor LLC") is a limited liability company which
has been formed under the Florida Limited Liability Company Act and its status
is active. Each of the Florida Subsidiary Guarantor LLCs has the limited
liability company power to execute and deliver, and perform its obligations
under, the Transaction Documents to which it is a party. Each of the Florida
Subsidiary Guarantor LLCs has taken all necessary action under its
Organizational Documents and the Florida Limited Liability Company Act to
authorize the execution and delivery of, and performance of its obligations
under, the Transaction Documents to which such Florida Subsidiary Guarantor LLC
is a party. [Each of the Florida Subsidiary Guarantor LLCs has duly executed and
delivered each of the Transaction Documents (other than the Exchange Note
Guarantee Notations) to which it is a party.] No consent of or filing with the
State of Florida, any regulatory authority or administrative body thereof, is
required in connection with the execution, delivery and performance by each of
the Florida
Exhibit C-7
XXXXXXX - PURCHASE AGREEMENT
Subsidiary Guarantor LLCs of any Transaction Document to which it is a party.
The execution and delivery by each of the Florida Subsidiary Guarantor LLCs of
the Transaction Documents to which it is a party do not, and the performance of
such Florida Subsidiary Guarantor LLC of its respective obligations thereunder
will not, violate or result in a breach of such Florida Subsidiary Guarantor
LLC's Organizational Documents, (ii) result in the creation of or imposition of
any material lien, charge or encumbrance upon any property or assets of such
Florida Subsidiary Guarantor LLC as a result of any applicable Florida statutory
law or Florida state administrative regulation known to us and generally
applicable to such Florida Subsidiary Guarantor LLC, or (iii) to our knowledge,
result in any violation of any applicable Florida statutory law or Florida state
administrative regulation known to us and generally applicable to such Florida
Subsidiary Guarantor LLC.
5. Each of the Transaction Documents (other than the Exchange Notes and
the Exchange Note Guarantee Notations) constitutes the legal, valid, and binding
obligation of the Company and each of the Guarantors, as applicable (to the
extent that each such person or entity is a party thereto), enforceable against
the Company and the Guarantors (to the extent that each such person or entity is
a party thereto), in accordance with their respective terms, and the Notes will
be entitled to the benefits of the Indenture. Upon due execution, delivery,
authentication, and payment in accordance with the procedures and specifications
set forth in the Offering Memorandum, the Indenture and the Purchase Agreement,
and assuming that (i) the Exchange Notes as issued, authenticated and delivered
are in form and substance identical to the Form of Exchange Note reviewed by us,
and (ii) the Exchange Note Guarantee Notations as issued and delivered are in
form and substance identical to the Form of Exchange Note Guarantee Notation
reviewed by us, then each of the Exchange Notes and the Exchange Note Guarantee
Notations will constitute the legal, valid, and binding obligation of the
Company and each of the Guarantors, as applicable, enforceable against the
Company and the Guarantors under New York law in accordance with their
respective terms, and the Exchange Notes will be entitled to the benefits of the
Indenture.
6. In any proceedings taken against the Company or the Guarantors in
any Florida state court or in any Federal court applying Florida law (each, a
"Reviewing Court") in connection with the Transaction Documents which, by their
terms, are governed by New York law (collectively, the "New York Documents"), to
the extent that (i) the transactions which are the subject of the New York
Documents are the result of arm's length negotiations among the parties, (ii)
another choice of law is not mandated by any provision of the Uniform Commercial
Code as in effect in the State of New York or the State of Florida, (iii) there
is no direct conflict between the laws of the State of New York and the laws of
the State of Florida, (iv) the application of New York law to such New York
Documents is not determined by a court of competent jurisdiction to be contrary
to any public policy of the State of Florida, (v) substantial contacts between
the Company and the Guarantors, on the one hand, and the State of New York, on
the other hand, exist, and (vi) the Reviewing Court is properly presented with
and briefed on all relevant issues and properly applies the law of the State of
Florida, then the Reviewing Court would uphold the choice of New York law as a
valid choice of the governing law for the New York Documents. In giving the
opinion in this paragraph, we have assumed that (a) some of the parties who
negotiated the Transaction Documents were in the State of New York during those
negotiations, (b) the Trustee has a place of business in the State of New York,
(c) the Transaction Documents were delivered in the State of New York, and (d)
the purchase price of the Securities
Exhibit C-8
XXXXXXX - PURCHASE AGREEMENT
payable by the Initial Purchasers to the Company pursuant to the Purchase
Agreement will be funded in the State of New York.
7. Provided that, for purposes of the application of Section 5-501.6.b
of the General Obligations Law of the State of New York, the initial principal
balance of all of the Notes is aggregated and treated as one single loan or
forbearance, then the interest required to be paid pursuant to the terms of the
Notes and the Indenture will not violate any applicable usury laws of the State
of New York. Provided that the interest and any payment or property charged,
reserved, or taken by the Trustee for the benefit of the Initial Purchasers and
the Holders of the Notes, that is in the nature of interest is not charged at a
rate in excess of 25% per annum on the principal balance from time to time
outstanding, then the payment by the Company and receipt by the Trustee, for the
benefit of the Initial Purchasers and the Holders of the Notes, of all amounts
required to be paid pursuant to the Notes and the Indenture will not violate the
usury laws of the State of Florida.
8. There is no mortgage, recording, registration, stamp, or other
similar tax or fee due to the State of New York or the State of Florida in
connection with the execution, delivery, recordation or filing of, or the
Company's performance under, as the case may be, any Transaction Document,
except nominal filing and recording fees.
This opinion is rendered solely for your benefit and the benefit of
your respective successors and assigns, in connection with your purchase of the
Notes, and may not be relied upon by any other person or for any other purpose
without our written consent. Any successor or assign may rely on this opinion
only as if it were delivered to it on and as of the date hereof. We express no
opinion with respect to any issue arising out of or related to (i) the identity
or status of any Holders of the Notes or any transferee of Holders of the Notes
or any (ii) a securitization and/or syndication of the Notes, or (iii) any
subsequent transaction. No person or entity acquiring any rights of the Initial
Purchasers or any Holders of the Notes through subrogation may rely on this
opinion or be entitled to any rights with respect to this opinion. The opinions
expressed herein are as of the date hereof only, and we assume no obligation to
update or supplement such opinions to reflect any fact or circumstance that may
hereafter come to our attention or any change in law that may hereafter occur or
become effective or in connection with any subsequent transaction. This letter
is limited to the matters set forth herein, and no opinions are intended to be
implied or may be inferred beyond those expressly stated herein.
Exhibit C-9
XXXXXXX - PURCHASE AGREEMENT
ANNEX I
RESALE PURSUANT TO REGULATION S OR RULE 144A.
Each Initial Purchaser understands that:
Such Initial Purchaser agrees that (i) it has not offered or
sold and will not offer or sell the Securities in the United States or to, or
for the benefit or account of, a U.S. Person (other than a distributor), in each
case, as defined in Rule 902 under the Securities Act as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities pursuant hereto and the Closing
Date, other than in accordance with Regulation S of the Securities Act or
another exemption from the registration requirements of the Securities Act. Such
Initial Purchaser agrees that, during such 40-day restricted period, it will not
cause any advertisement with respect to the Securities (including any
"tombstone" advertisement) to be published in any newspaper or periodical or
posted in any public place and will not issue any circular relating to the
Securities, except such advertisements as permitted by and include the
statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903 under the Securities Act, it will send
to such distributor, dealer or person receiving a selling concession, fee or
other remuneration a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons as part of your distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the Offering and the Closing Date, except in either
case in accordance with Regulation S under the Securities Act (or Rule
144A or to Accredited Institutions in transactions that are exempt from
the registration requirements of the Securities Act), and in connection
with any subsequent sale by you of the Notes covered hereby in reliance
on Regulation S during the period referred to above to any distributor,
dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing
effect. Terms used above have the meanings assigned to them in
Regulation S."
Such Initial Purchaser agrees that the Securities offered and sold in
reliance on Regulation S will be represented upon issuance by a global security
that may not be exchanged for definitive securities until the expiration of the
40-day restricted period referred to in Rule 903 of the Securities Act and only
upon certification of beneficial ownership of such Securities by non-U.S.
persons or U.S. persons who purchased such Securities in transactions that were
exempt from the registration requirements of the Securities Act.
Annex I-1
XXXXXXX - PURCHASE AGREEMENT
