EXHIBIT 10.1
CREDIT AGREEMENT
among
XXXXXXX HOTELS, LLC,
as Borrower,
VARIOUS LENDERS PARTY HERETO
XXXXXXX ENTERTAINMENT COMPANY,
as Parent Guarantor,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Dated as of May 22, 2003
with
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC and
CIBC WORLD MARKETS CORP.,
as Joint Book Running Managers and
Co-Lead Arrangers,
and
BANK OF AMERICA, N.A.
and CIBC INC.,
as Syndication Agents
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................... 1
ARTICLE II AMOUNT AND TERMS OF CREDIT................................................................ 34
2.1 The Commitments............................................................................... 34
2.2 Mandatory Principal Repayments................................................................ 34
2.3 Administrative Agency Fees.................................................................... 35
2.4 Optional Principal Payments................................................................... 35
2.5 Conversion and Continuation of Outstanding Loans.............................................. 35
2.6 Interest Rate; Changes in Interest Rate; Interest Periods; etc................................ 36
2.7 Rates Applicable After Default................................................................ 36
2.8 Method of Payment............................................................................. 37
2.9 Notes; Evidence of Indebtedness............................................................... 37
2.10 Telephonic Notices............................................................................ 38
2.11 Interest Payment Dates; Interest and Fee Basis................................................ 39
2.12 Notification of Loans, Interest Rates, Prepayments............................................ 39
2.13 Lending Offices............................................................................... 39
2.14 Non-Receipt of Funds by the Administrative Agent.............................................. 39
2.15 Replacement of Lender......................................................................... 40
ARTICLE III YIELD PROTECTION; TAXES................................................................... 40
3.1 Yield Protection.............................................................................. 40
3.2 Changes in Capital Adequacy Regulations....................................................... 41
3.3 Availability of Types of Loans................................................................ 41
3.4 Funding Indemnification....................................................................... 41
3.5 Taxes......................................................................................... 42
3.6 Lender Statements; Survival of Indemnity...................................................... 43
3.7 Reasonable Efforts to Mitigate................................................................ 44
ARTICLE IV CONDITIONS PRECEDENT...................................................................... 44
4.1 Closing Deliveries............................................................................ 44
4.2 Notices to Owner.............................................................................. 49
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................ 49
5.1 Ownership, Existence and Standing............................................................. 49
5.2 Authorization and Validity.................................................................... 49
5.3 No Conflict; Government Consent............................................................... 50
5.4 Financial Statements and Projections.......................................................... 50
5.5 Intentionally Reserved........................................................................ 51
5.6 Taxes......................................................................................... 51
5.7 Litigation and Contingent Obligations......................................................... 52
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5.8 Subsidiaries.................................................................................. 52
5.9 Affiliate Contracts........................................................................... 52
5.10 Accuracy of Information....................................................................... 52
5.11 Margin Regulations............................................................................ 52
5.12 Material Agreements........................................................................... 53
5.13 Compliance With Laws.......................................................................... 53
5.14 Ownership of Certain Properties............................................................... 53
5.15 Plan Assets; Prohibited Transactions; ERISA................................................... 54
5.16 Environmental Matters......................................................................... 54
5.17 Investment Company Act........................................................................ 55
5.18 Public Utility Holding Company Act............................................................ 55
5.19 Solvency...................................................................................... 56
5.20 Permits, Zoning, Government Approvals, Trademarks, Etc........................................ 56
5.21 Utilities; Access; Structural Soundness....................................................... 57
5.22 Leasehold Matters............................................................................. 57
5.23 Ground Lease Matters.......................................................................... 57
5.24 Casualty; Condemnation........................................................................ 58
5.25 Construction.................................................................................. 58
5.26 Brokerage Fees................................................................................ 59
5.27 Personal Property............................................................................. 59
5.28 Incentive Agreements.......................................................................... 59
5.29 SAILS Contract................................................................................ 59
ARTICLE VI COVENANTS................................................................................. 59
6.1 Financial Reporting........................................................................... 60
6.2 Use of Proceeds............................................................................... 62
6.3 Notice of Default............................................................................. 62
6.4 Conduct of Business; Corporate Existence...................................................... 62
6.5 Taxes and Claims.............................................................................. 63
6.6 Insurance..................................................................................... 64
6.7 Compliance with Laws.......................................................................... 69
6.8 Alterations; Restaurant Facility.............................................................. 69
6.9 Inspections; Books and Records................................................................ 69
6.10 Completion of Project; Required Completion Dates...............................................71
6.11 Correction of Defects......................................................................... 72
6.12 Changes and Amendments; Monthly Budget Updates................................................ 72
6.13 Distributions; Mandatory Application of Net Operating Income to the Loans..................... 72
6.14 Indebtedness.................................................................................. 73
6.15 Merger........................................................................................ 74
6.16 Ownership of Opryland Hotel Nashville, LLC.................................................... 74
6.17 Sales of Assets; Releases of Subsidiary Guarantors............................................ 75
6.18 Investments; New Subsidiary Guarantors; Capital Expenditures.................................. 75
6.19 Liens......................................................................................... 76
6.20 Affiliates.................................................................................... 77
6.21 Required Rate Management Transactions......................................................... 77
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6.22 Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities....................... 77
6.23 SAILS Forward Exchange Contracts.............................................................. 77
6.24 Financial Contracts........................................................................... 77
6.25 Financial Covenants........................................................................... 78
6.25.1 Minimum Consolidated Net Worth....................................................... 78
6.25.2 Minimum Interest Coverage Ratio...................................................... 78
6.25.3 Maximum Total Leverage Ratio......................................................... 78
6.25.4 Intentionally Reserved............................................................... 79
6.25.5 Opryland Hotel Florida Minimum Adjusted Net Operating Income......................... 79
6.25.6 Minimum Fixed Charge Coverage Ratio.................................................. 79
6.26 Environmental Audits.......................................................................... 80
6.27 Insurance and Condemnation Proceeds........................................................... 80
6.28 The Administrative Agent's and the Lenders' Actions for Their Own Protection Only............. 83
6.29 Storage of Property........................................................................... 83
6.30 Proceedings to Enjoin or Prevent Construction................................................. 84
6.31 No Obligation to Monitor...................................................................... 84
6.32 Compliance with Agreements.................................................................... 84
6.33 Organizational Documents...................................................................... 84
6.34 Leasing Provisions............................................................................ 84
6.35 Ground Lease Covenants........................................................................ 85
6.36 Zoning Changes................................................................................ 88
6.37 Fiscal Year................................................................................... 89
6.38 Cooperation with Construction Consultant...................................................... 89
6.39 Security Interest in Accounts; Certain Remedies............................................... 89
6.40 Principal Places of Business; Names........................................................... 92
6.41 Documents of Further Assurance................................................................ 92
6.42 Wetlands...................................................................................... 92
6.43 Post Closing Obligations with Respect to Texas Real Estate.................................... 92
ARTICLE VII DEFAULTS.................................................................................. 93
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................ 96
8.1 Acceleration.................................................................................. 96
8.2 All Remedies.................................................................................. 97
8.3 Construction................................................................................. 97
8.4 Enforcement.................................................................................. 98
8.5 Preservation of Rights........................................................................ 98
ARTICLE IX GENERAL PROVISIONS........................................................................ 99
9.1 Survival of Representations................................................................... 99
9.2 Governmental Regulation....................................................................... 99
9.3 Headings...................................................................................... 99
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9.4 Entire Agreement.............................................................................. 99
9.5 Obligations; Benefits of this Agreement....................................................... 99
9.6 Expenses; Indemnification..................................................................... 99
9.7 Numbers of Documents..........................................................................100
9.8 Accounting....................................................................................100
9.9 Severability of Provisions....................................................................100
9.10 Nonliability of Lenders.......................................................................100
9.11 Confidentiality...............................................................................101
9.12 Nonreliance...................................................................................102
9.13 Disclosure....................................................................................102
9.14 Marshalling; Payments Set Aside...............................................................102
9.15 Successors and Assigns........................................................................103
9.16 Inconsistencies...............................................................................103
9.17 Disclaimer by Lender..........................................................................103
9.18 Time is of the Essence........................................................................103
9.19 Protective Advances...........................................................................103
ARTICLE X THE ADMINISTRATIVE AGENT AND THE LENDERS..................................................104
10.1 Appointment...................................................................................104
10.2 Nature of Duties..............................................................................104
10.3 Lack of Reliance on the Administrative Agent..................................................105
10.4 Certain Rights of the Administrative Agent....................................................105
10.5 Reliance......................................................................................106
10.6 Indemnification...............................................................................106
10.7 The Administrative Agent in its Individual Capacity...........................................106
10.8 Holders.......................................................................................106
10.9 Resignation by the Administrative Agent.......................................................106
10.10 Other Agents..................................................................................107
10.11 Lender Default................................................................................107
10.12 Authority.....................................................................................111
10.13 Borrower Default..............................................................................113
10.14 Acquisition of Collateral.....................................................................114
10.15 Documents.....................................................................................115
10.16 Receipt and Maintenance of Loan Documents.....................................................116
10.17 No Representations............................................................................116
10.18 No Relation...................................................................................116
10.19 Standard of Care..............................................................................116
10.20 No Responsibility for Loans, Etc..............................................................116
10.21 Payments After Default........................................................................117
10.22 Payments Received.............................................................................117
ARTICLE XI SETOFF; RATABLE PAYMENTS..................................................................117
11.1 Setoff........................................................................................117
11.2 Ratable Payments..............................................................................118
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.........................................118
12.1 Successors and Assigns........................................................................118
12.2 Participations................................................................................119
12.2.1 Permitted Participants; Effect.......................................................119
12.2.2 Voting Rights........................................................................119
12.2.3 Benefit of Setoff....................................................................119
12.3 Assignments...................................................................................120
12.3.1 Permitted Assignments................................................................120
12.3.2 Transfers............................................................................120
12.3.3 Effect; Effective Date...............................................................121
12.4 Dissemination of Information..................................................................122
12.5 Tax Treatment.................................................................................122
ARTICLE XIII NOTICES...................................................................................122
13.1 Notices.......................................................................................122
13.2 Change of Address.............................................................................122
ARTICLE XIV COUNTERPARTS..............................................................................122
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..............................123
15.1 CHOICE OF LAW.................................................................................123
15.2 CONSENT TO JURISDICTION.......................................................................123
15.3 WAIVER OF JURY TRIAL..........................................................................123
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Architect's Certificate
Exhibit B Form of Term Loan Note
Exhibit C Permitted Existing Liens
Exhibit D-1 Legal Description of Project
Exhibit D-2 Legal Description of Opryland Hotel Florida
Exhibit E-1 Form of Texas Resort Owner's Certification of Completion
Exhibit E-2 Form of Project General Contractor's Certification of Completion
Exhibit E-3 Form of Project Architect's Certification of Completion
Exhibit F Form of Assignment Agreement
Exhibit G Form of Borrower's and Parent Guarantor's Compliance Certificate
Schedule 1 Approved Construction Budget
Schedule 2 Commitments
Schedule 3 Environmental Reports
Schedule 4 Initial Subsidiary Guarantors
v
Schedule 5.1 Ownership Chart
Schedule 5.5(b) List of Filing Offices
Schedule 5.7 Litigation Pending or Threatened
Schedule 5.9 Affiliate Contracts with respect to the Project
Schedule 5.13 Violations of Law
Schedule 5.14 Defective Property
Schedule 5.15 ERISA Matters
Schedule 5.16 Environmental Matters
Schedule 5.20(b) Pending Land Use Modifications with respect to Permissible Modifications
Schedule 5.22 Leasehold Matters
Schedule 6.20 Non-Arms Length Transactions
Schedule 6.38 Items to be Provided by Texas Resort Owner to Construction Consultant
Schedule 6.39 Certain Project Accounts
Schedule 6.43 Post-Closing Requirements
vi
CREDIT AGREEMENT
Credit Agreement, dated as of May 22, 2003 (the "Effective Date"),
among XXXXXXX HOTELS, LLC, a Delaware limited liability company, as Borrower,
XXXXXXX ENTERTAINMENT COMPANY, a Delaware corporation, as Parent Guarantor, the
Lenders party hereto from time to time, Deutsche Bank Trust Company Americas, as
Administrative Agent, Deutsche Bank Securities Inc., Bank of America Securities
LLC and CIBC World Markets Corp., as Joint Book Running Managers and Co-Lead
Arrangers, and Bank of America, N.A. and CIBC Inc., as Syndication Agents.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Lenders are willing to make available to Borrower the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Account Collateral" is defined in Section 6.39.
"Account Holders" is defined in Section 6.39.
"Accounts" is defined in Section 6.39.
"Adjusted Net Operating Income" for any period means (i) with respect
to the Opryland Hotel Florida, Net Operating Income for such period, less the
sum of (a) an assumed management fee of 3% of Gross Revenues for such period,
and (b) actual deposits required to be made into the Florida FF&E Reserve
Account for such period hereunder and (ii) with respect to the Project, Net
Operating Income for such period, less the sum of (a) an assumed management fee
of 3% of Gross Revenues for such period, and (b) actual deposits required to be
made into the Texas FF&E Reserve Account for such period hereunder.
"Adjustment Date" is defined in Section 6.18(a).
"Administrative Agent" means Deutsche Bank Trust Company Americas, in
its capacity as contractual representative of the Lenders pursuant to Article X,
and not in its individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article X.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 50% or
more of any class of voting securities (or
other ownership interests) of the controlled Person, or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Agency Fee" is defined in Section 2.3.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time ("GAAP"), applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 6.1(i).
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Lending Rate for such day and (b) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Ancillary Space Lease" is defined in Section 6.34.
"Applicable LIBO Rate" means, with respect to any LIBO Rate Loan for
the Interest Period applicable to such LIBO Rate Loan, the per annum rate equal
to the greater of: (a) the Reserve Adjusted LIBO Rate plus 8.00% and (b) 9.32%.
"Appraisal" means, (a) with respect to the Project, the appraisal by
Xxxxxxx & Xxxxxxxxx, and (b) with respect to the Opryland Hotel Florida, the
appraisal by Xxxxxxx & Wakefield, each obtained by the Administrative Agent
prior to the Effective Date or, in either case, another written appraisal
prepared by an appraiser selected and engaged by the Senior Administrative Agent
and in all respects acceptable to the Majority Lenders as an approved Appraisal
for purposes of this Agreement, using assumptions and containing information
approved by the Administrative Agent and conforming with the provisions of Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
as amended, reformed or otherwise modified from time to time, and any rules
promulgated to implement such provisions.
"Approved Construction Budget" means the budget for construction of the
Project as approved by the Administrative Agent on the advice of the
Construction Consultant on or before the Effective Date, a copy of which budget
is attached hereto as Schedule 1, together with any modifications thereto so
approved and any further modifications thereto made thereafter that are either
Permissible Modifications or are approved in writing by Texas Resort Owner and
the Administrative Agent in accordance with the terms of this Agreement.
2
"Approved Construction Costs" means the Construction Costs identified
by line item category and dollar amount in the Approved Construction Budget,
other than Costs Previously Paid.
"Approved FF&E Budget" means each Resort Owner's budget for normal
maintenance capital expenditures, as in effect and approved by the
Administrative Agent from time to time.
"Approved Plans and Specifications" means the Plans and Specifications,
together with any modifications thereto which are after the Effective Date,
approved in writing by Texas Resort Owner and, to the extent such modifications
are not Permissible Modifications, the Administrative Agent.
"Approved Project Schedule" means the Project Schedule, together with
any modifications thereto which are, after the Effective Date, approved in
writing by Texas Resort Owner and, to the extent such modifications are not
Permissible Modifications, the Administrative Agent.
"Architect's Certificate" means the form of Architect's Certificate
attached hereto as Exhibit A, as the same may be revised from time to time.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Asset Sale" means (a) the sale, lease (other than operating leases in
respect of facilities which are ancillary to the operation of Borrower's, Parent
Guarantor's or a Subsidiary's properties), conveyance or other disposition of
any property or assets of either of the Resort Owners, Borrower, Parent
Guarantor or any Subsidiary of Parent Guarantor, including the Texas Outparcel
and any portion thereof (and including any such transaction by way of a
sale-leaseback transaction and including a disposition by Borrower, Parent
Guarantor or a Subsidiary of Equity Interests in a Subsidiary), (b) the issuance
or sale of Equity Interests of any of Parent Guarantor's Subsidiaries or (c) any
event of loss by reason of casualty, condemnation or otherwise, other than, with
respect to clauses (a), (b), and (c) above, the following: (i) the sale or
disposition of personal property held for sale in the ordinary course of
business, (ii) the sale or disposal of damaged, worn out or other obsolete
property in the ordinary course of business so long as such property is no
longer necessary for the proper conduct of the business of Borrower, Parent
Guarantor or such Subsidiary, as applicable, or is simultaneously replaced with
similar property, (iii) the transfer of assets (other than assets that
constitute Collateral) by Borrower to Parent Guarantor, or to a Subsidiary
Guarantor, or by a Subsidiary of Parent Guarantor (other than Borrower) to
either Borrower, Parent Guarantor or a Subsidiary Guarantor and (iv) the sale or
disposition of any single asset having a value not in excess of $500,000.00, in
a transaction unrelated to any other Asset Sale.
"Assumed Rate For All Loans" means, as of any date of determination
thereof, the greatest of (i) an 8% per annum interest rate, (ii) the actual
interest rate payable with respect to the Loans hereunder and the Senior Loans
as of such date (on a weighted average basis) and (iii) the sum of (x) the Seven
Year U.S. Treasury Rate plus (y) 3.50% per annum.
3
"Authorized Officer" means either the Chief Executive Officer or the
Chief Financial Officer of Parent Guarantor, in its capacity as sole member of
Borrower, acting singly, or such other representative of either Resort Owner or
Borrower or the Chief Executive Officer or the Chief Financial Officer of Parent
Guarantor, designated from time to time by Borrower or Parent Guarantor, in a
written notice signed by either Borrower or Parent Guarantor and delivered to
the Administrative Agent.
"Available Sources" means, as of any date of determination, the sum of
(a) Unrestricted Cash On Hand, (b) all amounts on deposit in the Completion
Reserve Account as of such date and (c) the Aggregate Available Commitment (as
defined in the Senior Loan Agreement) as of such date, less the aggregate
outstanding principal amount of Swingline Loans (as defined in the Senior Loan
Agreement), as of such date.
"Borrower" means Xxxxxxx Hotels, LLC, a Delaware limited liability
company.
"Borrowing Notice" means an irrevocable notice of borrowing given by
Borrower to the Administrative Agent not later than 1:00 p.m. (Eastern Time) at
least five Business Days before the Funding Date, specifying the Type of Loans
that will be advanced on the Effective Date.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks generally are open in New York for the conduct of substantially all of
their commercial lending activities and interbank wire transfers can be made on
the Fedwire system.
"Capital Stock" means, with respect to any Person, any capital stock,
partnership or joint venture interests of such Person and shares, interests,
participations or other ownership interests (however designated) of any Person
and any rights (other than debt securities convertible into any of the
foregoing), warrants or options to purchase any of the foregoing.
"Capital Expenditures" means with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
Agreement Accounting Principles, including all such expenditures with respect to
fixed or capital assets (including, without limitation, expenditures for
maintenance and repairs which should be capitalized in accordance with Agreement
Accounting Principles) and the amount of capital assets associated with
Capitalized Lease Obligations incurred by such Person (which shall be deemed to
include (a) expenditures by such Person to acquire stock or other evidence of
beneficial ownership of any other Person for the purpose of acquiring the
capital assets of such Person (to the extent of such capital assets) and (b)
expenditures for fixed or capital equipment or real property).
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (a) short-term obligations of, or
fully guaranteed by, the United States of America, (b) commercial paper rated
A-1 or better by S&P or P-1 or
4
better by Moody's, (c) demand deposit accounts maintained in the ordinary course
of business, provided in each case that the same provides for payment of both
principal and interest (and not principal alone or interest alone) and is not
subject to any contingency regarding the payment of principal or interest, and
(d) investments in money market funds substantially all of the assets of which
are comprised of investments of the types described in clauses (a) through (c)
above or corporate securities (other than commercial paper) with maturities of
397 days or less, provided that the weighted average maturity of such securities
does not exceed 90 days.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease or transfer, in one or a series of related transactions, of all
or substantially all of Borrower's or Parent Guarantor's assets to any person or
group (as such term is used in Section 13(d)(3) of the Securities Exchange Act),
(ii) the adoption of a plan relating to the liquidation or dissolution of
Borrower or Parent Guarantor, (iii) the acquisition by any person or group (as
such term is used in Section 13 (d)(3) of the Securities Exchange Act) of a
direct or indirect interest in more than 50% of the ownership of Borrower or
Parent Guarantor or the voting power of the voting stock of Parent Guarantor by
way of purchase, merger or consolidation or otherwise (other than a creation of
a holding company that does not involve a change in the beneficial ownership of
Parent Guarantor as a result of such transaction), (iv) any consolidation of
Parent Guarantor with, or merger of Parent Guarantor into, any other Person or
any merger of another Person into Parent Guarantor in each case with the effect
that immediately after such transaction the stockholders of Parent Guarantor
immediately prior to such transaction hold less than 50% of the total voting
power of all securities generally entitled to vote in the election of directors,
managers, or trustees of the Person surviving such merger or consolidation, (v)
the first day on which a majority of the members of the Board of Directors of
Parent Guarantor are not Continuing Directors or (vi) Parent Guarantor ceases to
own, directly or indirectly 100% of all ownership interests in either Resort
Owner, Borrower or Opryland Hotel Nashville, LLC, a Delaware limited liability
company or Parent Guarantor or Borrower is otherwise in breach of Section 6.16
or Section 6.17(a). A "beneficial owner" shall be determined in accordance with
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Securities Exchange Act, as in effect on the date hereof.
"Claim" means any claim, action, suit or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means the "Collateral" as defined in the Pledge Agreements
and all other Property and interests in Property (now owned or hereafter
acquired) upon which a Lien is granted under any of the Loan Documents,
including the Accounts, the Project and the Opryland Hotel Florida.
"Collateral Documents" means, collectively, the Pledge Agreements, the
Second Mortgages, the Subordinated Collateral Assignments and all other Loan
Documents under which
5
a Lien is granted in, against or with respect to the Project, the Opryland Hotel
Florida or any other Property.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans to Borrower in an aggregate amount not exceeding the amount set forth
for such Lender in Schedule 2 or as set forth in any instrument of assignment
that has become effective pursuant to Section 12.3.2.
"Completion" with respect to the Project means the occurrence of all of
the following (collectively, the "Completion Conditions"):
(a) Construction of the Project shall be completed
substantially in accordance with the Approved Plans and Specifications and all
Laws, and (i) the Administrative Agent shall have received a report with respect
thereto from the Construction Consultant, reasonably satisfactory to the
Administrative Agent and (ii) the Texas Resort Owner shall have delivered to the
Administrative Agent certifications with respect thereto executed by the Texas
Resort Owner, the Project General Contractor and the Project Architect (in the
respective forms attached as Exhibits E-1, E-2 and E-3), properly completed.
(b) At least one hundred and eighty (180) days shall have
passed since the Substantial Completion Date.
(c) The Project shall be open for business to the general
public and accepting paying guests on a regular daily and nightly basis.
(d) Texas Resort Owner shall have furnished to the
Administrative Agent a copy of the valid, permanent certificate or certificates
of occupancy with respect to the Project, including all aspects of the hotel and
spa and convention center facilities and all other material Improvements for
which certificates of occupancy are required under applicable Laws, and copies
of all other Permits required under applicable Laws or otherwise necessary for
the use, occupancy and operation of the entire Project.
(e) Texas Resort Owner shall have furnished the
Administrative Agent with copies of the Required Lien Waivers.
(f) Texas Resort Owner shall have furnished the
Administrative Agent with an updated Survey of the Project, showing the
Improvements completed on the Project with the dimensions thereof and distances
to the property lines, utilities, easements, parking areas and spaces, as well
as any set-back requirements or violations of the same, and encroachments by the
Improvements on easement areas and adjoining property and encroachments on the
Project; and encroachments or violations shall have been insured against under
the Texas Second Mortgage Title Insurance Policy for the Project and shall have
been determined to be reasonably acceptable to the Administrative Agent.
(g) Texas Resort Owner shall have furnished to the
Administrative Agent a date down endorsement which continues the coverage under
the Texas Second Mortgage Title Insurance Policy to a current date and also
includes an updated survey endorsement based on the Title Insurer's review of
the "as built" Survey, based on the Improvements to the Project as
6
completed, without exception for any matter not previously approved by the
Administrative Agent in writing, and such other endorsements as the
Administrative Agent shall request, to the extent available. Texas Resort Owner
shall also have furnished the Administrative Agent with evidence reasonably
satisfactory to the Administrative Agent regarding the compliance of all aspects
of the Project with applicable zoning, subdivision and land use Requirements of
Law.
(h All fixtures, furniture, furnishings, equipment and
other property contemplated under the Approved Construction Budget and the
Approved Plans and Specifications to be incorporated into or installed in the
Project (with the exception of de minimis items having no adverse effect on the
operation of the Project and reasonably expected to be completed within 90 days
after the Final Completion Date) shall have been so incorporated or installed
free and clear of all Liens (other than mechanics' liens being contested in
accordance with the provision in Section 6.19(b) hereof and other Customary
Permitted Liens), and Texas Resort Owner shall have furnished the Administrative
Agent with current searches of all Uniform Commercial Code financing statements
filed against Texas Resort Owner, as debtor, in such offices and jurisdictions
as the Administrative Agent may require, showing no Uniform Commercial Code
financing statements are filed against Texas Resort Owner (other than those
filed in favor of the Senior Administrative Agent for the benefit of the Holders
of the Secured Obligations (as defined in the Senior Loan Agreement) and in
favor of equipment lessors under equipment leases otherwise permitted under this
Agreement and the Senior Loan Agreement).
(i) Texas Resort Owner shall have furnished evidence
reasonably satisfactory to the Administrative Agent that the Project as
completed has adequate water, gas and electrical supply, storm and sanitary
sewage facilities and other required utilities, and adequate means of vehicular
and pedestrian ingress and egress to public streets.
(j) The Project shall be undamaged by fire or other
cause, or if damaged, shall have been fully repaired and restored and there
shall be no condemnation or eminent domain proceedings pending or threatened
against the Project.
(k) The Administrative Agent (i) shall have approved in
writing, and the Administrative Agent shall have received, an executed copy of
any Management Agreement or other agreement for self management or management by
Parent Guarantor for the Project, which shall be reasonably satisfactory to the
Administrative Agent, as applicable, and (ii) shall be satisfied in its
reasonable discretion that such agreement is sufficient to provide for suitable
pre-opening, management and operating services for the Project.
(l) Texas Resort Owner shall have furnished to the
Administrative Agent true and complete copies of a current rent roll and all
Leases with respect to the Project.
"Completion Reserve Account" means the segregated account of Texas
Resort Owner for completion of the Project pursuant to the Senior Loan
Agreement.
"Conduit" is defined in Section 12.3.2.
"Conduit Credit Enhancer" is defined in Section 12.3.2.
"Conduit Inventory Loan" is defined in Section 12.3.2.
7
"Consent and Agreement" is defined in Section 4.2(j).
"Consolidated EBITDA" means for any period, the Consolidated Net Income
of Parent Guarantor and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with Agreement Accounting Principles, before
(a) Consolidated Interest Expense, (b) any non-cash interest expense, (c) any
pre-opening expenses, (d) provision for taxes and (e) depreciation and
amortization charges, and without giving effect to (i) any extraordinary items,
(ii) non-cash items (except to the extent that they give rise to a liability
that would be required to be reflected on the consolidated balance sheet of
Parent Guarantor, or to the extent that a cash payment will be required to be
made in respect thereof in a future period), including non-cash portions of both
(A) ground rents expense and (B) expense with respect to the Naming Rights
Agreement dated November 24, 1999 between Nashville Hockey Club Limited
Partnership and Parent Guarantor, (iii) gains or losses attributable to asset
sales or debt restructurings, and (iv) unrealized gains or losses from the SAILS
Forward Exchange Contracts and any other Financial Contract.
"Consolidated Fixed Charges" means, for any period, the sum of: (a)
Consolidated Interest Expense and (b) required amortization of Indebtedness,
determined on a consolidated basis in accordance with Agreement Accounting
Principles, for the period involved and discount or premium relating to any such
Indebtedness for any period involved, whether expensed or capitalized;
determined without duplication of items included in Consolidated Interest
Expense, in each case of Parent Guarantor and its Subsidiaries.
"Consolidated Indebtedness" means, at any time, without duplication,
the aggregate outstanding principal amount of all Indebtedness of Parent
Guarantor and its Consolidated Subsidiaries, determined on a consolidated basis
in accordance with Agreement Accounting Principles, and excluding Indebtedness
with regard to the SAILS Forward Exchange Contracts.
"Consolidated Interest Expense" means for any period, the total
interest expense of any Person for such period, determined on a consolidated
basis in accordance with Agreement Accounting Principles, plus, without
duplication, that portion of Capitalized Lease Obligations of such Person
representing the interest factor for such period, in each case net of the total
consolidated cash interest income of such Person for such period; provided,
however, that (a) all non-cash interest expenses and (b) capitalized interest
reflected on such Person's financial statements shall be excluded.
"Consolidated Net Income" means, for any period, net after tax income
of Parent Guarantor and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with Agreement Accounting Principles.
"Consolidated Net Worth" means at any date the sum of all amounts
which, in conformity with Agreement Accounting Principles, would be included
under the caption "redeemable preferred stock" and "total stockholders' equity"
(or like captions) on a consolidated balance sheet of Parent Guarantor on and as
at such date.
"Consolidated Subsidiaries" means, as to any Person, all Subsidiaries
of such Person which are consolidated with such Person for financial reporting
purposes in accordance with Agreement Accounting Principles.
8
"Construction Agreements" is defined in Section 4.1(t).
"Construction Consultant" means, collectively, with respect to the
Project, the architect(s), engineer(s) and any other consultant(s) engaged from
time to time by the Administrative Agent to review plans and specifications,
budgets, schedules, construction and other matters relating to the Project.
"Construction Costs" means (a) all costs incurred by Texas Resort Owner
in connection with the construction of the Project, including the cost of
acquisition of the underlying fee and ground lease interests in Real Property
included within the Project, (i) the "hard costs" costs described within
categories in the Approved Project Budget, (ii) pre-opening expenses and (iii)
all so-called "soft costs," including fees and charges of the Project Architect
and all other architects, engineers and other consultants engaged by Texas
Resort Owner, and the costs and fees incurred in connection with the procurement
of all Permits necessary to make the Project ready for use and occupancy,
including costs and fees incurred in connection with Real Property not included
within the Project to the extent that Texas Resort Owner establishes to the
satisfaction of the Administrative Agent, that such costs were necessary to
obtain Permits required for development or use of the Project, (b) to the extent
projected revenues are not sufficient to pay the same, real estate taxes,
insurance premiums, leasing, maintenance and operation costs and other carrying
costs for the Project which accrue or become payable during the Construction
Period; provided, that under no circumstances shall Construction Costs include
(A) any principal or interest payments on Indebtedness, (B) any dividends,
distributions or other payments to any partner of Texas Resort Owner or any
Affiliate of Texas Resort Owner, or (C) except for those amounts provided for in
clause (a)(iii) above, any land acquisition costs, infrastructure costs,
development costs or other hard or soft costs attributable or allocable to any
Property which is not a part of the Project.
"Construction Period" means the period of time beginning as of the
Effective Date and ending on the Final Completion Date.
"Contaminant" means gasoline, petroleum and other petroleum
by-products, asbestos, explosives, PCBs, radioactive materials, biological
toxins, toxic mold, or any "hazardous" or "toxic" material, substance or waste
which is defined by those or similar terms or is regulated as such under any
statute, law, ordinance, rule or regulation of any Governmental Authority having
jurisdiction over the Project or Opryland Hotel Florida or any portion thereof
or its use, including any material, substance or waste which is: (a) defined as
a "hazardous substance" under the Water Pollution Control Act (33 U.S.C. ss.
1301 et seq.), as amended; (b) defined as a "hazardous waste" under Section 10.4
of The Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss. 6901 et
seq., as amended; (c) defined as a "hazardous substance" or "hazardous waste"
under Section 101 of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization
Act of 1986, 42 U.S.C. ss. 9601 et seq., or any other so-called "superfund" or
"superlien" law, including the judicial interpretations thereof; (d) defined as
a "pollutant" or "contaminant" under 42 U.S.C.A. ss. 9601(33); (e) defined as
"hazardous waste" pursuant to 40 C.F.R. Parts 260 and 261; (f) defined as a
"hazardous chemical" under 29 C.F.R. Part 1910; (g) subject to any other law or
other past (and still in effect), present or future requirement of any
Governmental Authority regulating, relating to, or imposing obligations,
liability or standards of conduct concerning, the protection
9
of human health, plant life, animal life, natural resources, property or the
enjoyment of life or property free from the presence in the environment of any
solid, liquid, gas, odor or any form of energy from whatever source.
"Contingent Obligation" means, as to any Person, any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends
or other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Continuing Directors" means, as of any date of determination, any
member of the board of directors of Parent Guarantor who (a) was a member of
such board of directors on the Effective Date or (b) was nominated for election
or elected to such board of directors with the affirmative vote of at least a
majority of the Continuing Directors who were members of such board of directors
at the time of such nomination or election.
"Conversion/Continuation Notice" is defined in Section 2.5.
"Costs Previously Paid" means Construction Costs paid for by Texas
Resort Owner with the cash equity contributions from Parent Guarantor described
in Section 2.19 of the Senior Loan Agreement.
"Cost to Complete" means at any time, all then-unpaid Construction
Costs expected to be incurred through the Final Completion Date, assuming that
construction of the Project is completed in accordance with the Approved Plans
and Specifications, which amount shall be determined by the Administrative Agent
after consultation with the Construction Consultant.
"Customary Permitted Liens" means Permitted Existing Liens, together
with (a) Liens with respect to real estate taxes and assessments to the extent
not due and payable, (b) Liens to the extent permitted by Section 6.5, (c) Liens
in favor of the Senior Administrative Agent and securing the Secured Obligations
under the Senior Loan Agreement and Liens in favor of the Administrative Agent
and securing the Secured Obligations hereunder and (d) utility, sanitary
10
sewer, storm drainage, access and other easements (including easements for
ingress, egress and vehicular parking for public use with respect to roadways
and parking facilities at the Project, provided the same are approved by the
Administrative Agent such approval not to be unreasonably withheld), provided
such easements do not adversely affect the Opryland Hotel Florida or the Project
in any material respect and access to or use of such easements would not
materially disturb or materially affect any material Improvement.
"Default" means an event described in Article VII.
"Default Amount" is defined in Section 10.11.
"Default Amount Accrued Interest" is defined in Section 10.11(f)(i).
"Default Rate" means the default rate of interest determined pursuant
to Section 2.7.
"Defaulting Lender" is defined in Section 10.11.
"Effective Date" is defined in the preamble of this Agreement.
"Effective Date Advance" means the advance of the Loans in the amount
of $50,000,000.00 that the Lenders have made to Borrower on the Effective Date.
"Eligible Assignee" means (a) any Lender, any bank, savings and loan
association, investment bank, insurance company, trust company, commercial
credit corporation, real estate mortgage investment conduit, grantor trust,
pension trust, pension plan, pension fund or pension advisory firm, mutual fund,
government entity or plan, real estate investment trust, investment company,
money management firm, "qualified institutional buyer" (within the meaning of
Rule 144A under the Securities Act of 1933, as amended), "accredited investor"
(as defined in Regulation D of the Securities Act), publicly traded corporation,
publicly or privately held fund engaged in real estate, corporate or commercial
lending or investing, or any entity substantially similar to any of the
foregoing, which in each case has a minimum net worth, net assets or net capital
of $100,000,000, and (b) any Affiliate of any of the foregoing, provided that
under no circumstances shall Parent Guarantor, Borrower or any Affiliate of
either be an Eligible Assignee.
"Environmental Indemnity Agreement" means that certain Environmental
Indemnity Agreement dated as of the Effective Date, executed and delivered by
Borrower, the Resort Owners, Parent Guarantor and the Subsidiary Guarantors in
favor of the Administrative Agent, for the benefit of the Lenders and other
Holders of Secured Obligations, as it may be amended or modified and in effect
from time to time.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(a) the protection of the environment, (b) the effect of the environment on
human health, (c) emissions, discharges or releases of pollutants, Contaminants,
hazardous substances or wastes into surface water, ground water or land, or (d)
the manufacture, processing, distribution,
11
use, treatment, storage, disposal, transport or handling of pollutants,
Contaminants, hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (a) liabilities under any Environmental Law, or (b) damages
arising from, or costs incurred by such Governmental Authority in response to, a
Release or threatened Release of a Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Industrial Site Recovery Act" or "Transfer Act."
"Environmental Report" means, collectively, those reports listed and
described on Schedule 3 hereto.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Business Day" means a Business Day on which commercial
banks in London, England are open for domestic and international business.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Office and the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it.
"Exercise Notice" is defined in Section 10.11.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility Year" means each period of one year commencing on the
Effective Date and on each anniversary thereof.
"FF&E Reserve Accounts" means, collectively, the Florida FF&E Reserve
Account and the Texas FF&E Reserve Account.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
12
"Final Completion Date" means the date, on or prior to December 31,
2004, upon which Completion of the Project has occurred.
"Financial Contract" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (b) any Rate Management Transaction.
"Fiscal Quarter" means each calendar quarter beginning January 1, April
1, July 1 and October 1 of each Fiscal Year.
"Fiscal Year" means January 1 through December 31 of each year.
"Floating Rate" means, for any day, a rate per annum equal to (a) the
Alternate Base Rate for such day plus (b) 6.75%, in each case changing when and
as the Alternate Base Rate changes.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.7, bears interest at the Floating Rate.
"Florida FF&E Reserve Account" means the segregated account of Florida
Resort Owner for budgeted maintenance capital expenditures pursuant to the
Senior Loan Agreement.
"Florida Ground Lease Estoppels" means collectively, (i) an estoppel
certificate relating to the Florida Hotel Ground Lease delivered by the Florida
Ground Lessor and (ii) an estoppel certificate relating to the Florida Master
Ground Lease delivered by the Florida Master Lessor, in each case in form and
content satisfactory to the Administrative Agent.
"Florida Ground Leases" means the Florida Hotel Ground Lease and the
Florida Master Ground Lease.
"Florida Ground Lessor" means Xentury City, or its successors, from
time to time, as the holder or holders of the lessor's interest under the
Florida Hotel Ground Lease.
"Florida Hotel Ground Lease" means that certain Opryland Hotel -
Florida Ground Lease, dated as of March 3, 1999, by and between Xentury City, as
landlord, and Florida Resort Owner, as tenant, a memorandum of which was
recorded on March 23, 2000 in Book 1717, Page 796 of the Official Records, as
amended by that certain Omnibus Amendment to Master Lease and Hotel Lease (the
"Omnibus Amendment"), dated as of October 4, 2001 and recorded on October 10,
2001 in Book 1942, Page 666 of the Official Records, between GP LP, Xentury City
and Florida Resort Owner, as the same may have been or hereinafter may be
amended, modified, substituted or replaced.
"Florida Master Ground Lease" means that certain GP/Xentury Master
Ground Lease, dated as of March 3, 1999, by and between Florida Master Lessor,
as landlord and Xentury City, as tenant, a memorandum of which was recorded on
March 23, 2000 in Book 1717, Page 775 of the Official Records, as amended by the
Omnibus Amendment, as the same may have been or hereinafter may be amended,
modified, substituted or replaced.
"Florida Master Lessor" means GP LP, or its successors, from time to
time, as the holder
13
or holders of the lessor's interest under the Florida Master Ground Lease.
"Florida Mortgage" means the Amended and Restated Mortgage, Security
Agreement, Assignment of Rents and Fixture Filing, executed and delivered to the
Senior Administrative Agent by the Florida Resort Owner securing the Senior
Loans, as such document may be amended, restated, modified or supplemented from
time to time.
"Florida Mortgage Title Insurance Policy" means an American Land Title
Association loan policy (ALTA 1970/84 Form), insuring the Florida Mortgage as a
valid and subsisting first mortgage, encumbering the Opryland Hotel Florida,
subject only to the Permitted Existing Liens, and naming the Senior
Administrative Agent as the insured party, in such form as excludes any
exception for creditors' rights, and containing (a) a Florida Form 9
endorsement, (b) a survey endorsement, (c) a contiguity endorsement, (d) an
additional interest endorsement, and (e) variable rate, revolving credit and
such other endorsements as the Senior Administrative Agent may require and which
are available in the State of Florida, and also accompanied by reinsurance in
such amounts and from such title insurance reinsurers as the Senior
Administrative Agent may require, provided pursuant to direct access facultative
reinsurance agreements in form and substance satisfactory to Senior
Administrative Agent, as such title insurance policy and reinsurance agreements
may be revised and updated from time to time with the Senior Administrative
Agent's consent.
"Florida Resort Owner" means Opryland Hotel - Florida Limited
Partnership, a Florida limited partnership.
"Florida Second Mortgage" means the Second Mortgage, Security
Agreement, Assignment of Rents and Fixture Filing executed and delivered to the
Administrative Agent (for the benefit of the Lenders and other Holders of
Secured Obligations) by the Florida Resort Owner securing the Secured
Obligations, as such document may be amended, restated, modified or supplemented
from time to time.
"Florida Second Mortgage Title Insurance Policy" means an American Land
Title Association loan policy (ALTA 1970/84 Form), insuring the Florida Second
Mortgage as a valid and subsisting second mortgage, encumbering the Opryland
Hotel Florida, subject only to the Permitted Existing Liens, and naming the
Administrative Agent as the insured party, in such form as excludes any
exception for creditors' rights, and containing (a) a Florida Form 9
endorsement, (b) a survey endorsement, (c) a contiguity endorsement, (d) an
additional interest endorsement, and (e) variable rate, revolving credit and
such other endorsements as the Administrative Agent may require and which are
available in the State of Florida, as such title insurance policy may be revised
and updated from time to time with the Administrative Agent's consent.
"Force Majeure Event" means a delay in Project Construction due to
strikes, acts of God, casualties, enemy action, insurrection, or other matters
beyond the control of Borrower (despite commercially reasonable efforts to
mitigate the delay in Project Construction caused by such matters), provided
that Texas Resort Owner gives written notice of any such delay to the
Administrative Agent within the earlier to occur of (a) five (5) Business Days
after Texas Resort Owner knows or with the exercise of reasonable diligence
should have known of the occurrence
14
of the event resulting in such delay or (b) five (5) Business Days after notice
of same from the Project General Contractor.
"Funded Default Amount" is defined in Section 10.11(c).
"Funding Date" means the date on which all of the conditions described
in Article IV, as applicable, have been satisfied (or waived) in a manner
satisfactory to the Lenders and on which the Loans under this Agreement are made
by the Lenders.
"GAAP" is defined in the definition of "Agreement Accounting
Principles."
"Governmental Approval" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued with respect to the Project by any Governmental Authority
having jurisdiction with respect to any Person or Property.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GP LP" means GP Limited Partnership, a Florida limited partnership.
"Gross Revenues" means, for any period, all receipts resulting from the
operation of the Opryland Hotel Florida or the Project, as applicable,
determined net of allowances in accordance with Agreement Accounting Principles
and consistent with the Uniform System of Accounts for the Lodging Industry, 9th
Revised Edition, 1996, as published by the Hotel Association of New York City,
as the same may be further revised from time to time, including, without
limitation, rents or other payments from guests and customers, tenants,
licensees and concessionaires and business interruption and rental loss
insurance payments; provided, that Gross Revenues shall exclude (a) excise,
sales, use, occupancy and similar taxes and charges collected from guests or
customers and remitted to Governmental Authorities, (b) gratuities collected for
employees (excluding service charges), (c) security deposits and other advance
deposits, unless and until same are forfeited to the applicable Resort Owner,
(d) federal, state or municipal excise, sales, use or similar taxes collected
directly from patrons or guests or included as part of the sales price of any
goods or services, (e) interest income on the Opryland Hotel Florida's bank
accounts or the Project's bank accounts or otherwise earned by the applicable
Resort Owner, and (f) rebates, refunds or discounts (including, without
limitation, free or discounted accommodations).
"Ground Leases" means collectively, the Florida Hotel Ground Lease, the
Florida Master Ground Lease, the Texas Hotel Ground Lease and the Texas Master
Ground Lease.
"Guaranty" means that certain Guaranty dated as of the Effective Date,
executed and delivered by Parent Guarantor and the Subsidiary Guarantors in
favor of the Administrative Agent, for the benefit of the Lenders and other
Holders of Secured Obligations, as it may be amended or modified and in effect
from time to time, together with any additional guaranty of payment executed and
delivered by a Subsidiary of Parent Guarantor in accordance with Section 6.17 or
Section 6.18.
15
"hereof," "hereto," "hereunder, "herewith" and "herein" shall be deemed
to refer to this Agreement as a whole, and not a particular clause, Section or
Article of this Agreement.
"Holders of Secured Obligations" means the Administrative Agent and the
Lenders.
"Hotel Ground Leases" means the Florida Hotel Ground Lease and the
Texas Hotel Ground Lease.
"Improvements" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or hereafter
constructed at the Project or the Opryland Hotel Florida, together with all
machinery and mechanical, electrical, HVAC and plumbing systems presently
located thereon and used in the operation thereof, excluding (a) any such items
owned by utility service providers, (b) any such items owned by tenants or other
third-parties unaffiliated with the Resort Owners and (c) any items of personal
property.
"including" means including without limitation.
"Incentive Agreements" means the following, as amended and in effect
from time to time: (a) the Joint Marketing Agreement dated as of October 1,
1998, by and between Osceola County, Florida (the "County") and Opryland
Hospitality, Inc. and (b) the Public Improvements Partnership Agreement (the
"PIP") dated as of October 1, 1998, between the County and Xentury City
Community Development District.
"Indebtedness" means, as to any Person, without duplication, (a) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services
(other than, to the extent deferred in the ordinary course of business, deferred
payments in respect of services by employees) due more than 90 days after
acquisition of the property or receipt of services or which is otherwise
represented by a note, (b) the maximum amount available to be drawn under all
Letters of Credit issued for the account of such Person and all unpaid drawings
in respect of such Letters of Credit, (c) all Indebtedness of the types
described in clause (a), (b), (d), (e) or (f) of this definition secured by any
Lien on any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (to the extent of the lesser of the amount of such
Indebtedness and the value of the respective property), (d) Capitalized Lease
Obligations, (e) all Contingent Obligations of such Person, and (f) Rate
Management Obligations.
"Initial Lender Affiliate" is defined in Section 9.5.
"Interest Period" means, with respect to a LIBO Rate Loan, a period of
one, two or three months commencing on a Eurodollar Business Day selected by
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two or three months thereafter;
provided, however, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Interest Period shall end on
the last Eurodollar Business Day of such next, second or third succeeding month.
If an Interest Period would otherwise end on a day which is not a Eurodollar
Business Day, such Interest Period shall end on the next succeeding Eurodollar
Business Day; further provided, however, that if said next succeeding Eurodollar
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Eurodollar Business Day.
16
Notwithstanding the foregoing, during the period when Loans are being made
hereunder, an Interest Period that is up to five (5) days more or less than one
month may be selected in order to coordinate the expiration of such Interest
Period with that of another Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"Law" means, collectively, all Requirements of Law and all
Environmental Laws.
"Lease" means a lease, sublease, license, concession agreement or other
agreement (not including the Ground Leases) providing for the use or occupancy
of any portion of any Real Property owned or leased by either of the Resort
Owners, including all amendments, supplements, modifications and assignments
thereof and all side letters or side agreements relating thereto.
"Lender Default" is defined in Section 10.11.
"Lender Payment Portion" is defined in Section 10.11(b).
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Office" means, with respect to a Lender or the Administrative
Agent, the office, branch, subsidiary or affiliate of such Lender or the
Administrative Agent listed on the signature pages hereof or otherwise selected
by such Lender or the Administrative Agent pursuant to Section 2.13.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, disbursements, costs and expenses (including attorney, expert
and consulting fees and costs of investigation, feasibility or Remedial Action
studies), fines, penalties and monetary sanctions, interest, direct or indirect,
known or unknown, absolute or contingent, past, present or future.
"LIBO Rate" means, with respect to any LIBO Rate Loan for the Interest
Period applicable to such LIBO Rate Loan, the per annum rate for such Interest
Period and for any amount equal to the amount of such LIBO Rate Loan shown on
Dow Xxxxx Telerate Page 3750 at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day
17
of such Interest Period or if such rate is not quoted, the arithmetic average as
determined by the Administrative Agent of the rates at which deposits in
immediately available U.S. dollars in an amount equal to the amount of such LIBO
Rate Loan having a maturity approximately equal to such Interest Period are
offered to four (4) reference banks to be selected by the Administrative Agent
in the London interbank market, at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest Period.
"LIBO Rate Advance" means an Advance which, except as otherwise
provided in Section 2.7, bears interest at the Applicable LIBO Rate.
"LIBO Rate Loan" means a Loan which, except as otherwise provided in
Section 2.7, bears interest at the Applicable LIBO Rate.
"LIBO Reserve Percentage" means with respect to an Interest Period for
a LIBO Rate Loan, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments) which is imposed under Regulation D on eurocurrency
liabilities.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including any Environmental Lien),
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever in respect of any property of a Person, whether
granted voluntarily or imposed by law, and includes the interest of a lessor
under a Capitalized Lease or under any financing lease having substantially the
same economic effect as any of the foregoing and the filing of any financing
statement or similar notice naming the owner of such property as debtor, under
the Uniform Commercial Code or other comparable law of any jurisdiction.
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.9, the Pledge Agreements, the Subordinated Collateral Documents, the
Environmental Indemnity Agreement, the Guaranty, any Property Manager's
Subordination Agreement and all other agreements, assignments, consents,
acknowledgments and other instruments, including, without limitation, opinions
of counsel, executed by Borrower, Parent Guarantor, either Resort Owner, the
Subsidiary Guarantors, any Property Manager or any other Person in favor of the
Administrative Agent or the Lenders pursuant to this Agreement or in connection
with the Loans and other transactions contemplated hereby.
"Loan Pledgee" is defined in Section 12.3.2.
"Loans" is defined in Section 2.1.
"Majority Lenders" means at least two Non-Defaulting Lenders in the
aggregate having at least fifty-one percent (51%) of the sum of the Aggregate
Outstanding Credit Exposure held by all the Non-Defaulting Lenders.
"Management Agreements" means the property management agreements, if
any, for the Opryland Hotel Florida and the Project, respectively, as approved
by the Administrative Agent.
18
"Management Fees" means the management and other fees payable under any
applicable Management Agreement.
"Master Leases" means the Florida Master Lease and the Texas Master
Lease.
"Material Adverse Effect" means a material adverse effect on the
business, operations, property or condition (financial or otherwise) of (a)
Parent Guarantor and its Subsidiaries, taken as a whole or (b) either of the
Resort Owners, or an event, condition or circumstance as a result of which any
of the following shall have occurred or the Administrative Agent, after
consultation with the Construction Consultant, if applicable, determines that it
is substantially likely that any of the following may occur: (a) the Completion
Conditions will not be fulfilled on or before the Final Completion Date or (b)
the validity or enforceability of any of the Loan Documents, or the rights or
remedies of the Administrative Agent or the Lenders thereunder shall be
impaired.
"Maturity Date" means the third anniversary of the Effective Date.
"Media Assets" means certain assets used or held for use in connection
with the operation of radio broadcast stations WSM-FM and WWTN(FM) serving the
Nashville, Tennessee market, including Federal Communications Commission
authorizations, other licenses and authorizations, fixtures, equipment and
tangible personal property, interests in real property leases and subleases,
contracts and contract rights, intangibles, records and goodwill and going
concern value.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgages" means, collectively, the Florida Mortgage and the Texas
Deed of Trust.
"Nashville Loans" means, collectively, the Nashville Senior Loan and
the Nashville Mezzanine Loan.
"Nashville Mezzanine Loan" means the loan in the original principal
amount of $100,000,000.00 made as of March 27, 2001 by Xxxxxxx Xxxxx Mortgage
Capital, Inc. to OHN Holdings, LLC, secured by, among other things, a Pledge by
OHN Holdings, LLC of its membership interest in Opryland Hotel Nashville, LLC,
as in effect on the date hereof.
"Nashville Mezzanine Loan Agreement" means the Mezzanine Loan Agreement
dated as of March 27, 2001 by and between OHN Holdings, LLC, as mezzanine
borrower, and Xxxxxxx Xxxxx Mortgage Capital, Inc., as mezzanine lender, as in
effect on the date hereof.
"Nashville Senior Loan" means the loan in the original principal amount
of $275,000,000.00 made as of March 27, 2001 by Xxxxxxx Xxxxx Mortgage Lending,
Inc. to Opryland Hotel Nashville, LLC, secured by, among other things, a first
priority deed of trust encumbering Opryland Nashville, as in effect on the date
hereof.
"Net Cash Proceeds" means the aggregate cash proceeds (including any
cash received by way of deferred payment pursuant to, or by monetization of, a
note receivable or otherwise, as and when so received) received by Borrower,
Parent Guarantor or any of their Subsidiaries from any Asset Sale less the sum,
without duplication, of (a) the amounts required to be applied to the
19
repayment of Indebtedness or secured by a Lien on such Property (other than the
Obligations), (b) the direct costs relating to such sale or other disposition
(including, without limitation, legal, accounting and sales fees and
commissions), including income taxes paid or estimated to be actually payable as
a result thereof, after taking into account any available tax credits or
deductions and any tax sharing arrangements (provided that the amount of income
taxes so estimated to be actually payable shall be approved by the
Administrative Agent, which approval shall not be unreasonably withheld,
conditioned or delayed), (c) a reserve for all adjustments that are reasonably
likely to be made to the sales price, and (d) the amount of any cash reserve
actually provided by Borrower, Parent Guarantor or the applicable Subsidiary, in
accordance with Agreement Accounting Principles, after such sale or other
permanent disposition, including, without limitation, for liabilities related to
environmental matters and liabilities under any indemnification obligations, but
only to the extent and for so long as a cash reserve is actually established.
"Net Debt/Equity Proceeds" means with respect to each Securities
Issuance by a Person or any capital contribution to such Person, the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) received by such Person from the Securities Issuance
or from the respective capital contribution.
"Net Income" means, for any period, net after tax income determined in
accordance with Agreement Accounting Principles.
"Net Operating Income" means, for any period, the amount if any by
which Gross Revenues for such period exceeds Operating Expenses for such period,
where Gross Revenues and Operating Expenses are determined on an accrual basis,
except for ground rents payable under the Florida Hotel Ground Lease or the
Texas Hotel Ground Lease, which, for the purposes of this definition, will be
determined on a cash basis, in accordance with Agreement Accounting Principles.
"Non-Defaulting Lenders" means at any time all Lenders which are not
then Defaulting Lenders or their Affiliates.
"Non-Material Casualty" means a casualty in connection with either the
Opryland Hotel Florida or the Project in respect of which (a) the applicable
Resort Owner has developed a plan for the Restoration of the Opryland Hotel
Florida or the Project, as applicable, which is satisfactory to the
Administrative Agent and, if such casualty occurs prior to the Final Completion
Date in the case of the Project, provides for satisfaction of the Completion
Conditions on or before the Final Completion Date, (b) the applicable Resort
Owner has demonstrated to the Administrative Agent's satisfaction that such
Restoration shall be completed pursuant to such plan, and (c) the applicable
Resort Owner has demonstrated to the Administrative Agent's satisfaction that
the combination of insurance proceeds, equity contributions and, for so long as
the Senior Loan is outstanding, no Default (as defined in the Senior Loan
Agreement) has occurred and is continuing, the remaining Aggregate Available
Commitment (as defined in Senior Loan Agreement), if any, less the aggregate
outstanding principal amount of any Swingline Loans (as defined in the Senior
Loan Agreement), will be sufficient to pay the costs of such Restoration
pursuant to such plan. A casualty which initially is determined to be a
Non-Material Casualty shall no longer constitute a Non-Material Casualty if
20
the conditions set forth in clauses (a) through (c) above are no longer
satisfied, due to a change in circumstances or otherwise.
"Non-Material Condemnation" means a condemnation in connection with
which (a) the Administrative Agent determines that no material portion of the
Opryland Hotel Florida or the Project, as applicable, is affected, and no
portion of the Opryland Hotel Florida or the Project is affected which could
reasonably be expected to have a material adverse impact on the development,
construction, completion, use, operation or value of the Opryland Hotel Florida
or the Project, as applicable, or any of its components, including any
driveways, accessways, parking areas or recreation facilities, (b) the
applicable Resort Owner has developed a plan for any necessary (in the
Administrative Agent's determination) Restoration of the Opryland Hotel Florida
or the Project, as applicable, which is satisfactory to the Administrative Agent
and, if such taking occurs prior to the Final Completion Date in the case of the
Project, provides for the satisfaction of the Completion Conditions on or before
the Final Completion Date, (c) the applicable Resort Owner has demonstrated to
the Administrative Agent's reasonable satisfaction that such Restoration shall
be completed pursuant to such plan, and (d) the applicable Resort Owner has
demonstrated to the Administrative Agent's satisfaction that the combination of
the condemnation award, equity contributions and, for as long as the Senior Loan
is outstanding and no Default (as defined in the Senior Loan Agreement) has
occurred and is continuing, the remaining Aggregate Available Commitment (as
defined in Senior Loan Agreement), if any, less the aggregate outstanding
principal amount of any Swingline Loans (as defined in the Senior Loan
Agreement), will be sufficient to pay the costs of such Restoration pursuant to
such plan. A condemnation which initially is determined to be a Non-Material
Condemnation shall no longer constitute a Non-Material Condemnation if the
conditions set forth in clauses (a) through (d) above are no longer satisfied,
due to a change in circumstances or otherwise.
"Non-Material Project Agreements" is defined in the definition of
"Project Agreements."
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any of the promissory notes in the form of Exhibit B
issued pursuant to Section 2.9, which promissory notes (collectively, "Notes")
shall be in the aggregate original principal amount of $50,000,000.00.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of Borrower and Parent
Guarantor to the Lenders or to any Lender, the Administrative Agent or any
indemnified party arising under the Loan Documents. The term "Obligations"
includes all interest, charges, expenses, fees, Protective Advances, attorneys'
fees and disbursements and any other sum chargeable to Borrower and Parent
Guarantor or any Subsidiary Guarantor under this Agreement or any other Loan
Document.
"Off-Balance Sheet Liability" of a Person means (a) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (b) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (c) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (d) any
obligation arising with respect to any other transaction which is the functional
equivalent of or
21
takes the place of borrowing but which does not constitute a liability on the
balance sheets of such Person.
"Official Records" means the official records of Osceola County,
Florida and Tarrant County, Texas, as applicable.
"Omnibus Amendment" is defined in the definition of "Florida Hotel
Ground Lease".
"Opening Date" means the date on which the Project or any material
portion thereof first opens for business to the general public.
"Operating and Capital Budget" is defined in Section 6.1(v).
"Operating Expenses" means, for any period, the actual costs and
expenses of owning, operating, managing, repairing and maintaining the Opryland
Hotel Florida or the Project during such period incurred by the applicable
Resort Owner, including ground rents payable for such period under the Florida
Ground Leases and the Texas Ground Leases, and actual real estate taxes;
provided that for the period from the Opening Date to the commencement of the
first fiscal period of the applicable taxing authority with respect to which
real estate taxes for the Project are based on an assessment of the completed
Project, real estate taxes for the Project shall be deemed to be the greater of
(x) actual real estate taxes for such period and (y) $400,000.00 per month (pro
rated for such period); and provided, further, that in no event shall Operating
Expenses include (a) interest and/or principal due on the Loans, or other
Indebtedness, (b) distributions or other payments to either Resort Owner, or any
partners, members or Affiliates of either Resort Owner, (c) income taxes, (d)
depreciation and amortization, (e) deposits into the FF&E Reserve Accounts, (f)
Management Fees, (g) pre-opening expenses, (h) extraordinary items and (i)
non-cash items (except to the extent that they give rise to a liability that
would be required to be reflected on the consolidated balance sheet of Parent
Guarantor, or to the extent that a cash payment will be required to be made in
respect thereof in a future period), including the non-cash portion of ground
rents expense.
"Opryland Hotel Florida" means Florida Resort Owner's ground lease and
other interests in Real Property more particularly described on Exhibit D-2 and
the Improvements constructed thereon, consisting of a first-class hotel and
convention center known as the "Xxxxxxx Palms", comprised of an approximately
1,400 room full service hotel, 380,000 square feet of meeting space, a 178,000
square foot exhibition hall, three full service restaurants, a spa and fitness
facility and related facilities, together with all Property of Florida Resort
Owner now or hereafter constructed or located thereon or used in connection
therewith.
"Opryland Nashville" means the property known as the Opryland Hotel
Nashville, consisting of approximately 2,883 hotel rooms and 600,000 square feet
of meeting and exhibition space in Nashville, Tennessee.
"Ordinary Course Claim" is defined in Section 6.1(x)(a).
"Organizational Documents" means, with respect to any corporation,
limited liability company, or partnership (a) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (b) the partnership
22
agreement executed by the partners in the partnership, (c) the by-laws (or the
equivalent governing documents) of the corporation, limited liability company or
partnership and (d) any document setting forth the designation, amount and/or
relative rights, limitations and preferences of any class or series of such
corporation's capital stock or such limited liability company's or partnership's
equity or ownership interests.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of the aggregate principal amount of its Loans outstanding at such time.
"Parent Guarantor" means Xxxxxxx Entertainment Company, a Delaware
Corporation.
"Participants" is defined in Section 12.2.1.
"Permissible Modification" means (a) any reallocation among line items
in the Approved Construction Budget, (b) any change order or other amendment to
any Construction Agreement, (c) any amendment, addition or other change to the
Approved Plans and Specifications or (d) any amendment or other change to the
Approved Project Schedule (any of items (a), (b), (c) and (d) being hereinafter
referred to as a "Modification"), which Modification satisfies all of the
following conditions:
(i) Such Modification has been approved in writing by
Texas Resort Owner and (A) in the case of a Modification (including any change
order) to any agreement, the parties thereto, and (B) in the case of any
Modification to the Plans and Specifications, the Project General Contractor and
the Project Architect, and copies of such Modification and approvals have been
promptly furnished to the Administrative Agent;
(ii) Such Modification is consistent with the Project
Scope of Work and complies with all applicable Laws;
(iii) Such Modification does not impair the ability of
Texas Resort Owner to fulfill the Completion Conditions on or before the Final
Completion Date;
(iv) Such Modification will not have a material adverse
effect on the operation or financial performance of the Project;
(v) Such Modification is not otherwise prohibited by this
Agreement; and
(vi) In the case of a Modification consisting of a
reallocation of line items within the Approved Construction Budget, such
Modification is either (A) a reallocation of actual or reasonably projected cost
savings in one or more line items (provided that any adjustment to the line item
for "Construction Contract and GMP" shall be supported by a change order
submitted to and acceptable to the Administrative Agent) within a single
category of line item costs to one or more line items within the same category
(i.e., a reallocation of actual or reasonably projected cost savings among line
items within "Building Construction" or "Furniture, Fixtures and Equipment" or
"Soft Costs" but not from one of such line item
23
categories to another) or (B) a reallocation to or from the "Contingency" line
item to or from any other line item.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission with respect to the Opryland Hotel Florida and the
Project required from any Person, including any Governmental Approvals.
"Permitted Debt" is defined in Section 6.14.
"Permitted Existing Liens" means the Liens identified as such on
Exhibit C.
"Permitted FF&E Expenditures" means expenditures made by Florida Resort
Owner from time to time after the Effective Date, and by Texas Resort Owner from
time to time after the Final Completion Date, as applicable, for normal
maintenance capital expenditures or capital improvements in connection with the
Opryland Hotel Florida and the Project, respectively, including furniture,
fixtures and equipment, provided that all such expenditures are substantially
consistent with such Resort Owner's Approved FF&E Budget, as the same may be
adjusted from time to time, with the consent of the Administrative Agent, which
shall not be unreasonably withheld, to reallocate cost savings among line items
therein.
"Permitted Refinancing" means a refinancing of the Nashville Loans (i)
that is in an amount, net of applicable closing costs and financing fees, at
least sufficient to refinance the entire outstanding principal balance of the
Nashville Loans at the time of such refinancing, (ii) that results in no greater
recourse to Parent Guarantor, Opryland Hotel Nashville, LLC or any of their
Affiliates than exists under the existing Nashville Loans, (iii) that has a
maturity date at least 6 months after the Maturity Date of the Loans, and (iv)
the Net Debt/Equity Proceeds, if any, of which are applied in accordance with
the provisions of Section 2.2 hereof.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PIP" is defined in the definition of "Incentive Agreements."
"Post-Closing Documents" is defined in Section 6.43.
"Post-Closing Requirements" is defined in Section 6.43.
"Plans and Specifications" is defined in Section 4.1(o).
"Pledge" is defined in Section 12.3.2.
"Pledge Agreements" means, collectively, the Pledge Agreements of even
date herewith by Borrower, Parent Guarantor, Opryland Hospitality, LLC and
Opryland Hotel Texas, LLC, each in favor of the Administrative Agent with
respect to the respective pledges of the direct and indirect equity interests in
the Resort Owners.
24
"Prime Lending Rate" means a rate per annum equal to the prime lending
rate announced from time to time by the New York office of the Administrative
Agent (in its individual capacity) or, if such office ceases to announce such
rate, such other United States office of the Administrative Agent or an
Affiliate selected by it from time to time, such per annum rate changing when
and as said prime rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. The Administrative Agent may make commercial loans or other loans at
rates of interest at, above or below the Prime Lending Rate.
"Project" means Texas Resort Owner's ground lease and other interests
in the Real Property more particularly described on Exhibit D-1 and the
Improvements constructed and to be constructed thereon, consisting of a
first-class hotel and convention center known as the "Xxxxxxx Opryland Resort &
Convention Center Texas," comprised of an approximately 1,500 room full service
hotel and 400,000 square feet of meeting and exhibition space together with all
Property of Texas Resort Owner now or hereafter constructed or located thereon
or used in connection therewith.
"Project Agreements" means all material agreements executed by Texas
Resort Owner (or to which Texas Resort Owner or the Project shall be subject)
for the construction, development, financing, leasing and management of the
Project, including any Management Agreement and all Construction Agreements. The
following (collectively, "Non-Material Project Agreements") shall not be
"Project Agreements" for the purposes of this Agreement: (a) agreements (other
than Ancillary Space Leases) with respect to operation of the Project entered
into by Texas Resort Owner in the ordinary course of business, other than Leases
and any Management Agreement for the Project, provided that each of such
Agreements is (i) on arms-length terms and conditions (ii) cancelable on not
more than 90 days notice, without penalty or premium and (iii) represents a cost
not in excess of $300,000.00 in any Fiscal Year, and (b) Ancillary Space Leases.
"Project Architect" is defined in Section 4.1(n).
"Project Architect's Agreement" is defined in Section 4.1(n).
"Project Construction" means the construction of the Project
contemplated under the Approved Plans and Specifications, and all work related
thereto.
"Project General Contract" is defined in Section 4.1(r).
"Project General Contractor" means Centex Construction Company, Inc., a
Nevada corporation.
"Project Schedule" is defined in Section 4.1(q).
"Project Scope of Work" means the development and construction of the
Project substantially in accordance with the Plans and Specifications as
submitted to and approved by the Administrative Agent prior to the Effective
Date.
25
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Property Award Event" is defined in Section 6.27.
"Property Awards" means all compensation, awards, damages, refunds,
claims, rights of action and proceeds (including cash, equivalents readily
convertible into cash, and such proceeds of any notes received in lieu of cash)
payable under policies of property damage, boiler and machinery, rental loss,
rental value and business interruption insurance or with respect to any
condemnation or eminent domain claim or award relating to the Project or any
portion thereof.
"Property Manager" means, any property manager and its successors and
permitted assigns under any Management Agreement for either the Opryland Hotel
Florida or the Project, as approved by the Administrative Agent.
"Pro Rata Share" means, with respect to a Lender, a fraction the
numerator of which is the sum of such Lender's Loan Commitment, and the
denominator of which is the Aggregate Commitment.
"Protective Advances" is defined in Section 9.19.
"Quarterly Payment Date" means each March 31, June 30, September 30 and
December 31 occurring after the Effective Date.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and however and whenever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Management Transactions (other than the SAILS Forward Exchange Contracts), and
(b) any and all cancellations, buy backs, reversals, terminations or assignments
of any Rate Management Transactions.
"Rate Management Transaction" means, with respect to any Person, any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into between such Person and any counterparty which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
"Real Property" means the present and future right, title and interest
(including any leasehold estate) in (a) any plots, pieces or parcels of land,
(b) any Improvements of every nature whatsoever (the rights and interests
described in clauses (a) and (b) above being, for the purpose of this
definition, the "Premises"), (c) all easements, rights of way, gores of land or
any lands occupied by streets, ways, alleys, passages, sewer rights, water
courses, water rights and powers, and public places adjoining such land, and any
other interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be
26
appurtenant thereto, (d) all hereditaments, gas, oil, minerals (with the right
to extract, sever and remove such gas, oil and minerals), and easements, of
every nature whatsoever, located in, on or benefiting the Premises and (e) all
other rights and privileges thereunto belonging or appertaining and all
extensions, additions, improvements, betterments, renewals, substitutions and
replacements to or of any of the rights and interests described in clauses (c)
and (d) above.
"Redirection Notice" is defined in Section 12.3.2.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"Remedial Action" means any remedial actions as may be prudent or
required from time to time to comply with Environmental Laws.
"Required Lien Waivers" means written waivers of Lien from Persons who
shall have furnished or shall be furnishing labor or materials in connection
with the Project, in customary form, duly executed, acknowledged and delivered,
and sufficient, in the judgment of the Administrative Agent and the Construction
Consultant, to demonstrate that, as of any date in respect of which such waivers
are to be delivered hereunder, the Project is and shall remain free of Liens for
labor or materials, other than such Liens as are permitted by Section 6.19
hereof.
"Requirements of Law" means, as to any Person the charter and by-laws
or other organizational or governing documents of such Person, and as to any
Person or Property, any law, rule, code or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or Property or to which such Person or Property
is subject, including the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, any certificate of
27
occupancy, zoning or land use ordinance, building, environmental or land use
requirement, code or Permit.
"Reserve Adjusted LIBO Rate" means, with respect to any LIBO Rate Loan,
the rate per annum (rounded upward, if necessary, to the next higher 1/100 of
one percent) calculated as of the first day of such Interest Period in
accordance with the following formula:
Reserve Adjusted LIBO Rate = LR
-----
1-LRP
where
LR = LIBO Rate
LRP = LIBO Reserve Percentage
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Resort Owners" means, collectively, Florida Resort Owner and Texas
Resort Owner.
"Restaurant Facility" means Texas Resort Owner's proposed full service
restaurant facility to be constructed on the north side of the Project on or
near the existing pier and lake, currently contemplated by Texas Resort Owner to
be known as "The Point".
"Restoration" is defined in Section 6.27(b).
"Restoration Account" is defined in Section 6.27(c)(iii).
"SAILS Forward Exchange Contracts" means, collectively, the SAILS
Mandatorily Exchangeable Securities Contract dated May 22, 2000, among Borrower,
OLH, G.P., Credit Suisse First Boston International and Credit Suisse First
Boston Corporation, as Agent, together with the SAILS Pledge Agreements dated as
of May 22, 2000, among Borrower, Credit Suisse First Boston International and
Credit Suisse First Boston Corporation, as Agent, as amended by letter dated
October 6, 2000 by Credit Suisse First Boston International and Credit Suisse
First Boston Corporation to OLH, G.P. and Xxxxxxx Xxxxx Mortgage Capital, Inc.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Second Mortgages" means, collectively, the Florida Second Mortgage and
the Texas Second Deed of Trust.
28
"Second Mortgage Title Insurance Policies" means, collectively, the
Florida Second Mortgage Title Insurance Policy and the Texas Second Mortgage
Title Insurance Policy.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means the Obligations.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Securities Issuance" means the sale of (a) any shares, interests,
rights to purchase, warrants, options, participations or other equivalents or
interests in equity of any Person or (b) any notes, bonds, debentures or similar
instruments issued by any Person.
"Senior Consolidated Indebtedness" means, at any time, without
duplication, the aggregate outstanding principal amount of all Indebtedness of
Parent Guarantor and its Consolidated Subsidiaries, determined on a consolidated
basis in accordance with Agreement Accounting Principles, and excluding
Indebtedness with regard to (a) the SAILS Forward Exchange Contracts, (b) the
Loans and (c) unsecured, senior subordinated notes of Parent Guarantor permitted
to be issued pursuant to Section 6.14(a)(x).
"Senior Lenders" is defined in the definition of Senior Loan Agreement.
"Senior Administrative Agent" means the "Administrative Agent" as
defined in the Senior Loan Agreement.
"Senior Loan Agreement" means that certain Credit Agreement dated as of
the Effective Date, with respect to the Senior Loans, executed and delivered by
the Resort Owners, Parent Guarantor, the Senior Administrative Agent and the
lenders party thereto (collectively, the "Senior Lenders") as it may be amended
or modified.
"Senior Loans" means the loans in the aggregate original principal
amount of $175,000,000.00, made as of the Effective Date by the Senior Lenders
to the Resort Owners, secured by, among other things, the Florida Mortgage and
the Texas Deed of Trust, as in effect on the date hereof.
"Seven Year U.S. Treasury Rate" means, as of any date of determination,
the yield, calculated by linear interpolation (rounded to the nearest
one-thousandth of one percent (i.e., 0.001%) of the yield of noncallable United
States Treasury obligations with terms (one longer and one shorter) most nearly
approximating the period from such date of determination to the seventh
anniversary thereof, as determined by Lender on the basis of Federal Reserve
Statistical Release H.15-Selected Interest Rates, under the heading U.S.
Governmental Security/Treasury Constant Maturities, or such other recognized
source of financial market information as shall be selected by Administrative
Agent.
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"Subordinated Collateral Assignments" means (a) those certain
Subordinated Assignments of Lessor's Interest in Leases and Rents of even date
herewith executed and delivered by each Resort Owner in favor of the
Administrative Agent, for the benefit of the Lenders and other Holders of
Secured Obligations, as it may be amended or modified and in effect from time to
time and (b) those certain Subordinated Assignments of Agreements, Licenses,
Permits and Contracts of even date herewith executed and delivered by Borrower,
each Resort Owner, Parent Guarantor and Opryland Hospitality Group in favor of
the Administrative Agent, for the benefit of the Lenders and other Holders of
Secured Obligations, as each may be amended or modified and in effect from time
to time.
"Subordinated Lenders" means the Lenders.
"Subordination and Intercreditor Agreement" means that certain
Subordination and Intercreditor Agreement dated as of the Effective Date,
executed and delivered by the Senior Lenders, the Subordinated Lenders, the
Administrative Agent (as defined in the Senior Loan Agreement) and the
Administrative Agent hereunder, as it may be amended or modified.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Subsidiary Guarantor" means each of the Persons listed on Schedule 4,
together with each direct and indirect wholly-owned Subsidiary of Borrower
formed or acquired after the date hereof, collectively referred to as the
"Subsidiary Guarantors".
"Substantial Completion Date" means the date, on or prior to June 30,
2004, upon which (i) the Project is substantially complete in accordance with
the Approved Plans and Specifications, (ii) a temporary certificate or
certificates of occupancy has been obtained by Texas Resort Owner for
substantially all the Project, (iii) Texas Resort Owner has obtained all
insurance coverages required by Section 6.6(c) and delivered evidence thereof to
the Administrative Agent, and (iv) substantially all of the Project is open for
business to the general public and accepting paying guests on a regular daily
and nightly basis.
"Surveys" means those plats of surveys showing the outline of the
applicable Real Property (a) prepared in accordance with "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys" jointly established and
adopted by ALTA, ACSM and NSPS in 1999, and pursuant to the Accuracy Standards
as adopted by ALTA, NSPS and ACSM and in effect on the date of the plat or
survey, bearing a proper certificate by the surveyor, certifying such optional
items as are acceptable to the Administrative Agent from Table A, Optional
Survey Responsibilities and Specifications, of the Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys, which certificate shall include
the legal description of the Real Property and shall be made in favor of the
Administrative Agent, the Title Insurer, Florida
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Resort Owner or Texas Resort Owner, as applicable, and such other parties as the
Administrative Agent, may direct, (b) showing or stating (i) the square footage
of the land; (ii) any encroachments by any Improvements located on adjoining
property onto such Real Property or of any Improvements comprising a portion of
such Real Property onto adjoining property; (iii) that such Improvements are not
located in a 100-year flood plain or special flood hazard area (or indicating
any applicable flood zone); and (iv) such additional information as may be
required by the Administrative Agent or the Title Insurer and (c) if any water,
gas, electrical, storm or sanitary sewerage or other utility facilities serving
any of such Real Property are located or are to be located in land beyond such
Real Property, other than land or easements which have been dedicated to the
public or to the utility which is to furnish the service, accompanied by
evidence satisfactory to the Administrative Agent of the existence of permanent
easement rights therefor benefiting such Real Property, in form and substance
reasonably satisfactory to the Administrative Agent, which easement rights shall
be covered by the Lien of the applicable Mortgage and which Lien shall be
insured under the applicable Mortgage Title Insurance Policy.
"Syndication Date" means the earlier to occur of (a) the date that is
90 days after the Effective Date and (b) the date upon which the Administrative
Agent and Joint Book Running Managers determine in their sole discretion (and
notify Borrower) that the primary syndication with respect to the Commitment and
Loans contemplated hereby (and the resultant addition of Persons as Lenders
pursuant to Article XII) has been completed.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Texas FF&E Reserve Account" means the segregated account of Texas
Resort Owner for budgeted maintenance capital expenditures pursuant to the
Senior Loan Agreement.
"Texas Deed of Trust" means the Leasehold and Fee Deed of Trust,
Security Agreement, Assignment of Rents and Leases and UCC Fixture Filing,
executed and delivered to the Senior Administrative Agent by the Texas Resort
Owner securing the Senior Loans, as such document may be amended, restated,
modified or supplemented from time to time.
"Texas Ground Lease Estoppels" means collectively, (i) an estoppel
certificate relating to the Texas Hotel Ground Lease delivered by the Texas
Ground Lessor and (ii) an estoppel certificate relating to the Texas Master
Ground Lease delivered by the Texas Master Lessor, in each case in form and
content satisfactory to the Administrative Agent.
"Texas Ground Leases" means the Texas Hotel Ground Lease and the Texas
Master Ground Lease.
"Texas Ground Lessor" means the City of Grapevine, Texas, its
successors and assigns, as sublessor under the Texas Hotel Ground Lease.
"Texas Hotel Ground Lease" means that certain Hotel/Convention Center
Sublease Agreement, dated as of May 16, 2000, by and between Texas Ground
Lessor, as sublessor, and Texas Resort Owner, as tenant, as amended by that
certain Sublease Addendum Number 1, dated
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July 28, 2000, between Texas Ground Lessor and Texas Resort Owner, as the same
may have been or hereinafter may be amended, modified, substituted or replaced.
"Texas Master Ground Lease" means that certain Lease, dated as of March
18, 1994, by and between Texas Master Lessor, as landlord, and Texas Ground
Lessor, as tenant, as the same may have been or hereinafter may be amended,
modified, substituted or replaced.
"Texas Master Lessor" means the Secretary of the Army, its successors
and assigns, as landlord under the Texas Master Ground Lease.
"Texas Mortgage Title Insurance Policy" means a Texas Land Title
Association loan policy (Form T-2), insuring the Texas Deed of Trust as a valid
and subsisting first deed of trust, encumbering the Project, subject only to the
Permitted Existing Liens, and naming the Senior Administrative Agent as the
insured party, and containing, (a) a T-19 comprehensive endorsement, (b) a first
loss endorsement, and (c) variable rate, revolving credit and such other
endorsements as the Senior Administrative Agent may require and which are
available in the State of Texas, and also accompanied by reinsurance in such
amounts and from such title insurance reinsurers as the Senior Administrative
Agent may require, provided pursuant to direct access facultative reinsurance
agreements in form and substance satisfactory to Senior Administrative Agent, as
such title insurance policy and reinsurance agreements may be revised and
updated from time to time with the Senior Administrative Agent's consent.
"Texas Outparcel" means Lot 2, approximately 9.261 acres, as shown on
Final Plat of Lots 1-3, Block 1 (Opryland Second Addition), dated February 18,
2003 and prepared by Xxxxxx Xxxxxxx, as recorded March 3, 2003 in Vol. 388.50,
Page 90, Plat Records of Tarrant County, Texas.
"Texas Resort Owner" means Opryland Hotel - Texas Limited Partnership,
a Delaware limited partnership.
"Texas Second Deed of Trust" means the Second Leasehold and Fee Deed of
Trust, Security Agreement, Assignment of Rents and Leases and UCC Fixture Filing
executed and delivered to the Administrative Agent (for the benefit of the
Lenders and other Holders of Secured Obligations) by the Texas Resort Owner
securing the Secured Obligations, as such document may be amended, restated,
modified or supplemented from time to time.
"Texas Second Mortgage Title Insurance Policy" means a Texas Land Title
Association loan policy (Form T-2), insuring the Texas Second Deed of Trust as a
valid and subsisting second deed of trust, encumbering the Project, subject only
to the Permitted Existing Liens, and naming the Administrative Agent as the
insured party, and containing, (a) a T-19 comprehensive endorsement, (b) a first
loss endorsement, and (c) variable rate, revolving credit and such other
endorsements as the Administrative Agent may require and which are available in
the State of Texas, as such title insurance policy may be revised and updated
from time to time with the Administrative Agent's consent.
"Title Insurer" means, with respect to the Florida Second Mortgage
Title Insurance Policy, Fidelity National Title Insurance Company of New York,
and with respect to the Texas Second Mortgage Title Insurance Policy, Fidelity
National Title Insurance Company.
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"Total Debt Service Coverage Ratio" means, as of any date of
calculation, the ratio of (a) Adjusted Net Operating Income for the Opryland
Hotel Florida and the Project for the last full twelve calendar months for which
actual financials are available, on such date of calculation, in accordance with
Parent Guarantor's ordinary operating practices, provided that, for the purpose
of such calculation, for each of the first full twelve calendar months ending
after the Opening Date, Adjusted Net Operating Income for the Project shall be
annualized (by multiplying Adjusted Net Operating Income for the Project for the
period from the Opening Date to the last day of such calendar month by a
fraction, the numerator of which is 365 and the denominator of which is the
number of days in the period from the Opening Date through the last day of such
calendar month), to (b) an assumed annual debt service amount computed by using
(1) the Assumed Rate For All Loans, (2) a notional principal amount equal to the
sum of the Aggregate Outstanding Credit Exposure, plus the then-outstanding
principal amount of the Senior Loans, plus the Aggregate Available Commitment
(as defined in the Senior Loan Agreement) and (3) a twenty-five year
amortization schedule.
"Transfer" means any sale, conveyance, transfer, disposition,
alienation, hypothecation, lease, assignment, pledge, mortgage, encumbrance or
divestiture, whether direct or indirect, voluntary or involuntary.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Loan, its nature as a Floating Rate
Loan or a LIBO Rate Advance.
"Unanimous Lenders" means all Non-Defaulting Lenders in the aggregate
having one hundred percent (100%) of the Aggregate Outstanding Credit Exposure
held by all the Non-Defaulting Lenders.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"Unmatured Default" means an event which but for the lapse of any time
period or the giving of any notice, or both, would constitute a Default.
"Unmatured Monetary Default" means, as of any date, any nonpayment of
principal of or interest on any Loan, any commitment fee or any other Obligation
payable to the Administrative Agent or any of the Lenders under any of the Loan
Documents due on or before such date, which nonpayment has not become a Default
as of such date.
"Unrestricted Cash On Hand" means, as of any date of determination, the
sum of the aggregate amount of unrestricted cash held by Borrower, Parent
Guarantor and the Resort Owners as shown on their balance sheets on such date.
"Xentury City" means Xentury City Development Company, L.C., a Florida
limited liability company.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 The Commitment. Subject to and upon the terms and conditions
set forth herein, each Lender severally agrees to make, on the Effective Date, a
term loan or term loans (each, a "Loan" and collectively, the "Loans") to
Borrower, which Loans: (i) shall be denominated in Dollars, (ii) except as
hereinafter provided, shall, at the option of Borrower, be incurred and
maintained as, and/or converted into, Floating Rate Loans or LIBO Rate Loans,
and (iii) shall be made by each such Lender in a principal amount equal to the
Loan Commitment of such Lender. All Loans of a given Type shall be made and
maintained by the Lenders ratably according to their respective Pro Rata Shares.
Once repaid, Loans may not be reborrowed.
2.2 Mandatory Principal Repayments.
(a) If, on any date following the Final Completion Date,
the Total Debt Service Coverage Ratio is less than 1.4x, then the following
amounts shall be applied promptly upon receipt, and in any event within five (5)
Business Days thereafter, by either Borrower, Parent Guarantor, Florida Resort
Owner, Texas Resort Owner or any Subsidiary Guarantor, as applicable (it being
understood that Parent Guarantor shall cause each Subsidiary Guarantor to comply
with the provisions of this Section 2.2(a)) to repayment of the Loans (but only
to the extent such amounts are not required by the terms of the Senior Loan
Agreement to be applied to repay the Senior Loans) to the extent necessary to
cause the Total Debt Service Coverage Ratio to be increased to 1.4x:
(i) Net Cash Proceeds of Asset Sales; and
(ii) Net Debt/Equity Proceeds.
So long as no Default shall have occurred and be continuing at the time any of
such amounts are received and are to be applied to repayment of the Loans (but
only to the extent such amounts are not required by the terms of the Senior Loan
Agreement to be applied to repay the Senior Loans), such amounts, after
application to any payments required under Section 2.8(a)(i) and (ii), shall be
applied to reduce the outstanding principal balance of the Loans. Any Net Cash
Proceeds of Asset Sales and Net Debt/Equity Proceeds in excess of such amounts
as are required to be applied to the Loans in order to restore the Total Debt
Service Coverage Ratio to the required level may be retained by Borrower, Parent
Guarantor, Florida Resort Owner, Texas Resort Owner or the applicable Subsidiary
Guarantor. If a Default shall have occurred and be continuing at the time any of
such amounts are received and are to be applied as a prepayment of the Loans,
such amounts shall be applied in accordance with Sections 2.8(b) and 10.21
hereof.
(b) On each date which is 45 days following the end of
each Fiscal Quarter ending from and after the Final Completion Date, if the
Total Debt Service Coverage Ratio is less than 1.4x, then the following amounts
shall be applied on each such date to repayment of the Loans (but only to the
extent such amounts are not required by the terms of the Senior Loan Agreement
to be applied to repay the Senior Loans) to the extent necessary to cause the
Total Debt Service Coverage Ratio to be increased to 1.4x:
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(i) Adjusted Net Operating Income of the
Opryland Hotel Florida for the prior Fiscal
Quarter; and
(ii) Adjusted Net Operating Income of the Project
for the prior Fiscal Quarter.
So long as no Default shall have occurred and be continuing at the time any of
such amounts are received and are to be applied as a prepayment of the Loans
(but only to the extent such amounts are not required by the terms of the Senior
Loan Agreement to be applied to repay the Senior Loans), such amounts, after
application to any payments required under Section 2.8(a)(i) and (ii), shall be
applied to reduce the outstanding principal balance of the Loans. Any Adjusted
Net Operating Income of Opryland Hotel Florida or the Project in excess of such
amounts as are required to be applied to the Loans in order to restore the Total
Debt Service Coverage Ratio to the required level may be retained by Borrower,
Parent Guarantor, Florida Resort Owner, Texas Resort Owner or the applicable
Subsidiary Guarantor. If a Default shall have occurred and be continuing at the
time any of such amounts are received and are to be applied as a prepayment of
the Loans, such amounts shall be applied in accordance with Sections 2.8(b) and
10.21 hereof.
(c) The Aggregate Outstanding Credit Exposure and all
other unpaid Obligations shall be paid in full by Borrower on the Maturity Date
or on any earlier date on which the Obligations become due and payable pursuant
to the terms hereof.
2.3 Administrative Agency Fees. Parent Guarantor agrees to pay
when due to the Administrative Agent the fees (herein referred to as the "Agency
Fee") set forth in that certain letter agreement dated February 10, 2003,
between the Administrative Agent and Parent Guarantor, provided that for so long
as the Administrative Agent is also the Senior Administrative Agent, the Agency
Fee (as defined in the Senior Loan Agreement) paid to the Senior Administrative
Agent under the Senior Loan Agreement shall be credited against Parent
Guarantor's obligation with respect to the Agency Fee under this Section 2.3.
2.4 Optional Principal Payments. Except as required pursuant to
any applicable provisions of this Agreement, Borrower may not prepay the Loans
prior to the first anniversary of the closing of the Senior Loans; thereafter
Borrower may pay, without penalty or premium, all or any portion of the
outstanding Loans, provided that (i) the Senior Term Loans have been repaid in
full and (ii) no Default then exists or would result from such prepayment.
2.5 Conversion and Continuation of Outstanding Loans. Floating
Rate Loans shall continue as Floating Rate Loans unless and until such Floating
Rate Loans are converted into LIBO Rate Loans pursuant to this Section 2.5 or
are repaid in accordance with Sections 2.2 or 2.4. Each LIBO Rate Loan shall
continue as a LIBO Rate Loan until the end of the then applicable Interest
Period therefor, at which time such LIBO Rate Loan shall continue as a LIBO Rate
Loan for an interest period of one month unless (x) such LIBO Rate Loan is or
was repaid in accordance with Sections 2.2 or 2.4, (y) Borrower shall have given
the Administrative Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such LIBO Rate Loan be
converted to a Floating Rate Loan or continued as a LIBO Rate Loan for an
Interest Period of more than one month or (z) a Default or Unmatured Monetary
Default has occurred and continues, in which event such LIBO Rate Loan shall,
unless the
35
Majority Lenders otherwise agree, be automatically converted into a Floating
Rate Loan. Borrower may elect from time to time to convert all or any part of a
Floating Rate Loan into a LIBO Rate Loan. Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Loan into a LIBO Rate Loan or continuation of a LIBO Rate
Loan not later than 11:00 a.m. (New York time) at least three Business Days
prior to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a
Business Day, of such conversion or continuation,
(ii) the aggregate amount and Type of the Loan
which is to be converted or continued, and
(iii) the amount of such Loan which is to be
converted into or continued as a LIBO Rate Loan and the duration of the Interest
Period applicable thereto.
2.6 Interest Rate; Changes in Interest Rate; Interest Periods;
etc. Each Floating Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such Loan is made or is
converted from a LIBO Rate Loan into a Floating Rate Loan pursuant to Section
2.5, to but excluding the date it is paid or is converted into a LIBO Rate Loan
pursuant to Section 2.5 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Loan
maintained as a Floating Rate Loan will take effect simultaneously with each
change in the Alternate Base Rate. Each LIBO Rate Loan shall bear interest on
the outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the Applicable LIBO Rate determined by the Administrative
Agent as applicable to such LIBO Rate Loan based upon Borrower's selections
under Section 2.5 and otherwise in accordance with the terms hereof. Unless the
Majority Lenders otherwise agree, no Interest Period may be selected at any time
when a Default or Unmatured Monetary Default has occurred and is continuing. No
Interest Period may end after the Maturity Date. All Loans comprising a LIBO
Rate Loan in respect of any single borrowing hereunder shall at all times have
the same Interest Period. The initial Interest Period for any LIBO Rate Loan
shall commence on the date such Loan is made or converted into a LIBO Rate Loan,
and each Interest Period thereafter in respect of such LIBO Rate Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires.
2.7 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.5, during the continuance of a Default or
Unmatured Monetary Default, no Loan may be converted into or continued as a LIBO
Rate Loan, unless the Majority Lenders otherwise agree (notwithstanding any
provision of Section 10.2 requiring unanimous consent of the Lenders to changes
in interest rates). During the continuance of a Default the Majority Lenders
may, at their option, by notice to Borrower (which notice may be revoked at the
option of the Majority Lenders notwithstanding any provision of Section 10.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each LIBO Rate Loan shall bear interest for the remainder of
the applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 300 basis points, and (ii) each Floating Rate Loan shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 300 basis points,
36
provided that, during the continuance of a Default under Section 7.6 or 7.7, the
interest rates set forth in clauses (i) and (ii) above shall be applicable to
all Loans without any election or action on the part of the Administrative Agent
or any Lender.
2.8 Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Office of
the Administrative Agent specified in writing by the Administrative Agent to
Borrower, by 2:00 p.m. (Eastern time) on the date when due and shall be applied
as follows:
(a) Subject to the provisions of Section 2.8(b) below,
all payments of principal and interest in respect of outstanding Loans, all
payments of fees and all other payments in respect of any other Obligations, and
any other amounts received by the Administrative Agent from or for the benefit
of Borrower shall be applied in the following order:
(i) to pay principal of and interest on any
portion of the Loans which the Administrative Agent may (at its sole option, and
without any obligation to do so) have advanced on behalf of any Lender (other
than itself in its capacity as a Lender) for which the Administrative Agent has
not then been reimbursed by such Lender or Borrower;
(ii) to pay principal of and interest on any
Protective Advance made by the Administrative Agent (at its sole option, and
without any obligation to do so) for which the Administrative Agent has not then
been paid by Borrower or reimbursed by the Lenders; and
(iii) to pay all other Obligations then due and
payable in the order described in Section 2.2(a), in the case of any repayments
required thereby, and otherwise in the order designated by Borrower and, in each
case, unless otherwise designated by Borrower, all principal payments in respect
of Loans shall be applied first, to repay outstanding Floating Rate Loans, and
then to repay outstanding LIBO Rate Loans with those LIBO Rate Loans which have
earlier expiring Interest Periods being repaid prior to those which have later
expiring Interest Periods.
(b) After the occurrence and during the continuance of a
Default, the Administrative Agent and the Lenders may apply all payments in
respect of any Obligations and all proceeds of Collateral to the Secured
Obligations in such order and manner as the Administrative Agent and Lenders may
elect in their sole and absolute discretion, subject, as among themselves, to
Section 10.21 hereof and any intercreditor or similar agreement from time to
time entered into among the Administrative Agent and the Lenders.
Each payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds that the Administrative Agent received at its address
specified pursuant to Article XIII or at any Lending Office specified in a
notice received by the Administrative Agent from such Lender.
2.9 Notes; Evidence of Indebtedness.
(a) Each Lender's Loans shall be evidenced by a Note
executed and delivered by Borrower on the Effective Date to such Lender in the
form of Exhibit B. If a Lender assigns a
37
part (but less than all) of its Note or Notes, Borrower shall, upon request,
execute and deliver new Notes to the respective owners of the original note that
aggregate the amount of the original Note or Notes, as directed jointly by the
assignor and assignee, and upon delivery of the new Note or Notes, the original
Note shall be endorsed to state that it has been replaced by such new Note or
Notes.
(b) Each Lender is hereby authorized to maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall also maintain accounts
in which it will record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period with respect thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from Borrower
to each Lender hereunder, and (iii) the amount of any sum received by the
Administrative Agent hereunder from Borrower and each Lender's share thereof.
(d) The entries maintained in the accounts maintained
pursuant to paragraphs (b) and (c) above shall be prima facie evidence, absent
manifest error, of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Administrative Agent or any
Lender to maintain such accounts or any error therein shall not in any manner
affect the obligation of Borrower to repay the Obligations in accordance with
their terms.
(e) Notwithstanding anything to the contrary contained
above or elsewhere in this Agreement, Notes shall only be delivered to the
Lenders which at any time specifically request the delivery of such Notes. No
failure of any Lender to request or obtain a Note evidencing its Loans shall
affect or in any manner impair the obligations of Borrower to pay the Loans (and
all related Obligations) which would otherwise be evidenced thereby in
accordance with the requirements of this Agreement, and shall not in any way
affect the guaranties therefor provided pursuant to the various Loan Documents.
At any time when any Lender requests the delivery of a Note to evidence its
Loans, Borrower shall promptly execute and deliver to the respective Lender the
requested Note or Notes in the appropriate amount or amounts to evidence such
Loans.
2.10 Telephonic Notices. Borrower hereby authorizes the Lenders and
the Administrative Agent to extend, convert or continue Loans, effect selections
of Types of Loans and to transfer funds based on telephonic notices made by any
person or persons the Administrative Agent or any Lender in good faith believes
to be an Authorized Officer acting on behalf of Borrower, it being understood
that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. Borrower
agrees to deliver promptly to the Administrative Agent a written confirmation,
if such confirmation is requested by the Administrative Agent or any Lender, of
each telephonic notice, signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent
and the Lenders shall govern absent manifest error.
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2.11 Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Loan shall be payable on each Quarterly Payment
Date, commencing with the first such date to occur after the Effective Date, on
any date on which the Floating Rate Loan is prepaid, whether due to acceleration
or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Loan converted into a LIBO
Rate Loan on a day other than a Quarterly Payment Date shall be payable on the
date of conversion. Interest accrued on each LIBO Rate Loan shall be payable on
the last day of its applicable Interest Period, on any date on which the LIBO
Rate Loan is prepaid, whether by acceleration or otherwise, and at maturity.
Interest and commitment fees shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day a Loan is made
but not for the day of any payment on the amount paid if payment is received
prior to 2:00 p.m. (Eastern time) at the place of payment. If any payment of
principal of or interest on a Loan shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.12 Notification of Loans, Interest Rates and Prepayments.
Promptly after receipt thereof, the Administrative Agent will notify each Lender
of the contents of each Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Administrative Agent will notify
each Lender of the interest rate applicable to each LIBO Rate Loan promptly upon
determination of such interest rate.
2.13 Lending Offices. Each Lender may book its Loans at any Lending
Office selected by such Lender, and may change its Lending Office from time to
time. All terms of this Agreement shall apply to any such Lending Office and the
Loans and any Notes issued hereunder shall be deemed held by each Lender for the
benefit of any such Lending Office. Each Lender may, by written notice to the
Administrative Agent and Borrower in accordance with Article XIII, designate
replacement or additional Lending Offices through which Loans will be made by it
and for whose account Loan payments are to be made.
2.14 Non-Receipt of Funds by the Administrative Agent. Unless
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case
of Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by Borrower, the interest rate applicable to the relevant Loan.
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2.15 Replacement of Lender. If Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Loans into,
LIBO Rate Loans shall be suspended pursuant to Section 3.3 (any Lender so
affected an "Affected Lender"), Borrower may elect, if such amounts continue to
be charged or such suspension is still effective, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default shall have
occurred and be continuing at the time of such replacement, and provided further
that, concurrently with such replacement, (i) another bank or other entity which
is reasonably satisfactory to Borrower and the Administrative Agent shall agree,
as of such date, to purchase for cash the Loans and other Obligations due to the
Affected Lender pursuant to an assignment substantially in the form of Exhibit F
and to become a Lender for all purposes under this Agreement and to assume all
obligations of the Affected Lender to be terminated as of such date and to
comply with the requirements of Section 12.3 applicable to assignments, and (ii)
Borrower shall pay to such Affected Lender in same day funds on the day of such
replacement (A) all interest, fees and other amounts then accrued but unpaid to
such Affected Lender by Borrower hereunder to and including the date of
termination, including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such replacement under
Section 3.4 had the Loans of such Affected Lender been prepaid on such date
rather than sold to the replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection. If, on or after the Effective Date, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Office with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable
Lending Office to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect of its LIBO Rate
Loans, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Office (other than reserves and assessments
taken into account in determining the interest rate applicable to LIBO Rate
Loans), or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender or any applicable Lending Office of
making, funding or maintaining its LIBO Rate Loans, or reduces any amount
receivable by any Lender or any applicable Lending Office in connection with its
LIBO Rate Loans or requires any Lender or any applicable Lending Office
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to make any payment calculated by reference to the amount of LIBO Rate Loans
held or interest received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Office of making or maintaining its LIBO Rate Loans or to
reduce the return received by such Lender or applicable Lending Office in
connection with such LIBO Rate Loans, then, within 15 days of demand by such
Lender, Borrower shall pay such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Office of such Lender or any corporation controlling such
Lender is increased as a result of a Change (as defined below in this Section
3.2), then, within 15 days of demand by such Lender, Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement or its Outstanding Credit Exposure (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the Effective Date in the Risk-Based Capital Guidelines or (ii)
any adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the Effective Date which affects the amount
of capital required or expected to be maintained by any Lender or any Lending
Office or any corporation controlling any Lender. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the Effective Date, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the Effective Date.
3.3 Availability of Types of Loans. If any Lender determines that
maintenance of its LIBO Rate Loans at a suitable Lending Office would violate
any applicable law, rule, regulation, or directive, whether or not having the
force of law, or if the Majority Lenders determine that by reason of changes
affecting the interbank LIBO Rate market, (i) deposits of a type and maturity
appropriate to match fund LIBO Rate Loans are not available or (ii) the interest
rate applicable to LIBO Rate Loans does not accurately reflect the cost of
making or maintaining LIBO Rate Loans, then the Administrative Agent shall
suspend the availability of LIBO Rate Loans until the first date on which the
circumstances causing such suspension cease to exist and require any affected
LIBO Rate Loans to be repaid or converted to Floating Rate Loans, subject to the
payment of any funding indemnification amounts required by Section 3.4.
3.4 Funding Indemnification. If any payment of a LIBO Rate Loan
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a LIBO Rate Loan is
not made on the date specified by the Borrower for any reason other than default
by the Lenders, Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such LIBO
Rate Loan,
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provided that such indemnity shall not apply to any such loss or cost incurred
solely by reason of an adjustment to any Interest Period made by the
Administrative Agent in connection with syndicating the Loans.
3.5 Taxes. (i) All payments by Borrower to or for the account of
any Lender or the Administrative Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes. If Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) Borrower shall make such deductions, (c) Borrower shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d)
Borrower shall furnish to the Administrative Agent the original copy of a
receipt evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, Borrower hereby agrees to pay
any present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note ("Other Taxes").
(iii) Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Administrative Agent or such Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. Payments due under this indemnification shall be made
within 30 days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under
the laws of the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not less than ten Business Days after the
Effective Date (or such later date upon which it becomes a Lender hereunder),
deliver to each of Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI,
certifying in either case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, or backup withholding tax. Each Non-U.S. Lender further undertakes
to deliver to each of the Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by
Borrower or the Administrative Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form or amendment with respect to it and such Lender
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advises Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S.
Lender has failed to provide Borrower with an appropriate form pursuant to
clause (iv) above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 3.5 with respect to Taxes imposed
by the United States; provided that, should a Non-U.S. Lender which is otherwise
exempt from or subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under clause (iv),
above, Borrower shall take such steps (but without material expense to Borrower)
as such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender
to recover such Taxes.
(vi) Any Lender that is entitled to an exemption
from or reduction of withholding tax with respect to payments under this
Agreement or any Notes pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to Borrower (with a copy to the Administrative Agent), at
the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any
other governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the Administrative Agent and
Borrower fully for all amounts paid, directly or indirectly, by the
Administrative Agent or Borrower, as the case may be, as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent or
Borrower under this subsection, together with all costs and expenses related
thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent or Borrower, as the case may be, which attorneys may be
employees of the Administrative Agent or Borrower, as the case may be). The
obligations of the Lenders under this Section 3.5(vii) shall survive the payment
of the Obligations and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending Office
with respect to its LIBO Rate Loans to reduce any liability of Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of LIBO
Rate Loans under Section 3.3, so long as such designation is not, in the
judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of
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amounts payable under such Sections in connection with a LIBO Rate Loan shall be
calculated as though each Lender funded its LIBO Rate Loan through the purchase
of a deposit of the type and maturity corresponding to the deposit used as a
reference in determining the LIBO Rate applicable to such Loan, whether in fact
that is the case or not. Unless otherwise provided herein, the amount specified
in the written statement of any Lender shall be payable on demand after receipt
by Borrower of such written statement. The obligations of Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
3.7 Reasonable Efforts to Mitigate. Each Lender shall use its
reasonable best efforts (consistent with its internal policy and legal and
regulatory restrictions) to minimize any amounts payable by Borrower under
Section 3.1 and Section 3.2 and to minimize any period of illegality under
Section 3.3. Each Lender further agrees to notify Borrower promptly, but in any
event within 30 Business Days, after such Lender learns of the circumstances
giving rise to such a right of payment or such illegality or any circumstances
that have changed such that such right to payment or such illegality, as the
case may be, no longer exists.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Closing Deliveries. On the Effective Date and as conditions
precedent to Lenders' obligations to make the Effective Date Advance, Borrower
shall satisfy the following conditions and/or furnish to the Administrative
Agent the following:
(a) Borrower shall provide the Administrative Agent with
copies of the articles or certificate of incorporation, certificate of formation
or certificate of limited partnership, and certificates of good standing, of
Borrower, Parent Guarantor, each Resort Owner and each of the Subsidiary
Guarantors, together with all amendments, certified by the appropriate
governmental officer in its jurisdiction of organization.
(b) Borrower shall provide the Administrative Agent with
copies, each certified by the Secretary or Assistant Secretary or the General
Partner, as applicable, of Borrower, Parent Guarantor, each Resort Owner, each
of the Subsidiary Guarantors and each of the other entities described in the
preceding clause (a), of the limited partnership agreement or by-laws of such
Person and Board of Directors' resolutions and of resolutions or actions of any
other body authorizing the execution by such Person of the Loan Documents and
Project Agreements to which such Person is a party, and copies, certified by the
Secretary or Assistant Secretary or other authorized individual acting on behalf
of each such entity of its Organizational Documents and of resolutions of such
of its shareholders, partners, members or other body whose approval is required
under such entity's Organizational Documents authorizing the execution of the
Loan Documents and Project Agreements to which each such entity is a party.
(c) Borrower shall provide the Administrative Agent with
incumbency certificates, executed by the Secretary, Assistant Secretary, General
Partner or manager, as applicable, of Borrower, Parent Guarantor, each Resort
Owner, Subsidiary Guarantors and the other entities specified in the preceding
clause (a), respectively, which shall identify by name and title and bear the
signatures of the officers or other authorized individuals acting on behalf of
44
such Persons authorized to sign the Loan Documents and Project Agreements to
which such Persons are a party, upon which certificates the Administrative Agent
and the Lenders shall be entitled to rely.
(d) Borrower shall provide the Administrative Agent with
written opinions of respective counsel to Borrower, Parent Guarantor, each
Resort Owner, Subsidiary Guarantors and the other entities specified in the
preceding clause (a), addressed to the Administrative Agent and the Lenders in
form and substance satisfactory to the Administrative Agent.
(e) Borrower shall provide each Lender with the Notes
required to be provided to such Lender pursuant to Section 2.9, payable to the
order of such Lender.
(f) Borrower shall provide the Administrative Agent with
the Pledge Agreements, the Guaranty, the Environmental Indemnity Agreement, the
Second Mortgages, the Subordinated Collateral Assignments and the other Loan
Documents.
(g) Borrower shall provide the Administrative Agent with
the Second Mortgage Title Insurance Policies with respect to the Second
Mortgages dated as of the Effective Date in the amount of the sum of the
Aggregate Commitment with all premiums paid in full on or before the date of
issuance and under which Lenders are not considered to be co-insurers. Borrower
shall deliver to the Title Insurer all affidavits of title, ALTA statements,
undertakings and such other papers, instructions and documents as the Title
Insurer may require for the issuance of the Second Mortgage Title Insurance
Policies in the form required hereunder.
(h) Borrower shall provide the Administrative Agent with
(i) UCC searches for the Persons and in all jurisdictions as required by the
Administrative Agent, and the Administrative Agent shall be satisfied with the
results of such searches and (ii) an "Eagle 9" UCC Insurance Policy with respect
to the security interests created by the Pledge Agreements, in the amount of
$50,000,000 and otherwise in form and substance satisfactory to the
Administrative Agent.
(i) Borrower shall provide the Administrative Agent with
Surveys of the Project and the Opryland Hotel Florida.
(j) Borrower shall provide the Administrative Agent with
certified copies of all Leases (if any) and all amendments thereto for premises
located at the Project and the Opryland Hotel Florida.
(k) Borrower shall provide the Administrative Agent with
copies of all underlying title documents for the Project and the Opryland Hotel
Florida.
(l) Borrower shall provide the Administrative Agent with
evidence that all financing statements relating to the Collateral have been (or
will be) timely filed or recorded for the benefit of the Administrative Agent
and the Lenders, and all recording fees and filing taxes have been paid.
(m) There shall have been paid to the Administrative
Agent and Lenders all fees due and payable to the Administrative Agent and
Lenders on or before the Effective Date
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and all expenses incurred by the Administrative Agent on or before the Effective
Date, including the Agency Fee and all recording and filing fees, documentary
stamp, intangible, mortgage recording and other similar taxes and charges, title
insurance premiums, survey charges, reasonable attorneys' fees and expenses, and
other costs and expenses incurred in connection with the preparation,
negotiation, execution and delivery of the Loan Documents.
(n) The Administrative Agent shall have been provided
with (i) an Appraisal of the Opryland Hotel Florida, (ii) an Appraisal of the
Project and (iii) "phase I" environmental reports for the Opryland Hotel Florida
and the Project, all satisfactory to the Administrative Agent in its sole and
absolute discretion.
(o) Texas Resort Owner shall have selected architects,
engineers and other consultants (collectively, the "Project Architect")
satisfactory to the Administrative Agent, and entered into an agreement or
agreements with such Persons for the performance of services respecting the
Project on terms satisfactory to the Administrative Agent, which agreement or
agreements, as well as any modifications thereto approved by Texas Resort Owner
and the Administrative Agent in writing and any Permissible Modifications
thereto shall constitute the "Project Architect's Agreement."
(p) Texas Resort Owner shall have submitted to the
Administrative Agent and the Administrative Agent shall have approved all plans
and specifications for the construction and completion of the Project (the
"Plans and Specifications"), and the Administrative Agent shall have delivered
Texas Resort Owner's schedule of the Plans and Specifications to the Lenders.
(q) Texas Resort Owner shall have furnished evidence
reasonably satisfactory to the Administrative Agent that all Persons (other than
Texas Resort Owner) party to the Project Agreements have approved the Plans and
Specifications, it being understood that the same are subject to Permissible
Modifications (to the extent they have such rights of approval under the Project
Agreements or otherwise).
(r) Texas Resort Owner shall have submitted to the
Administrative Agent and the Administrative Agent shall have approved a detailed
construction schedule (upon the Administrative Agent's approval of such
schedule, such schedule shall constitute the "Project Schedule") providing for
Completion of the construction of the Project occurring prior to the Final
Completion Date, and the Administrative Agent shall have delivered the Project
Schedule to the Lenders.
(s) Texas Resort Owner's contract or contracts with the
Project General Contractor for the performance of the work at and Completion of
the Project Construction, (which contract or contracts, together with any
modifications thereto approved by the Texas Resort Owner and the Administrative
Agent in writing and any Permissible Modifications thereto, shall constitute the
"Project General Contract,") shall provide for the Completion of the Project
Construction in accordance with the Approved Plans and Specifications prior to
the Final Completion Date and otherwise contain terms and provisions
satisfactory to the Administrative Agent.
46
(t) To the extent requested by the Administrative Agent,
Texas Resort Owner shall have submitted to the Administrative Agent each of its
contracts with engineers and other consultants (other than the Project
Architect) concerning the Project, and any agreements other than the Project
General Contract for the performance of construction work at the Project
(collectively, with the Project Architect's Agreement and the Project General
Contract, the "Construction Agreements"), and the same shall have been approved
by the Administrative Agent.
(u) The Administrative Agent shall have received from the
Project Architect a certificate substantially in the form of the Architect's
Certificate addressing such matters as the Administrative Agent may require. The
Administrative Agent shall also have received confirmation that all utilities
necessary to service the Project are available, or will be available when
needed, in sufficient supply at the Project, subject only to payment of
customary connection and user fees.
(v) Texas Resort Owner shall have provided the
Administrative Agent with (i) evidence reasonably satisfactory to it that each
of the Approved Plans and Specifications, Permits, Construction Agreements and
other Project Agreements have been collaterally assigned, to the extent the same
are assignable, to the Administrative Agent for the benefit of the Lenders and
other Holders of Secured Obligations pursuant to the Loan Documents and that the
Administrative Agent holds a valid, existing and continuing Lien thereon, and
(ii) a Consent and Agreement respecting such collateral assignment of each of
the foregoing, in form and substance satisfactory to the Administrative Agent,
duly authorized, executed and delivered by each of the Project Architect, the
Project General Contractor and each of the other Persons (other than Texas
Resort Owner) party to any of the then-existing Construction Agreements and
Project Agreements from whom or which the Administrative Agent requires such
Consent and Agreement.
(w) Texas Resort Owner shall have provided the
Administrative Agent with the site plan for the Project as approved by the
zoning authorities and any other necessary Governmental Authorities, outlining
the location of all Improvements constructed and to be constructed on the
Project (other than Permissible Modifications), together with evidence
satisfactory to the Administrative Agent that the Project is properly zoned for
the construction of the Improvements contemplated thereon and intended operation
thereof and that, when completed and operating, the Project will not violate any
zoning, land use, subdivision or similar land use laws and ordinances or any
other Laws, and that all Permits required for the construction of the Project
have been obtained by Texas Resort Owner, including all building permits and all
filings by or with Governmental Authorities, and that upon the Substantial
Completion Date of the Project all Permits required for the operation of the
Project shall be obtainable in accordance with the schedule for the obtaining of
such Permits included as part of the Approved Project Schedule.
(x) Texas Resort Owner shall have provided evidence
satisfactory to the Administrative Agent that the Project is benefited by such
easements or other rights as may be necessary for the Project, vehicular and
pedestrian ingress and egress, installation and maintenance of utilities,
parking and other site improvements, and operation of the Project,
47
including any such easements or rights as are necessary for continued compliance
with all Permits and other Laws, all Leases and all Project Agreements.
(y) Borrower shall have furnished to the Administrative
Agent a certificate, signed by an Authorized Officer, stating that to the
knowledge of such individual on the Funding Date no Default or Unmatured Default
has occurred and is continuing.
(z) No law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Administrative Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Senior Loans or the Effective
Date Advance on the Funding Date or (ii) result in a Material Adverse Effect.
(aa) The Administrative Agent shall be reasonably
satisfied (i) with the collective bargaining or other organized labor agreements
to which Borrower, Parent Guarantor, either Resort Owner and/or any of their
respective Affiliates is or are a party and (ii) that, before and after the
Funding Date, Borrower, Parent Guarantor and each Resort Owner have not
encountered and will not encounter any adverse labor union organizing activity,
employee strike, work stoppage, shutdown or lockout which results in a Material
Adverse Effect.
(bb) No Default or Unmatured Default shall have occurred
that is continuing or would result from the making of the Loans or the Effective
Date Advance.
(cc) All of the representations and warranties contained
in the Loan Documents shall be true and correct on and as of the Funding Date.
(dd) Borrower shall have provided to the Administrative
Agent and the Lenders, insurance certificates required under Section 6.6 with
respect to the Project and the Opryland Hotel Florida and shall have satisfied
all other requirements of Section 6.6 then applicable.
(ee) The Administrative Agent shall have received a
Borrowing Notice, properly completed.
(ff) The Administrative Agent shall have received the
Subordination and Intercreditor Agreement.
(gg) The Administrative Agent shall have received the
Approved Construction Budget.
(hh) The Administrative Agent shall have received the
Florida Ground Lease Estoppels.
(ii) The Administrative Agent shall have received and
approved the Senior Loan Agreement and all other documents evidencing and/or
securing the Senior Loans.
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(jj) The Senior Loans requested to be advanced on the
Effective Date under the Senior Loan Agreement shall have been advanced by the
Senior Lenders to the Resort Owners.
(kk) Borrower shall have delivered all documents,
instruments and agreements required to effect the Rate Management Transactions
and the other documents required by Section 6.21 to the Administrative Agent.
(ll) Borrower shall have provided the Administrative Agent
with such other documents as any Lender or its counsel may have reasonably
requested.
4.2 Notices to Owner. In the event that, from and after the
Effective Date, any Person delivers a notice or claim to Texas Resort Owner
relating to any mechanics' lien claim, in respect of the Project, including any
notice under Section 53.055, 53.056, 53.057 or 53.058 of the Texas Property
Code, Texas Resort Owner shall deliver a copy thereof to the Administrative
Agent within 15 days after the receipt thereof and shall discharge the same in
accordance with Section 6.19(b) hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower and Parent Guarantor represents and warrants to the Lenders
that, as of the Effective Date, and thereafter whenever the representations and
warranties under this Article V are updated, remade or deemed to be remade:
5.1 Ownership, Existence and Standing. Borrower, Parent Guarantor,
each Resort Owner and each Subsidiary Guarantor is a corporation, limited
partnership or limited liability company duly and properly incorporated or
organized, as the case may be, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted. True, correct
and complete copies of the Organizational Documents of Borrower, Parent
Guarantor, each Resort Owner and each Subsidiary Guarantor have been delivered
to the Administrative Agent, each of which is in full force and effect, has not
been modified or amended except to the extent set forth therein and there are no
defaults under such Organizational Documents and, to the best of Borrower's and
Parent Guarantor's knowledge, no events exist which, with the passage of time or
giving of notice or both, would constitute a default under such Organizational
Documents. As of the date hereof, the ownership structure of Borrower, Parent
Guarantor, each Resort Owner and Subsidiary Guarantors, and all direct and
indirect owners of membership interests therein are completely and accurately
disclosed on the ownership chart attached as Schedule 5.1. Borrower is not a
"foreign person" within the meaning of Section 1445 of the Internal Revenue
Code.
5.2 Authorization and Validity. Borrower, Parent Guarantor and
each Subsidiary Guarantor has the power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by Borrower, Parent Guarantor
or any Subsidiary Guarantor of the Loan Documents to
49
which it is a party and the performance of its obligations thereunder have been
duly authorized by proper corporate or company proceedings. Each of the Loan
Documents to which Borrower, Parent Guarantor or any Subsidiary Guarantor is a
party (A) has been duly executed and delivered on behalf of Borrower, Parent
Guarantor or Subsidiary Guarantors, as the case may be, (B) to the extent the
same constitutes a security agreement or a collateral document, creates valid
first Liens in the Collateral covered thereby, securing the payment of all of
the Secured Obligations purported to be secured thereby, (C) assuming due
authorization and execution by the Lenders party thereto, constitutes the legal,
valid and binding obligation of Borrower, Parent Guarantor or Subsidiary
Guarantors, as the case may be, enforceable against such Person, in accordance
with its terms except to the extent that the enforcement thereof or the
availability of equitable remedies may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent transfer or similar laws now
or hereafter in effect relating to or affecting creditors' rights generally or
by general principles of equity, or by the discretion of any court of competent
jurisdiction in awarding equitable remedies, regardless of whether such
enforcement is considered in a proceeding in equity or at law and (D) is in full
force and effect. All the terms, provisions, agreements and conditions set forth
in the Loan Documents and required to be performed or complied with by Borrower,
Parent Guarantor or Subsidiary Guarantors have been performed or complied with
and no Default or breach of any covenant by any such Person exists thereunder.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by Borrower, Parent Guarantor and Subsidiary Guarantors of the Loan
Documents to which any of them is a party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on any such Person or (ii) such Person's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or limited liability company
operating agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which such Person is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the property of such Person pursuant to the
terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by Borrower, Parent Guarantor or Subsidiary Guarantors, is
required to be obtained by any of them in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by Borrower, Parent Guarantor and Subsidiary Guarantors of the
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents.
5.4 Financial Statements and Projections. The historical financial
statements of Borrower, Parent Guarantor and Subsidiary Guarantors heretofore
delivered to the Lenders (a) in the case of Parent Guarantor, were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and (b) in the case of Borrower and the Subsidiary
Guarantors, were not prepared in accordance with generally accepted accounting
principles for presentation on a stand-alone basis, but were prepared in a
manner customary for division reporting into a consolidated group in effect on
the date such statements
50
were prepared. All of the historical financial statements referred to in the
preceding sentence fairly present the financial condition and operations of
Borrower, Parent Guarantor and Subsidiary Guarantors, as the case may be, at
such date and the results of its operations for the period then ended. Since
December 31, 2002 and through the Effective Date, there has been no material
adverse change in the business, operations, property or condition (financial or
otherwise) of Parent Guarantor's Subsidiaries (other than Florida Resort Owner
or Texas Resort Owner) taken as a whole or Parent Guarantor and its Subsidiaries
taken as a whole, or either of the Resort Owners. All financial projections with
respect to either Resort Owner, Borrower, Parent Guarantor and Subsidiary
Guarantors heretofore delivered to Lenders, including, without limitation,
financial projections for the Opryland Hotel Florida and the Project represent
reasonable estimates of future performance and financial condition, subject to
uncertainties and approximations inherent in the making of any financial
projections and without assurance that the projected performance and financial
condition actually will be achieved.
5.5 Pledge of Equity Interests In Resort Owners. (a) Upon delivery
to the Administrative Agent of any certificated interests pledged pursuant to
the Pledge Agreements (together with applicable transfer powers) and upon the
taking of all actions required by the Uniform Commercial Code in the case of any
uncertificated interests pursuant to the Pledge Agreements (which delivery
and/or such other actions have been done and remain in full force and effect as
to all Collateral on any date on which this representation and warranty is made
or deemed made), the security interests created in favor of the Administrative
Agent, as pledgee, for the benefit of the Lenders under the Pledge Agreements
constitute a first priority perfected security interest in the Collateral
described therein, subject to no other security interests of any other Person.
No filings or recordings (other than those specified in Section 5.5(b)) are
required in order to perfect (or maintain the perfection or priority of) the
security interests created in the Collateral and the proceeds thereof under the
Pledge Agreements.
(b) The Pledge Agreements are effective to create in
favor of the Administrative Agent, for the ratable benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral and, when the
Uniform Commercial Code financing statements are filed in the offices specified
on Schedule 5.5(b), the Pledge Agreements shall constitute a fully perfected
first priority Lien on, and security interest in, all right, title and interest
of the pledgors thereunder in the Collateral as therein defined, in each case
prior and superior in right to any other Person.
5.6 Taxes. Borrower, Parent Guarantor, each of the Resort Owners
and Subsidiary Guarantors have filed all United States federal tax returns and
all other tax returns which are required to be filed and for which the due date
(including extensions) has occurred and has paid all taxes due and payable
pursuant to said returns. All taxes (including real estate taxes), assessments,
fees and other charges of Governmental Authorities upon or relating to
Borrower's, Parent Guarantor's, either Resort Owner's or any Subsidiary
Guarantor's assets (including the Opryland Hotel Florida and the Project),
receipts, sales, use, payroll, employment, income, licenses and franchises which
are due and payable have been paid, except to the extent such taxes,
assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued with the
security delivered as and to the extent required by the terms of Section 6.5.
Borrower has no knowledge of any proposed tax assessment against either Resort
Owner, Borrower, Parent Guarantor or any Subsidiary
51
Guarantor, or the Opryland Hotel Florida or the Project that will have or is
reasonably likely to have a Material Adverse Effect. No tax liens have been
filed and no claims are being asserted with respect to any such Taxes. Each
Resort Owner qualifies for partnership pass-through entity treatment under
United States federal tax law.
5.7 Litigation and Contingent Obligations. Except as otherwise
described on Schedule 5.7, there is, as of the date hereof, no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened (a) against or affecting
either Resort Owner, Borrower, Parent Guarantor or any Subsidiary Guarantor or
other Subsidiary of Parent Guarantor or any of their respective Properties or
(b) which seeks to prevent, enjoin or delay the completion or operation of the
Project or the making of any Loans. Except as otherwise described on Schedule
5.7, none of the Resort Owners, Borrower, Parent Guarantor, the Subsidiary
Guarantors or other Subsidiaries of Parent Guarantor has any material Contingent
Obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
5.8 Subsidiaries. (a) As of the date hereof, Parent Guarantor has
no Subsidiaries other than as shown on the ownership chart attached hereto as
Schedule 5.1. The percentage numbers shown on the chart attached hereto as
Schedule 5.1 indicate the percentage of Parent Guarantor's ownership in entities
in which Parent Guarantor owns, directly or indirectly, less than one hundred
percent of all ownership interests. The absence of a percentage number with
respect to an entity shown on Schedule 5.1 indicates that Parent Guarantor owns,
directly or indirectly, one hundred percent of all ownership interests in such
entity. The state or country of formation of each entity on such chart is
correctly shown thereon.
(b) Country Music Television International, Inc. is a
defunct or "shell" company with no material assets.
(c) Oklahoma City Athletic Club, Inc. is an indirect
Subsidiary of Parent Guarantor that is a party to franchise agreements with
major league baseball and the Pacific Coast Baseball League, both of which
prohibit incurring contingent obligations on behalf of affiliates or
subsidiaries for debt that is not directly related to baseball operations.
5.9 Affiliate Contracts. Other than as disclosed on Schedule 5.9,
there are no material contracts or other agreements between either Resort Owner,
Borrower, Parent Guarantor and any Affiliate of such parties in effect with
respect to the Opryland Hotel Florida, the Project or any part thereof.
5.10 Accuracy of Information. No written or documentary
information, exhibit or report furnished by or on behalf of either Resort Owner,
Borrower, Parent Guarantor and Subsidiary Guarantors to the Administrative Agent
or to any Lender in connection with the syndication of the Commitments and the
Loans, or the negotiation of, or compliance with, the Loan Documents, contained
any material misstatement of fact or omitted to state a material fact or any
fact necessary to make the statements contained therein not misleading.
5.11 Margin Regulations. No part of the proceeds of the Loans will
be used to purchase or carry any margin stock (as defined in Regulation U) or to
extend credit for the
52
purpose of purchasing or carrying any margin stock. Neither the making of the
Loans nor the use of the proceeds thereof will violate or be inconsistent with
the provisions of Regulation T, Regulation U or Regulation X.
5.12 Material Agreements. Neither Resort Owner, Borrower, Parent
Guarantor nor any Subsidiary Guarantor is a party to any agreement or instrument
or subject to any charter or other corporate or company restriction which could
reasonably be expected to have a Material Adverse Effect. Neither Resort Owner,
Borrower, Parent Guarantor nor any Subsidiary Guarantor is in default in the
performance, observance or fulfillment of any material obligation, covenant or
condition contained in (i) any Project Agreement, (ii) any other agreement to
which it is a party, which default could reasonably be expected to have a
Material Adverse Effect or (iii) any agreement or instrument evidencing or
governing Indebtedness.
5.13 Compliance With Laws. Except where any failure to comply would
not have a material adverse effect on the business, operations, property,
condition (financial or otherwise) or prospects of any of them, each Resort
Owner, Borrower, Parent Guarantor and each of the Subsidiary Guarantors have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, and except as
otherwise described on Schedule 5.13, neither Resort Owner, Borrower, Parent
Guarantor nor any of Parent Guarantor's Subsidiaries nor the Opryland Hotel
Florida nor the Project is subject to or in default with respect to any final
judgment, writ, injunction, restraining order or order of any nature, decree,
rule or regulation of any court or Governmental Authority.
5.14 Ownership of Certain Properties. (a) Borrower owns, directly
or indirectly 100% of all ownership interests in each of the Resort Owners. Each
Resort Owner has good, insurable (at normal rates) leasehold title to the
Opryland Hotel Florida and fee and leasehold title to the Project. The Opryland
Hotel Florida and the Project and all assets and Property constituting
Collateral are free and clear of all Liens and rights of others and any
underlying easements, covenants, conditions, and other encumbrances, except
Liens securing the Senior Loans, Liens securing the Secured Obligations and
Customary Permitted Liens. Except as otherwise described in Schedule 5.14 and
except to the extent that certain parts of the Project may not be operational
prior to the Substantial Completion Date, all Property owned by, leased to or
used by either Resort Owner is in good operating condition and repair, ordinary
wear and tear excepted, is free and clear of any known defects except such
defects as do not substantially interfere with the continued use thereof in the
conduct of normal operations, and is able to serve the function for which it is
currently being used. Neither this Agreement nor any other Loan Document, nor
any transaction contemplated under any such agreement, will affect any right,
title or interest of either Resort Owner in and to any of such Property (other
than in connection with Liens in favor of the Senior Administrative Agent under
the Senior Loan Agreement and Liens in favor of the Administrative Agent). Each
of the Opryland Hotel Florida and the Project is taxed separately without regard
to any other Property. Each of the Opryland Hotel Florida and the Project may be
mortgaged, conveyed and operated as a parcel separate and independent from any
other Real Property, subject only to Customary Permitted Liens.
53
(b) Parent Guarantor owns, directly or indirectly, 100%
of all ownership interests in Opryland Hotel Nashville LLC, which is the fee
owner of the property known as Opryland Hotel Nashville.
5.15 Plan Assets; Prohibited Transactions; ERISA. Neither Resort
Owner, Borrower, Parent Guarantor nor any of its Subsidiaries is an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code. Except as set forth on Schedule 5.15,
neither Borrower, Parent Guarantor, nor any of Parent Guarantor's Subsidiaries
is or shall while any Loans are outstanding be or become (A) obligated to make
any contributions to, or incur any liability on account of any funding
deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the
Code) with respect to, any employee pension benefit plan qualified under Section
401(a) of the Code, (B) party to or otherwise obligated to make any payments
under any agreement relating to any such plan, or (C) obligated to make any
payments under Title IV of ERISA.
5.16 Environmental Matters. Except as disclosed on Schedule 5.16:
(i) the operations of each Resort Owner and the Opryland
Hotel Florida and the Project comply, and to Borrower's knowledge and Parent
Guarantor's knowledge, the operations of all prior owners of the Opryland Hotel
Florida and the Project have complied, in all respects with all applicable
Environmental Laws except as otherwise set forth in the Environmental Report;
(ii) all environmental, health and safety Permits
necessary for the operation of the Opryland Hotel Florida and the Project (other
than Permits not required until completion of construction of the Project) have
been obtained, and all such Permits are in good standing and each Resort Owner
is currently in compliance with all terms and conditions of such Permits;
(iii) neither Resort Owner, Borrower, Parent Guarantor nor
the Opryland Hotel Florida nor the Project is subject to or, to the knowledge of
Borrower and Parent Guarantor, is the subject of, any investigation, judicial or
administrative proceeding, order, judgment, decree, dispute, negotiations,
agreement or settlement respecting (1) any Environmental Laws, (2) any Remedial
Action, (3) any Claims or Liabilities and Costs arising from the Release or
threatened Release of a Contaminant into the environment or (4) any violation of
or liability under any Environmental Laws;
(iv) except as expressly disclosed in the Environmental
Report, neither Resort Owner, Borrower, Parent Guarantor nor, to the best of the
knowledge of Borrower and Parent Guarantor, any other Person, has filed any
notice under any applicable Requirement of Law with respect to the Opryland
Hotel Florida or the Project (1) reporting a Release of a Contaminant; (2)
indicating past or present treatment, storage or disposal of a hazardous waste,
as that term is defined under 40 C.F.R. Part 261 or any state equivalent or (3)
reporting a violation of any applicable Environmental Laws;
54
(v) neither the Opryland Hotel Florida nor the Project is
listed or proposed for listing on the National Priorities List ("NPL") pursuant
to CERCLA or on the Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list of sites requiring
Remedial Action;
(vi) neither Resort Owner, Borrower, Parent Guarantor nor
any other Person (in connection with the Opryland Hotel Florida or the Project)
has sent or directly arranged for the transport of any waste to any site listed
or proposed for listing on the NPL, CERCLIS or any similar state list;
(vii) except as expressly disclosed in the Environmental
Report, there is not now, nor, to Borrower's and Parent Guarantor's knowledge,
has there ever been on the Opryland Hotel Florida or the Project (1) any
treatment, recycling, storage or disposal of any hazardous waste, as that term
is defined under 40 C.F.R. Part 261 or any state equivalent; (2) any landfill,
waste pile, underground storage tank or surface impoundment; (3) any
asbestos-containing material or (4) any polychlorinated biphenyls (PCB) used in
hydraulic oils, electrical transformers or other equipment;
(viii) neither Resort Owner, Borrower, Parent Guarantor,
nor, to the knowledge of Borrower and Parent Guarantor, any other Person has
received any notice or Claim to the effect that it is or may be liable to any
Person as a result of the Release or threatened Release of a Contaminant into
the environment in connection with the Opryland Hotel Florida or the Project;
(ix) no Environmental Lien has attached to the Opryland
Hotel Florida or the Project;
(x) neither the Opryland Hotel Florida nor the Project is
subject to any Environmental Property Transfer Act, or to extent such acts are
applicable to the Opryland Hotel Florida or the Project, the respective Resort
Owner, Parent Guarantor and/or Borrower has fully complied with the requirements
of such acts;
(xi) no underground storage tanks are located at the
Opryland Hotel Florida or the Project; and
(xii) except as expressly disclosed in the Environmental
Report, no asbestos or asbestos-containing materials are located on, at or in
the Opryland Hotel Florida or the Project.
5.17 Investment Company Act. Neither Resort Owner, Borrower, Parent
Guarantor, nor any of Parent Guarantor's Subsidiaries is an "investment company"
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. Neither Resort Owner,
Borrower, Parent Guarantor, nor any of Parent Guarantor's Subsidiaries is a
"holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
55
5.19 Solvency. (a) Immediately after the consummation of the
transactions to occur on the Effective Date and immediately following the making
of the Effective Date Advance, and after giving effect to contribution
arrangements among Borrower, Parent Guarantor, the Resort Owners and the
Subsidiary Guarantors and to the application of the proceeds of the Effective
Date Advance, and except as set forth on Exhibit 5.19 with respect to certain
Subsidiaries that are not Subsidiary Guarantors, (a) the fair value of the
assets of each Resort Owner, Borrower, Parent Guarantor and Parent Guarantor's
other Subsidiaries at a fair valuation, in each case will exceed the debts and
liabilities, subordinated, contingent or otherwise, of such entity; (b) the
present fair saleable value of the Property of each Resort Owner, Borrower,
Parent Guarantor and Parent Guarantor's other Subsidiaries, in each case will be
greater than the amount that will be required to pay the probable liability of
such entity on its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each Resort Owner, Borrower, Parent Guarantor and Parent Guarantor's other
Subsidiaries will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Resort Owner, Borrower, Parent Guarantor and Parent
Guarantor's other Subsidiaries will not have unreasonably small capital with
which to conduct the businesses in which it is engaged as such businesses are
now conducted and are proposed to be conducted after the Effective Date.
(b) Neither Resort Owner, Borrower, Parent Guarantor, nor
any of Parent Guarantor's Subsidiaries intends to, or believes that it will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it and the timing of
the amounts of cash to be payable on or in respect of its Indebtedness.
5.20 Permits, Zoning, Government Approvals, Trademarks, Etc. (a)
The proposed uses of the Opryland Hotel Florida and the Project do not, and when
the Project is completed and fully operational will not, violate any
Requirements of Law in any material respect. The Resort Owners own or have all
Permits and other Governmental Approvals (other than building permits, and other
permits and approvals, that have not yet been issued, but will, in each case, be
obtained in sufficient time to enable Texas Resort Owner to fulfill the
Completion Conditions by the Final Completion Date), and own or have rights to
use all trademarks, trade names, copyrights, technology, know-how and processes
used in or necessary for the operation of the Opryland Hotel Florida and
construction of the Project and the operation thereof as a first class hotel and
convention center, with meeting rooms, convention center, restaurants and spa,
upon completion of such construction. No claims are pending and neither Resort
Owner, nor to Borrower's and Parent Guarantor's knowledge, any other Person, has
received written notice of any threatened claim, in either case, asserting that
either Resort Owner, Borrower, Parent Guarantor or any of Parent Guarantor's
Subsidiaries or Affiliates (or such other Person) is infringing or otherwise
adversely affecting the rights of any Person in any material respect with
respect to such Permits and other Governmental Approvals, trademarks, trade
names, copyrights, technology, know-how and processes. Neither the zoning or
land use classification, nor any other Permit for or relating to the Opryland
Hotel Florida or the Project is to any extent dependent upon or related to any
Property other than the Property comprising the Opryland Hotel Florida or the
Project.
(b) There have not been and there are no pending
proceedings or actions to revoke, attack, invalidate, rescind, or modify the
zoning or land use classification of the Opryland Hotel Florida or the Project
or any part thereof (except as set forth in Schedule 5.20(b))
56
or any Permits heretofore issued with respect thereto, or asserting that such
zoning, land use classification or Permits do not permit the ownership,
construction, operation or use of the Opryland Hotel Florida or the Project as a
first class hotel and convention center with associated facilities and, to the
best of Borrower's knowledge and Parent Guarantor's knowledge, no facts exist
which would reasonably be expected to result in the denial, disapproval or
revocation of any Governmental Approvals or Permits necessary to operate the
Opryland Hotel Florida or the Project or any other Property.
5.21 Utilities; Access; Structural Soundness. (a) The Project has
or will have upon completion of construction, water, gas and electrical supply,
storm and sanitary sewage facilities, other required public utilities, and fire
and police protection adequate for the continuous operation of the Project in
the manner contemplated upon completion of the construction thereof, and all
such facilities and utilities at the Project comply (or, will comply upon
completion of construction) with all applicable Requirements of Law.
(b) The Project has legal access for both pedestrians and
vehicles at locations contemplated by or otherwise consistent with the Approved
Plans and Specifications. Texas Resort Owner has received no written notice of
any denial of access to the Project nor does Texas Resort Owner have knowledge
that any such denial is being contemplated by any Governmental Authority.
(c) To the best of Borrower's knowledge and Parent
Guarantor's knowledge following diligent inquiry, the Project (to the extent
constructed) is structurally sound and is being constructed in a good and
workmanlike manner, is free from any structural or latent defects or other
material defects, and is in good repair.
5.22 Leasehold Matters. Except as set forth on Schedule 5.22, (a)
there are no Leases or other arrangements for occupancy of space within the
Opryland Hotel Florida or the Project except for Leases entered into in
accordance with Section 6.34 and (b) there are no Persons (excluding guests and
invitees) in possession of all or any part of the Opryland Hotel Florida or the
Project other than as permitted under Leases entered into in accordance with
Section 6.34. Neither Resort Owner is in default in any material respect under
any Lease. Borrower has delivered to the Administrative Agent true and complete
copies of all Leases entered into as of the date hereof.
5.23 Ground Lease Matters.
(a) Each of the Florida Hotel Ground Lease and the Texas
Hotel Ground Lease is in full force and effect, unmodified by any writing or
otherwise (except for the Post-Closing Requirements applicable to the Texas
Ground Leases), and neither Resort Owner has waived, canceled or surrendered any
of its respective rights thereunder, nor has either Resort Owner made any
election or exercised any option thereunder. To the knowledge of Borrower and
Parent Guarantor, each of the Florida Master Lease and the Texas Master Ground
Lease is in full force and effect and unmodified by any writing or otherwise
except for the Post-Closing Requirements applicable to the Texas Ground Leases).
57
(b) All rent, additional rent, percentage rent and/or
other charges reserved in or payable under the Florida Hotel Ground Lease and
the Texas Hotel Ground Lease have been paid to the extent that they are payable
to the date hereof.
(c) Neither Resort Owner has delivered or received any
notice of default under the Florida Hotel Ground Lease or the Texas Hotel Ground
Lease and neither Resort Owner is in default under any of the terms of the
Florida Hotel Ground Lease or the Texas Hotel Ground Lease, and there are no
circumstances which, with either the passage of time or the giving of notice, or
both, would constitute a default by either Resort Owner under either of such
Ground Leases.
(d) To Borrower's knowledge as of the date hereof, (i)
neither the Florida Master Lessor nor the Florida Ground Lessor is in default
under any of the terms of either the Florida Master Ground Lease or the Florida
Hotel Ground Lease on its part to be observed and/or performed, and (ii) there
are no circumstances which, with the passage of time or the giving of notice, or
both, would constitute a default by either the Florida Master Lessor or the
Florida Ground Lessor under either the Florida Master Ground Lease or the
Florida Hotel Ground Lease.
(e) To Borrower's knowledge as of the date hereof, (i)
neither the Texas Master Lessor nor the Texas Ground Lessor is in default under
any of the terms of either the Texas Master Ground Lease or the Texas Hotel
Ground Lease on its part to be observed and/or performed, and (ii) there are no
circumstances which, with the passage of time or the giving of notice, or both,
would constitute a default by either the Texas Master Lessor or the Texas Ground
Lessor under either the Texas Master Ground Lease or the Texas Hotel Ground
Lease.
(f) Borrower has delivered to Lender a true, accurate and
complete copy of each of the Ground Leases, together with all amendments,
renewals and other modifications thereto.
(g) There are no adverse claims to each Resort Owner's
respective title to or possession of the leasehold estate created by the Florida
Hotel Ground Lease or the Texas Hotel Ground Lease.
(h) To the extent required by the Texas Hotel Ground
Lease, the Texas Ground Lessor has approved the Approved Plans and
Specifications and the Approved Project Schedule.
5.24 Casualty; Condemnation Except for any Non-Material Casualty,
neither the Opryland Hotel Florida nor the Project nor any portion thereof is
materially affected by any fire, explosion, accident, drought, storm, hail,
earthquake, embargo, act of God or other casualty. Except for any Non-Material
Condemnation, no condemnation of the Opryland Hotel Florida or the Project (nor
any roadways abutting thereto) or any portion thereof is pending, nor has either
Resort Owner received any written notice of any potential condemnation by any
Governmental Authority.
5.25 Construction. On the Funding Date, (i) the statements
contained in all certificates of Borrower delivered in connection with the
disbursement of Loans shall be, in all material respects, true, correct,
complete and not misleading, whether by omission to state facts or
58
otherwise, (ii) the amounts set forth in the Approved Construction Budget
present a full, complete and accurate representation of all Construction Costs
which Texas Resort Owner expects to pay or anticipates becoming obligated to pay
to complete the construction of the Project in accordance with the Approved
Plans and Specifications and Laws to satisfy all Completion Conditions on or
before the Final Completion Date and to operate the Project through such
completion, (iii) the Available Sources after giving effect to the Effective
Date Advance will be sufficient to pay all then unpaid Construction Costs (which
shall not include interest payments on the Loans) expected to be incurred and
paid in order to achieve Completion by the Final Completion Date, (iv) the
Approved Plans and Specifications are complete and correct in all material
respects, containing all detail requisite for construction and completion of the
Project (except with respect to Permissible Modifications), (v) the Approved
Project Schedule is realistic and feasible in all material respects, and the
Project has proceeded to date in substantial accordance therewith, (vi) Borrower
shall have provided the Administrative Agent with true, correct and complete
copies of all the Project Agreements and other documents required to be provided
to the Administrative Agent under Article IV, and (vii) there are no material
defaults under, or to the best of Borrower's and Parent Guarantor's knowledge,
no events exist which, with the passage of time or giving of notice or both,
would constitute a material default under, any of the documents set forth in
clause (vi) above.
5.26 Brokerage Fees. No brokerage fees or commissions are payable
by or to any Person with whom Borrower, Parent Guarantor or any Subsidiary
Guarantor has dealt in connection with this Agreement or the Loans.
5.27 Personal Property. All furnishings, equipment and other
tangible personal property necessary for the efficient use and operation of the
Opryland Hotel Florida and the Project are, to the extent incorporated in the
Project as of the date hereof, in substantially good condition and repair, are
free from Liens (other than the Customary Permitted Liens) and are usable for
their intended purposes.
5.28 Incentive Agreements. Borrower has furnished to the
Administrative Agent true, complete and correct copies of the Incentive
Agreements, which Agreements are unmodified and in full force and effect.
Borrower acknowledges and agrees that it will not, and will not permit Florida
Resort Owner to, cause, permit or agree to any material amendment to the
Incentive Agreements without the prior consent of the Administrative Agent,
which shall not be unreasonably withheld or delayed.
5.29 SAILS Forward Exchange Contracts. Parent Guarantor has
furnished to the Administrative Agent true, complete and correct copies of the
SAILS Forward Exchange Contracts, which remain unmodified and in full force and
effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Majority Lenders shall
otherwise consent in writing, Borrower and Parent Guarantor covenants and agrees
as follows:
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6.1 Financial Reporting. Borrower and Parent Guarantor will, and
Borrower shall cause each Resort Owner to, maintain for itself a system of
accounting established and administered in accordance with generally accepted
accounting principles, and furnish to the Administrative Agent for distribution
to the Lenders:
(i) As soon as available and in any event within 90 days
after the close of each of its Fiscal Years, an unqualified audit report,
certified by Ernst & Young or another "big four" accounting firm, prepared in
accordance with Agreement Accounting Principles for Parent Guarantor (which
shall, in any event, include balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus statements, and a
statement of cash flows).
(ii) As soon as available and in any event, within 45 days
after the close of each of its Fiscal Quarters, unaudited financial reports,
prepared in accordance with Agreement Accounting Principles for Parent Guarantor
(which shall, in any event, include balance sheets as of the end of such period,
related profit and loss statements, and a statement of cash flows).
(iii) The annual operating and capital budget for Parent
Guarantor, on a consolidated basis, for each Fiscal Year, in each case provided
not later than 60 days after the commencement of such Fiscal Year during the
term of this Agreement.
(iv) The annual operating and capital budget for the
Opryland Hotel Florida, for each Fiscal Year, in each case provided not later
than 60 days after the commencement of such Fiscal Year during the term of this
Agreement.
(v) From and after the Substantial Completion Date, the
annual operating and capital budget for the Project, for each Fiscal Year, and
in the case of the first such budget, provided no later than the date on which
the first unaudited operating statement is required to be delivered pursuant to
the following clause (vii), and in the case of each subsequent budget, provided
not later than 60 days after the commencement of such Fiscal Year during the
term of this Agreement, which budget shall constitute the "Operating and Capital
Budget" for such Fiscal Year.
(vi) Within 30 days after the close of each month end, an
unaudited operating statement for the Opryland Hotel Florida and Opryland
Nashville for such month.
(vii) Within 30 days after the close of each month end
after the Opening Date an unaudited operating statement for the Project for such
month.
(viii) As soon as available and in any event within 45 days
after the close of each Fiscal Quarter and 90 days after the close of each
Fiscal Year, a compliance certificate for Borrower and Parent Guarantor in
substantially the form of Exhibit G signed by an Authorized Officer, (1) showing
the calculations necessary to determine compliance with this Agreement,
including those covenants set forth in Section 6.25 and (2) stating that to such
Authorized Officer's knowledge, no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the nature and status thereof.
(ix) Promptly upon the occurrence of any of the following,
and in all events within 10 Business Days after any such occurrence, written
notice of the following:
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(a) receipt by either Resort Owner, Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida or the Project of a notice or claim to the
effect that either Resort Owner, Borrower, Parent Guarantor, any Subsidiary of
Parent Guarantor or any Property Manager is or may be liable to any Person as a
result of the Release or threatened Release of any Contaminant into the
environment;
(b) receipt by either Resort Owner, Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida or the Project of a notice that either
Resort Owner, Borrower, Parent Guarantor or any Property Manager or any portion
of the Opryland Hotel Florida or the Project is subject to investigation by any
Governmental Authority evaluating whether any Remedial Action is needed to
respond to the Release or threatened Release of any Contaminant into the
environment at or from the Opryland Hotel Florida or the Project;
(c) receipt by either Resort Owner, Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida or the Project of a notice that the
Opryland Hotel Florida or the Project is subject to an Environmental Lien;
(d) receipt by either Resort Owner, Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida or the Project of a notice of a material
violation of any Environmental Laws with respect to the Opryland Hotel Florida
or the Project;
(e) any condition which might reasonably be expected to
result in a material violation of any Environmental Laws by either Resort Owner,
Borrower, Parent Guarantor or any Property Manager or with respect to the
Opryland Hotel Florida or the Project; or
(f) commencement or written threat of which either Resort
Owner, Borrower, Parent Guarantor or any Property Manager has knowledge of any
judicial or administrative proceeding alleging a violation of any Environmental
Laws by either Resort Owner, Borrower, Parent Guarantor or any Property Manager
or with respect to the Opryland Hotel Florida or the Project.
(x) (a) Promptly upon either Resort Owner, Borrower
or Parent Guarantor obtaining knowledge of the institution of, or written threat
of, any action, suit, proceeding, governmental investigation or arbitration
against or affecting either Resort Owner, Borrower, Parent Guarantor, any
Property Manager, the Opryland Hotel Florida or the Project other than any
Ordinary Course Claim, written notice thereof and such other information as may
be reasonably available to enable each Lender and the Administrative Agent and
its counsel to evaluate such matters; (b) as soon as practicable and in any
event within forty-five days after the end of each Fiscal Quarter, a written
quarterly report covering the institution of any action, suit, proceeding,
governmental investigation or arbitration (not previously reported) against or
affecting either Resort Owner, Borrower, Parent Guarantor, any Property Manager,
the Opryland Hotel Florida or the Project (including, without limitation, all
Ordinary Course Claims),
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containing such information as may be reasonably available to enable the
Administrative Agent and its counsel to evaluate such matters; and (c) in
addition to the requirements set forth in clauses (a) and (b) above, upon
request of the Administrative Agent, prompt written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to clause (a) above, including such information as may
be reasonably available to it to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. For purposes hereof, an "Ordinary
Course Claim" shall mean a claim for which is fully covered by either Resort
Owner's or any Property Manager's insurance (with the exception of permitted
deductibles hereunder) and which neither alleges damages in excess of $500,000
nor seeks to enjoin development, construction, use or operation of the Opryland
Hotel Florida or the Project.
(xi) Promptly upon either Resort Owner's, Borrower's or
Parent Guarantor's learning thereof, written notice of any labor dispute to
which either Resort Owner, Borrower, Parent Guarantor or any Subsidiary
Guarantor may become a party (including any strikes, lockouts or other disputes
relating to the Opryland Hotel Florida or the Project).
(xii) Copies of any reports on form 8K filed with the
Securities Exchange Commission, upon filing same.
(xiii) Prompt written notice upon the occurrence of any
Property Award Event, given in any event within ten days after the occurrence
thereof.
(xiv) Such other non-proprietary information (including
non-financial information) as the Administrative Agent or any Lender may from
time to time reasonably request.
6.2 Use of Proceeds. Borrower will use the proceeds of the
Effective Date Advance solely for the purpose of funding the Completion Reserve
Account and closing costs in accordance with this Agreement. Borrower will not
use any of the proceeds of the Effective Date Advance to purchase or carry any
"margin stock" (as defined in Regulation U) or in any manner in violation of any
other regulation of the Board of the Federal Reserve System.
6.3 Notice of Default. Borrower and Parent Guarantor will give
prompt notice in writing to the Lenders of the occurrence of any Default or
Unmatured Default of which they have knowledge and of any other development,
financial or otherwise, which could reasonably be expected to have a Material
Adverse Effect.
6.4 Conduct of Business; Corporate Existence. Borrower and Parent
Guarantor shall (and Borrower shall cause the Resort Owners and Parent Guarantor
shall cause all of the Subsidiary Guarantors to) (a) maintain in all material
respects their Properties (including the Opryland Hotel Florida and the Project)
in good, safe and insurable condition and repair, except ordinary wear and tear
scheduled to be repaired in the ordinary course of maintenance, (b) maintain all
utilities, access rights, zoning, land use classification and necessary Permits
for the Opryland Hotel Florida and the Project, (c) not permit, commit or suffer
any waste or abandonment of the Opryland Hotel Florida and the Project, and (d)
from time to time shall make or cause to be made all material repairs, renewal
and replacements thereof, including any
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capital improvements which may be required to maintain the same in good
condition and repair. Without any limitation on the foregoing, Borrower shall,
and Borrower shall cause the applicable Resort Owner to, staff, maintain, insure
and operate the Opryland Hotel Florida and the Project as a first class hotel
and convention center. Borrower and Parent Guarantor will (and Borrower will
cause the Resort Owners and Parent Guarantor will cause each of the Subsidiary
Guarantors to) do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted.
6.5 Taxes and Claims. Borrower and Parent Guarantor shall (and
Borrower shall cause the Resort Owners and Parent Guarantor shall cause each
Subsidiary of Parent Guarantor, to) timely file (subject to lawful extension of
filing date requirements) complete and correct United States federal and
applicable foreign, state and local tax returns required by law (it being
understood that such filings may be in the form of consolidated returns).
Borrower shall cause each Resort Owner to qualify for pass-through entity
treatment under United States federal tax law. Borrower and Parent Guarantor
shall and Borrower shall cause the Resort Owners and Parent Guarantor shall
cause all other Subsidiaries of Parent Guarantor, to pay (i) all taxes,
assessments, rates, dues, charges, fees, levies, fines, impositions, transit
taxes, taxes based on the receipt of rent and other governmental charges imposed
upon it or on any of its Property or assets or in respect of any of its
franchises, licenses, receipts, sales, use, payroll, employment, business,
income or Property before any penalty or interest accrues thereon and (ii) all
Claims (including claims for labor, services, materials and supplies) for sums
which have become due and payable and which by law have or may become a Lien,
prior to the time when any penalty or fine shall be incurred with respect
thereto. Borrower and/or Parent Guarantor shall provide copies of property tax
bills and other invoices and evidence of payment of property taxes with respect
to the Opryland Hotel Florida and the Project, within thirty (30) days following
such payment. Notwithstanding the foregoing, no such taxes, assessments, fees
and governmental charges referred to in clause (i) above or Claims referred to
in clause (ii) above need be paid (unless payment under protest is required by
applicable Requirements of Law in connection with a contest) if (A) being
contested in good faith by appropriate proceedings diligently instituted and
conducted, (B) a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor and (C) with
respect to Liens on Collateral or real property, Borrower and/or Parent
Guarantor shall have deposited with the Administrative Agent or with the Senior
Administrative Agent security in an amount and of a kind reasonably satisfactory
to the Administrative Agent during the pendency of such appropriate proceedings.
Notwithstanding the foregoing, if Borrower and/or Parent Guarantor (1) shall
fail to discharge or cause to be discharged within sixty (60) days after the
imposition thereof (but in any event before the same is reasonably likely to
result in either (A) the Property being sold, forfeited or lost or (B) the Lien
in favor of the Administrative Agent for the benefit of the Lenders and other
Holders of Secured Obligations being impaired) any such Lien for taxes,
assessments or other governmental charges or claims filed or otherwise asserted
with respect to any portion of the Opryland Hotel Florida or the Project, or (2)
shall fail to contest, or cause either Resort Owner to contest, any of the
foregoing and give security therefor within the time period specified in the
preceding clause (1) or, having commenced to contest the same, and having given
such security within such time period, shall thereafter fail to prosecute, or
cause
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either Resort Owner to prosecute, such contest in good faith and with due
diligence, or fail to maintain such security for its full amount, or (3) upon
adverse conclusion of any such contest, shall fail to cause any judgment or
decree to be satisfied and such Lien to be released, then, and in any such
event, the Administrative Agent may (but shall not be required to) at its
election, (x) procure the release and discharge of any such Lien and any
judgment or decree thereon, without inquiring into or investigating the amount,
validity or enforceability of such Lien and (y) effect any settlement or
compromise of the same, or furnish security or indemnity to the Title Insurer,
and any amounts so expended by the Administrative Agent, including premiums paid
or security furnished in connection with the issuance of any surety company
bonds, shall be deemed to constitute additional Obligations and shall be secured
by the Collateral.
6.6 Insurance. (a) Borrower and Parent Guarantor will maintain and
Parent Guarantor will cause all of its Subsidiaries and the Subsidiary
Guarantors to maintain, with financially sound and reputable insurance
companies, insurance coverages in such amounts and covering such risks as is
consistent with sound business practice, and Borrower and Parent Guarantor will
furnish to any Lender upon request full information as to the insurance carried
by Borrower and all such Persons. Without limitation of the foregoing, Borrower
shall comply with the provisions and maintain the insurance coverages set forth
below, such coverage to be evidenced by copies of insurance certificates.
(b) The following insurance coverages shall be required
prior to the Substantial Completion Date:
(1) Borrower and Parent Guarantor shall, and Borrower
shall cause Texas Resort Owner to, obtain and maintain property (or
cause to be maintained) insurance policies and such insurance policies
shall be Builder's Risk so-called "all risk" insurance in the amount of
the lesser of one hundred percent (100%) of the replacement cost value
of the completed Improvements (exclusive of excavation and foundation
costs) or the sum of the Aggregate Outstanding Credit Exposure and the
Aggregate Available Commitment as such terms are defined in the Senior
Loan Agreement. Such policy shall be written on a Builder's Risk
Completed Value Form (100% non-reporting) or its equivalent and shall
include coverage for loss by collapse, theft, wind, flood and
earthquake. Flood insurance shall be procured in an amount not less
than $30,000,000 and shall include a sublimit of not less than $25,000
coverage for improvements to landscaping), to the extent such coverage
is available under standard policies at commercially reasonable terms
and earthquake limits of liability shall be not less than $5,000,000 or
such greater amount as is customarily carried by operators of similar
high-quality lodging facilities in the same geographic region. Such
insurance policy shall also include coverage for:
(aa) loss suffered with respect to materials, equipment,
machinery, and supplies whether on-site, in transit,
or stored off-site and with respect to temporary
structures, hoists, sidewalks, retaining walls, and
underground property and shall be subject to a
sub-limit of not less than $250,000;
(bb) soft costs, plans, specifications, blueprints and
models in connection with any Restoration following a
casualty;
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(cc) demolition and increased cost of construction,
including, without limitation, increased costs
arising out of changes in applicable laws and codes
for a limit equal to not less than $5,000,000;
(dd) operation of building laws for the policy limit to
the extent available at commercially reasonable
times, but in any event for a limit that is not less
than $5,000,000.
All of the above shall include coverage for business interruption
insurance on an actual loss sustained basis with Extended Period of Indemnity
Endorsement for 180 days, or at least 90 days if coverage for 180 days is not
available at commercially reasonable terms. Such insurance policy shall name
Texas Resort Owner, Borrower and Parent Guarantor as the insured. Such policy
shall also name the Administrative Agent and Lenders under a standard mortgagee
clause or an equivalent endorsement reasonably satisfactory to the
Administrative Agent for the Project and as "Loss Payee" as respects Loss of
Revenue insurance. The insurance policy shall be endorsed to also provide
guaranteed building replacement cost to the Improvements (exclusive of
excavation and foundation costs). All policy deductibles shall be in amounts as
commonly carried by operators of similar high-quality facilities in the same
geographic region and reasonably approved by Administrative Agent.
(2) Borrower and Parent Guarantor shall, and Borrower
shall cause Texas Resort Owner to, cause the Project Architect
(excluding any sub-architects or engineers) to obtain and maintain
architect's or engineer's, as the case may be, professional liability
insurance during the period commencing on the date of their respective
agreements for the work to be performed by them, and expiring no
earlier than three (3) years after completion of the Project. Such
insurance shall be in an amount equal to at least $3,000,000 per
occurrence for the Project Architect and at least $1,000,000 per
occurrence for the engineers (excluding sub-engineers).
(3) Borrower and Parent Guarantor shall, and Borrower
shall cause each Resort Owner to, obtain and maintain Boiler &
Machinery coverage (or similar coverage included in so-called "all
risk" property coverage) immediately as such equipment is delivered and
installed for all mechanical and electrical equipment covering the
replacement value of such equipment with exclusions for testing
removed. Such coverage shall include, without limitation, coverage for
business interruption with a 180-day Extended Period of Indemnity, or
at least 90 days if coverage for 180 days is not available at
commercially reasonable terms.
(4) Borrower and Parent Guarantor shall, and Borrower
shall cause each Resort Owner and any Property Manager to, obtain and
maintain Workers Compensation and Disability insurance as required by
law covering Borrower, Parent Guarantor, the Resort Owners and any
Property Manager.
(5) Borrower and Parent Guarantor shall, and Borrower
shall cause Texas Resort Owner to, and obtain and maintain or ensure
that the Project General Contractor maintains Commercial General
Liability coverage through the Owner Controlled Insurance Program or
other programs implemented by Texas Resort Owner, Borrower
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and Parent Guarantor, including, but not limited to, coverage for
products and completed operations for a period of three (3) years after
Completion and Automobile Liability insurance with no less than
$100,000,000 in limits through primary and umbrella liability
coverages. Such insurance shall name Texas Resort Owner, Borrower,
Parent Guarantor, Administrative Agent and Lenders as additional
insureds. Borrower and Parent Guarantor shall, and Borrower shall cause
Texas Resort Owner to, also ensure that all subcontractors to the
Project General Contractor maintain similar coverage with limits
satisfactory to Texas Resort Owner, Borrower, Parent Guarantor and the
Project General Contractor. All parties engaged in work on the
improvements shall maintain statutory Workers Compensation and
Disability insurance in force for all workers on the job.
(c) The following insurance coverages shall be required
at all times for the Opryland Hotel Florida and, from and after the Opening
Date, for the Project:
(1) Property insurance shall be required, insuring
against loss customarily included under standard so-called "all risk"
policies including flood, earthquake, vandalism, and malicious
mischief, boiler and machinery, and such other insurable hazards as,
under good insurance practices, from time to time are insured against
for other property and buildings similar to the Opryland Hotel Florida
or the Project in nature, use, location, height, and type of
construction. Such insurance policy shall also insure costs of
demolition and increased cost of construction (which insurance may
contain a sublimit for demolition and increased cost of construction of
not less than $5,000,000), and for operation of building laws for the
policy limit to the extent available at commercially reasonable terms,
but in any event for a sublimit of not less than twenty-five percent
(25%) of the full insurable value of each of the Opryland Hotel Florida
and the Project. The amount of such insurance shall be not less than
one hundred percent (100%) of the replacement cost value of the
Improvements (exclusive of excavation and foundation costs). Flood
insurance shall be procured in an amount not less than $30,000,000 and
shall include a sublimit of not less than $500,000 coverage for
improvements to landscaping, to the extent such coverage is available
under standard policies at commercially reasonable terms. Earthquake
limits of liability shall be not less than $5,000,000 or such greater
amount as is customarily carried by operators of similar high quality
lodging facilities in the same geographic region. Each such insurance
policy shall contain an agreed amount or replacement cost endorsement.
The insurance policies shall be endorsed to also provide guaranteed
building replacement cost to the Improvements (exclusive of excavation
and foundation costs). All policy deductibles shall be in amounts as
commonly carried by operators of similar high-quality facilities in the
same geographic region and reasonably approved by Administrative Agent.
(2) Business interruption insurance shall be required in
an amount that equals not less than 6 months projected Net Operating
Income and payment of debt service on the Loans, and be endorsed to
provide a 180-day Extended Period of Indemnity, or at least 90 days if
coverage for 180 days is not available at commercially reasonable
terms. The Administrative Agent shall be named as Loss Payee as
respects this coverage.
(3) Borrower and Parent Guarantor shall, and Borrower
shall cause each Resort Owner and any Property Manager to, obtain and
maintain General Public Liability
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insurance, including, without limitation, Commercial General Liability
insurance; Owned, Hired and Non Owned Auto Liability, and Umbrella
Liability coverage for Personal Injury, Bodily Injury, Death, Accident
and Property Damage, providing in combination no less than $100,000,000
per occurrence and in the annual aggregate, including, but not limited
to, coverage for elevators, escalators, independent contractors,
Contractual Liability (covering, to the maximum extent permitted by
law, Borrower's and Parent Guarantor's obligation to indemnify the
Administrative Agent and Lenders as required under this Agreement),
Products and Completed Operations Liability coverage.
(4) Workers Compensation and Disability insurance as
required by law.
(5) Such other types and amounts of insurance with respect to the
Opryland Hotel Florida and the Project and the operation thereof which
are commonly maintained in the case of other property and buildings
similar to the Opryland Hotel Florida and the Project in nature, use,
location, height, and type of construction, as may from time to time be
reasonably required by the Administrative Agent.
(d) To the extent the "all risk" property coverages
required to be maintained by the foregoing provisions of this Section 6.6 do not
cover acts of terrorism, Borrower and Parent Guarantor shall, and Borrower shall
cause the applicable Resort Owner to, obtain separate terrorism coverage for the
Opryland Hotel Florida and the Project in such amounts as are being obtained at
such time by companies of established repute and engaged in the same or similar
business, provided that such coverage shall not be required (x) to exceed the
sum of the Aggregate Outstanding Credit Exposure and the Aggregate Available
Commitment, as such terms are defined in the Senior Loan Agreement, and (y) to
the extent that it is not commercially available on commercially reasonable
terms. All insurance policies (excluding policies in excess of $50,000,000)
required hereunder shall be issued by an insurer or insurers with an A.M. Best
rating of A-VIII or better, and all primary carriers will be licensed to do
business in the State of Florida or Texas, as the case may be, and reasonably
acceptable to the Administrative Agent. The Property, Boiler and Machinery
insurance policies shall also name the Administrative Agent and Lenders under a
standard mortgagee clause or an equivalent endorsement satisfactory to the
mortgagee and shall be otherwise reasonably satisfactory to the Administrative
Agent in form and content. Business interruption insurance shall name the
Administrative Agent as Loss Payee. All Property insurance policies also shall
include a co-insurance waiver and Agreed Amount Endorsement. The amount of any
deductible under any insurance policy must be consistent with similar projects
managed by Parent Guarantor or any of its Subsidiaries. Without the
Administrative Agent's prior written consent, neither Borrower nor Parent
Guarantor shall, and Borrower shall not permit either Resort Owner, or any
Property Manager to, carry separate or additional insurance coverage covering
the Improvements concurrent in form or contributing in the event of loss with
that required by this Agreement and the other Loan Documents. The Administrative
Agent, on reasonable prior notice to Borrower or Parent Guarantor, may examine
the insurance policies (whether in the possession of either Resort Owner,
Borrower, Parent Guarantor or an Affiliate) during business hours.
(e) Borrower and Parent Guarantor shall, and Borrower
shall cause any Property Manager to, pay the premiums for the insurance policies
required hereunder as the same become due and payable. Borrower and Parent
Guarantor shall, and Borrower shall cause any
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Property Manager to, deliver to the Administrative Agent certificates of the
insurance policies required to be maintained pursuant to this Agreement
provided, however, the Administrative Agent and Lenders shall not be deemed by
reason of the custody of such certificates to have knowledge of the contents
thereof. Borrower and Parent Guarantor also shall deliver to the Administrative
Agent, within ten (10) days of the Administrative Agent's request, a certificate
of each Resort Owner, Borrower and Parent Guarantor or their insurance agent
setting forth the particulars as to all such insurance policies. Prior to the
expiration date of each of the insurance policies Borrower shall deliver to the
Administrative Agent a certificate of insurance evidencing renewal of coverage
as required herein.
(f) Each insurance certificate required hereunder shall
contain a provision whereby the insurer (i) agrees that such policy shall not be
canceled, terminated or reduced in coverage or limits below the coverage and
limits of insurance required by this Agreement, without in each case, at least
thirty (30) days' prior written notice to the Administrative Agent, (ii) waives
any right to claim any premiums and commissions against the Administrative Agent
or any Lender, provided that the policy need not waive the requirement that the
premium be paid in order for a claim to be paid to the insured and (iii)
provides that the Administrative Agent is permitted to make payments to effect
the continuation of such policy upon notice of cancellation due to non-payment
of premiums. In the event any insurance policy (except for general public,
automobile and other liability and Workers Compensation insurance or any other
similar policies) shall contain breach of warranty provisions, such policy shall
provide that with respect to the interest of the Administrative Agent and
Lenders, such insurance policy shall not be invalidated by and shall insure the
Administrative Agent and Lenders regardless of (A) any act, failure to act or
negligence of or violation of warranties, declarations or conditions contained
in such policy by any named insured, (B) the occupancy or use of the premises
for purposes more hazardous than permitted by the terms thereof, or (C) any
foreclosure or other action or proceeding taken by the Senior Administrative
Agent pursuant to any provision of the Mortgages or by the Administrative Agent
with respect to the Pledge Agreements or any of the other Loan Documents.
(g) Any insurance maintained pursuant to this Agreement
may be evidenced by blanket insurance policies covering the Opryland Hotel
Florida and the Project and other properties or assets of Borrower, Parent
Guarantor, the Resort Owners and any Property Manager or their affiliates,
provided that any such policy shall in all other respects substantially fulfill
the requirements of this section.
(h) Notwithstanding anything to the contrary contained
herein, if at any time the Administrative Agent is not in receipt of written
evidence that all insurance required hereunder is maintained in full force and
effect, the Administrative Agent shall have the right (but not the obligation),
upon ten (10) days' prior written notice to Borrower (or such lesser notice as
may be necessary to prevent the lapse of insurance coverage), to take such
action as the Administrative Agent deems necessary to protect its interests in
the Opryland Hotel Florida and the Project, including, without limitation, the
obtaining of such insurance coverage as the Administrative Agent deems
appropriate, and all expenses incurred by the Administrative Agent in connection
with such action will be paid by Borrower or Parent Guarantor on demand.
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6.7 Compliance with Laws. Borrower and Parent Guarantor shall, and
Borrower shall cause the Resort Owners and Parent Guarantor shall cause all of
its Subsidiaries to, (a) comply in all material respects with all Requirements
of Law and all restrictive covenants affecting their respective businesses,
Properties, assets and operations, and (b) obtain and maintain as needed all
Permits necessary for their operations and maintain such Permits in good
standing. Without limiting the foregoing, Borrower and Parent Guarantor shall,
and Borrower shall cause the Resort Owners to, comply in all respects with all
Environmental Laws with respect to the Opryland Hotel Florida and the Project
and shall not suffer or permit the Release or disposal of Contaminants at the
Opryland Hotel Florida or the Project in any manner that, in any single instance
or in the aggregate, would violate Environmental Laws.
6.8 Alterations; Restaurant Facility. (a) With the exception of
the Restaurant Facility and the Project Construction and change orders
respecting the same made in accordance with Section 6.12 of this Agreement,
neither Borrower nor Parent Guarantor shall, and Borrower shall not permit
either Resort Owner to, without the prior written consent of the Administrative
Agent, make, suffer or permit any alterations to the Opryland Hotel Florida or
the Project (other than as contemplated by the Approved FF&E Budget of each
Resort Owner) having a cost in excess of $4,000,000.00 in the aggregate for both
the Opryland Hotel Florida and the Project in any Fiscal Year.
(b) Borrower and Parent Guarantor shall not, and Borrower
shall not permit Texas Resort Owner to, commence construction of the Restaurant
Facility, unless and until (i) Texas Resort Owner shall have submitted and the
Administrative Agent shall have approved plans and specifications and a schedule
for the construction and completion of such restaurant, which plans,
specifications and schedule shall be reasonably satisfactory to the
Administrative Agent, and (ii) Texas Resort Owner shall have furnished evidence
reasonably satisfactory to the Administrative Agent that such restaurant, and
the development, construction and operation thereof, will have no adverse effect
on the Project Schedule or the value or utility of the Project. Neither the
plans and specifications nor the schedule for construction of the Restaurant
Facility shall be materially altered without the prior written consent of the
Administrative Agent, which shall not be unreasonably withheld.
6.9 Inspections; Books and Records.
(a) The Administrative Agent, and any authorized
representative(s) designated by the Administrative Agent, shall have the right
at all reasonable times on reasonable notice (and (i) for so long as no Default
exists, at Borrower's and Parent Guarantor's expense, provided that such
inspections and examinations do not take place more often than annually, and
otherwise at the expense of the Lenders and (ii) from and after the occurrence
of a Default, at Borrower's and Parent Guarantor's expense) and any other Lender
shall have the right at its own expense: (i) to enter upon and inspect the
Properties of Borrower, Parent Guarantor, the Resort Owners and Subsidiary
Guarantors (including the Opryland Hotel Florida and the Project), both as part
of the Administrative Agent's general oversight (both prior to and after the
Final Completion Date) and to inspect the Project Construction to determine that
it is in conformity with the Approved Plans and Specifications and all the
requirements hereof; and (ii) to examine, copy and make extracts of the books,
records, accounting data and other documents of Borrower, Parent Guarantor, the
Resort Owners, any Property Manager and Subsidiary
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Guarantors, whether or not the same relate in any way to the Opryland Hotel
Florida or the Project, all of which shall be made available promptly upon the
Administrative Agent's written demand therefor (including in connection with
environmental compliance, hazard or liability), and to discuss Borrower's,
Parent Guarantor's, Subsidiary Guarantors' and other Subsidiaries' and any
Property Manager's affairs, finances and accounts, including, but not limited
to, matters relating to the Opryland Hotel Florida and the Project, with their
respective executive officers, as applicable, all upon reasonable notice and at
such reasonable times during normal business hours, as often as may be
reasonably requested. At the request of the Administrative Agent, Borrower and
Parent Guarantor shall furnish convenient facilities for the purposes of
conducting such investigations and examinations. No Construction Agreements let
or amended by Texas Resort Owner shall be inconsistent with the foregoing
inspection and examination rights. It is expressly understood and agreed that
the Administrative Agent shall have no duty to supervise or to inspect the
Opryland Hotel Florida or the Project (or any other Property) or any books and
records, that any such inspection shall be for the sole purposes of determining
whether or not the obligations of Borrower and Parent Guarantor under this
Agreement are being properly discharged and of preserving the Administrative
Agent's rights hereunder, and that the Administrative Agent's failure to inspect
or examine any matter shall not constitute a waiver of any of the Lenders'
rights hereunder. If the Administrative Agent or any other Lender should inspect
the Project or any books and records, neither the Administrative Agent nor any
other Lender shall have any liability or obligation to Borrower, Parent
Guarantor or any third party arising out of such inspection (other than any
applicable obligation hereunder with respect to confidentiality) and neither
Borrower, Parent Guarantor nor any third party shall be entitled to rely upon
such inspection or review. An inspection not followed by notice of default shall
not constitute a waiver of any Unmatured Default or Default then existing, nor
shall it constitute an acknowledgment or representation by the Administrative
Agent or any other Lender that there has been or will be compliance with the
Approved Plans and Specifications and Laws or that the Project is free from
defective materials or workmanship, or a waiver of the Administrative Agent's
right thereafter to insist that the Project be constructed in accordance in all
material respects with the Approved Plans and Specifications and Laws. Neither
the Administrative Agent nor any other Lender owes any duty of care to Borrower,
Parent Guarantor or any third person to protect against, or inform Borrower,
Parent Guarantor or any third person of the existence of, negligent, faulty,
inadequate or defective design or construction of the Project or of any other
Property.
(b) The Construction Consultant, and any authorized
representative(s) designated by the Construction Consultant, shall have the
right at all reasonable times on reasonable notice at Borrower's and Parent
Guarantor's expense, (i) to enter upon and inspect the Project Construction up
to the Final Completion Date, to determine that it is in conformity with the
Approved Plans and Specifications and all the requirements hereof; and (ii) to
examine, copy and make extracts of the books, records, accounting data and other
documents of Texas Resort Owner, to the extent that the same relate in any way
to the Project, all of which shall be made available promptly upon the
Construction Consultant's written demand therefor (including in connection with
environmental compliance, hazard or liability), and to discuss Texas Resort
Owner's affairs, finances and accounts, including, but not limited to, matters
relating to the Project, with its executive officers, as applicable, all upon
reasonable notice and at such reasonable times during normal business hours, as
often as may be reasonably requested. At the request of the Construction
Consultant, Texas Resort Owner shall furnish convenient facilities
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for the purposes of conducting such investigations and examinations. No
Construction Agreements let or amended by Texas Resort Owner shall be
inconsistent with the foregoing inspection and examination rights. It is
expressly understood and agreed that the Construction Consultant shall have no
duty to supervise or to inspect the Project (or any other Property) or any books
and records, that any such inspection shall be for the sole purposes of
determining whether or not the obligations of Borrower under this Agreement are
being properly discharged and of preserving the Administrative Agent's rights
hereunder, and that the Construction Consultant's failure to inspect or examine
any matter shall not constitute a waiver of any of the Lenders' rights
hereunder. If the Construction Consultant acting on behalf of the Administrative
Agent, should inspect the Project or any books and records, the Construction
Consultant shall have no liability or obligation to Borrower, Parent Guarantor
or any third party arising out of such inspection (other than any applicable
obligation hereunder with respect to confidentiality) and neither Borrower,
Parent Guarantor nor any third party shall be entitled to rely upon such
inspection or review. An inspection not followed by notice of default shall not
constitute a waiver of any Unmatured Default or Default then existing, nor shall
it constitute an acknowledgment or representation by the Administrative Agent or
the Construction Consultant that there has been or will be compliance with the
Approved Plans and Specifications and Laws or that the Project is free from
defective materials or workmanship, or a waiver of the Administrative Agent's
right thereafter to insist that the Project be constructed in accordance in all
material respects with the Approved Plans and Specifications and Laws. The
Construction Consultant owes no duty of care to Borrower, Parent Guarantor or
any third person to protect against, or inform Borrower, Parent Guarantor or any
third person of the existence of, negligent, faulty, inadequate or defective
design or construction of the Project or of any other Property.
(c) Borrower and Parent Guarantor shall keep and
maintain, and Borrower shall cause each Resort Owner, and Parent Guarantor shall
cause the Subsidiary Guarantors and its other Subsidiaries to maintain (either
individually or on a consolidated basis with Parent Guarantor), proper books of
record and account in which entries in conformity with Agreement Accounting
Principles shall be made of all dealings and transactions in relation to its
businesses and activities. If a Default has occurred that is continuing,
Borrower and Parent Guarantor, upon the Administrative Agent's request, shall
turn over copies of any such records to the Administrative Agent or its
representatives.
6.10 Completion of Project. (a) Borrower shall cause Texas Resort
Owner to complete Project Construction on or prior to the Final Completion Date
in a good and workmanlike manner with materials of good quality, free of Liens
(other than mechanics' liens being contested pursuant to the provisions of
Section 6.19(b) and other Customary Permitted Liens) and material defects, and
the Project shall be equipped with fixtures and equipment of good quality, all
in accordance, in all material respects, with the Approved Plans and
Specifications therefor and all Laws, including all requirements and conditions
set forth in all Permits which have been obtained or are required to be obtained
for the construction and operation of the Project. Borrower shall cause Texas
Resort Owner to (i) subject to Force Majeure Events, diligently continue Project
Construction without material interruption or cessation of work in accordance
with the Approved Project Schedule and the Approved Plans and Specifications,
and (ii) on or prior to the Final Completion Date complete Project Construction
such that all the Completion Conditions shall be satisfied.
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(b) At such time as Texas Resort Owner has determined
that the Completion Conditions have been satisfied, Borrower shall cause Texas
Resort Owner to promptly furnish to the Administrative Agent, written notice
that the Completion Conditions have been satisfied. Such notice shall include
(to the extent not theretofore furnished to the Administrative Agent) documents
evidencing satisfaction of the Completion Conditions. Upon Administrative
Agent's approval of such notice, Administrative Agent shall notify the Lenders
that the Completion Conditions have been satisfied.
6.11 Correction of Defects. Borrower shall cause Texas Resort Owner
to proceed with diligence to investigate and correct all material defects in the
Project and any material departures from the Approved Plans and Specifications
which have not been approved in writing by the Administrative Agent. Any
disbursement from the Completion Reserve Account shall not constitute a waiver
of the Administrative Agent's right to require compliance with this covenant
with respect to any such defect or departure from the Approved Plans and
Specifications or any other requirement of this Agreement.
6.12 Changes and Amendments; Monthly Updates. (a) Except for
Permissible Modifications, Borrower shall not permit Texas Resort Owner to (i)
make any changes or modifications to or otherwise amend the Approved Plans and
Specifications, the Approved Project Schedule or the Construction Budget or the
Approved Construction Budget, or (ii) enter into, amend in any material respect
or terminate any material Project Agreement (other than by reason of a material
default by the applicable contractor or tenant) without the prior written
approval of the Administrative Agent in each instance. The Administrative Agent
shall not make a final determination that Texas Resort Owner has taken any
action in contravention of this Section 6.12 without first notifying Borrower of
the matter in question and giving Borrower ten (10) Business Days within which
to refute or contest such determination.
(b) Until the Final Completion Date, Borrower shall cause
Texas Resort Owner to deliver to the Administrative Agent written notice (in
reasonable detail) as soon as possible and in any event within five (5) Business
Days after the occurrence of (i) any material change in the Approved
Construction Budget, (ii) any material change in the Project Schedule or (iii)
any event, change or circumstance that has had, or could reasonably be expected
to have, a Material Adverse Effect.
6.13 Distributions. Borrower and Parent Guarantor will not, and
Parent Guarantor will not permit any of its Subsidiaries to, declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
Parent Guarantor or any such Subsidiary or any warrants or options to purchase
any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of either Resort Owner, Borrower, Parent Guarantor
or any such Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments," except that any Subsidiary may declare and
pay dividends to either Resort Owner, Borrower, Parent Guarantor or any
Subsidiary Guarantor or, in the case of any Subsidiary that is wholly owned by
any other Subsidiary, to such Subsidiary, provided that (i) no Subsidiary
Guarantor shall make or declare any dividend, distribution or other
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payment to any Subsidiary that is not a Subsidiary Guarantor (or a direct or
indirect Subsidiary of a Subsidiary Guarantor) and (ii) neither Resort Owner
shall make or declare any dividend, distribution or other payment to Borrower,
Parent Guarantor or any Affiliate of Borrower or Parent Guarantor, except that,
for so long as no Default or Unmatured Default has occurred and is continuing,
(x) Borrower may pay management fees in accordance with any Management
Agreements when due and payable, (y) Borrower may distribute Net Operating
Income with respect to the Opryland Hotel Florida and the Project to Parent
Guarantor and (z) Texas Resort Owner may distribute to Parent Guarantor amounts
released to Texas Resort Owner from the Completion Reserve Account, provided
that such amounts were so released for purposes other than repayment of the
Loans or payment of Approved Construction Costs.
6.14 Indebtedness. (a) Borrower and Parent Guarantor will not
create, incur or suffer to exist any Indebtedness with respect to themselves or
any Subsidiary Guarantor or other Subsidiary of Parent Guarantor, except the
following ("Permitted Debt"):
(i) The Loans and the Guaranty.
(ii) Indebtedness of the Resort Owners arising
under Rate Management Transactions required or expressly permitted under this
Agreement and the Senior Loan Agreement.
(iii) The Senior Loans and the Guaranty (as
defined in the Senior Loan Agreement).
(iv) The Nashville Loans, including any Permitted
Refinancing thereof.
(v) The SAILS Forward Exchange Contracts.
(vi) Unsecured payables incurred in the ordinary
course of business, not in excess of $50,000,000.00 in the aggregate at any one
time for all such Persons, and (except to the extent being actively disputed (x)
with adequate reserves being maintained in respect thereof, (y) in good faith
and (z) in the ordinary course of business) paid within 60 days of the date
incurred; provided that the portion of such payables incurred by Florida Resort
Owner and Texas Resort Owner, taken together, shall not exceed $30,000,000.00 in
the aggregate at any time.
(vii) Equipment financings in the ordinary course
of business and secured only by the equipment acquired with the proceeds thereof
by Parent Guarantor and its Subsidiaries other than the Resort Owners and not in
excess, for all such Persons, in the aggregate at any one time, of
$15,000,000.00 and by the Resort Owners and not in excess, in the aggregate at
any one time, of $10,000,000.00.
(viii) Loans, or other Indebtedness by Parent
Guarantor to any of its Subsidiaries that are Subsidiary Guarantors and loans or
Loans by any Subsidiary of Parent Guarantor to Borrower or Parent Guarantor or
to another Subsidiary of Parent Guarantor that is a Subsidiary Guarantor, so
long as any such intercompany loans or advances made to Borrower or any
Subsidiary Guarantor are unsecured and subordinate to the Loans on terms and
provisions acceptable to the Administrative Agent.
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(ix) Investments permitted under Section 6.18(a)
hereof.
(x) Unsecured, senior subordinated notes of
Parent Guarantor, provided that (A) after taking such Indebtedness into account,
Parent Guarantor shall be in compliance with Section 6.25.3 hereof, (B) the term
of such notes shall extend beyond the Maturity Date, and (C) all other material
terms and conditions of such notes, including, without limitation, subordination
provisions, amortization schedules, covenants, defaults, and remedies and any
subsidiary guarantees, shall be in form and substance reasonably satisfactory to
the Administrative Agent, and provided further that all Net Debt/Equity Proceeds
in connection therewith shall be applied in accordance with Section 2.2.
(xi) The Guaranty by Parent Guarantor of certain
obligations of Xxxxxxx Investments, Inc. in connection with its sale of the
Media Assets to Cumulus Broadcasting, Inc. and Cumulus Licensing Corp.,
delivered pursuant to the Asset Purchase Agreement dated as of March 23, 2003
between Xxxxxxx Investments, Inc., as Seller, and Cumulus Broadcasting, Inc. and
Cumulus Licensing Corp., as Buyers.
(xii) Miscellaneous other Indebtedness in addition
to the Permitted Debt described in clauses (i) through (xi) above, including,
but not limited to, reimbursement obligations with respect to Letters of Credit,
not in excess of $10,000,000.00 in the aggregate at any one time, for all such
Persons.
(b) Except for (i) payments in respect of the Loans, (ii)
payments in respect of the Senior Loans, (iii) a Permitted Refinancing and (iv)
voluntary prepayments of the Nashville Senior Loan from funds required to be
deposited by or on behalf of Opryland Hotel Nashville, LLC in the Cash Sweep
Event Reserve Account (as defined in the Nashville Mezzanine Loan Agreement)
pursuant to Section 2.12 of the Nashville Mezzanine Loan Agreement, neither
Resort Owner, Borrower nor Parent Guarantor will voluntarily prepay or permit
any Subsidiary Guarantor or other Subsidiary of Parent Guarantor to voluntarily
prepay all or any portion of any Indebtedness.
6.15 Merger. Borrower and Parent Guarantor will not, and Borrower
will not permit either Resort Owner to, merge or consolidate with or into any
other Person, provided that any direct or indirect wholly-owned Subsidiary other
than Borrower and its Subsidiaries may be merged into Parent Guarantor if Parent
Guarantor is the surviving entity, after giving effect to such merger, all
representations and warranties by Borrower and Parent Guarantor herein remain
true and correct in all material respects, and no Default or Unmatured Default
occurs as a result thereof.
6.16 Ownership of Opryland Hotel Nashville, LLC. (a) Parent
Guarantor shall at all times retain ownership, directly or indirectly, of 100%
of all ownership interests in Opryland Hotel Nashville, LLC; shall not suffer
cause or permit any Transfer of any such ownership interests or any direct or
indirect interest therein other than the Liens securing the Nashville Mezzanine
Loan; and shall not suffer, cause or permit any Transfer by Opryland Hotel
Nashville, LLC of its ownership interest in the property known as Opryland Hotel
Nashville, other than the Liens securing the Nashville Loans and leases to space
tenants for occupancy in the ordinary course of business of Opryland Hotel
Nashville, LLC.
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(b) At least ninety (90) days prior to the initial
maturity date of the Nashville Loans, Parent Guarantor shall either (a) cause a
Permitted Refinancing to occur or (ii) exercise its right, under the documents
evidencing and/or securing the Nashville Loans, to extend such initial maturity
date by one year. In the event that the initial maturity date of the Nashville
Loans is so extended by one year, Parent Guarantor shall cause a Permitted
Refinancing to occur at least ninety (90) days prior to such extended maturity
date.
6.17 Sales of Assets; Releases of Subsidiary Guarantors. (a)
Borrower and Parent Guarantor shall not, and Borrower shall not permit either
Resort Owner to, sell, assign, convey, or otherwise Transfer, all or any portion
of the Opryland Hotel Florida or the Project or any direct or indirect interest
therein or in either Resort Owner (except for the Liens in favor of the Senior
Administrative Agent under the Senior Loan Agreement, Liens in favor of the
Administrative Agent and Leases permitted under this Agreement), whether now
owned or hereafter acquired, or any income or profits therefrom, or enter into
any agreement to do so, that would be effective prior to the full payment of the
Obligations, whether the same is effected directly, indirectly, by operation of
law or otherwise.
(b) Provided that no Default has occurred and is
continuing, and provided that Borrower or Parent Guarantor has given the
Administrative Agent at least 10 Business Days' prior notice thereof, any
Subsidiary Guarantor released from the Guaranty (as defined in the Senior Loan
Agreement) pursuant to Section 6.17 of the Senior Loan Agreement shall be
released from the Guaranty, and the Administrative Agent shall execute and
deliver such confirmatory instrument evidencing such release as Borrower or
Parent Guarantor shall reasonably request to facilitate such transaction.
6.18 Investments; New Subsidiary Guarantors; Capital Expenditures.
(a) Borrower and Parent Guarantor shall not, and Borrower shall not permit
either Resort Owner to, make or permit any Subsidiary Guarantor or any other
Subsidiary of Parent Guarantor (including Opryland Hotel Nashville, LLC) to make
any Investments, or commitments therefor, or, subject to the following sentence,
create any subsidiary or become a partner in any partnership or joint venture,
or acquire any interest, direct or indirect, beneficial or otherwise, in any
Person, except (i) Cash Equivalent Investments, (ii) Investments in either
Resort Owner or a Subsidiary Guarantor, (iii) Investments in Collateral, and
(iv) Investments (which, for the purposes of this clause (iv), shall not include
periodic capital contributions by Parent Guarantor to Opryland Hotel Nashville,
LLC for the sole purpose of managing short-term cash-flow fluctuations, unless
the aggregate amount of all such capital contributions is in excess of the
aggregate amount of dividends made by Opryland Hotel Nashville, LLC to Parent
Guarantor in any Facility Year, in which event such excess amount shall be
included in "Investments" for such Facility Year, for purposes of this clause
(iv)) by Parent Guarantor in any new ventures or in Subsidiaries of Parent
Guarantor that are not Subsidiary Guarantors, not in excess of $20,000,000.00 in
the aggregate for any Facility Year, prior to the date (the "Adjustment Date")
which is first to occur of (1) the date on which the amount held in the
Completion Reserve Account is both (A) greater than 120% of the then Cost to
Complete and (B) greater than $10,000,000.00 and (2) the Final Completion Date
(which, for the purpose of this sentence shall be deemed to have occurred
notwithstanding that the condition described in clause (b) of the definition of
"Completion" may not have occurred), and, from and after the Adjustment Date,
$40,000,000.00 in the aggregate for any Facility Year (including the Facility
Year in which the Adjustment Date occurs). Parent
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Guarantor may create or acquire additional direct or indirect wholly-owned
Subsidiaries, only if concurrently with the creation or acquisition thereof,
each such Subsidiary executes and delivers to the Administrative Agent a
guaranty of payment with respect to the Secured Obligations substantially in the
form of the Guaranty.
(b) Borrower and Parent Guarantor shall not make nor
shall Borrower or Parent Guarantor permit the Resort Owners or any other
Subsidiary of Parent Guarantor to make any Capital Expenditures other than (i)
Construction Costs with respect to the Project pursuant to the Approved
Construction Budget, which Capital Expenditures shall not exceed $225,000,000.00
in the aggregate over the term of the Loans, (ii) Permitted FF&E Expenditures
with respect to the Opryland Hotel Florida and the Project, and (iii) Capital
Expenditures (in addition to those described in the preceding clauses (i) and
(ii)), including Capital Expenditures in respect of the Restaurant Facility,
which in the aggregate, together with Investments which are permitted under
clause (iv) of Section 6.18(a), are not in excess of $20,000,000.00 in the
aggregate for any Facility Year, prior to the Adjustment Date and thereafter,
$40,000,000.00 in the aggregate for any Facility Year (including the Facility
Year in which the Adjustment Date occurs).
6.19 Liens. (a) Borrower and Parent Guarantor shall not, and
Borrower shall not permit either Resort Owner to, create, incur, or suffer to
exist (and Borrower shall cause the Resort Owners, and Parent Guarantor shall
cause the Subsidiary Guarantors, the direct and indirect owners of Opryland
Nashville and its other Subsidiaries not to create, incur, or suffer to exist)
any Lien in, of or on the Opryland Hotel Florida, the Project, the Opryland
Nashville or any other Property of Borrower, Parent Guarantor or any such Person
or any easements, covenants, conditions, restrictions or other encumbrances to
be recorded against the Opryland Hotel Florida, the Project or the Opryland
Nashville, except (i) any existing pledge agreement with respect to the
Nashville Loans, (ii) the Mortgages, the Florida Second Mortgage and the Texas
Second Mortgage, (iii) the Pledge Agreements (iv) Customary Permitted Liens and
Liens in favor of the Administrative Agent under the Collateral Documents, (v)
mechanics' and materialmen's liens that are discharged or being contested in
accordance with the provisions of Section 6.19(b) and (vi) liens in connection
with permitted equipment financings as described in Section 6.14(vii).
(b) If any mechanics' lien claims are filed or otherwise
asserted against the Opryland Hotel Florida or the Project, or any such claims
for Lien or any proceedings for the enforcement thereof are filed or commenced,
then Borrower or Parent Guarantor shall, and/or Borrower shall cause the
applicable Resort Owner to, discharge the same within forty-five (45) days of
such filing or commencement; provided, however, that Borrower, Parent Guarantor
or the applicable Resort Owner shall have the right to contest in good faith and
with due diligence the validity of any such Lien or Claim upon posting with the
Administrative Agent, for the benefit of the Lenders, a Texas Statutory Bond to
Indemnify Against Lien or other security, in form and substance satisfactory to
the Administrative Agent in its reasonable discretion (and, at any time that
such Claims or Liens are in excess of $5,000,000 in the aggregate, satisfactory
to the Majority Lenders) with respect to any such mechanics' lien. In addition,
as a condition to any such contest, the Administrative Agent must be satisfied
in its sole discretion (and at any time that such Claims or Liens are in excess
of $5,000,000 in the aggregate, the Majority Lenders must be so satisfied),
that: (1) any such Lien is being contested, appealed or otherwise
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prosecuted with diligence and continuity, (2) enforcement of such Lien shall be
stayed pending such contest, appeal or other proceeding, and (3) the Opryland
Hotel Florida or the Project, as the case may be, is secure and the priority of
the Mortgages, for so long as the Senior Loan is outstanding, remain unaffected.
6.20 Affiliates. Except as set forth on Schedule 6.20, neither
Borrower nor Parent Guarantor will enter into any agreement or transaction
(including, without limitation, the purchase or sale of any Property or service)
with, or Transfer of any Property to, any Affiliate of Borrower or Parent
Guarantor except for any Management Agreement, and other transactions,
agreements and transfers, disclosed to and approved in writing by the
Administrative Agent, in the ordinary course of business and pursuant to the
reasonable requirements of Borrower's or Parent Guarantor's business, as
applicable, and upon fair and reasonable terms no less favorable to Borrower or
Parent Guarantor than Borrower or Parent Guarantor would obtain in a comparable
arms-length transaction, provided that nothing in this Section 6.20 shall
prohibit any Transfer of Property (other than Property that constitutes
Collateral) between Borrower or Parent Guarantor to a Subsidiary Guarantor, or
by a Subsidiary of Parent Guarantor to Borrower, Parent Guarantor or a
Subsidiary Guarantor.
6.21 Required Rate Management Transactions. Within five Business
Days after the Effective Date, Parent Guarantor will cause the Resort Owners to
obtain and maintain one or more Rate Management Transactions with one or more of
the Lenders or any of their respective Affiliates or one or more other financial
institutions acceptable to the Administrative Agent, providing for a fixed or
maximum rate of interest at all times from and after a date no later than five
Business Days after the Effective Date, (a) on a notional amount equal to at
least fifty percent (50%) of the sum of (i) the Aggregate Outstanding Credit
Exposure plus (ii) the aggregate outstanding principal balance of the Term Loans
(as defined in the Senior Loan Agreement), (b) at a rate not in excess of ten
percent (10%) per annum and (c) otherwise in form and substance acceptable to
the Administrative Agent.
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. Neither Borrower nor Parent Guarantor will not enter into or suffer
to exist any (a) Sale and Leaseback Transaction with respect to itself or any
Subsidiary Guarantor or (b) any other transaction pursuant to which itself or
any Subsidiary Guarantor incurs or has incurred Off-Balance Sheet Liabilities,
except for Rate Management Obligations permitted to be incurred under the terms
of Section 6.21.
6.23 SAILS Forward Exchange Contracts. Parent Guarantor shall not
unwind the SAILS Forward Exchange Contracts prior to the scheduled expiry date
thereof, if, as a result, a tax liability materially in excess of any net
proceeds of the unwinding transaction is created for Parent Guarantor or any of
its Subsidiaries.
6.24 Financial Contracts. Neither Borrower nor Parent Guarantor
will enter into or remain liable upon any Financial Contract, except Rate
Management Transactions required under Section 6.21.
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6.25 Financial Covenants.
6.25.1 Minimum Consolidated Net Worth. Parent Guarantor shall not
permit at any time its Consolidated Net Worth to be less than $600,000,000.00.
6.25.2 Minimum Interest Coverage Ratio. As of the last day of any
Fiscal Quarter set forth below, Parent Guarantor shall not permit the ratio of
(i) Consolidated EBITDA for the last full four Fiscal Quarters (after giving
effect on a pro forma basis to any acquisitions or dispositions of assets during
such four Fiscal Quarter period) to (ii) the sum of (a) Consolidated Interest
Expense for the last Fiscal Quarter (after giving effect on a pro forma basis to
any acquisitions or dispositions of assets during such Fiscal Quarter),
multiplied by four, plus (b) all capitalized interest expense for the last
Fiscal Quarter, multiplied by four, to be less than the correlative ratio set
forth below, provided that, for the purpose of such calculation, for the first
four Fiscal Quarters ending after the Opening Date, Consolidated EBITDA shall be
adjusted by annualizing the portion thereof related to the Project (by
multiplying Consolidated EBITDA related to the Project for the period from the
Opening Date to the last day of such Fiscal Quarter by a fraction, the numerator
of which is 365 and the denominator of which is the number of days in the period
from the Opening Date through the last day of such Fiscal Quarter):
TEST DATE MINIMUM INTEREST COVERAGE RATIO
--------- -------------------------------
Fiscal Quarters ending June 30, 2003 through and
including December 31, 2004 2.0 to 1.0
Fiscal Quarters ending March 31, 2005 and
thereafter 2.25 to 1.0
6.25.3 Maximum Total Leverage Ratio. As of the last day of any Fiscal
Quarter set forth below, Parent Guarantor shall not permit the ratio of (i)
Consolidated Indebtedness minus Unrestricted Cash On Hand and the cash balance
in the Completion Reserve Account (adjusted to exclude the amounts described in
clause (b) of the definition of "Indebtedness" if and to the extent such amounts
are secured by cash collateral held by the issuer of the applicable Letter of
Credit) to (ii) Consolidated EBITDA (before restructuring charges to the extent
reflected as such on Parent Guarantor's GAAP income statement) to exceed the
correlative ratio set forth below (Consolidated Indebtedness to be determined as
of such day and Consolidated EBITDA to be determined with reference to the last
full four Fiscal Quarters preceding such date after giving effect on a pro forma
basis to any acquisitions or dispositions of assets during such four Fiscal
Quarter period), provided that, for the purpose of such calculation, for the
first four Fiscal Quarters ending after the Opening Date, Consolidated EBITDA
shall be adjusted by annualizing the portion thereof related to the Project (by
multiplying Consolidated EBITDA related to the Project for the period from the
Opening Date to the last day of such Fiscal Quarter by a fraction, the numerator
of which is 365 and the denominator of which is the number of days in the period
from the Opening Date through the last day of such Fiscal Quarter):
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TEST DATE MAXIMUM TOTAL LEVERAGE RATIO
--------- ----------------------------
Fiscal Quarter ending June 30, 2003 5.75 to 1.0
Fiscal Quarter ending September 30, 2003 6.0 to 1.0
Fiscal Quarter ending December 31, 2003 6.5 to 1.0
Fiscal Quarter ending March 31, 2004 7.5 to 1.0
Fiscal Quarter ending June 30, 2004 6.5 to 1.0
Fiscal Quarter ending September 30, 2004 6.0 to 1.0
Fiscal Quarter ending December 31, 2004 5.5 to 1.0
Fiscal Quarters ending March 31, 2005 and thereafter 5.0 to 1.0
6.25.4 Intentionally Reserved.
6.25.5 Opryland Hotel Florida Minimum Adjusted Net Operating Income.
As of the last day of any Fiscal Quarter set forth below, the Adjusted Net
Operating Income for the Opryland Hotel Florida for the last four Fiscal
Quarters shall be equal to at least the dollar amount set forth opposite such
Fiscal Quarter below:
MINIMUM ADJUSTED NET OPERATING INCOME
TEST DATE
--------- -------------------------------------
Fiscal Quarters ending June 30, 2003 through
and including June 30, 2004 $25,000,000.00
Fiscal Quarters ending September 30, 2004
through and including December 31, 2004 $27,500,000.00
Fiscal Quarters ending March 31, 2005 and
thereafter $35,000,000.00
6.25.6 Minimum Fixed Charge Coverage Ratio. As of the last day of any
Fiscal Quarter, Parent Guarantor will not permit the ratio of (i) Consolidated
EBITDA for the last full four Fiscal Quarters (after giving effect on a pro
forma basis to any acquisitions or dispositions of assets during such four
Fiscal Quarter period) to (ii) the sum of (a) Consolidated Interest Expense for
the last Fiscal Quarter (after giving effect on a pro forma basis to any
acquisitions or dispositions of assets during such Fiscal Quarter), multiplied
by four, plus (b) all capitalized interest expense for the last Fiscal Quarter,
multiplied by four, plus (c) required amortization of Indebtedness, determined
on a consolidated basis in accordance with Agreement Accounting Principles, for
the last full four Fiscal Quarters, to be less than 1.5 to 1.0, provided that,
for the
79
purpose of such calculation, for the first four Fiscal Quarters ending after the
Opening Date, Consolidated EBITDA shall be adjusted by annualizing the portion
thereof related to the Project (by multiplying Consolidated EBITDA related to
the Project for the period from the Opening Date to the last day of such Fiscal
Quarter by a fraction, the numerator of which is 365 and the denominator of
which is the number of days in the period from the Opening Date through the last
day of such Fiscal Quarter).
6.26 Environmental Audits. Upon the occurrence of (a) a Default
that is continuing, (b) a material change in Environmental Laws or (c) an event
with respect to the Opryland Hotel Florida or the Project which, in the
reasonable determination of the Administrative Agent, could result in an
environmental issue, question or concern, Parent Guarantor shall at the
Administrative Agent's election (i) cause to be performed through the employment
of a consultant acceptable to the Administrative Agent, an environmental
assessment for the purposes of confirming compliance with the provisions of this
Agreement or (ii) reimburse the Administrative Agent, on demand, for all
reasonable costs, fees and expenses incurred by the Administrative Agent in
connection with its employment of a consultant to perform such an assessment.
6.27 Insurance and Condemnation Proceeds. (a) To the extent the
Senior Administrative Agent has not collected and received any Property Award in
accordance with the Senior Loan Agreement, and is not entitled to receive any
Property Award as provided therein, Borrower and Parent Guarantor hereby directs
all insurers under policies of property damage, boiler and machinery, rental
loss, and rental value insurance and payors of any condemnation claim or award
relating to the Opryland Hotel Florida or the Project to pay all Property Awards
(net of the cost of reasonable attorneys' fees and expenses and other reasonable
expenses incurred in connection with obtaining such Property Awards) directly to
the Administrative Agent, for the benefit of the Lenders and other Holders of
Secured Obligations, and, in no case to either Resort Owner, Borrower or Parent
Guarantor. In the event of any loss or damage to any portion of the Opryland
Hotel Florida or the Project due to a casualty or condemnation event giving rise
to a Property Award ("Property Award Event"), so long as no Default has occurred
that is continuing, either Resort Owner, Borrower or Parent Guarantor shall have
the sole right and authority to settle any claim for the Property Award;
provided, however, the Administrative Agent shall have the right to participate
in settlement negotiations with respect to Property Award Events in connection
with the Opryland Hotel Florida or the Project which are reasonably likely to
result in Property Awards in excess of $3,000,000 in the aggregate. In the event
of either Resort Owner's, Borrower's or Parent Guarantor's failure to settle any
such claim for a Property Award within one hundred eighty (180) days after the
occurrence of the related Property Award Event or if a Default has occurred that
is continuing, the Administrative Agent shall have the right, but not the
obligation, to settle all claims for such Property Award on behalf of either
Resort Owner, Borrower or Parent Guarantor.
(b) Borrower or Parent Guarantor shall, and Borrower
shall cause the Resort Owners to, promptly after the occurrence of a Property
Award Event with respect to the Opryland Hotel Florida or the Project, commence
and diligently pursue the repair, restoration or reconstruction of the damaged
portion of the Opryland Hotel Florida or the Project and the opening or
reopening and operation of the Opryland Hotel Florida or the Project
("Restoration"); provided, however, that Borrower or Parent Guarantor shall, or
Borrower shall have caused the
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relevant Resort Owner to, have prepared and delivered to the Administrative
Agent a budget for such Restoration which is satisfactory to the Administrative
Agent.
(c) To the extent the Senior Administrative Agent has not
collected and received any Property Award in accordance with the Senior Loan
Agreement, and is not entitled to receive any Property Award as provided
therein, and in the event a Property Award with respect to the Opryland Hotel
Florida or the Project is paid to the Administrative Agent, such Property Award
shall be made available to the relevant Resort Owner, Borrower or Parent
Guarantor for the purpose of Restoration or, in the case of rental loss, rental
value and business interruption insurance, to be applied to debt service upon
the Obligations and for other permitted expenditures with respect to the
Opryland Hotel Florida or the Project, subject in each case to the following
covenants and conditions:
(i) No Default shall have occurred that is
continuing.
(ii) As soon as practicable, but in no event
later than ninety (90) days after the occurrence of the related Property Award
Event (A) Borrower or Parent Guarantor shall, or Borrower shall cause the
relevant Resort Owner to, deliver to the Administrative Agent written evidence
reasonably satisfactory to the Administrative Agent that, upon completion of the
Restoration, by the expenditure of the Property Award together with any funds
made available by such Resort Owner, Borrower or Parent Guarantor, the Opryland
Hotel Florida or the Project, as the case may be, will be of at least
substantially equal value, quality and character as the Project was immediately
prior to the Property Award Event, free and clear of all Liens except the Liens
in favor of the Administrative Agent and Customary Permitted Liens pertaining
thereto, (B) the Restoration shall be performed in compliance with all then
applicable Laws and with good construction scheduling and good construction
practices and (C) Borrower or Parent Guarantor shall, or Borrower shall cause
such Resort Owner to, deliver to the Administrative Agent for approval
preliminary plans and specifications for the Restoration setting forth the
construction schedule and budget. Final plans and specifications shall be
delivered to the Administrative Agent for approval promptly upon their
completion.
(iii) If the Property Award is, in the
Administrative Agent's reasonable judgment, insufficient to complete the
Restoration of the Opryland Hotel Florida or the Project, as the case may be,
Borrower or Parent Guarantor shall, or Borrower shall cause the relevant Resort
Owner, to, promptly deposit the amount of the insufficiency in a cash collateral
account (the "Restoration Account") in the name of such Resort Owner, Borrower
or Parent Guarantor but under the sole dominion and control of the
Administrative Agent and pledged to the Administrative Agent for the benefit of
the Holders of Secured Obligations pursuant to agreements satisfactory to the
Administrative Agent. Such Resort Owner, Borrower or Parent Guarantor may not
use and, if applicable, the Administrative Agent shall not without the consent
of the Majority Lenders, to release, any Property Awards until any such
additional funds have been expended toward the Restoration and the budget for
such Restoration shall be "in balance" with the funds comprising the Property
Award sufficient to complete the Restoration. If at any time the Restoration is
"out of balance" with the budget and the remaining Property Award is no longer
sufficient to complete such Restoration, then such relevant Resort Owner,
Borrower or Parent Guarantor may not use and, if applicable, the Administrative
Agent shall not without the consent of the Majority Lenders, further disburse,
any portion of the Property Award until such
81
time as the Administrative Agent has determined, that the remaining Property
Award is sufficient to fully complete the Restoration. For purposes hereof, the
Restoration shall be deemed to be "in balance" only at such time and from time
to time, as the Administrative Agent determines that the Property Award (and any
additional amounts deposited in the Restoration Account with respect to such
Restoration in accordance with the paragraph) equals or exceeds the aggregate
amount of all unpaid costs, fees and expenses necessary for all work in
connection with the final completion of the Restoration, including the costs of
preparing plans and specifications, the "hard" and "soft" costs of the
construction of the base building and Improvements.
(iv) The Administrative Agent shall be reasonably
satisfied that the Opryland Hotel Florida or the Project, when fully restored,
will constitute premises suitable for their intended use of the same or better
character and quality as existed prior to the occurrence of the subject Property
Award Event.
(v) The Administrative Agent shall have received
and approved all documentation pertaining to the Restoration which has been
requested by the Administrative Agent, including the construction schedule,
construction budget, plans and specifications and any agreements between the
relevant Resort Owner, Borrower or Parent Guarantor and any Persons who will
perform services or furnish labor or materials in connection with such
Restoration (all such Persons and agreements being subject to the Administrative
Agent's, or as applicable, Majority Lenders' approval).
(vi) The Administrative Agent shall have received
and approved Lien waivers, contractor's statements and affidavits reflecting
that as of the date of each disbursement, there are (or immediately after
disbursement there will be) no mechanics' liens (subject to the right to contest
said Liens set forth in this Agreement) or other unpermitted Liens pertaining to
title affecting the damaged Property.
(vii) Borrower or Parent Guarantor shall, or
Borrower shall have caused the relevant Resort Owner to, have satisfied such
other conditions and terms as the Administrative Agent shall reasonably require
(which shall be consistent with those that would be imposed by a prudent
institutional construction lender).
Upon the completion of the Restoration to the reasonable satisfaction of the
Administrative Agent, and after paying all reasonable costs and expenses
relating to the subject Property Award Event and related Restoration, the
Administrative Agent shall apply any unexpended balance of the subject Property
Award to prepayment of the Loans. Notwithstanding anything in this Agreement to
the contrary, in the event that no Default exists that is continuing and the
Property Award with respect to a Property Award Event is less than $3,000,000 in
the aggregate, the Administrative Agent shall pay the entire amount of such
proceeds to the relevant Resort Owner, Borrower or Parent Guarantor promptly
upon receipt thereof by the Administrative Agent, which proceeds the relevant
Resort Owner, Borrower or Parent Guarantor shall apply for the purposes of
Restoration.
(d) Upon the relevant Resort Owner's, Borrower's or
Parent Guarantor's failure to satisfy the covenants and conditions set forth in
clauses (b) and (c) above with respect to a Property Award Event constituting
loss or damage to all or substantially all of either the
82
Opryland Hotel Florida or the Project, the Administrative Agent shall have the
right to apply the Property Award to the Secured Obligations in the order of
priority set forth in Section 2.8(b). If the amount of such Property Award so
applied is less than the Secured Obligations, then a Default shall be deemed to
have occurred and the Administrative Agent shall have all rights and remedies
set forth herein, in the Loan Documents, at law and in equity.
6.28 The Administrative Agent's and the Lenders' Actions for Their
Own Protection Only. Borrower and Parent Guarantor acknowledge and agree that
the authority herein conferred upon the Administrative Agent and the Lenders,
and any actions taken by the Administrative Agent and the Lenders with respect
to the Opryland Hotel Florida or the Project, to procure waivers or sworn
statements, to approve contracts, subcontracts and purchase orders, to approve
plans and specifications, or otherwise, will be exercised and taken by the
Administrative Agent and the Lenders for their own protection only and may not
be relied upon by Borrower, Parent Guarantor or any third party for any purposes
whatever; and none of the Administrative Agent or the Lenders shall be deemed to
have assumed any responsibility to Borrower, Parent Guarantor or any third party
with respect to any such action herein authorized or taken by the Administrative
Agent or the Lenders, or with respect to the proper construction of improvements
on the Project, performance of contracts, subcontracts or purchase orders by any
contractor, subcontractor or material supplier, or prevention of mechanics'
liens from being claimed or asserted against any portion of the Project. Any
review, investigation or inspection conducted by the Administrative Agent, the
Lenders, any architectural, engineering or other consultants retained by the
Administrative Agent or the Lenders, or any Administrative Agent or
representative of the Administrative Agent or the Lenders in order to verify
independently Borrower's or Parent Guarantor's satisfaction of any conditions
precedent to disbursements under this Agreement, Borrower's or Parent
Guarantor's performance of any of the covenants, agreements and obligations of
Borrower or Parent Guarantor under this Agreement, or the validity of any
representations and warranties made by Borrower or Parent Guarantor hereunder
(regardless of whether or not the party conducting such review, investigation or
inspection should have discovered that any of such conditions precedent were not
satisfied or that any such covenants, agreements or obligations were not
performed or that any such representations or warranties were not true), shall
not affect (or constitute a waiver by the Administrative Agent or the Lenders
of) (i) any of Borrower's or Parent Guarantor's agreements, covenants,
representations and warranties under this Agreement or the other Loan Documents,
or the Lender's reliance thereon or (ii) the Administrative Agent and Lenders'
reliance upon any certifications of Borrower, Parent Guarantor or any Project
Architect required under this Agreement or any of the other Loan Documents, or
any other facts, information or reports furnished to the Administrative Agent or
the Lenders by Borrower or Parent Guarantor hereunder.
6.29 Storage of Property. Borrower shall cause Texas Resort Owner
to store all Property in its possession to be incorporated into or installed at
the Project (not as yet incorporated or installed in the Project) either (i) in
such bonded warehouse or warehouses, which provide sufficient security against
damage or pilferage, or other facilities satisfactory to the Administrative
Agent, as may be selected by Texas Resort Owner and approved by the
Administrative Agent, all charges for such storage to be paid by Texas Resort
Owner promptly when due so that such Property shall not at any time become
subject to any Lien for such storage charges therefore or (ii) at the Project,
in a manner so as to provide security against damage or
83
pilferage which shall be satisfactory to the Administrative Agent. The
Administrative Agent and its representatives and the Construction Consultant
will be permitted access to such warehouse(s) and other locations(s) at all
reasonable times on reasonable notice to inspect all such Property. Borrower
shall cause Texas Resort Owner to provide the Administrative Agent with
satisfactory evidence that the insurance required to be obtained hereunder
protects such Property from loss or damage to such items occurring while stored
at any such location.
6.30 Proceedings to Enjoin or Prevent Construction. If any
proceedings are filed seeking to enjoin or otherwise prevent or declare unlawful
the construction or the occupancy, maintenance or operation of the Opryland
Hotel Florida or the Project or any portion thereof, Borrower or Parent
Guarantor shall, and/or Borrower shall cause the relevant Resort Owner to, at
their sole expense (i) cause such proceedings to be vigorously contested in good
faith and (ii) in the event of an adverse ruling or decision, prosecute all
allowable appeals therefrom. Without limiting the generality of the foregoing,
Borrower or Parent Guarantor shall, and Borrower shall cause the relevant Resort
Owner to, resist the entry or seek the stay of any temporary or permanent
injunction that may be entered and use its best efforts to bring about a
favorable and speedy disposition of all such proceedings.
6.31 No Obligation to Monitor. Neither the Administrative Agent nor
the Lenders shall have any obligation to monitor or determine Borrower's use or
application of proceeds of Loans.
6.32 Compliance with Agreements. Borrower and Parent Guarantor
shall, and Borrower shall cause each Resort Owner to, comply in all material
respects with its obligations under: (a) all Leases affecting the Opryland Hotel
Florida or the Project; (b) all material Project Agreements; (c) all agreements
with Affiliates; (d) any underlying covenants, conditions and restrictions of
record with respect to the Opryland Hotel Florida or the Project; and (e) all
other material contractual obligations relating to the ownership, operation and
maintenance of the Opryland Hotel Florida or the Project which are not described
in the foregoing clauses (a) through (d) above. In addition to the foregoing
Borrower and Parent Guarantor shall, and Borrower shall cause each Resort Owner
to, enforce its material rights and remedies under the agreements described in
the foregoing clauses (a) through (e) above.
6.33 Organizational Documents. Neither Borrower nor Parent
Guarantor shall allow any amendment, modification or other change to any of the
terms or provisions in any of its Organizational Documents (or any
Organizational Documents of either Resort Owner or any of the Subsidiary
Guarantors) without the prior written consent of the Administrative Agent,
which, in the case of any amendment, modification or other change to the
Organizational Documents of a Subsidiary Guarantor that is not adverse to the
interests of the Administrative Agent and the Lenders, shall not be unreasonably
withheld.
6.34 Leasing Provisions. Borrower shall not, and Borrower shall not
permit the Resort Owners to, enter into, terminate, cancel, amend, restate,
supplement or otherwise modify any Lease at the Opryland Hotel Florida or the
Project without the Administrative Agent's prior written approval, which shall
not be unreasonably withheld, provided that the tenant, if the Administrative
Agent requires it to do so, enters into a subordination, non-disturbance and
attornment agreement in the form required by the Administrative Agent, subject
to reasonable
84
modifications requested by the tenant; provided, that the Administrative Agent's
approval shall not be required (a) for any Lease (or any amendment,
modification, supplement or termination thereof) which is (i) with respect to
demised premises within the restaurant, retail, business center, spa and laundry
premises identified as such on the Plans and Specifications and on the Florida
plans and specifications, (ii) on market-rate terms and conditions, and (iii) by
its terms expressly subordinate to the applicable Mortgage (any such Lease, an
"Ancillary Space Lease") or (b) to terminate any Lease by reason of a default by
the tenant thereunder, provided that such termination is commercially
reasonable.
6.35 Ground Lease Covenants. (a) Borrower shall cause each Resort
Owner to pay when due the rent and all other sums and charges mentioned in, and
payable under, the Florida Hotel Ground Lease and the Texas Hotel Ground Lease,
as applicable.
(b) Borrower shall cause each Resort Owner to (i) timely
perform and observe all of the terms, covenants and conditions required to be
performed and observed by it as tenant under the Florida Hotel Ground Lease and
Texas Hotel Ground Lease, as applicable (including, without limitation, all
payment obligations), (ii) do all things necessary to preserve and to keep
unimpaired the Florida Hotel Ground Lease and Texas Hotel Ground Lease, as
applicable, and its respective leasehold estate and other rights thereunder;
(iii) not waive, excuse or discharge any of the obligations of either the
Florida Ground Lessor or the Texas Ground Lessor, as applicable, under either
Hotel Ground Lease without the Administrative Agent's prior written consent; and
(iv) to diligently and continuously enforce the obligations of either the
Florida Ground Lessor or the Texas Ground Lessor, as applicable, under the Hotel
Ground Leases.
(c) Borrower shall not do, permit or suffer (i) any act,
event or omission which would be likely to result in a default or permit the
applicable lessor to terminate or exercise any other remedy under the Ground
Leases or (ii) any act, event or omission which, with the giving of notice or
the passage of time, or both, would constitute a default or permit the lessor to
terminate or exercise any other remedy under the Ground Leases.
(d) Borrower shall not, and Borrower shall not permit
either Resort Owner to, cancel, terminate, surrender, modify or amend or in any
way alter, surrender or permit the alteration of any of the provisions of any of
the Ground Leases (except pursuant to a Post-Closing Document) or agree to any
termination, amendment, modification or surrender of any of the Ground Leases
without the Administrative Agent's prior written consent in each instance.
(e) Borrower shall deliver to the Administrative Agent
copies of all default and other material notices received by either Resort Owner
or Borrower from any party under the Ground Leases, and of any notice received
by either Resort Owner or Borrower from either the Florida Ground Lessor, the
Florida Master Lessor, Texas Ground Lessor or Texas Master Lessor of their
intention to terminate the Florida Hotel Ground Lease, the Florida Master Lease,
the Texas Hotel Ground Lease or the Texas Master Lease, respectively, or to
re-enter and take possession of any premises demised by the Ground Leases,
immediately and, in any event, within one (1) Business Day, of delivery or
receipt of any such notice, as the case may be.
(f) Borrower shall promptly furnish to the Administrative
Agent copies of such information and evidence as the Administrative Agent may
reasonably request concerning
85
either Resort Owner's due observance, performance and compliance with the terms,
covenants and conditions of the Ground Leases.
(g) Borrower shall not, and shall not permit either
Resort Owner to, consent to the subordination of either of the Hotel Ground
Leases or the Master Leases to any mortgage or other lease of the fee interest
or any other leasehold interest in any of the premises demised thereby.
(h) To the extent it has the right to do so under the
terms of the Ground Leases, Borrower, at its sole cost and expense, shall
execute and deliver (or shall cause either Resort Owner to execute and deliver)
to the Administrative Agent, within five (5) Business Days after request, such
documents, instruments or agreements as may be required to permit the
Administrative Agent to cure any default under the Ground Leases.
(i) In the event of a default by either Resort Owner in
the performance of any of its obligations under the Hotel Ground Leases,
including, without limitation, any default in the payment of any sums payable
thereunder, then, in each and every case, the Administrative Agent may, at its
option, cause the default or defaults to be remedied and otherwise exercise any
and all rights of such Resort Owner thereunder in the name of and on behalf of
such Resort Owner. Borrower shall, on demand, reimburse the Administrative Agent
for all expenses incurred by the Administrative Agent in curing any such default
(including, without limitation, attorneys' fees and disbursements), together
with interest thereon computed at the Default Rate from the date that such
expense is incurred, to and including the date the same is paid to the
Administrative Agent.
(j) Borrower shall give the Administrative Agent written
notice of either Resort Owner's intention to exercise each and every option, if
any, to renew or extend the term of the Hotel Ground Leases, at least thirty
(30) days prior to the expiration of the time to exercise such option under the
terms thereof. If required by the Administrative Agent, Borrower shall cause
each Resort Owner to duly exercise any renewal or extension option with respect
to the Hotel Ground Leases. If either Resort Owner intends to renew or extend
the term of either of the Hotel Ground Leases, Borrower shall cause such Resort
Owner to deliver to the Administrative Agent with the notice of such decision, a
copy of the notice of renewal or extension delivered to the relevant Ground
Lessor, together with the terms and conditions of such renewal or extension.
Borrower hereby irrevocably appoints the Administrative Agent as its
attorney-in-fact, coupled with an interest, to execute and deliver, for and in
the name of such Resort Owner, all instruments and agreements necessary under
the Hotel Ground Leases or otherwise to cause any renewal or extension of the
Hotel Ground Leases.
(k) Intentionally reserved.
(l) Borrower shall not allow either Resort Owner to elect
to treat its Hotel Ground Lease as terminated, canceled or surrendered pursuant
to the applicable provisions of the Bankruptcy Code (including, without
limitation, Section 365(h)(1) thereof) without the Administrative Agent's prior
written consent in the event of the bankruptcy of, or any similar proceedings
with respect to, the relevant Ground Lessor. Borrower shall cause each Resort
Owner, in the event of any bankruptcy or similar proceedings with respect to a
Ground Lessor, to
86
reaffirm and ratify the legality, validity, binding effect and enforceability of
the relevant Hotel Ground Lease within the applicable time period therefor in
such proceedings, notwithstanding any rejection thereof by such Ground Lessor or
any trustee, custodian or receiver.
(m) Borrower shall cause each Resort Owner to give the
Administrative Agent not less than thirty (30) days prior written notice of the
date on which such Resort Owner shall apply to any court or other governmental
authority for authority and permission to reject the relevant Hotel Ground Lease
in the event that there shall be filed by or against either Resort Owner,
Borrower or Parent Guarantor any petition, action or proceeding under the
Bankruptcy Code or under any other similar federal or state law now or hereafter
in effect and if such Resort Owner determines to reject such Hotel Ground Lease.
The Administrative Agent shall have the right, but not the obligation, to serve
upon such Resort Owner within such thirty (30) day period a notice stating that
(i) the Administrative Agent demands that such Resort Owner assume and assign
the relevant Hotel Ground Lease to the Administrative Agent subject to and in
accordance with the Bankruptcy Code, and (ii) the Administrative Agent covenants
to cure or provide reasonably adequate assurance thereof with respect to all
defaults reasonably susceptible of being cured by the Administrative Agent and
of future performance under such Hotel Ground Lease. If the Administrative Agent
serves upon either Resort Owner the notice described above, Borrower shall cause
such Resort Owner not to seek to reject the relevant Hotel Ground Lease and
shall comply with the demand provided for clause (i) above within ten (10) days
after the notice shall have been given by the Administrative Agent.
(n) During the continuance of a Default, the
Administrative Agent shall have the right, but not the obligation, (i) to
perform and comply with all obligations of the relevant Resort Owner under the
relevant Hotel Ground Lease without regard to any grace period provided therein,
(ii) to do and take, without any obligation to do so, such action as the
Administrative Agent deems necessary or desirable to prevent or cure any default
by such Resort Owner under such Hotel Ground Lease, including, without
limitation, any act, deed, matter or thing whatsoever that Borrower or Parent
Guarantor may do in order to cure a default under such Hotel Ground Lease and
(iii) to enter in and upon the Opryland Hotel Florida or the Project, as
applicable, or any part thereof to such extent and as often as the
Administrative Agent deems necessary or desirable in order to prevent or cure
any default of either Resort Owner under the relevant Hotel Ground Lease.
Borrower shall cause each Resort Owner to, within five (5) days after written
request is made therefor by the Administrative Agent, execute and deliver to the
Administrative Agent or to any party designated by the Administrative Agent,
such further instruments, agreements, powers, assignments, conveyances or the
like as may be reasonably necessary to complete or perfect the interest, rights
or powers of the Administrative Agent pursuant to this paragraph or as may
otherwise by required by the Administrative Agent.
(o) In the event of any arbitration under or pursuant to
any of the Ground Leases in which the Administrative Agent elects to
participate, the Borrower hereby irrevocably appoints the Administrative Agent
as its true and lawful attorney-in-fact (which appointment shall be deemed
coupled with an interest) to exercise, all right, title and interest of such
Resort Owner in connection with such arbitration, including, without limitation,
the right to appoint arbitrators and to conduct arbitration proceedings on
behalf of such Resort Owner and the Administrative Agent. All costs and expenses
incurred by the Administrative Agent in connection with such arbitration and the
settlement thereof shall be borne solely by Borrower,
87
including, without limitation, reasonable attorneys' fees and disbursements.
Nothing contained in this paragraph shall obligate the Administrative Agent to
participate in any such arbitration.
(p) The Administrative Agent shall have the right, but
not the obligation, to proceed in respect of any claim, suit, action or
proceeding relating to the rejection of any of the Ground Leases by the relevant
ground lessor as a result of bankruptcy or similar proceedings in respect of
such ground lessor, including, without limitation, the right to file and
prosecute any and all proofs of claims, complaints, notices and other documents
in any such bankruptcy case or similar proceeding.
(q) Borrower shall cause each Resort Owner to deliver to
the Administrative Agent within ten (10) days after receipt of written demand
from the Administrative Agent, an estoppel certificate in relation to each
relevant Ground Lease setting forth (i) the name of the lessee and the lessor
thereunder, (ii) that such Ground Lease is in full force and effect and has not
been modified or, if it has been modified, the date of each modification
(together with copies of each such modification), (iii) the annual rent and
additional rent payable under such Ground Lease, (iv) the date to which all
rental charges have been paid by the lessee under such Ground Lease, (v) whether
any notice of default has been received by such Resort Owner and if such notice
has been received, the date it was received and the nature of the default, (vi)
whether there are any alleged defaults of such Resort Owner under such Ground
Lease, and, if there are, setting forth the nature thereof in reasonable detail,
and (vii) if such Resort Owner is in default under the terms of any Ground Lease
or if any facts or circumstances exist, which with the passage of time or the
giving of notice or both, would constitute a default under any of the Ground
Leases, setting forth in detail the nature of such default, fact or
circumstance.
(r) To the extent of its rights under either of the
Ground Leases, Borrower shall cause each Resort Owner to obtain and deliver to
the Administrative Agent within thirty (30) days after written demand by the
Administrative Agent, an estoppel certificate in relation to such Ground Lease
from the ground lessor thereunder setting forth (i) the name of the lessee and
the lessor thereunder, (ii) that such Ground Lease is in full force and effect
and has not been modified or, if it has been modified, the date of each
modification (together with copies of each such modification), (iii) the annual
rent and additional rent payable under such Ground Lease, (iv) the date to which
all rental charges have been paid by the lessee under such Ground Lease, (v)
whether a notice of default has been received by the relevant ground lessor
which has not been cured, and if such notice has been received, the date it was
received and the nature of the default, (vi) whether there are any alleged
defaults of the lessee under such Ground Lease and, if there are, setting forth
the nature thereof in reasonable detail, and (vii) if the lessee under such
Ground Lease shall be in default, the default.
6.36 Zoning Changes. Neither Borrower nor Parent Guarantor shall,
and Borrower shall not permit either Resort Owner to, cause, permit, acquiesce
in, or consent to any changes or modifications to the zoning and land use
ordinances or other Requirements of Law affecting the Opryland Hotel Florida or
the Project if such changes or modifications would adversely affect (i) the
ability of Texas Resort Owner to construct the Project in accordance with the
Approved Plans and Specifications or either Resort Owner to operate the Opryland
Hotel Florida or the Project as intended or (ii) the value of the Opryland Hotel
Florida or the Project. Borrower shall cause each Resort Owner to give to the
Administrative Agent notice of any material change in
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zoning and land use ordinances and other Requirements of Law affecting the
Opryland Hotel Florida or the Project promptly after obtaining knowledge
thereof.
6.37 Fiscal Year. Neither Borrower nor Parent Guarantor shall
change, and Borrower and Parent Guarantor shall not permit the Resort Owners or
any Subsidiary Guarantor to change, its fiscal year for accounting or tax
purposes from the Fiscal Year without obtaining the written consent of the
Majority Lenders.
6.38 Cooperation with Construction Consultant. Borrower shall cause
Texas Resort Owner to provide the items described on Schedule 6.38 to the
Construction Consultant on a current basis as the same are available from time
to time in order to permit the Construction Consultant to render periodic
reports to the Lenders with respect to the status of Project Construction.
6.39 Security Interest in Accounts; Certain Remedies. (a) Borrower
and Parent Guarantor covenant and agree not to maintain, and not to permit the
Resort Owners or any Property Manager to maintain with respect to either the
Opryland Hotel Florida or the Project, any bank accounts, investment accounts or
other accounts other than the following (collectively, the "Accounts): the FF&E
Reserve Accounts, Completion Reserve Account and the Restoration Account (all of
which shall be maintained by Borrower, Parent Guarantor or the Resort Owners, as
applicable, and not by any Property Manager) and the other accounts identified
in Schedule 6.39 hereto. To secure the payment and performance of the Secured
Obligations, Borrower and Parent Guarantor and the Resort Owners hereby pledge
and assign, subject to the liens and security interests granted to the Senior
Administrative Agent in respect of the Senior Loans, to the Administrative Agent
for the benefit of itself and the Lenders and other Holders of Secured
Obligations all of their respective right, title and interest in, and hereby
grants to the Administrative Agent for the benefit of itself and the Lenders and
other Holders of the Secured Obligations a security interest in and right of
set-off against, and, without limiting the foregoing, the right (exercisable
only after the occurrence and during the continuance of a Default) to direct the
holders of the Accounts to set-off against and immediately to turn over to the
Administrative Agent: (i) the Accounts; (ii) all cash, instruments, securities,
investments and other property from time to time transferred or credited to,
contained in or comprising the Accounts or any of them; (iii) all statements,
certificates, passbooks and instruments representing the Accounts or any of
them; (iv) any and all substitutions or additions of or with respect to any of
the foregoing; and (v) any and all proceeds and products of any of the
foregoing, whether now owned and existing or hereafter acquired or arising,
including, without limitation (A) interest, principal, dividends and other
amounts or distributions received with respect to any of the foregoing and (B)
property received from the sale, exchange or other disposition of any of the
foregoing (collectively, the "Account Collateral"). Borrower, Parent Guarantor
and the Resort Owners shall cause any Property Manager and the holders of the
Accounts (the "Account Holders") to execute and deliver notices and
acknowledgments of the Administrative Agent's security interest in the Accounts,
in form and substance satisfactory to the Administrative Agent, prior to the
Funding Date or upon establishing each Account, as applicable. Borrower, Parent
Guarantor and the Resort Owners agree from time to time, at their expense, to
execute and deliver and promptly cause to be filed in the appropriate public
offices UCC financing statements and all further instruments and documents, and
to take all further action which Administrative Agent may reasonably request and
which are necessary or desirable in the opinion of Administrative Agent
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or its counsel in order to create, preserve, perfect and protect any security
interests granted or purported to be granted hereby and enable Administrative
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Account Collateral. Borrower, Parent Guarantor and the Resort Owners hereby
authorize Administrative Agent to file one or more financing or continuation
statements, and amendments thereto, and authorizes Administrative Agent to take
all such further action and execute all such further documents and instruments
as may be reasonably necessary or desirable in order to create, preserve,
perfect and protect the security interest granted hereby, without the signature
of Borrower, Parent Guarantor or either Resort Owner where permitted by law.
Whenever applicable law requires the signature of Borrower, Parent Guarantor or
either Resort Owner on a document to be filed to preserve, perfect or protect
the security interest granted hereby, Borrower, Parent Guarantor and the Resort
Owners hereby appoint Administrative Agent as its respective attorney-in-fact,
with full power of substitution, to sign its name on any such document.
Borrower, Parent Guarantor and the Resort Owners hereby agree that a photocopy
or other reproduction of this Agreement or any financing statement covering the
Account Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law. Borrower, Parent Guarantor and the Resort
Owners shall not further pledge, assign or grant a security interest in the
Account Collateral or any part thereof or permit any other lien to attach
thereto or any levy to be made thereon, or any UCC-1 financing statement (except
those naming Administrative Agent as secured party) to be filed with respect
thereto.
(b) After the occurrence and during the continuance of a
Default, the Administrative Agent shall, in addition to all remedies conferred
upon it and the Lenders by law and by the terms of the Loan Documents, have the
right, but not the obligation, without notice to Borrower, Parent Guarantor or
either Resort Owner, except as required by law, and at any time or from time to
time to charge, set-off and otherwise apply all or any portion of the Account
Collateral against the Secured Obligations and direct the disbursement thereof
to the Administrative Agent. In furtherance of the foregoing, the Administrative
Agent shall be irrevocably authorized to direct the Account Holders to withdraw
or transfer the Account Collateral from the Accounts and deposit or deliver the
same into an account of, or designated by, the Administrative Agent in its sole
and absolute discretion. The Account Holders shall be irrevocably authorized to
comply with any and all directions so given by the Administrative Agent.
(c) In addition to (and not in limitation of) all other
rights or remedies granted to the Administrative Agent and the Lenders pursuant
to the Loan Documents, Borrower and Parent Guarantor hereby grants the Account
Holders, their Affiliates and the Administrative Agent, in each case for the
benefit of the Administrative Agent and the Lenders, a contractual right of
set-off against each of the Accounts and all of the Account Collateral.
(d) Notwithstanding anything to the contrary contained in
this Agreement, and without limiting the foregoing provisions of this Section
6.39, after a Default has occurred and during the continuance thereof, the
Administrative Agent may, at its sole and absolute discretion, (A) elect to
apply the Account Collateral in whole or in part to pay Opryland Hotel Florida
or Project expenditures, including expenditures relating to Project
Construction, (B) elect to have all or any portion of the Account Collateral
disbursed to a receiver appointed by a court of competent jurisdiction and
thereafter held and disbursed by such receiver in accordance with the
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Administrative Agent's directions; and/or (C) elect to apply all or any part of
the Account Collateral to the Secured Obligations in such order and in such
manner as the Administrative Agent shall determine in its sole and absolute
discretion.
(e) The Administrative Agent may also exercise in respect
of the Account Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party under the UCC, and the Administrative Agent may, without notice except as
specified below, sell the Account Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Administrative Agent's offices
or elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. Borrower,
Parent Guarantor and the Resort Owners shall, upon the request of the
Administrative Agent, at Borrower's and Parent Guarantor's expense, execute and
deliver, all such instruments and documents, and do or cause to be done all such
other acts and things, as may be reasonably necessary or, in the opinion of the
Administrative Agent or its counsel, advisable to make such sale of the Account
Collateral or any part thereof valid and binding and in compliance with
applicable law. Borrower, Parent Guarantor and the Resort Owners agree that ten
(10) days' notice of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable notification.
The Administrative Agent shall not be obligated to make any sale of the Account
Collateral regardless of notice of sale having been given. The Administrative
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(f) BORROWER, Parent GuarantOR AND THE RESORT OWNERS
HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY THE ADMINISTRATIVE AGENT OF ITS RIGHTS TO REPOSSESS THE ACCOUNT
COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON SUCH
COLLATERAL WITHOUT PRIOR NOTICE OR HEARING.
(g) Without limiting the foregoing provisions of this
Section 6.39, after a Default has occurred and during the continuance thereof,
the Administrative Agent shall have the right to apply to a court of competent
jurisdiction for and to obtain appointment of a receiver of the Account
Collateral as a matter of strict right, to take possession of the Account
Collateral, and to apply and disburse the same in accordance with this
Agreement.
(h) To the full extent that it may lawfully so agree,
Borrower, Parent Guarantor and the Resort Owners agree that it shall not at any
time plead, claim or take the benefit of any appraisement, valuation, stay,
extension, moratorium or redemption law now or hereafter in force to prevent or
delay the enforcement of this Agreement, the Loan Documents or the absolute sale
of any portion of or all of the Account Collateral, or the possession of any of
the foregoing by any purchaser at any sale under this Agreement or the other
Loan Documents, and Borrower, Parent Guarantor and the Resort Owners, each for
themselves and all who may claim under Borrower, Parent Guarantor or either
Resort Owner to the full extent that Borrower, Parent Guarantor or either Resort
Owner now or hereafter lawfully may do so, hereby each waives the benefit of all
such laws.
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6.40 Principal Places of Business; Names. Neither Borrower nor
Parent Guarantor will relocate its principal place of business, chief executive
office, place where it maintains its records, or residence, or change its name
or the name under which it does business or change its jurisdiction of formation
without, in each case, giving the Administrative Agent at least thirty (30) days
advance written notice thereof or without taking such steps as the
Administrative Agent may reasonably require (including, without limitation,
executing additional Financing Statements) to maintain the perfection of all
Liens in favor of the Administrative Agent with respect to the Collateral.
6.41 Documents of Further Assurance. Borrower and Parent Guarantor
shall, from time to time, upon the Administrative Agent's request, promptly
execute, deliver, record and furnish such documents as the Administrative Agent
may reasonably deem necessary to (a) perfect and maintain perfected as valid
Liens upon the Collateral the Liens contemplated by this Agreement, (b) correct
any mistakes of a typographical nature which may be contained herein or in any
of the Loan Documents, (c) replace any Notes or other Loan Documents that may
have been misplaced, lost or destroyed (as evidenced by an affidavit to such
effect from the holder thereof), (d) acknowledge and confirm the unpaid
principal balance of and interest on the Loans and state whether Borrower or
Parent Guarantor claim any off-set or defense with respect thereto and (e)
consummate fully the transaction contemplated under this Agreement and the other
Loan Documents.
6.42 Wetlands. Neither Borrower nor Parent Guarantor shall, and
Borrower shall not permit either Resort Owner to, cause or permit any Project
Construction or other activities at the Opryland Hotel Florida or the Project
that affect any wetlands areas except to the extent permitted under Permits or
other Governmental Approvals issued by the Army Corps of Engineers or other
applicable Government Authorities.
6.43 Post Closing Obligations with Respect to Texas Real Estate.
(a) Borrower and Parent Guarantor shall, from and after
the Effective Date, make all commercially reasonable efforts, on a continuous
and diligent basis, to satisfy all of the requirements (collectively, as the
same may be modified or adjusted in accordance with this Section 6.43, the
"Post-Closing Requirements") set forth on Schedule 6.43.
(b) Texas Resort Owner may, from time to time, propose to
the Administrative Agent specific modifications to any of the Post-Closing
Requirements. Administrative Agent may, in its sole discretion, approve such
proposed modifications, provided that it determines that such proposed
modifications, taken in the aggregate together with any such modifications
previously permitted hereunder, are not likely to have a material adverse effect
on either the value or utility of the Project or the Collateral, or the rights
and remedies of the Administrative Agent and the Lenders hereunder, in each case
considered as if the Post-Closing Requirements were not subject to any such
modifications and were fully satisfied.
(c) Any waiver or modification of any of the Post-Closing
Requirements (other than as contemplated by the preceding subparagraph (b))
shall require the affirmative consent of the Majority Lenders.
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ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of Borrower, Parent Guarantor, the Resort Owners or any Subsidiary
Guarantor to the Lenders or the Administrative Agent under or in connection with
this Agreement, any Loan, or any certificate or material written or documentary
information delivered in connection with this Agreement or any other Loan
Document shall be false in any material respect on the date as of which made or
deemed remade in accordance with the terms hereof.
7.2 (a) Nonpayment of principal of or interest on any Loan, any
commitment fee, undrawn fee or Agency Fee payable to the Administrative Agent or
any Lender under any of the Loan Documents (i) within five Business Days after
the date such payment is due or (ii) on the Maturity Date (or such earlier date
on which all of the Obligations may become due or may be declared due hereunder)
or (b) nonpayment of any Obligations (other than those described in the
preceding clause (a)) payable to the Administrative Agent or any of the Lenders
(i) within five Business Days after written notice from the Administrative Agent
to Borrower that the same has not been paid when due or (ii) on the Maturity
Date (or such earlier date on which all of the Obligations may become due or may
be declared due hereunder).
7.3 The breach by Borrower or Parent Guarantor of any of the terms
or provisions of Sections 6.2, 6.6 (provided that a breach of any covenant in
Section 6.6 with respect to the furnishing of information, evidence or
certificates of insurance shall not be a Default until the same remains
unremedied for ten (10) days after receipt of written notice thereof from the
Administrative Agent to Borrower or Parent Guarantor), 6.8, 6.10(a)(ii), 6.12
(after the period of ten (10) Business Days described therein), 6.13, 6.14,
6.15, 6.16, 6.17, 6.18 (provided that a Default shall not occur in respect of
any breach of the covenant in the last sentence of Section 6.18(a) to deliver
documentation with respect to new Subsidiary Guarantors unless such breach is
not remedied within ten (10) days after receipt of written notice thereof from
the Administrative Agent to Borrower or Parent Guarantor), 6.19, 6.20, 6.21,
6.22, 6.23, 6.24, 6.25, 6.33, 6.34, 6.35 (provided that a breach of Section
6.35(b)(i) shall not be a Default unless the same is also a breach of Section
6.35(c)(ii) or the same remains unremedied for ten (10) days after receipt of
written notice thereof from the Administrative Agent to Borrower or Parent
Guarantor; a breach of Section 6.35(b)(iv) shall not be a Default unless the
same results in a material impairment of the Florida Hotel Ground Lease or the
Texas Hotel Ground Lease or the Lien of the Second Mortgages or the same remains
unremedied for ten (10) Business Days after receipt of written notice thereof
from the Administrative Agent to Borrower; a breach of Section 6.35(c)(i) shall
not be a Default unless the same is also a breach of Section 6.35(c)(ii) or the
same remains unremedied for ten (10) Business Days after receipt of written
notice thereof from the Administrative Agent to Borrower; and a breach of
Section 6.35(f) shall not be a Default unless the same remains unremedied for
ten (10) Business Days after receipt of written notice thereof from the
Administrative Agent to Borrower or Parent Guarantor), 6.36, 6.37, 6.39 or 6.40.
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7.4 The breach by Borrower or Parent Guarantor (other than a
breach which constitutes a Default under another Section of this Article VII) of
any of the terms or provisions of this Agreement or any of the other Loan
Documents which (a) if a default in the payment of money as and when due, is not
remedied within five Business Days after written notice from the Administrative
Agent to Borrower or Parent Guarantor, or (b) if any other breach or default, is
not remedied for thirty (30) days after receipt of written notice from the
Administrative Agent thereof to Borrower or Parent Guarantor, provided that if
Borrower or Parent Guarantor commence to remedy such non-monetary breach or
default within such thirty (30) day time period, such thirty (30) day time
period for cure shall be extended for such time as is reasonably necessary to
complete such cure so long as Borrower or Parent Guarantor is diligently
pursuing the completion of such cure, but in no event shall the time period for
cure be extended for a period in excess of ninety (90) days after Borrower's or
Parent Guarantor's receipt of the initial written notice of breach or default.
7.5 Borrower, Parent Guarantor or any of its Subsidiaries shall
(a) default in any payment of any Indebtedness (other than the Obligations)
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created or (b) default in the observance or
performance of any agreement or condition relating to any Indebtedness (other
than the Obligations) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether
any notice is required), any such Indebtedness to become due or required to be
repurchased prior to its stated maturity, provided that (x) it shall not be a
Default or Event of Default under this Section 7.5 unless the aggregate
principal amount of all Indebtedness as described in preceding clauses (a) and
(b) is at least $5,000,000.
7.6 Borrower, either Resort Owner, Parent Guarantor, any Property
Manager, or any Subsidiary Guarantor shall (i) have an order for relief entered
with respect to it under the Federal bankruptcy laws as now or hereafter in
effect, (ii) make an assignment for the benefit of creditors, (iii) apply for,
seek, consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any of its Property,
(iv) institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7 Without the application, approval or consent of Borrower, any
Property Manager, Parent Guarantor, either Resort Owner or any Subsidiary
Guarantor, a receiver, trustee, examiner, liquidator or similar official shall
be appointed for Borrower either Resort Owner, Parent Guarantor, any Property
Manager, or any Subsidiary Guarantor or any of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against Borrower, either Resort
Owner, Parent Guarantor, any Property Manager, or any Subsidiary Guarantor and
such
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appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall, other than
in a Non-Material Condemnation, condemn, seize or otherwise appropriate, or take
custody or control of, all or any portion of the Property of either Resort
Owner.
7.9 One or more of the following shall occur: (i) any money
judgment (other than a money judgment covered by insurance as to which the
insurance company has acknowledged coverage), writ or warrant of attachment, or
similar process is entered against either Resort Owner, Borrower, Parent
Guarantor, any Subsidiary Guarantor or the Opryland Hotel Florida or the Project
and shall remain undischarged, unvacated, unbonded or unstayed for a period of
thirty (30) days or in any event later than five (5) days prior to the date of
any proposed sale thereunder, (ii) a federal, state, local or foreign tax Lien
is filed against either Resort Owner, Borrower, Parent Guarantor, any Subsidiary
Guarantor or the Opryland Hotel Florida or the Project which is not discharged
of record, bonded over or otherwise secured to the satisfaction of the
Administrative Agent within thirty (30) days after the filing thereof, or (iii)
an Environmental Lien is filed against either Resort Owner, Borrower, Parent
Guarantor, any Subsidiary Guarantor or the Opryland Hotel Florida or the
Project, and the aggregate amount of any or all of the foregoing with respect to
either Resort Owner and either the Opryland Hotel Florida or the Project exceeds
$100,000 or with respect to Borrower, Parent Guarantor and Subsidiary Guarantors
taken together exceeds $1,000,000.
7.10 The occurrence of any "Default" or "Event of Default", as
defined in any Loan Document (other than this Agreement).
7.11 Nonpayment by Parent Guarantor of any Rate Management
Obligation when due or the breach by Parent Guarantor of any material term,
provision or condition contained in any Rate Management Transaction and the
expiration of the cure period, if any, applicable thereto under the provisions
of the Rate Management Transaction.
7.12 The Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or Borrower or any Subsidiary Guarantor shall
fail to comply with any of the terms or provisions of the Guaranty, or shall
deny that it has any further liability thereunder, or shall give notice to such
effect.
7.13 Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document.
7.14 The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions; ERISA") shall at any time not be true
and correct.
7.15 The Substantial Completion Date does not occur on or prior to
June 30, 2004.
7.16 All Completion Conditions are not satisfied on or prior to
December 31, 2004.
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7.17 There shall occur either (a) an interruption or cessation of
work in Project Construction not called for in the Approved Project Schedule,
not attributable to Force Majeure, or (b) a lack of ordinary diligence in
proceeding with the work, for any period in excess of 14 consecutive days, or
for 25 days in total in any three month period.
7.18 There shall occur any Change of Control not consented to by
the Majority Lenders.
7.19 There shall occur (a) an Event of Default under (and as
defined in) the Florida Hotel Ground Lease or (b) a default or other condition
or event that would permit the Texas Ground Lessor to terminate the Texas Hotel
Ground Lease or exercise sublessor's remedies thereunder.
7.20 The Texas Master Ground Lease shall expire, be terminated or
otherwise cease to be in full force and effect, and the Texas Hotel Ground Lease
shall not be immediately replaced with a direct lease on substantially the same
terms, subject to a first leasehold deed-of-trust substantially in the form of
the Texas Deed of Trust, in favor of the Senior Administrative Agent for the
benefit of the Lenders and a second leasehold deed-of-trust substantially in the
form of the Texas Second Deed of Trust in favor of the Administrative Agent for
the benefit of the Lenders.
7.21 The Florida Master Ground Lease shall expire, be terminated or
otherwise cease to be in full force and effect and Florida Master Lessor shall
fail or refuse for any reason to recognize the Florida Hotel Ground Lease as a
direct lease, pursuant to the terms of the Omnibus Amendment as in effect on the
date hereof.
7.22 The Subordination and Intercreditor Agreement shall cease to
bind the Senior Lenders or the Senior Administrative Agent.
7.23 Any security interest purported to be created by the Pledge
Agreements shall cease to be, or shall be asserted by Borrower or any other
pledgor thereunder not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Pledge Agreements)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results from
the failure of the Administrative Agent to maintain possession of certificates
representing securities pledged under the Pledge Agreements.
7.24 A Default, as defined in the Senior Loan Agreement , occurs
thereunder.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
(a) If any Default described in Section 7.6 or 7.7 occurs
with respect to either Resort Owner, Borrower, Parent Guarantor, any Property
Manager or any Subsidiary Guarantor, the Obligations shall immediately become
due and payable without any election or action on the
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part of the Administrative Agent or any Lender. If any other Default occurs, the
Administrative Agent shall upon the direction of, and may, with the consent of
Majority Lenders, declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which Borrower and
Parent Guarantor hereby expressly waive.
(b) The Administrative Agent may, and, at the request of
the Majority Lenders shall, at any time or from time to time while any Default
exists and is continuing apply any funds deposited in any of the Accounts to the
payment of the Secured Obligations and any other amounts as shall from time to
time have become due and payable by Borrower to the Lenders under the Loan
Documents.
(c) At any time while any Default is continuing, neither
Borrower nor any Person claiming on behalf of or through either Resort Owner
shall have any right to withdraw any of the funds held in any Account. After all
of the Obligations have been indefeasibly paid in full, any funds remaining in
the Accounts shall be returned by the Administrative Agent to Borrower or paid
to whomever may be legally entitled thereto at such time.
(d) If, after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to Borrower or Parent Guarantor) and before any
judgment or decree for the payment of the Obligations due shall have been
obtained or entered, the Majority Lenders (in their sole discretion) shall so
direct, then the Administrative Agent shall, by notice to Borrower, rescind and
annul such acceleration and/or termination.
8.2 All Remedies. Upon the occurrence and during the continuance
of a Default, the Administrative Agent and the Lenders shall have all rights and
remedies set forth herein, in the Loan Documents, at law and in equity and the
Administrative Agent and the Lenders shall have the right (but not the
obligation) to pursue one or more of such rights and remedies concurrently or
successively, it being the intent hereof that all such rights and remedies shall
be cumulative, and that no remedy shall be to the exclusion of any other.
8.3 Construction. In addition to and without limiting any of its
rights and remedies available hereunder, under the other Loan Documents, at law
or in equity, and without constituting an election of remedies, upon the
occurrence and continuance of any Default, the Administrative Agent and the
Lenders may, (i) complete the construction of the Project or any part thereof
and take any other action whatever which, in the Administrative Agent's and the
Lenders' sole judgment, is necessary to fulfill the covenants, agreements and
obligations of Borrower and Parent Guarantor under this Agreement and the other
Loan Documents, including the right to avail themselves of and procure
performance of existing Construction Agreements and Project Agreements and (ii)
let any contracts with the same contractors and subcontractors or others and to
employ watchmen to protect the Project or any part thereof from injury. Without
restricting the generality of the foregoing, and for the purpose aforesaid,
Borrower and Parent Guarantor, and Borrower on behalf of each Resort Owner,
hereby appoints and constitutes the Administrative Agent its lawful attorney in
fact with full power of substitution and agrees that the Administrative Agent
shall be entitled, subject to Section 10.12 hereof, to: (A) complete the
construction of the Project or any part thereof; (B) use any funds in the
Restoration Account,
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Completion Reserve Account or which may be reserved, escrowed or set aside for
any purpose whatever at any time, to complete the construction of the Project or
any part thereof; (C) advance funds in excess of the amount of any or all the
Loans to complete the construction of the Project; (D) make changes in the
Approved Plans and Specifications which shall be necessary or desirable to
complete the construction of the Project in substantially the manner
contemplated by the Approved Plans and Specifications; (E) retain or employ such
new general contractors, contractors, subcontractors, architects, engineers and
inspectors as may be required for said purposes; (F) pay, settle or compromise
all existing bills and claims, the nonpayment of which might result in Liens on
the Project or any part thereof, or prevent such bills and claims from resulting
in Liens against the Project or any part thereof or against fixtures,
furnishing, furniture or equipment or other Property, or as may be necessary or
desirable for the completion of the construction and equipping and furnishing of
the Project or any part thereof or for the clearance of title; (G) execute all
applications and certificates which may be required by any of the Loan
Documents; (H) prosecute and defend all actions or proceedings connected with or
relating to the Project or any part thereof; (I) take such action and require
such performance as the Administrative Agent deems necessary under any payment
and performance bonds, and make settlements and compromises with the surety or
sureties thereunder, and, in connection therewith, execute instruments of
release and satisfaction; (J) take possession of and operate the Project or any
part thereof; and (K) do any and every act which Borrower or Parent Guarantor
might do in its own behalf, it being understood and agreed that the foregoing
power of attorney shall be a power coupled with an interest and cannot be
revoked.
8.4 Enforcement. Borrower and Parent Guarantor each acknowledge
that in the event Borrower, Parent Guarantor or either Resort Owner fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent and the Lenders; therefore,
Borrower and Parent Guarantor each agree that the Administrative Agent and the
Lenders shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
8.5 Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of Loans notwithstanding the existence of a
Default or the inability of Borrower or Parent Guarantor to satisfy the
conditions precedent to such Loans shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Administrative Agent, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties made herein and all obligations, covenants and agreements of Borrower
and Parent Guarantor in respect of taxes, indemnification and expense
reimbursement shall survive the execution and delivery of this Agreement and the
other Loan Documents, the making and repayment of the Loans and the termination
of this Agreement and shall not be limited in any way by the passage of time or
occurrence of any event and shall expressly cover time periods when the
Administrative Agent or any of the Lenders may have come into possession or
control of any Property of Borrower or Parent Guarantor.
9.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to Borrower or Parent Guarantor in violation of any limitation or prohibition
provided by any applicable statute or regulation unless the same has resulted
from the failure of such Lender to comply with any requirements imposed upon
such Lender by applicable Law.
9.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among Borrower, Parent Guarantor, the Administrative
Agent and the Lenders and supersede all prior agreements and understandings
among Borrower, Parent Guarantor, the Administrative Agent and the Lenders
relating to the subject matter hereof.
9.5 Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. Borrower and Parent Guarantor are jointly and
severally liable and obligated for each other's obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns, provided, however, that the parties hereto expressly agree that the
Joint Book Running Managers, Co-Lead Arrangers and Syndication Agents (each, an
Initial Lender Affiliate, and collectively, the "Initial Lender Affiliates")
shall enjoy the benefits of the provisions of Sections 9.6, 9.10, 10.10, 10.18
and 10.20 to the extent specifically set forth therein and shall have the right
to enforce such provisions on their own behalf and in their own names to the
same extent as if each were a party to this Agreement.
9.6 Expenses; Indemnification. (a) Borrower and Parent Guarantor
shall reimburse the Administrative Agent for any costs and out-of-pocket
expenses (including reasonable attorneys' fees) paid or incurred by the
Administrative Agent (but excluding overhead and internal costs) in connection
with the preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents, in connection
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with disbursements hereunder and otherwise with respect to the Opryland Hotel
Florida or the Project. Borrower and Parent Guarantor agree to reimburse the
Administrative Agent and the Lenders for any costs and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Administrative Agent and the Lenders, but excluding internal administrative
overhead except for legal fees hereafter referred to in this sentence) paid or
incurred by the Administrative Agent and the Lenders, which attorneys may be
employees of the Administrative Agent or any Lender in connection with the
collection and enforcement of the Loan Documents in the event of a Default.
Expenses required to be reimbursed by Borrower and Parent Guarantor under this
Section 9.6 include, without limitation, the cost and expense of obtaining
Appraisals of the Opryland Hotel Florida and the Project, provided that so long
as no Default shall exist that is continuing Borrower and Parent Guarantor shall
not be required to pay for Appraisals other than (i) the initial Appraisals by
Xxxxxxx & Xxxxxxxxx obtained by the Administrative Agent prior to the Effective
Date and (ii) a single further Appraisal of the Project which the Administrative
Agent, may commission in its sole discretion.
(b) Borrower and Parent Guarantor hereby further agree to
indemnify the Administrative Agent, the Initial Lender Affiliates, each Lender,
their respective Affiliates, and each of their agents, shareholders, directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Administrative Agent,
any Initial Lender Affiliate, any Lender or any affiliate is a party thereto)
which any of them may pay or incur arising out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby (including
without limitation the Project Construction and any claims for personal injury,
property damage, economic loss, violation of Law, mechanics Liens, and patent,
trademark or copyright infringement) or the direct or indirect application or
proposed application of the proceeds of the Effective Date Advance hereunder
except to the extent that they are determined in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the party seeking indemnification. The obligations of
Borrower and Parent Guarantor under this Section 9.6 shall survive the
termination of this Agreement.
9.7 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10 Nonliability of Lenders. The relationship between Borrower on
the one hand and the Lenders and the Administrative Agent on the other hand
shall be solely that of borrower and
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lender. None of the Administrative Agent, any Initial Lender Affiliate, or any
Lender shall have any fiduciary responsibilities to Borrower, Parent Guarantor
or any Subsidiary Guarantor. None of the Administrative Agent, any Initial
Lender Affiliate, or any Lender undertakes any responsibility to Borrower,
Parent Guarantor or any Subsidiary Guarantor to review or inform Borrower,
Parent Guarantor or any Subsidiary Guarantor of any matter in connection with
any phase of either Resort Owner's business or operations. Borrower and Parent
Guarantor agree that none of the Administrative Agent, any Initial Lender
Affiliate, or any Lender shall have liability to Borrower or Parent Guarantor
(whether sounding in tort, contract or otherwise) for losses suffered by
Borrower or Parent Guarantor in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. None of the
Administrative Agent, any Initial Lender Affiliate, or any Lender shall have any
liability with respect to, and Borrower and Parent Guarantor hereby waive,
release and agree not to xxx for, any special, indirect or consequential damages
suffered by Borrower, Parent Guarantor or any Subsidiary Guarantor in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
9.11 Confidentiality. (a) Subject to the provisions of Section
9.11(b) and Section 12.4, each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of Parent Guarantor (other
than to its employees, officers, directors, auditors, advisors or counsel or to
another Lender, provided such Persons shall be subject to the provisions of this
Section 9.11 to the same extent as such Lender) any confidential information
with respect to Parent Guarantor or any of its Subsidiaries which is now or in
the future furnished pursuant to this Agreement or any other Loan Document,
provided that any Lender may disclose any such information (a) as has become
generally available to the public other than by virtue of a breach of this
Section by such Lender, (b) to the extent such information was legally in
possession of such Lender prior to its receipt from or on behalf of Parent
Guarantor or any of its Subsidiaries and was from a source not known to such
Lender to be (x) bound by a confidentiality agreement with Parent Guarantor or
(y) otherwise prohibited from transmitting such information to such Lender by a
contractual, legal or fiduciary obligation, (c) such information becomes
available to such Lender from a source other than Parent Guarantor or any of its
Subsidiaries and such source is not known to such Lender to be (x) bound by a
confidentiality agreement with Parent Guarantor or (y) otherwise prohibited from
transmitting such information to such Lender by a contractual, legal or
fiduciary obligation, (d) as may be required or reasonably appropriate in any
report, statement or testimony submitted to, or in response to a request from,
any municipal, state or Federal governmental or regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board,
the Federal Deposit Insurance Corporation, the NAIC or similar organizations
(whether in the United States or elsewhere) or their successors, (e) as may be
required or reasonably appropriate in response to any summons or subpoena or in
connection with any litigation, (f) in order to comply with any Requirements of
Law applicable to such Lender, (g) to the Administrative Agent or any other
Lender, (h) to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors; provided
that such contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, and (i) to any prospective or actual
transferee or participant in
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connection with any contemplated transfer or participation of any of the Notes
or Commitment or any interest therein by such Lender, provided that such
prospective transferee shall have agreed to be subject to the provisions of this
Section 9.11.
(b) Borrower hereby acknowledges and agrees that each
Lender may, but only in connection with the transactions contemplated by this
Agreement and the other Loan Documents or the participation of such Lender
pursuant to this Agreement and the other Loan Documents, share with any of its
affiliates any information related to Parent Guarantor or any of its
Subsidiaries (including, without limitation, any nonpublic customer information
regarding the creditworthiness of Parent Guarantor and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 9.11 to
the same extent as such Lender).
(c) Notwithstanding anything herein to the contrary,
confidential information shall not include, and the Administrative Agent and
each Lender may disclose without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Administrative Agent or such Lender
relating to such tax treatment and tax structure; provided that with respect to
any document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as other
information, this sentence shall apply only to such portions of the document or
similar item that relate to the tax treatment or tax structure of the Loan and
transactions contemplated hereby.
9.12 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the Loans
provided for herein.
9.13 Disclosure. Borrower, Parent Guarantor and each Lender hereby
(i) acknowledge and agree that Deutsche Bank Trust Company Americas, Deutsche
Banc Alex. Xxxxx Inc. and/or their respective Affiliates from time to time may
hold investments in, make other loans to or have other relationships with
Borrower, Parent Guarantor and any of their Affiliates, and (ii) waive any
liability of Deutsche Bank Trust Company Americas, Deutsche Banc Alex. Xxxxx
Inc. and/or their respective Affiliates to Borrower, Parent Guarantor or any
Lender, respectively, arising out of or resulting from such investments, loans
or relationships.
9.14 Marshalling; Payments Set Aside. Neither the Administrative
Agent nor any Lender shall be under any obligation to marshal any assets in
favor of Borrower or Parent Guarantor or any other party or against or in
payment of any or all of the Secured Obligations. To the extent that Borrower or
Parent Guarantor makes a payment or payments to the Administrative Agent or the
Lenders or any such Person receives payment from the proceeds of the Collateral
or exercises its rights of setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
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9.15 Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. The rights hereunder of
Borrower and Parent Guarantor and any interest therein, may not be assigned
without the written consent of all Lenders, which may be granted or withheld in
the sole discretion of each.
9.16 Inconsistencies. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually inconsistent with the terms and conditions of any other Loan Document,
this Agreement shall govern. Notwithstanding anything to the contrary contained
herein, the existence of (and the Lenders' review of), the Organizational
Documents or any Project Agreements shall not be deemed to be an approval by the
Administrative Agent or the Lenders of any of the actions that may be permitted
to be taken by Borrower, Parent Guarantor or any other Person thereunder to the
extent such actions violate the terms hereof. In addition to the foregoing, none
of the terms or provisions hereof shall be deemed to be waived or modified by
virtue of the fact that such terms and provisions conflict with, or contradict,
any of the terms and provisions of the Organizational Documents or any Project
Agreements.
9.17 Disclaimer by Lender. Neither the Administrative Agent nor the
Lenders nor any Initial Lender Affiliate shall be liable to any contractor,
subcontractor, supplier, laborer, architect, engineer, tenant or other party for
services performed or materials supplied in connection with any work performed
at the Opryland Hotel Florida or the Project or any other Property. Neither the
Administrative Agent nor the Lenders nor any Initial Lender Affiliate shall be
liable for any debts or claims accruing in favor of any such parties against
Borrower, Parent Guarantor or others or against any Property. Neither Resort
Owner, Borrower nor Parent Guarantor shall be an agent of either the
Administrative Agent or the Lenders or any Initial Lender Affiliate for any
purposes and neither the Lenders nor the Administrative Agent nor any Initial
Lender Affiliate shall be deemed partners or joint venturers with Borrower,
Parent Guarantor or any other Person. Neither the Administrative Agent nor the
Lenders nor any Initial Lender Affiliate shall be deemed to be in privity of
contract with any contractor or provider of services to the Opryland Hotel
Florida or the Project, nor shall any payment of funds directly to a contractor
or subcontractor or provider of services be deemed to create any third party
beneficiary status or recognition of same by either the Administrative Agent or
the Lenders or any Initial Lender Affiliate, and Borrower and Parent Guarantor
each agree to hold the Administrative Agent, the Lenders and the Initial Lender
Affiliates harmless from any of the damages and expenses resulting from such a
construction of the relationship of the parties or any assertion thereof.
9.18 Time is of the Essence. Time is of the essence of each and
every term and provision of this Agreement and the other Loan Documents.
9.19 Protective Advances. The Administrative Agent may from time to
time, before or after the occurrence and during the continuance of a Default,
subject to the prior written approval of the Majority Lenders, make such
disbursements and advances pursuant to the Loan Documents (which disbursements
and advances shall be deemed to be "Loans" made hereunder)
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which the Administrative Agent, in its reasonable discretion, deems necessary or
desirable to preserve or protect the Collateral or any portion thereof or to
enhance the likelihood or maximize the amount of repayment of the Secured
Obligations ("Protective Advances"). The Administrative Agent shall notify
Borrower, Parent Guarantor and each Lender in writing of each such Protective
Advance, which notice (each a "Protective Advance Notice") shall include a
description of the purpose of such Protective Advance, the aggregate amount of
such Protective Advance, each Lender's Pro Rata Share thereof and the date each
Lender shall be required to pay its Pro Rata Share of the Protective Advance
(the "Protective Advance Date"), which Protective Advance Date shall be not less
than two (2) Business Days after delivery of the Protective Advance Notice. Each
Lender agrees to pay to the Administrative Agent its Pro Rata Share of any
Protective Advance on the Protective Advance Date in the manner set forth herein
for the funding of Loans. Borrower or Parent Guarantor agrees to pay the
Administrative Agent, upon demand, the principal amount of all outstanding
Protective Advances, together with interest thereon at the rate set forth in
Section 2.7 applicable in the event of a Default. If Borrower or Parent
Guarantor fails to make payment in respect of any Protective Advance within
three (3) Business Days after the date Borrower or Parent Guarantor receive
written demand therefor from the Administrative Agent, such failure shall
constitute a Default. All outstanding principal of, and interest on, Protective
Advances shall constitute Secured Obligations secured by the Collateral until
paid in full by Borrower or Parent Guarantor. Upon the making of a Protective
Advance, the Administrative Agent shall be subrogated to any and all rights,
equal or superior titles, liens and equities, owned or claimed by any owner or
holder of said outstanding liens, charges and indebtedness, however remote,
regardless of whether said liens, charges and indebtedness are acquired by
assignment or have been released of record by the holder thereof upon payment.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LENDERS
10.1 Appointment. The Lenders hereby designate Deutsche Bank Trust
Company Americas as Administrative Agent to act as specified herein and in the
other Loan Documents. Each Lender hereby irrevocably authorizes, and each holder
of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Loan Documents and any other instruments
and agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
10.2 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Loan Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other Loan
Documents or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the
Administrative
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Agent shall be mechanical and administrative in nature; the Administrative Agent
shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Lender or the holder of any Note; and
nothing in this Agreement or any other Loan Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of this Agreement or any other Loan Document except
as expressly set forth herein or therein.
10.3 Lack of Reliance on the Administrative Agent. (a)
Independently and without reliance upon the Administrative Agent, each Lender
and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of Borrower, Parent Guarantor and the Subsidiary
Guarantors in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of such Persons and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. The Administrative Agent shall not be responsible
to any Lender or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any other Loan Document
or in any document, certificate or other writing delivered in connection
herewith or therewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of
this Agreement or any other Loan Document or the financial condition of
Borrower, Parent Guarantor or the Subsidiary Guarantors, or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Loan Document, or the
financial condition of Borrower, Parent Guarantor or the Subsidiary Guarantors
or the existence or possible existence of any Default or Unmatured Default.
(b) The Administrative Agent does not represent, warrant
or guaranty to the Lenders the performance of Borrower, Parent Guarantor or any
Subsidiary Guarantor, any architect, any project managers, any contractor,
subcontractor or provider of materials or services in connection with the
construction of the Project and Borrower and Parent Guarantor shall remain
solely responsible for all aspects of the Project, including but not limited to
the quality and suitability of the Plans and Specifications, the supervision of
the work of construction, the qualifications, financial condition and
performance of all architects, engineers, contractors, subcontractors,
suppliers, consultants and property managers, the accuracy of all applications
for payment, and the proper application of all Loans.
10.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Majority Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Loan Document, the Administrative Agent shall be entitled
to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Majority Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender or holder of any
Note shall have any right of action whatsoever against the Administrative Agent
as a result of the Administrative Agent acting or refraining
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from acting hereunder or under any other Loan Document in accordance with the
instructions of the Majority Lenders.
10.5 Reliance. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent in good faith believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Loan Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent (which may be
counsel for Borrower or Parent Guarantor).
10.6 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by Borrower or Parent Guarantor, the Lenders will
reimburse and indemnify the Administrative Agent, in proportion to their
respective "percentages" as used in determining the Majority Lenders, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Loan Document, in any way relating to or arising out of this Agreement or
any other Loan Document; provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).
10.7 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders," "Majority Lenders," "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, investment banking, trust or other business with Borrower, Parent
Guarantor or any Subsidiary Guarantor or any Affiliate of any such Person as if
it were not performing the duties specified herein, and may accept fees and
other consideration from any such Person for services in connection with this
Agreement or any other Loan Document and otherwise without having to account for
the same to the Lenders.
10.8 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
10.9 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Loan
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Documents at any time by giving 15 Business Days' prior written notice to
Borrower, Parent Guarantor and the Lenders. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to clauses (b)
and (c) below or as otherwise provided below. Furthermore, Administrative Agent
may be removed by the Majority Lenders in the event that Administrative Agent
committed a willful breach of, or was grossly negligent in the performance of,
its material obligations hereunder (as determined by a court of competent
jurisdiction in a final, non-appealable decision).
(b) Upon any such notice of resignation by the
Administrative Agent, Borrower and Parent Guarantor shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial Lender or
trust company reasonably acceptable to the Majority Lenders (it being understood
and agreed that any Lender is deemed to be acceptable to the Majority Lenders),
provided that, if a Default or an Unmatured Default exists at the time of such
resignation, the Majority Lenders shall appoint such successor Administrative
Agent.
(c) If a successor Administrative Agent shall not have
been so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of Borrower and Parent Guarantor (which consent shall not be
unreasonably withheld), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as Borrower, Parent Guarantor or the Majority Lenders, as the case may be,
appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been
appointed pursuant to clause (b) or (c) above by the 30th Business Day after the
date such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Majority
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Loan Document until such time, if any, as
Borrower, Parent Guarantor or the Majority Lenders, as the case may be, appoint
a successor Administrative Agent as provided above.
10.10 Other Agents. None of the Co-Lead Arrangers nor the Joint Book
Running Managers nor the Syndication Agents shall have any liabilities or
obligations hereunder in their respective capacities as such.
10.11 Lender Default. If any Lender (a "Defaulting Lender") fails to
fund its Pro Rata Share of any Loan on or before the time required pursuant to
this Agreement, or fails to fund its Pro Rata Share of any amount due under
Section 10.14(d) or the last sentence of Section 10.12 on or before the time
required thereunder or fails to pay the Administrative Agent, within twenty (20)
days of demand (which demand shall be accompanied by invoices or other
reasonable back up information demonstrating the amount owed), such Lender's Pro
Rata Share of any out-of-pocket costs, expenses or disbursements incurred or
made by the Administrative Agent pursuant to the terms of this Agreement (the
aggregate amount which the Defaulting Lender fails to pay or fund is herein
referred to as the "Default Amount"; and each such failure by a Lender is
referred to herein as a "Lender Default"), then, in addition to the rights and
remedies that may be available to the Non-Defaulting Lenders at law and in
equity:
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(a) The Defaulting Lender's right to participate in the
administration of the Obligations and the Loan Documents, including without
limitation, any rights to vote upon, consent to or direct any action of the
Administrative Agent or the Lenders shall be suspended and such rights shall not
be reinstated unless and until such default is cured, provided, however, that if
the Administrative Agent is a Defaulting Lender, the Administrative Agent shall
continue to have all rights provided for in this Agreement and the Loan
Agreement with respect to the administration of the Loans, unless the Majority
Lenders vote to remove and replace the Administrative Agent, in which event the
Majority Lenders shall notify the Administrative Agent, Borrower, Parent
Guarantor and the other Lenders of the identity of the successor Administrative
Agent so chosen by the Majority Lenders and such successor Administrative Agent
shall assume all the rights and duties of Administrative Agent hereunder as of
the date such notice is given;
(b) If and to the extent the Default Amount includes an
amount which, if advanced by the Defaulting Lender, would be applied to
interest, fees or other amounts due to the Lenders under the Loan Documents
(such portion of the Default Amount is herein referred to as the "Lender Payment
Portion"), the Administrative Agent may, and shall upon the direction of the
Majority Lenders, treat as advanced by the Defaulting Lender to itself (with a
corresponding automatic increase in the Defaulting Lender's Loan balance, and
without necessity for executing any further documents) the Lender Payment
Portion, whereupon a corresponding offset shall be made against the Default
Amount;
(c) If and to the extent any Default Amount remains
(after taking into account the deemed advance and application made under Section
10.11(b) above), any or all of the Non-Defaulting Lenders shall be entitled (but
shall not be obligated) to fund all or part of the remaining Default Amount (the
"Funded Default Amount"), and collect from the Defaulting Lender or from amounts
otherwise payable to the Defaulting Lender interest at the Default Rate on the
Funded Default Amount for the period from the date on which the payment was due
until the date on which payment is made (less any interest actually paid by
Borrower on the Funded Default Amount from time to time, which payments shall be
applied by the Administrative Agent pari passu to the Non-Defaulting Lenders
which shall have so funded the Funded Default Amount);
(d) So long as any Default Amount remains outstanding,
the Defaulting Lender's interest in the Obligations and the Loan Documents and
proceeds thereof shall be subordinated to the interest of the Non-Defaulting
Lenders in the Obligations and the Loan Documents in the manner set forth in
Section 10.11(e) below, without necessity for executing any further documents,
provided that such Defaulting Lender's interest in the Obligations and the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Default Amount (and all interest which has accrued pursuant to Section 10.11(c)
above) shall be repaid (or, if not funded by the Non-Defaulting Lenders,
advanced to the Administrative Agent for disbursement in accordance with this
Agreement) in full;
(e) To achieve such subordination, that portion of all
amounts received by the Administrative Agent on account of the Obligations which
would otherwise be payable to the Defaulting Lender on account of its interest
in the Obligations shall be applied by the Administrative Agent as follows:
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(i) first to pay pari passu to the
Non-Defaulting Lenders the Funded Default Amount, together with interest thereon
payable under Section 10.11(c) above, until the Funded Default Amount and all
interest thereon has been repaid in full (with collections from Borrower being
deemed earned by the Defaulting Lender to the extent of its Pro Rata Share
thereof and paid over to the Non-Defaulting Lenders for application first to
interest (in accordance with Section 10.13(c) above and then to principal upon
the Funded Default Amount); then
(ii) second, the remainder, if any, shall be
deemed earned by the Defaulting Lender to the extent of its Pro Rata Share
thereof and held in escrow by the Administrative Agent for distribution as
follows:
(A) upon payment in full of all the
Secured Obligations, without foreclosure, deed-in-lieu of foreclosure (or other
similar disposition of the Collateral) or other enforcement proceedings with
respect to the Secured Obligations, the funds held in escrow shall be promptly
disbursed to the Defaulting Lender; and
(B) upon completion of any foreclosure,
deed-in-lieu of foreclosure (or other similar disposition of the Collateral) or
other enforcement proceedings with respect to the Secured Obligations the funds
held in trust shall be promptly disbursed as follows:
(1) first, to the Non-Defaulting
Lenders and their Affiliates which
are Holders of Secured Obligations
pari passu in the amount of all
Secured Obligations which have not
been paid and satisfied by the
foreclosure, deed-in-lieu of
foreclosure (or other similar
disposition of the Collateral) or
other enforcement proceedings with
respect to the Secured Obligations
in order to compensate the
Non-Defaulting Lenders for any
failure to recover the full amount
of the Secured Obligations upon
completion of any such disposition
of the Collateral or other
enforcement action; and
(2) second, any remaining funds shall
be disbursed to the Defaulting
Lender.
(f) Each Non-Defaulting Lender shall have the right, but
not the obligation, in its sole discretion, to acquire such Defaulting Lender's
Pro Rata Share of the Loans and the Obligations, together with the Funded
Default Amount, in which case the following provisions shall apply:
(i) If more than one Non-Defaulting Lender
exercises such right, each such Non-Defaulting Lender shall have the right to
acquire (in proportion to such acquiring Lenders' respective Pro Rata Shares (or
upon agreement thereof, any other proportion) of the Defaulting Lender's Pro
Rata Share in the Loans and the Obligations, together with all of the Funded
Default Amount (being deemed a portion of the Obligations advanced by the
Non-Defaulting Lenders which funded the Funded Default Amount). Such right to
purchase shall be
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exercised by written notice from the applicable Non-Defaulting Lender(s)
electing to exercise such right to the Defaulting Lender and the Administrative
Agent (an "Exercise Notice"), copies of which shall also be sent concurrently to
the other Lenders. The Exercise Notice shall specify (A) the Purchase Price for
the Pro Rata Share of the Defaulting Lender, determined in accordance with
Section 10.11(f)(ii) below, and (B) the date on which such purchase is to occur,
which shall be any Business Day which is not less than fifteen (15) days after
the date on which the Exercise Notice is given, provided that if such Defaulting
Lender shall have cured its default in full (including all interest and other
amounts due in connection therewith) to the satisfaction of the Administrative
Agent within said fifteen (15) day period, then the Exercise Notice shall be of
no further effect and the applicable Non-Defaulting Lenders shall no longer have
a right to purchase such Defaulting Lender's Pro Rate Share or the Funded
Default Amount. Upon any such purchase of the Pro Rata Share of a Defaulting
Lender and as of the date of such purchase (the "Purchase Date"), (X) the
Non-Defaulting Lenders purchasing the Defaulting Lender's Pro Rata Share shall
also purchase the Funded Default Amount in equivalent proportions from the
Non-Defaulting Lenders which funded the same, for a purchase price equal to par
plus interest accrued and unpaid thereon under the provisions of Section
10.11(c) ("Default Amount Accrued Interest"), (Y) the Non-Defaulting Lenders
purchasing the Defaulting Lender's Pro Rata Share shall promptly advance to the
Administrative Agent their proportionate shares of any unfunded portion of the
Default Amount, and (Z) the Defaulting Lender's interest in the Loans and the
Obligations, and its rights hereunder as a Lender arising from and after the
Purchase Date (but not its rights and liabilities in respect thereof or under
the Loan Documents or this Agreement for obligations, indemnities and other
matters arising or matters occurring before the Purchase Date) shall terminate
on the Purchase Date, and the Defaulting Lender shall promptly execute all
documents reasonably requested to surrender and transfer such interest. Without
in any manner limiting the remedies of the Lenders, the obligations of a
Defaulting Lender to sell and assign its Pro Rata Share under this Section
10.11(f) shall be specifically enforceable by the Administrative Agent and/or
the other Lenders, by an action brought in any court of competent jurisdiction
for such purpose, it being acknowledged and agreed that, in light of the
disruption in the administration of the Loans and the other terms of the Loan
Documents that a Defaulting Lender may cause, damages and other remedies at law
are not adequate.
(ii) The purchase price for the Pro Rata Share of
the Loans and the Obligations of a Defaulting Lender (the "Purchase Price")
shall be equal to one hundred percent (100%) of the sum of all of the Defaulting
Lender's Loans (including advances for Protective Advances) under the Loans
outstanding as of the Purchase Date, less the Default Amount Accrued Interest
and costs and expenses incurred by the Administrative Agent and the Lenders
directly as a result of the Defaulting Lender's default hereunder, court costs
and the fees and expenses of attorneys, paralegals, accountants and other
similar advisors, and if such amounts are not then known, there shall be
deducted from the Purchase Price and placed into escrow with the Administrative
Agent an amount equal to 200% of the Administrative Agent's reasonable estimate
of such costs, to be held for disbursement to pay such costs as incurred, with
any remainder being returned to the Defaulting Lender upon payment in full of
all the Secured Obligations. The Lenders hereby acknowledge that the Lenders
purchasing the Defaulting Lender's Pro Rata Share are entitled to do so at the
price set forth in this Section 10.11(f)(ii) due to the risk that the
Obligations and Collateral may further decline in value after such purchase as a
result of the Defaulting Lender's default.
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Nothing herein contained shall be deemed or construed to waive, diminish or
limit, or prevent or stop any Lender from exercising or enforcing, any rights or
remedies which may be available at law or in equity as a result of or in
connection with any default under this Agreement by a Lender. In addition, no
Lender shall be deemed to be a Defaulting Lender if such Lender refuses to fund
its Pro Rata Share of any Loan being made after any bankruptcy-related Default
under Section 7.6 or Section 7.7 of this Agreement due to the lack of bankruptcy
court approval for such Loan.
10.12 Authority. The Administrative Agent, as described herein,
shall have all rights with respect to collection and administration of the
Obligations, the security therefor and the exercise of remedies with respect
thereto, except to the extent otherwise expressly set forth herein. The Lenders
agree that the Administrative Agent shall make all determinations as to whether
to grant or withhold approvals under the Loan Documents and as to compliance
with the terms and conditions of the Loan Documents, except to the extent
otherwise expressly set forth therein or herein. The Administrative Agent will
simultaneously deliver to the Lenders copies of any default notices sent to
Borrower, Parent Guarantor or any Subsidiary Guarantor under the terms of the
Loan Documents and will promptly provide to the Lenders copies of any material
notices received from Borrower, Parent Guarantor or any Subsidiary Guarantor,
including without limitation notices received under Section 6.17(d) and notices
received under Section 6.18 (and copies of the documents received by the
Administrative Agent thereunder). The Administrative Agent shall not, however,
take the following actions without first obtaining the consent of requisite
Lenders, as set forth below:
(a) The Administrative Agent shall not, without first
obtaining the consent of the Unanimous Lenders, take any of the following
actions:
(i) amend the interest rate, any date on which
interest is due, or the Maturity Date set forth in the Loan Documents;
(ii) release any collateral for the Secured
Obligations, or release any guaranty, indemnity agreement or any Person
(including, without limitation, any Subsidiary Guarantor) with respect to any
such guaranty or indemnity agreement (except for the release of any Subsidiary
Guarantor from the Guaranty upon consummation of an Asset Sale with respect to
such Subsidiary Guarantor or substantially all of its assets and except for
releases otherwise expressly permitted pursuant to the Loan Documents upon
satisfaction of all applicable conditions specified therein), or waive or
release any indemnity obligations of Borrower, Parent Guarantor or any guarantor
(including, without limitation, any Subsidiary Guarantor) to the Lenders under
the Loan Documents;
(iii) increase the amount of any Commitment;
(iv) forgive or reduce any principal, interest or
fees due under the Obligations or extend the time for payment of any such
principal, interest or fees;
(v) consent to the further encumbrance or
hypothecation of all or any portion of the Opryland Hotel Florida or the Project
or any other Collateral except to the extent expressly permitted under the Loan
Documents;
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(vi) modify, waive or consent to any assignment
in violation of Section 12.1(i);
(vii) change the Pro Rata Share of any Lender,
except in connection with a transfer of a Lender's interest permitted under the
Loan Agreement;
(viii) modify or amend this Section 10.12; or
(ix) modify or amend the definition of "Unanimous
Lenders" or "Majority Lenders" herein.
(b) The Administrative Agent shall not, without first
obtaining the consent of the Majority Lenders, take any of the following
actions:
(i) exercise (or refrain from exercising) rights
or remedies with respect to any Default, including any action with respect to
the exercise of remedies or the realization, operation or disposition of any
Collateral, provided, however, that the Administrative Agent may deliver
consents contemplated by the Loan Documents and waivers of provisions (other
than material provisions, including without limitation, any of the provisions
specifically enumerated in Section 7.3 hereof) of the Loan Documents;
(ii) consent to any material change in Project
Scope of Work which reflects a material reduction in the revenue generating
capacity of the Project or a material reduction in the Project quality, in each
case to the extent that any such changes require the Administrative Agent's
consent pursuant to the terms of the Loan Documents;
(iii) amend, supplement or otherwise modify in any
material respect any of the Loan Documents or execute a written waiver of any
material provision of the Loan Documents (including, without limitation, any of
the provisions specifically enumerated in Section 7.3 hereof), provided that
such amendment, supplement, modification or waiver does not require the consent
of all the Lenders under Section 10.12(a) above;
(iv) consent to the transfer by Borrower or
Parent Guarantor of all or any part of its direct or indirect interest in the
Opryland Hotel Florida and/or the Project or any other Collateral, except to the
extent expressly permitted under the Loan Documents;
(v) consent to any Change of Control;
(vi) agree to cause an additional or updated
Appraisal to be ordered at the Lenders' expense.
(vii) modify or amend the definition of
"Completion" herein;
(viii) modify, amend or waive any requirement in
Section 6.25; or
(ix) consent to or take action with respect to
any matter specified herein to require the consent or approval of the Majority
Lenders.
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As to any matters which are subject to the consent of any or all of the
Lenders, as set forth above or elsewhere in this Agreement, the Administrative
Agent shall not be permitted or required to exercise any discretion or to take
any action except upon the receipt of the written consent or instruction with
respect to such action by the requisite Lenders, which written consent or
instruction shall be binding upon the Lenders. Notwithstanding anything
contained herein to the contrary, it is understood and agreed that the Lenders'
right to consent to or disapprove any particular matter shall be limited to the
extent that the Lenders' or Administrative Agent's rights to consent to or
disapprove of such matter are limited in the Loan Documents.
As to any matter which is subject to a vote of the Lenders hereunder,
any of the Lenders may require the Administrative Agent to initiate such a vote.
In such event, the Administrative Agent shall conduct a vote in accordance with
the provisions of the next paragraph. The Administrative Agent shall be bound by
the results of such vote, so long as the action voted in favor of is permissible
under the Loan Documents and under applicable law, and subject to the obligation
of each Lender to contribute its Pro Rata Share of all expenses and liabilities
incurred in connection therewith as more fully set forth below.
All communications from the Administrative Agent to the Lenders
requesting the Lenders' approval (i) shall be given in the form of a written
notice to each Lender, (ii) shall be accompanied by a description of the matter
as to which such approval is requested and (iii) shall include, if appropriate,
the recommendation of the Administrative Agent, if any.
Subject to the foregoing limitations, each Lender hereby appoints and
constitutes the Administrative Agent as its agent with full power and authority
to exercise on behalf of such Lender any and all rights and remedies which such
Lender may have with respect to, and to the extent necessary under applicable
law for, the enforcement of the Loan Documents, including the right to exercise,
or to refrain from exercising, any and all remedies afforded to such Lender by
the Loan Documents or which such Lender may have as a matter of law.
Subject to the last sentence of this paragraph, each Lender shall be
responsible for its Pro Rata Share of any reasonable out-of-pocket costs,
expenses or liabilities incurred by the Administrative Agent in connection with
the Obligations, the protection of any security for the Secured Obligations, the
enforcement of the Loan Documents or the management or operation of the Project
or any other Collateral after acquisition of title thereto. Each Lender shall,
within twenty (20) days after a written demand therefor accompanied with a
description of the amounts payable, contribute its respective Pro Rata Share of
the out-of-pocket costs and expenses incurred by the Administrative Agent in
accordance with the terms of this Agreement, including, but not limited to, fees
of receivers or trustees, court costs, title company charges, filing and
recording fees, appraisers' fees and expenses of attorneys.
10.13 Borrower Default. Promptly after the Administrative Agent
acquires actual knowledge that a Default has occurred, the Administrative Agent
shall evaluate the circumstances of such Default, its impact on Borrower, Parent
Guarantor and Subsidiary Guarantors and the courses of action available to the
Lenders, which may include such responses as entering into a forbearance
agreement for a period of time, establishing certain additional credit or
collateral safeguards in exchange for a waiver of such Default or determining
the timing and order of enforcement of the remedies available to the Lenders.
Unless expressly directed in
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writing to the contrary by the Majority Lenders, the Administrative Agent is
expressly authorized to discuss such Default and possible resolutions with
Borrower, Parent Guarantor and Subsidiary Guarantors and to refrain from
exercising any rights and remedies while conducting such evaluation, provided
that the Administrative Agent shall not enter into any written forbearance
agreement with Borrower, Parent Guarantor or any Subsidiary Guarantor without
the prior consent of the Majority Lenders. The foregoing provisions shall not
limit the right, power or authority of the Administrative Agent to take actions
pursuant to and in accordance with Section 8.1 or Section 9.19.
The Administrative Agent shall, upon completing such evaluation and if
the Administrative Agent deems it appropriate, forward to each Lender a written
proposal outlining the course of action that the Administrative Agent
recommends, if any.
If the Majority Lenders so approve the Administrative Agent's proposal,
the Administrative Agent shall seek to implement such proposal in due course in
the same manner the Administrative Agent generally implements similar proposals
for loans held for its own account.
The Lenders agree to cooperate in good faith and in a commercially
reasonable manner in connection with the exercise by the Administrative Agent of
the rights granted to the Lenders by law and the Loan Documents, including, but
not limited to, providing necessary information to the Administrative Agent with
respect to the Obligations, preparing and executing necessary affidavits,
certificates, notices, instruments and documents and participating in the
organization of applicable entities to hold title to the Opryland Hotel Florida
and/or the Project. Each Lender agrees that it shall subscribe to and accept its
Pro Rata Share of the ownership interests in any entity organized to hold title
to the Opryland Hotel Florida and/or the Project and each such Lender agrees
that the nature of such entity shall be determined by the Majority Lenders. The
Administrative Agent is hereby authorized to act for and on behalf of the
Lenders in all day-to-day matters with respect to the exercise of rights
described herein such as the supervision of attorneys, accountants, appraisers
or others acting for the benefit of all of the Lenders in connection with
litigation, foreclosure, realization of all or any security given as collateral
for the Secured Obligations or other similar actions.
10.14 Acquisition of Collateral. If the Administrative Agent (or its
nominee or designee), on behalf of the Lenders, acquires the Opryland Hotel
Florida and/or the Project or any other Collateral either by foreclosure or deed
in lieu of foreclosure, then the Lenders agree to negotiate in good faith to
reach agreement among themselves in writing relating to the ownership,
operation, maintenance, marketing, and sale of the Opryland Hotel Florida and/or
the Project. The Lenders agree that such agreement shall be consistent with the
following:
(a) The Collateral will not be held as a long term
investment but will be marketed in an attempt to sell the Collateral in a time
period consistent with the regulations applicable to national banks for owning
real estate. Current Appraisals of the Collateral shall be obtained by the
Administrative Agent, such Appraisals shall be furnished to the Lenders from
time to time during the ownership period at the Lenders' expense (without
diminishing or releasing any obligation of Borrower or Parent Guarantor to pay
for such costs) and an appraised value shall be established and updated from
time to time based on such Appraisals.
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(b) Decision-making with respect to the day to day
operations of the Opryland Hotel Florida and/or the Project will be delegated to
management and leasing agents. All agreements with such management and leasing
agents will be subject to the approval of the Majority Lenders. All material
decisions reserved to the owner in such agreements will also be subject to the
approval of the Majority Lenders. The day to day supervision of such agents
shall be done by the Administrative Agent.
(c) Except as provided in the immediately following
sentence, all decisions as to whether to sell the Opryland Hotel Florida and/or
the Project and any other Collateral shall be subject to the approval of all the
Lenders. Notwithstanding the foregoing, the Lenders agree that if the
Administrative Agent receives a bona fide "all cash" (as determined by the
Administrative Agent in its discretion) offer for the purchase of the Opryland
Hotel Florida and/or the Project or other Collateral which has been approved in
writing by the Majority Lenders and such offer equals or exceeds one hundred
percent (100%) of the most recent appraised values of the Opryland Hotel Florida
and/or the Project and/or such other Collateral, as applicable, as established
by an Appraisal or Appraisals that have been completed within six months of such
offer, then the Administrative Agent is irrevocably authorized to accept such
offer on behalf of all the Lenders.
(d) All expenses incurred by the Administrative Agent and
the Lenders in connection with the Opryland Hotel Florida and the Project shall
be allocated among the Lenders pro rata in accordance with their respective Pro
Rata Shares. In the event any Lender does not pay its Pro Rata Share of such
expenses, such Lender shall be subject to the terms of Section 10.11 above.
(e) All proceeds received by the Administrative Agent or
any Lender from the operation, sale or other disposition of the Opryland Hotel
Florida and/or the Project and any other Collateral (net of expenses incurred by
the Administrative Agent in connection therewith and any reserves deemed
reasonably necessary by the Majority Lenders for potential obligations of the
Lenders with respect to the Opryland Hotel Florida and/or the Project and
subject to Section 10.11 above) shall be paid to the Lenders in accordance with
each Lender's Pro Rata Share from time to time upon authorization by the
Majority Lenders.
(f) All expenditures and other actions taken with respect
to the Opryland Hotel Florida and/or the Project and any other Collateral shall
at all times be subject to the regulations and requirements pertaining to
national banks applicable thereto. Without limiting the generality of the
foregoing, all necessary approvals from regulatory authorities in connection
with any expenditure of funds by the Lenders shall be a condition to such
expenditure.
10.15 Documents. Except as otherwise expressly provided herein, it is
acknowledged and agreed that (a) the Administrative Agent has not and shall not
provide to the other Lenders documents, other than Loan Documents delivered as
of the Effective Date, received from Borrower and Parent Guarantor with respect
to the satisfaction of the conditions set forth in Section 4.1 or the conditions
precedent to the initial or any subsequent Loans, but that such documents are or
shall be available for inspection by each Lender, and (b) the determination by
each Lender of whether the conditions precedent set forth in Section 4.1 and 4.2
have been
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satisfied shall be for the benefit of each such Lender only, and may not be
relied on by any other party.
10.16 Receipt and Maintenance of Loan Documents. Each Lender
acknowledges that it has received, reviewed and approved the form of the Loan
Documents delivered as of the Effective Date. Borrower and Parent Guarantor
shall deliver to the Administrative Agent and to each of the Lenders party
hereto on the Effective Date executed original counterparts of all of the Loan
Documents, other than the originals of the Notes, each of which shall be
delivered to the Lender named therein.
10.17 No Representations. Each Lender acknowledges and agrees that
the Administrative Agent has not made any representations or warranties, express
or implied, with respect to any aspect of the Loans, including, without
limitation (i) the existing or future solvency or financial condition or
responsibility of Borrower, Parent Guarantor and Subsidiary Guarantors, (ii) the
payment or collectibility of the Obligations, (iii) the validity, enforceability
or legal effect of the Loan Documents, or the Second Mortgage Title Insurance
Policies or the Surveys furnished by Borrower, or (iv) the validity or
effectiveness of the liens created by the Pledge Agreements, Second Mortgages or
any other liens or security interests required by this Agreement.
10.18 No Relation. The relationship between the Administrative
Agent, the Co-Lead Arrangers, Joint Book-Running Managers, Syndication Agents
and the other Lenders is not intended by the parties to create, and shall not
create, any trust, joint venture or partnership relation between them.
10.19 Standard of Care. The Administrative Agent shall be liable to
the Lenders for any loss or liability sustained in connection with its
management and administration of the Obligations, or in connection with the
exercise of any rights and remedies under the Loan Documents or at law, only if,
and to the extent, such loss or liability results from the gross negligence or
willful misconduct of such Administrative Agent or any of its employees,
officers, agents or directors or a breach of the Administrative Agent's express
obligations under this Agreement.
10.20 No Responsibility for Loans, Etc. Except as otherwise provided
in this Agreement (including Section 10.21), none of the Administrative Agent,
the Initial Lender Affiliates or any of their respective shareholders,
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any Loan hereunder;
(ii) the performance or observance of any of the covenants or agreements of any
obligor under any Loan Document, including, without limitation, any agreement by
an obligor to furnish information directly to each Lender; (iii) the
satisfaction of any condition specified herein; (iv) the validity, effectiveness
or genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith; or (v) the value, sufficiency, creation, perfection or
priority of any interest in any collateral security. Neither the Administrative
Agent nor any of the Initial Lender Affiliates shall have any duty to disclose
to the Lenders information that is not required to be furnished to it by
Borrower or Parent Guarantor.
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10.21 Payments After Default. Subject to the provisions of Section
10.11 regarding the subordination of any Defaulting Lender's interest, after the
occurrence of a Default, the Administrative Agent shall apply all payments in
respect of any Obligations and all proceeds of Collateral in the following
order:
(i) first, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Administrative
Agent;
(ii) second, to pay principal of and interest on
any Protective Advance for which the Administrative Agent has not then been paid
by Borrower or Parent Guarantor or reimbursed by the Lenders;
(iii) third, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Lenders (other than
Rate Management Obligations);
(iv) fourth, to the ratable payment, on a pari
passu basis, of principal and interest on the Loans (such application to be made
first to interest and then to principal); and
(v) fifth, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 10.21 is set forth
solely to determine the rights and priorities of the Administrative Agent and
the Lenders as among themselves. As between Borrower, Parent Guarantor and
Subsidiary Guarantors, on the one hand, and the Administrative Agent and Lenders
on the other, after the occurrence of a Default, the Administrative Agent and
Lenders may apply all payments in respect of any Secured Obligations, and all
proceeds of Collateral, to the Secured Obligations in such order and manner as
the Administrative Agent and Lenders may elect in their sole and absolute
discretion. The order of priority set forth in clauses (i) through (iii) of this
Section 10.21 may be changed by the Majority Lenders with the prior written
consent of the Administrative Agent.
10.22 Payments Received. All payments received by the Administrative
Agent from Borrower or Parent Guarantor for the account of the Lenders shall be
disbursed to the applicable Lenders no later than the next Business Day
following the day such payment is received in good funds by the Administrative
Agent. If payments received by the Administrative Agent from Borrower or Parent
Guarantor are not disbursed to the applicable Lenders the same day as they are
received, such funds shall be invested overnight by the Administrative Agent and
each Lender will receive its Pro Rata Share of any interest so earned. The
Lenders acknowledge that the Administrative Agent does not guarantee any
particular level of return on the overnight funds and that the Administrative
Agent will invest such funds as it deems prudent from time to time.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if Borrower, Parent Guarantor or any
Subsidiary Guarantor becomes insolvent, however evidenced, or any Default
occurs, any and all deposits (including all account balances,
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whether provisional or final and whether or not collected or available) and any
other Indebtedness at any time held or owing by any Lender or any Affiliate of
any Lender to or for the credit or account of Borrower, Parent Guarantor or any
Subsidiary Guarantor may be offset and applied toward the payment of the Secured
Obligations owing to such Lender, whether or not the Secured Obligations, or any
part thereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit Exposure (other
than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5, in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Aggregate Outstanding Credit Exposure
held by the other Lenders so that after such purchase each Lender will hold its
applicable Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any
Lender, whether in connection with setoff or amounts which might be subject to
setoff or otherwise, receives collateral or other protection for its Obligations
or such amounts which may be subject to setoff, such Lender agrees, promptly
upon demand, to take such action necessary to provide that the Administrative
Agent and all Lenders share in the benefits of such collateral in accordance
with the provisions of Section 2.8(b).
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of Borrower, Parent
Guarantor, the Resort Owners, Subsidiary Guarantors, the Administrative Agent
and the Lenders and their respective successors and assigns, except that (i)
Borrower, Parent Guarantor and Subsidiary Guarantors shall not have the right to
assign their respective rights or obligations under the Loan Documents and (ii)
any assignment by any Lender must be made in compliance with Section 12.3. The
parties to this Agreement acknowledge that clause (ii) of this Section 12.1
relates only to absolute assignments and does not prohibit assignments creating
security interests, including, without limitation, financings in the nature of
repurchase agreements and any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 12.3. The Administrative Agent may treat the Person which made any Loan
or which holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 12.3; provided, however, that the
Administrative Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person. Any assignee of
the rights to any Loan or any Note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of any Loan (whether or not a Note
has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.
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12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held by
such Lender, or any other interest of such Lender under the Loan Documents. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of its Outstanding Credit Exposure and the holder of any Note issued to it
in evidence thereof for all purposes under the Loan Documents, all amounts
payable by Borrower under this Agreement shall be determined as if such Lender
had not sold such participating interests, and Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which (a) forgives principal, interest, fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment (except in connection with a waiver of applicability of any
post-Default increase in interest rates), extends the Maturity Date, postpones
any date fixed for any required payment of principal of, or interest on any Loan
in which such Participant has an interest, or any regularly-scheduled payment of
fees on any such Loan or Commitment, (b) releases any guarantor of any such Loan
(except in connection with an Asset Sale in accordance with the terms hereof) or
all or substantially all of any collateral, if any, securing any such Loan; (c)
increases the amount of the participant's participation over the amount thereof
then in effect (it being understood that a waiver of any Default or Event of
Default shall not constitute a change in the terms of such participation, and
that an increase in any Commitment (or the available portion thereof) or Loan
shall be permitted without the consent of any participant if the participant's
participation therein is not increased as a result thereof) or (d) consents to
the assignment or transfer by Borrower or Parent Guarantor of any of their
obligations under this Agreement. Notwithstanding the foregoing, Borrower,
Parent Guarantor and the other Lenders shall be entitled to rely upon any
actions taken by a Lender in its capacity as such, whether or not within the
scope of such Lender's authority under any agreement between the Lender and a
Participant.
12.2.3 Benefit of Setoff. Borrower and Parent Guarantor agree that
each Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
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12.3 Assignments.
12.3.1 Permitted Assignments. Subject to satisfaction of the
applicable requirements and conditions set forth in this Section 12.3, any
Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or other entities
("Purchasers") all or any part of its rights and obligations under the Loan
Documents, subject to the following:
(i) such assignment shall be substantially in
the form of Exhibit F or in such other form as may be agreed to by the
Administrative Agent;
(ii) Unless the Administrative Agent otherwise
consents, each assignment with respect to an Eligible Assignee which is not a
Lender or an Affiliate thereof shall be in an amount not less than the lesser of
(A) $1,000,000 or (B) the assigning Lender's Outstanding Credit Exposure;
(iii) Unless the Administrative Agent otherwise
consents, a Lender shall not be permitted to assign less than the entire
remaining amount of the assigning Lender's Outstanding Credit Exposure if upon
completion of such assignment the remaining amount (calculated as at the date of
such assignment) of the assigning Lender's Outstanding Credit Exposure shall be
less than $1,000,000; and
(iv) No Lender shall assign all or any part of
its rights and obligations under the Loan Documents without the Administrative
Agent's consent, which shall not be unreasonably withheld, or to any Person
other than an Eligible Assignee.
This Section 12.3 relates only to absolute assignments and does not
prohibit assignments creating security interests, including, without limitation,
financings in the nature of repurchase agreements and any pledge or assignment
by any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank; provided, however, that no such financing,
pledge or assignment creating a security interest shall release the transferor
Lender from its obligations hereunder unless and until the parties thereto have
complied with the provisions of this Section 12.3.
12.3.2 Transfers. Notwithstanding any other provision hereof, Lenders
consent to each Lender's pledge (a "Pledge") of its interest in the Loans and
the Collateral to any Eligible Assignee which has extended a credit facility to
such Lender (a "Loan Pledgee"), on the terms and conditions set forth in this
paragraph. Upon written notice by the Lender to Administrative Agent that the
Pledge has been effected, Administrative Agent agrees to acknowledge receipt of
such notice and thereafter agrees: (a) to give Loan Pledgee written notice of
any default by Lenders under this Agreement and any amendment, modification,
waiver or termination of any of Lenders' rights under this Agreement; (b) that
Administrative Agent shall deliver to Loan Pledgee such estoppel certificate(s)
as Loan Pledgee shall reasonably request, provided that any such certificate(s)
shall be in the form and upon the conditions set forth in Section 18 of the
Subordination and Intercreditor Agreement; and (c) that, upon written notice (a
"Redirection Notice") to Administrative Agent by Loan Pledgee that a Lender is
in default, beyond applicable cure periods, under such Lender's obligations to
Loan Pledgee pursuant to the applicable credit
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agreement between such Lender and Loan Pledgee (which notice need not be joined
in or confirmed by Lenders), and until such Redirection Notice is withdrawn or
rescinded by Loan Pledgee, any payments to which such Lender is entitled from
time to time pursuant to this Agreement, or any other agreements that relate to
the Loans, shall be paid or directed to Loan Pledgee. The relevant Lender hereby
unconditionally and absolutely releases Administrative Agent and the Lenders
from any liability to the relevant Lender on account of Administrative Agent's
or any Lender's compliance with any Redirection Notice reasonably believed by
Administrative Agent or Lenders to have been delivered in good faith. Loan
Pledgee shall be permitted fully to exercise its rights and remedies against the
relevant Lender, and realize on any and all collateral granted by such Lender to
Loan Pledgee (and accept an assignment in lieu of foreclosure as to such
collateral), in accordance with applicable law and the provisions of this
Agreement. In such event, Lenders shall recognize Loan Pledgee, and its
successors and assigns which are Eligible Assignees as the successor to the
applicable Lender's rights, remedies and obligations under this Agreement and
the Loan Documents. The rights of Loan Pledgee under this paragraph shall remain
effective unless and until Loan Pledgee shall have notified Administrative Agent
in writing that its interest in the Loans has terminated. Notwithstanding any
provisions herein to the contrary, if a conduit ("Conduit") which is not an
Eligible Assignee provides financing to a Lender then such Conduit will be a
permitted "Loan Pledgee" despite the fact it is not an Eligible Assignee if the
following conditions are satisfied: (i) the loan (the "Conduit Inventory Loan")
made by the Conduit to a Lender to finance the acquisition and holding of such
Lender's Loan will require a third party (the "Conduit Credit Enhancer") to
provide credit enhancement; (ii) the Conduit Credit Enhancer will be an Eligible
Assignee; (iii) the applicable Lender will pledge its interest in the Loan to
the Conduit as collateral for the Conduit Inventory Loan; (iv) the Conduit
Credit Enhancer and the Conduit will agree that, if the applicable Lender
defaults under the Conduit Inventory Loan, or if the Conduit is unable to
refinance its outstanding commercial paper even if there is no default by the
applicable Lender, the Conduit Credit Enhancer will purchase the Conduit
Inventory Loan from the Conduit, and the Conduit will assign the pledge of the
applicable Lender's interest in the relevant Loan to the Conduit Credit
Enhancer; and (v) the Conduit will not have any greater right to acquire the
interests in the Loan pledged by the relevant Lender, by foreclosure or
otherwise, than would any other purchaser that is not an Eligible Assignee at a
foreclosure sale conducted by a Loan Pledgee.
12.3.3 Effect; Effective Date. Upon (a) delivery to the
Administrative Agent of an assignment, together with any consents required by
Section 12.3.1, and (b) payment of a non-refundable assignment fee of $3,500 to
the Administrative Agent for processing such assignment (unless such fee is
waived by the Administrative Agent), such assignment shall become effective on
the effective date specified in such assignment. On and after the effective date
of such assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and the
transferor Lender shall be discharged and released with respect to the
percentage of the Outstanding Credit Exposure assigned to such Purchaser,
without any further consent or action by Borrower, Parent Guarantor, the Lenders
or the Administrative Agent. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Administrative Agent, Borrower and Parent Guarantor shall make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are issued
to
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such transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitment and Outstanding Credit Exposure, as adjusted pursuant to
such assignment.
12.4 Dissemination of Information. Borrower and Parent Guarantor
each authorize each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by operation of law
(each a "Transferee") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of Borrower, Parent
Guarantor and Subsidiary Guarantors; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.10 with
respect to Borrowing Notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of Borrower, Parent Guarantor, the Administrative Agent or any
Lender, at its address or facsimile number set forth on the signature pages
hereof, or (b) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Administrative Agent, Borrower and Parent Guarantor in accordance with the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by certified mail, return receipt
requested, when delivered at the address specified in this Section, as indicated
by the return receipt, or (iii) if given by any other means, when delivered (or,
in the case of electronic transmission, received) at the address specified in
this Section; provided that notices to the Administrative Agent under Article II
shall not be effective until received.
13.2 Change of Address. Borrower, Parent Guarantor, the
Administrative Agent and any Lender may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been
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executed by Borrower, Parent Guarantor the Administrative Agent and the Lenders
and each party has notified the Administrative Agent by facsimile transmission
or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (EXCLUDING THE NEW
YORK LIEN LAW AND WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS), BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. BORROWER AND PARENT GUARANTOR EACH
HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK OR ANY UNITED STATES FEDERAL
OR FLORIDA OR TEXAS STATE COURT SITTING IN FLORIDA OR TEXAS, AS THE CASE MAY BE,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
BORROWER AND PARENT GUARANTOR EACH HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVE ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER, PARENT
GUARANTOR OR ANY SUBSIDIARY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY BORROWER OR PARENT GUARANTOR AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN
A COURT IN NEW YORK.
15.3 WAIVER OF JURY TRIAL. BORROWER, PARENT GUARANTOR, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIPS ESTABLISHED THEREUNDER.
* * *
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IN WITNESS WHEREOF, Borrower, Parent Guarantor, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
BORROWER:
One Xxxxxxx Drive XXXXXXX HOTELS, LLC, a Delaware
Xxxxxxxxx, Xxxxxxxxx 00000 limited liability company
Attention: Chief Financial Officer
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
PARENT GUARANTOR:
One Xxxxxxx Drive XXXXXXX ENTERTAINMENT
Xxxxxxxxx, Xxxxxxxxx 00000 COMPANY, a Delaware corporation
Attention: Chief Financial Officer
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
Chief Financial Officer
RESORT OWNERS Solely for the
purpose of evidencing their
agreement to the provisions of
One Xxxxxxx Drive Section 6.39 hereof:
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer OPRYLAND HOTEL - FLORIDA LIMITED
PARTNERSHIP, a Florida limited
partnership
By: Opryland Hospitality, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
124
OPRYLAND HOTEL - TEXAS LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Opryland Hospitality, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
125
LENDERS:
Deutsche Bank DEUTSCHE BANK TRUST COMPANY
000 Xxxxxxxx Xxxxx, Xxxxx 000 XXXXXXXX, Individually and as
Xxxxxx, Xxxxx 00000 Administrative Agent
Attention: Xxxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
c/o DB Realty DB REALTY MEZZANINE INVESTMENT
1251 Avenue of the Americas FUND II, L.L.C.
9th Floor - MS: XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000 By: Greenwood Properties Corp.,
Attention: Xxxxx Xxxxxxx its manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP
c/o iStar Financial Inc. iSTAR DB SELLER, LLC, a Delaware
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx limited liability company
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Xxxxxxxxx Xxxx By: iStar Financial Inc., a
and Xxxx Xxxxx Maryland corporation, its
sole Class A member
with a copy to:
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
iStar Asset Services, Inc. Name: Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000 Title: Executive Vice President
Xxxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: President
126
Fleet National Bank FLEET NATIONAL BANK
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Xxxx Hospitality Structured Investment LOWE HOSPITALITY STRUCTURED
Fund L.P. INVESTMENT FUND L.P., a Cayman
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000 Islands exempted limited
Xxx Xxxxxxx, Xxxxxxxxxx 00000 partnership
Attention: Xxxxx Xxxx
By: Xxxx Enterprises (Cayman)
Ltd., a Cayman Islands
exempted company, its general
partner
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
127
