EXHIBIT 10.2
CREDIT AGREEMENT
among
OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP
and
OPRYLAND HOTEL - TEXAS LIMITED PARTNERSHIP,
as Co-Borrowers,
XXXXXXX ENTERTAINMENT COMPANY,
as Parent Guarantor,
VARIOUS LENDERS PARTY HERETO
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.................................................................36
2.1 The Commitments................................................................................36
2.2 Mandatory Principal Repayments.................................................................38
2.3 Ratable Loans..................................................................................40
2.4 Types of Advances..............................................................................40
2.5 Commitment and Administrative Agency Fees......................................................40
2.6 Minimum Amount of Each Revolving Loan Advance; Disbursement Provisions.........................41
2.7 Optional Principal Payments....................................................................42
2.8 Method of Selecting Types and Interest Periods for Advances....................................42
2.9 Conversion and Continuation of Outstanding Advances............................................43
2.10 Interest Rate; Changes in Interest Rate; Interest Periods; etc.................................44
2.11 Rates Applicable After Default.................................................................44
2.12 Method of Payment..............................................................................45
2.13 Notes; Evidence of Indebtedness................................................................45
2.14 Telephonic Notices.............................................................................46
2.15 Interest Payment Dates; Interest and Fee Basis.................................................47
2.16 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................47
2.17 Lending Offices................................................................................47
2.18 Non-Receipt of Funds by the Administrative Agent...............................................47
2.19 Equity Contributions...........................................................................48
2.21 Completion Reserve.............................................................................48
2.22 FF&E Reserve Accounts..........................................................................50
2.23 Replacement of Lender..........................................................................51
ARTICLE III YIELD PROTECTION; TAXES....................................................................52
3.1 Yield Protection...............................................................................52
3.2 Changes in Capital Adequacy Regulations........................................................52
3.3 Availability of Types of Advances..............................................................53
3.4 Funding Indemnification........................................................................53
3.5 Taxes..........................................................................................53
3.6 Lender Statements; Survival of Indemnity.......................................................55
3.7 Reasonable Efforts to Mitigate.................................................................55
ARTICLE IV CONDITIONS PRECEDENT.......................................................................56
4.1 Closing Deliveries.............................................................................56
4.2 Conditions Precedent to Each Revolving Loan Advance and Disbursements from Completion
Reserve Account................................................................................61
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4.3 Limited Nature of Waivers of Requirements......................................................63
4.4 Notices to Owner...............................................................................63
ARTICLE V REPRESENTATIONS AND WARRANTIES.............................................................63
5.1 Ownership, Existence and Standing..............................................................64
5.2 Authorization and Validity.....................................................................64
5.3 No Conflict; Government Consent................................................................64
5.4 Financial Statements and Projections...........................................................65
5.5 Intentionally Reserved.........................................................................65
5.6 Taxes..........................................................................................65
5.7 Litigation and Contingent Obligations..........................................................66
5.8 Subsidiaries...................................................................................66
5.9 Affiliate Contracts............................................................................66
5.10 Accuracy of Information........................................................................66
5.11 Margin Regulations.............................................................................66
5.12 Material Agreements............................................................................67
5.13 Compliance With Laws...........................................................................67
5.14 Ownership of Certain Properties................................................................67
5.15 Plan Assets; Prohibited Transactions; ERISA....................................................68
5.16 Environmental Matters..........................................................................68
5.17 Investment Company Act.........................................................................69
5.18 Public Utility Holding Company Act.............................................................69
5.19 Solvency.......................................................................................70
5.20 Permits, Zoning, Government Approvals, Trademarks, Etc.........................................70
5.21 Utilities; Access; Structural Soundness........................................................71
5.22 Leasehold Matters..............................................................................71
5.23 Ground Lease Matters...........................................................................71
5.24 Casualty; Condemnation.........................................................................72
5.25 Construction...................................................................................72
5.26 Brokerage Fees.................................................................................73
5.27 Personal Property..............................................................................73
5.28 Incentive Agreements...........................................................................73
5.29 SAILS Contract.................................................................................73
ARTICLE VI COVENANTS..................................................................................74
6.1 Financial Reporting............................................................................74
6.2 Use of Proceeds................................................................................76
6.3 Notice of Default..............................................................................76
6.4 Conduct of Business; Corporate Existence.......................................................76
6.5 Taxes and Claims...............................................................................77
6.6 Insurance......................................................................................78
6.7 Compliance with Laws...........................................................................82
6.8 Alterations; Restaurant Facility...............................................................83
6.9 Inspections; Books and Records.................................................................83
6.10 Completion of Project; Required Completion Dates...............................................85
6.11 Correction of Defects..........................................................................86
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6.12 Changes and Amendments; Monthly Budget Updates.................................................86
6.13 Distributions; Mandatory Application of Net Operating Income to the Loans......................86
6.14 Indebtedness...................................................................................87
6.15 Merger.........................................................................................88
6.16 Ownership of Assets; Restrictions on Transfer..................................................88
6.17 Sales of Assets; Prepayments from Asset Sales; Releases of Subsidiary Guarantors...............89
6.18 Investments; New Subsidiary Guarantors.........................................................89
6.19 Liens..........................................................................................90
6.20 Affiliates.....................................................................................91
6.21 Required Rate Management Transactions..........................................................91
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities........................92
6.23 Intentionally Reserved.........................................................................92
6.24 Financial Contracts............................................................................92
6.25 Financial Covenants............................................................................92
6.25.2 Minimum Consolidated Net Worth........................................................92
6.25.3 Minimum Interest Coverage Ratio.......................................................92
6.25.3 Maximum Total Leverage Ratio..........................................................92
6.25.4 Maximum Debt Leverage Ratio...........................................................93
6.25.5 Opryland Hotel Florida Minimum Adjusted NOI...........................................94
6.25.6 Minimum Fixed Charge Coverage Ratio...................................................94
6.26 Environmental Audits...........................................................................95
6.27 Insurance and Condemnation Proceeds............................................................95
6.28 The Administrative Agent's and the Lenders' Actions for Their Own Protection Only..............98
6.29 Storage of Property............................................................................98
6.30 Proceedings to Enjoin or Prevent Construction..................................................99
6.31 No Obligation to Monitor.......................................................................99
6.32 Compliance with Agreements.....................................................................99
6.33 Organizational Documents.......................................................................99
6.34 Leasing Provisions.............................................................................99
6.35 Ground Lease Covenants........................................................................100
6.36 Zoning Changes................................................................................103
6.37 Fiscal Year...................................................................................104
6.38 Cooperation with Construction Consultant......................................................104
6.39 Security Interest in Accounts; Certain Remedies...............................................104
6.40 Principal Places of Business; Names...........................................................106
6.41 Documents of Further Assurance................................................................107
6.42 Wetlands......................................................................................107
6.43 Post Closing Obligations with Respect to Texas Real Estate....................................107
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ARTICLE VII DEFAULTS..................................................................................108
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................111
8.1 Acceleration..................................................................................111
8.2 All Remedies..................................................................................112
8.3 Construction.................................................................................112
8.4 Enforcement..................................................................................113
8.5 Preservation of Rights........................................................................113
ARTICLE IX GENERAL PROVISIONS........................................................................114
9.1 Survival of Representations...................................................................114
9.2 Governmental Regulation.......................................................................114
9.3 Headings......................................................................................114
9.4 Entire Agreement..............................................................................114
9.5 Obligations; Benefits of this Agreement.......................................................114
9.6 Expenses; Indemnification.....................................................................114
9.7 Numbers of Documents..........................................................................115
9.8 Accounting....................................................................................115
9.9 Severability of Provisions....................................................................115
9.10 Nonliability of Lenders.......................................................................116
9.11 Confidentiality...............................................................................116
9.12 Nonreliance...................................................................................117
9.13 Disclosure....................................................................................117
9.14 Marshalling; Payments Set Aside...............................................................117
9.15 Successors and Assigns........................................................................118
9.16 Inconsistencies...............................................................................118
9.17 Disclaimer by Lender..........................................................................118
9.18 Time is of the Essence........................................................................118
9.19 Protective Advances...........................................................................119
ARTICLE X THE ADMINISTRATIVE AGENT AND THE LENDERS..................................................119
10.1 Appointment...................................................................................119
10.2 Nature of Duties..............................................................................120
10.3 Lack of Reliance on the Administrative Agent..................................................120
10.4 Certain Rights of the Administrative Agent....................................................121
10.5 Reliance......................................................................................121
10.6 Indemnification...............................................................................121
10.7 The Administrative Agent in its Individual Capacity...........................................121
10.8 Holders.......................................................................................122
10.9 Resignation by the Administrative Agent.......................................................122
10.10 Other Agents..................................................................................122
10.11 Lender Default................................................................................123
10.12 Authority.....................................................................................126
10.13 Co-Borrower Default...........................................................................129
10.14 Acquisition of Collateral.....................................................................130
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10.15 Documents.....................................................................................131
10.16 Receipt and Maintenance of Loan Documents.....................................................131
10.17 No Representations............................................................................131
10.18 No Relation...................................................................................132
10.19 Standard of Care..............................................................................132
10.20 No Responsibility for Loans, Etc..............................................................132
10.21 Payments After Default........................................................................132
10.22 Payments Received.............................................................................133
ARTICLE XI SETOFF; RATABLE PAYMENTS..................................................................133
11.1 Setoff........................................................................................133
11.2 Ratable Payments..............................................................................134
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.........................................134
12.1 Successors and Assigns........................................................................134
12.2 Participations................................................................................134
12.2.1 Permitted Participants; Effect.......................................................134
12.2.2 Voting Rights........................................................................135
12.2.3 Benefit of Setoff....................................................................135
12.3 Assignments...................................................................................136
12.3.1 Permitted Assignments................................................................136
12.3.2 Transfers 137
12.3.3 Effect; Effective Date................................................................137
12.4 Dissemination of Information..................................................................138
12.5 Tax Treatment.................................................................................138
ARTICLE XIII NOTICES...................................................................................138
13.1 Notices.......................................................................................138
13.2 Change of Address.............................................................................139
ARTICLE XIV COUNTERPARTS..............................................................................139
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..............................139
15.1 CHOICE OF LAW.................................................................................139
15.2 CONSENT TO JURISDICTION.......................................................................140
15.3 WAIVER OF JURY TRIAL..........................................................................140
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Architect's Certificate
Exhibit B-1 Form of Florida Term "Renewal" Note
Exhibit B-2 Form of Term Note
Exhibit B-3 Form of Revolving Note
Exhibit B-4 Form of Swingline 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 Co-Borrower'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 Co-Borrowers' and Parent Guarantor's Compliance
Certificate
Schedule 1 Approved Construction Budget
Schedule 2 Commitments
Schedule 3 Environmental Reports
Schedule 4 Initial Subsidiary Guarantors
Schedule 5.1 Ownership Chart
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 Co-Borrower to Construction
Consultant
Schedule 6.39 Certain Project Accounts
Schedule 6.43 Post-Closing Requirements
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CREDIT AGREEMENT
Credit Agreement, dated as of May 22, 2003 (the "Effective Date"),
among Opryland Hotel - Florida Limited Partnership, a Florida limited
partnership, and Opryland Hotel - Texas Limited Partnership, a Delaware limited
partnership, as Co-Borrowers, XXXXXXX ENTERTAINMENT COMPANY, 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.
WITNESSETH:
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Lenders are willing to make available to Co-Borrowers 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.
"Account Control Agreement" means, (a) in the case of the Completion
Reserve Account, the Account Pledge, Assignment and Control Agreement dated as
of the Effective Date, between Texas Co-Borrower, Administrative Agent and
Deutsche Bank Trust Company Americas, as Reserve Account Bank, (in such
capacity, the "Reserve Account Bank"), (b) in the case of the Florida FF&E
Reserve Account, the Account Pledge, Assignment and Control Agreement dated as
of the Effective Date between Florida Co-Borrower, Administrative Agent and the
Reserve Account Bank, and (c) in the case of the Texas FF&E Reserve Account,
the Account Pledge, Assignment and Control Agreement substantially in the form
of the agreement referred to in the preceding clause (b), to be entered into on
or before the Final Completion Date in accordance with Section 2.22(e), between
Texas Co-Borrower, Administrative Agent and the Reserve Account Bank.
"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
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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.
"Advance" means, collectively, the Effective Date Advance, any
Revolving Loan Advance and any Swingline Loan Advance.
"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 2.5(b).
"Aggregate Available Commitment" means, at any time, the aggregate
Revolving Loan Commitment then in effect minus the aggregate outstanding
principal amount of all Revolving Loans at such time.
"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 3.50% and (b) 4.82%.
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"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 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 Co-Borrower and
the Administrative Agent in accordance with the terms of this Agreement.
"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 Co-Borrower'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 Co-Borrower 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 Co-Borrower 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 with
the written consent of Texas Co-Borrower and the Administrative Agent.
"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 Co-Borrowers',
Parent Guarantor's or a Subsidiary's properties), conveyance or other
disposition of any property or assets of either Co-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 either Co-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
3
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
either Co-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) between Co-Borrowers or by
either Co-Borrower to Parent Guarantor, or to a Subsidiary Guarantor, or by a
Subsidiary of Parent Guarantor (other than Co-Borrowers) to either Co-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 Senior 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 as of such date (on a
weighted average basis if more than one such rate is then in effect) and (iii)
the sum of (x) the Seven Year U.S. Treasury Rate plus (y) 3.50% per annum.
"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 Subordinated
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.
"Authorized Officer" means either the Chief Executive Officer or the
Chief Financial Officer of Parent Guarantor, in its capacity as sole member of
the General Partner of either Co-Borrower, acting singly, or such other
representative of either Co-Borrower or the Chief Executive Officer or the
Chief Financial Officer of Parent Guarantor, designated from time to time by
such Co-Borrower or Parent Guarantor, in a written notice signed by either
Co-Borrower or Parent Guarantor and delivered to the Administrative Agent.
"Available Commitment" means, at any time and for any Lender, the
Revolving Loan Commitment of such Lender then in effect minus the aggregate
outstanding principal amount of such Lender's Revolving Loans at such time.
"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
of such date, less the aggregate outstanding principal amount of Swingline
Loans, as of such date.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"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.
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"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 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 either Co-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 either Co-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 either Co-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
5
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 Co-Borrower or Opryland Hotel Nashville, LLC, a
Delaware limited liability company or Parent Guarantor or either Co-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.
"Co-Borrowers" means, collectively, Opryland Hotel - Florida Limited
Partnership, a Florida limited partnership and Opryland Hotel - Texas Limited
Partnership, a Delaware limited partnership.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Collateral" means all 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 Assignments" means (a) those certain Assignments of
Lessor's Interest in Leases and Rents of even date herewith executed and
delivered by each Co-Borrower 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
Assignments of Agreements, Licenses, Permits and Contracts of even date
herewith executed and delivered by each Co-Borrower, Parent Guarantor, Xxxxxxx
Hotels, LLC 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.
"Collateral Documents" means, collectively, the Mortgages, the
Collateral Assignments, the Account Control Agreements and all other Loan
Documents under which a Lien is granted in, against or with respect to the
Project, the Opryland Hotel Florida or any other Property.
"Commitments" means, collectively, the Term Loan Commitment and the
Revolving Loan Commitment, each of which is referred to singly as a
"Commitment".
"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
6
satisfactory to the Administrative Agent, and (ii) the Texas Co-Borrower shall
have delivered to the Administrative Agent certifications with respect thereto
executed by the Texas Co-Borrower, 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 Co-Borrower 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 Co-Borrower shall have furnished the
Administrative Agent with copies of the Required Lien Waivers.
(f) Texas Co-Borrower 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 Mortgage Title Insurance Policy for the Project and shall have
been determined to be reasonably acceptable to the Administrative Agent.
(g) Texas Co-Borrower shall have furnished to the
Administrative Agent a date down endorsement which continues the coverage under
the Texas 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 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 Co-Borrower 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
7
Co-Borrower shall have furnished the Administrative Agent with current searches
of all Uniform Commercial Code financing statements filed against Texas
Co-Borrower, as debtor, in such offices and jurisdictions as the Administrative
Agent may require, showing no Uniform Commercial Code financing statements are
filed against Texas Co-Borrower (other than those filed in favor of the
Administrative Agent for the benefit of the Holders of the Secured Obligations
and in favor of equipment lessors under equipment leases otherwise permitted
under this Agreement).
(i) Texas Co-Borrower 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 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,
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 Co-Borrower 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" is defined in Section 2.21.
"Completion Reserve Disbursement" is defined in Section 4.2.
"Completion Reserve Disbursement Date" means the date of a
disbursement from the Completion Reserve Account.
"Completion Reserve Disbursement Request" means an irrevocable notice
given by Co-Borrowers to the Administrative Agent not later than 1:00 p.m.
(Eastern time) at least three (3) Business Days before the date on which the
Completion Reserve Disbursement is requested to be made, specifying (a) the
Completion Reserve Disbursement Date, which shall be a Business Day, (b) the
amount of the Completion Reserve Disbursement and (c) calculations to
demonstrate that the requested disbursement is consistent with the requirements
of Section 2.21 hereof.
"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.
"Consent and Agreement" is defined in Section 4.2(j).
8
"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.
"Construction Agreements" is defined in Section 4.1(t).
9
"Construction Consultant" means, collectively, with respect to the
Project, the architect(s), engineer(s) and any other consultant(s) engaged by
the Administrative Agent from time to time to review plans and specifications,
budgets, schedules, construction and other matters relating to the Project.
"Construction Costs" means (a) all costs incurred by Texas Co-Borrower
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
Co-Borrower, 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 Co-Borrower 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 Co-Borrower
or any Affiliate of Texas Co-Borrower, 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 of human health, plant life, animal life, natural resources,
property or the enjoyment of life or
10
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 2.9.
"Costs Previously Paid" means Construction Costs paid for by Texas
Co-Borrower with the cash equity contributions from Parent Guarantor described
in Section 2.19.
"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 Administrative Agent and securing the Secured
Obligations, and (d) utility, sanitary 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
11
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 2.11.
"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 Term Loans in the
amount of $150,000,000.00 that the Lenders have made to Co-Borrowers 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, either Co-Borrower
or any Affiliate of Parent Guarantor or either Co-Borrower be an Eligible
Assignee.
"Environmental Indemnity Agreement" means that certain Environmental
Indemnity Agreement dated as of the Effective Date, executed and delivered by
each Co-Borrower, 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, use, treatment,
storage, disposal, transport or handling of pollutants, Contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
12
"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.
"Existing Indebtedness" means the existing indebtedness of Parent
Guarantor and Florida Co-Borrower in the aggregate outstanding principal amount
of $60,000,000.00, which indebtedness has been refinanced in full on the date
hereof with a portion of the proceeds of the Term Loans and is now evidenced by
the Florida Term Notes.
"Facility Year" means each period of one year commencing on the
Effective Date and on each anniversary thereof.
"FF&E Reserve Disbursement" is defined in Section 4.3.
"FF&E Reserve Disbursement Date" means the date of a disbursement from
either the Florida FF&E Account or the Texas FF&E Account.
"FF&E Reserve Disbursement Request" means a notice given by either
Co-Borrower to the Administrative Agent not later than 1:00 p.m. (Eastern time)
at least three (3) Business Days before the date on which a FF&E Reserve
Disbursement is requested to be made, specifying (a) the requested FF&E Reserve
Disbursement Date, which shall be a Business Day no earlier than
13
three (3) Business Days after the date on which such FF&E Reserve Disbursement
Request is given and (b) the amount of the requested FF&E Reserve Disbursement.
"FF&E Reserves" means, collectively, the Florida FF&E Reserve and the
Texas FF&E Reserve.
"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.
"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) 2.25%, in each case changing when and
as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Florida Co-Borrower" means Opryland Hotel - Florida Limited
Partnership, a Florida limited partnership.
"Florida FF&E Reserve" is defined in Section 2.22(b).
"Florida FF&E Reserve Account" is defined in Section 2.22(a).
"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
14
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 Co-Borrower, 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 Co-Borrower, 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 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 Administrative Agent (for the benefit of the Lenders and other Holders of
Secured Obligations) by the Florida Co-Borrower securing the Secured
Obligations, 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 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, and also accompanied by reinsurance in such amounts and
from such title insurance reinsurers as the Administrative Agent may require,
provided pursuant to direct access facultative reinsurance agreements in form
and substance satisfactory to Administrative Agent, as such title insurance
policy and reinsurance agreements may be revised and updated from time to time
with the Administrative Agent's consent.
15
"Florida Term Note" means any of the promissory notes in the form of
Exhibit B-1 issued pursuant to Section 2.13, which promissory notes
(collectively, "Florida Term Notes") shall be in the aggregate original
principal amount of $60,000,000.00.
"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 Co-Borrower gives written notice of any such delay to the
Administrative Agent within the earlier to occur of (a) five (5) Business Days
after Texas Co-Borrower knows or with the exercise of reasonable diligence
should have known of the occurrence 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).
"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
Co-Borrower, (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 Co-Borrower, 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.
16
"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.
"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, the
Lenders and the Secured Counterparties under Secured Rate Management
Transactions, if any.
"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 Co-Borrowers 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 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 Term Loans under this
Agreement are made by the Lenders.
17
"Initial Lender Affiliate" is defined in Section 9.5.
"Interest Period" means, with respect to a LIBO Rate Advance, a period
of one, two or three months commencing on a Eurodollar Business Day selected by
Co-Borrowers 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. Notwithstanding the foregoing, during the period when Advances 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
Co-Borrowers, 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 2.17.
"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.
18
"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 an 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 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 2.11, bears interest at the Applicable LIBO Rate.
"LIBO Rate Loan" means a Loan which, except as otherwise provided in
Section 2.11, 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 2.13, the Collateral Documents, the Environmental Indemnity Agreement,
the Guaranty, the Texas Co-Borrower 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 Co-Borrowers, Parent Guarantor, the Subsidiary
Guarantors, any Property Manager or any other Person in favor of the
Administrative Agent or the Lenders
19
pursuant to this Agreement or in connection with the Advances and other
transactions contemplated hereby.
"Loan Pledgee" is defined in Section 12.3.2.
"Loans" means, collectively, the Term Loans, the Revolving Loans and
the Swingline Loans.
"Majority Lenders" means at least two Non-Defaulting Lenders in the
aggregate having at least fifty-one percent (51%) of the sum of (a) the
Aggregate Outstanding Credit Exposure (excluding the outstanding amount of
Swingline Loans) held by all the Non-Defaulting Lenders and (b) the Aggregate
Available Commitment 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.
"Management Fees" means the management and other fees payable under
any applicable Management Agreement.
"Mandatory Advance" is defined in Section 2.1(d).
"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)
either of the Co-Borrowers or (b) Parent Guarantor and its Subsidiaries, taken
as a whole, 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.
"Maximum Swingline Amount" means $5,000,000.00.
"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.
20
"Mortgage Title Insurance Policies" means, collectively, the Florida
Mortgage Title Insurance Policy and the Texas Mortgage Title Insurance Policy.
"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 either
Co-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 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 either Co-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
21
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
Co-Borrower 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
Co-Borrower has demonstrated to the Administrative Agent's satisfaction that
such Restoration shall be completed pursuant to such plan, and (c) the
applicable Co-Borrower has demonstrated to the Administrative Agent's
satisfaction that the combination of insurance proceeds, equity contributions
and remaining Aggregate Available Commitment, if any, less the aggregate
outstanding principal amount of any Swingline Loans, 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 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 Co-Borrower 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 Co-Borrower has demonstrated to
the Administrative Agent's reasonable satisfaction that such Restoration shall
be completed pursuant to such plan, and (d) the Co-Borrower has demonstrated to
the Administrative Agent's satisfaction that the combination of the
condemnation award, equity contributions and remaining Aggregate Available
Commitment, if any, less the aggregate outstanding principal amount of any
Swingline Loans, 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).
22
"Note" means either a Florida Term Note in the form of Exhibit B-1, a
Term Note in the form of Exhibit B-2, a Revolving Note in the form of Exhibit
B-3, or a Swingline Note in the form of Exhibit B-4 issued pursuant to Section
2.13.
"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 Co-Borrowers 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 Co-Borrowers 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 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(iv).
"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
Co-Borrower, 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 Co-Borrower, or any
partners, members or Affiliates of either Co-Borrower, (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.
23
"Opryland Hotel Florida" means Florida Co-Borrower'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
Co-Borrower 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 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 Co-Borrower 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;
24
(iii) Such Modification does not impair the ability of
Texas Co-Borrower 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 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
Co-Borrower from time to time after the Effective Date, and by Texas
Co-Borrower 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 Co-Borrower'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 Sections 2.2 and 2.21 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.
25
"PIP" is defined in the definition of "Incentive Agreements."
"Pledge" is defined in Section 12.3.2.
"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(p).
"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 Co-Borrower'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 Co-Borrower now or hereafter constructed or located thereon
or used in connection therewith.
"Project Agreements" means all material agreements executed by Texas
Co-Borrower (or to which Texas Co-Borrower 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 Co-Borrower 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(o).
"Project Architect's Agreement" is defined in Section 4.1(o).
"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(s).
26
"Project General Contractor" means Centex Construction Company, Inc.,
a Nevada corporation.
"Project Schedule" is defined in Section 4.1(t).
"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.
"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 Revolving Loans Share" means, with respect to a Lender, a
fraction the numerator of which is such Lender's Revolving Loan Commitment and
the denominator of which is the aggregate Revolving Loan Commitment of all
Lenders.
"Pro Rata Share" means, with respect to a Lender, a fraction the
numerator of which is the sum of (a) such Lender's Term Loan Commitment, plus
(b) such Lender's Revolving 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,
27
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 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.
28
"Required FF&E Percentage" means, with respect to the Gross Revenues
generated from the Opryland Hotel Florida, the following percentage for each
calendar year:
Calendar Year Designated Percentage
------------- ---------------------
January 1, 2003 - December 31, 2003 2.0%
January 1, 2004 - December 31, 2004, 3.0%
and thereafter
and with respect to the Gross Revenues generated from the Project, the
following percentage for each calendar year:
Calendar Year Designated Percentage
------------- ---------------------
January 1, 2004 - December 31, 2004 1.0%
January 1, 2005 - December 31, 2005 1.0%
January 1, 2006 - December 31, 2006 2.0%
"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 occupancy, zoning or land use ordinance, building,
environmental or land use requirement, code or Permit.
"Reserve Account Bank" is defined in the definition of "Account
Control Agreement."
"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
29
"Restaurant Facility" means Texas Co-Borrower'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 Co-Borrower to
be known as "The Point".
"Restoration" is defined in Section 6.27(b).
"Restoration Account" is defined in Section 6.27(c).
"Revolving Loan Commitment" means, for each RL Lender, the obligation
of such RL Lender to make Revolving Loans to Co-Borrowers in an aggregate
amount not exceeding the amount set forth for such RL Lender in Schedule 2 or
as set forth in any instrument of assignment relating to any assignment that
has become effective pursuant to Section 12.3.2, as such amount may be reduced
from time to time pursuant to the terms of this Agreement.
"Revolving Loans" is defined in Section 2.1(b).
"Revolving Loans Advance" means a borrowing hereunder (a) advanced by
the RL Lenders on the same Borrowing Date, or (b) converted or continued by the
RL Lenders on the same date of conversion or continuation, consisting, in
either case, of the aggregate amount of the several Revolving Loans of the same
Type and, in the case of LIBO Rate Loans, for the same Interest Period.
"Revolving Note" means any promissory note in the form of Exhibit B-3
issued pursuant to Section 2.13.
"RL Lender" means, at any time, each Lender with a Revolving Loan
Commitment.
"SAILS Forward Exchange Contracts" means, collectively, the SAILS
Mandatorily Exchangeable Securities Contract dated May 22, 2000, among Parent
Guarantor, OLH, G.P., Credit Suisse First Boston International and Credit
Suisse First Boston Corporation, as Agent, together with the SAILS Pledge
Agreement dated as of May 22, 2000, among Parent Guarantor, 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.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
30
"Secured Counterparties" means Lenders, Subordinated Lenders and any
Affiliates of any of them, which in either case are parties to any Secured Rate
Management Transactions entered into by Co-Borrowers in accordance with Section
6.21 of this Agreement, together with their successors and assigns under such
Secured Rate Management Transactions.
"Secured Obligations" means, collectively, (a) the Obligations and (b)
the Secured Rate Management Obligations.
"Secured Rate Management Obligations" means Rate Management
Obligations from time to time payable by Co-Borrowers to one or more Secured
Counterparties under a Secured Rate Management Transaction.
"Secured Rate Management Transaction" means a Rate Management
Transaction between Co-Borrowers and one or more of the Secured Counterparties
(but not any other Rate Management Transaction to which Co-Borrowers are or may
hereafter be a party).
"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 Subordinated Loans and (c) unsecured, senior subordinated notes of
Parent Guarantor permitted to be issued pursuant to Section 6.14(a)(x).
"Senior 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 Senior Loans, (2) a notional
principal amount equal to the sum of the Aggregate Available Commitment plus
the Aggregate Outstanding Credit Exposure (less the aggregate outstanding
principal amount of Swingline Loans), and (3) a twenty-five year amortization
schedule.
31
"Senior Lenders" means the Lenders.
"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.
"Subordinated Administrative Agent" means the "Administrative Agent"
as defined in the Subordinated Loan Agreement.
"Subordinated Borrower" means Xxxxxxx Hotels, LLC, a Delaware limited
liability company.
"Subordinated Lenders" is defined in the definition of "Subordinated
Loan Agreement".
"Subordinated Loan Agreement" means that certain Credit Agreement
dated as of the Effective Date, with respect to the Subordinated Loans,
executed and delivered by Subordinated Borrower, Parent Guarantor, the
Administrative Agent and the lenders party thereto (collectively, the
"Subordinated Lenders") as it may be amended or modified.
"Subordinated Loans" means the loans in the aggregate original
principal amount of $50,000,000.00, made as of the Effective Date by the
Subordinated Lenders to Subordinated Borrower, secured by, among other things,
a pledge by Subordinated Borrower of its partnership interests in each of
Florida Co-Borrower and Texas Co-Borrower.
"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 Subordinated 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 Parent
Guarantor formed or acquired after the date hereof, collectively referred to as
the "Subsidiary Guarantors".
32
"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 Co-Borrower for
substantially all the Project, (iii) Texas Co-Borrower 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 the "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 Co-Borrower or Texas
Co-Borrower, 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.
"Swingline Expiry Date" means the date which is five (5) Business Days
prior to the Maturity Date.
"Swingline Lender" means Deutsche Bank Trust Company Americas.
"Swingline Loan" is defined in Section 2.1(c).
"Swingline Loan Advance" means a Floating Rate Advance hereunder made
by the Swingline Lender on a Borrowing Date, consisting of a Swingline Loan.
"Swingline Loan Notice" is defined in Section 2.8(b).
"Swingline Note" means any promissory note in the form of Exhibit B-4
issued pursuant to Section 2.13.
33
"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 Co-Borrowers) that the primary syndication with respect to the
Commitments 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.
"Term Lender" means, at any time, each Lender with a Term Loan
Commitment.
"Term Loan Commitment" means, for each Lender, the obligation of such
Lender to make Term Loans to Co-Borrowers 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.
"Term Loans" is defined in Section 2.1(a).
"Term Note" means any of the promissory notes in the form of Exhibit
B-2 issued pursuant to Section 2.13, which promissory notes (collectively,
"Term Notes") shall be in the aggregate original principal amount of
$90,000,000.00.
"Texas Co-Borrower" means Opryland Hotel - Texas Limited Partnership,
a Delaware limited partnership.
"Texas Co-Borrower Guaranty" means that certain Guaranty dated as of
the Effective Date, executed and delivered by Texas Co-Borrower 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.
"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 Administrative Agent (for the benefit of the
Lenders and other Holders of Secured Obligations) by the Texas Co-Borrower
securing the Secured Obligations and Texas Co-Borrower's obligations under the
Texas Co-Borrower Guaranty, as such document may be amended, restated, modified
or supplemented from time to time.
"Texas FF&E Reserve" is defined in Section 2.22(f).
"Texas FF&E Reserve Account" is defined in Section 2.22(e).
"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.
34
"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 Co-Borrower, as tenant, as amended by that
certain Sublease Addendum Number 1, dated July 28, 2000, between Texas Ground
Lessor and Texas Co-Borrower, 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 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, and also accompanied by reinsurance in such amounts and
from such title insurance reinsurers as the Administrative Agent may require,
provided pursuant to direct access facultative reinsurance agreements in form
and substance satisfactory to Administrative Agent, as such title insurance
policy and reinsurance agreements may be revised and updated from time to time
with the 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.
"Title Insurer" means, with respect to the Florida Mortgage Title
Insurance Policy, Fidelity National Title Insurance Company of New York, and,
with respect to the Texas Mortgage Title Insurance Policy, Fidelity National
Title Insurance Company.
"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
35
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 Available Commitment, plus the
Aggregate Outstanding Credit Exposure (less the aggregate outstanding principal
amount of Swingline Loans), plus the then-outstanding principal amount of the
Subordinated Loans, 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 Advance, its nature as a Floating
Rate Advance 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
and Aggregate Available Commitment 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 Co-Borrowers and
Parent Guarantor 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.
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Term Loan Commitment severally
agrees to make, on the Effective Date, a term loan or term loans (each, a "Term
Loan" and collectively, the "Term Loans") to Co-
36
Borrowers (or in the case of Term Loans in the aggregate principal amount of
$60,000,000 evidenced by the Florida Term Notes, to Florida Co-Borrower), which
Term Loans: (i) shall be denominated in Dollars, (ii) except as hereinafter
provided, shall, at the option of Co-Borrowers, 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 Term Loan
Commitment of such Lender. Once repaid, Term Loans may not be reborrowed.
(b) Subject to and upon the terms and conditions set
forth herein, each RL Lender severally agrees to make, at any time and from
time to time after the Effective Date and prior to the Maturity Date, a loan or
loans (each, a "Revolving Loan" and collectively, the "Revolving Loans") to
Co-Borrowers, which Revolving Loans (i) shall be denominated in Dollars, (ii)
except as hereinafter provided, shall, at the option of Co-Borrowers, be
incurred and maintained as, and/or converted into, Floating Rate Loans or LIBO
Rate Loans, provided that all Revolving Loans comprising the same Advance shall
at all times be of the same Type, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, and (iv) shall not exceed, in aggregate
principal amount outstanding at any time for any such Lender, such Lender's
Revolving Loan Commitment.
(c) Subject to and upon the terms and conditions set
forth herein, the Swingline Lender agrees to make, from time to time after the
Final Completion Date and prior to the Swingline Expiry Date, a loan or loans
(each, a "Swingline Loan" and, collectively, the "Swingline Loans") to
Co-Borrowers, which Swingline Loans (i) shall be denominated in Dollars, (ii)
shall be made and maintained as Floating Rate Loans, (iii) may be repaid and
reborrowed in accordance with the provisions hereof, provided that a Swingline
Loan may not be used to repay another Swingline Loan, (iv) shall not be made
(or be required to be made) on any date if, after giving effect thereto, the
Aggregate Outstanding Credit Exposure with respect to Revolving Loans and
Swingline Loans would exceed the aggregate Revolving Loan Commitment then in
effect and (v) shall not exceed, in aggregate principal amount at any time
outstanding, the Maximum Swingline Amount. The Swingline Lender shall not be
obligated to make any Swingline Loans at a time when a Lender Default exists
unless the Swingline Lender has entered into arrangements satisfactory to it to
eliminate the Swingline Lender's risk with respect to the Defaulting Lender's
or Lenders' participation in such Swingline Loans, which arrangements may
include the cash collateralization of such Defaulting Lender's or Lenders'
Available Commitment. Notwithstanding anything to the contrary contained in
this Section 2.1(c), the Swingline Lender shall not make any Swingline Loan if
it has actual notice that a Default exists and is continuing until such time as
the Swingline Lender shall have received written notice (i) of the waiver of
such Default by the Majority Lenders or Unanimous Lenders, as applicable, or
(ii) that the Administrative Agent in good faith believes such Default has
ceased to exist.
(d) In the event that (i) Co-Borrowers do not repay any
outstanding principal balance of any Swingline Loan by 2:00 p.m. New York time
on the Business Day immediately following the fifth (5th) Business Day after
such Swingline Loan was made or (ii) any Swingline Loans are outstanding on the
Swingline Expiry Date, or upon the occurrence of a Default under Section 7.6 or
Section 7.7, or upon the exercise of any remedies pursuant to Article VIII, the
Swingline Lender shall by 2:00 p.m. New York time on the immediately succeeding
Business Day give notice to the RL Lenders that its outstanding Swingline Loans
shall be funded with a
37
Revolving Loans Advance. In each such case, a Revolving Loans Advance (each
such Advance, a "Mandatory Advance") shall be made on the immediately
succeeding Business Day by all RL Lenders pro rata based on each Lender's
Revolving Loan Commitment (determined on such date, but before giving effect to
any termination of the Revolving Loan Commitments pursuant to Article VIII) and
the proceeds thereof shall be paid directly to the Swingline Lender to repay
the Swingline Lender for such outstanding Swingline Loans. Each RL Lender
hereby irrevocably agrees to make Revolving Loans upon one (1) Business Day's
notice pursuant to each Mandatory Advance in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by the
Swingline Lender notwithstanding (i) that the amount of any Mandatory Advance
may not comply with the minimum amount otherwise required hereunder in respect
of a Revolving Loans Advance, (ii) whether a Default then exists (other than a
Default by reason of which the applicable Swingline Loan was made in violation
of the last sentence of Section 2.1(c) hereof), (iii) whether any applicable
conditions precedent to an Advance hereunder have been satisfied and (iv)
provided that the applicable Swingline Loan was not made in violation of clause
(iv) or clause (v) of the first sentence of Section 2.1(c) hereof, the amount
of its Available Commitment at such time. If any Mandatory Advance cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to either Co-Borrower), then each RL Lender hereby
agrees that it shall forthwith purchase (as of the date the Mandatory Advance
would otherwise have occurred, but adjusted for any payments received from
Co-Borrowers on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans as
shall be necessary to cause such RL Lenders to share in such Swingline Loans
ratably based upon their respective Pro Rata Revolving Loans Share (determined
before giving effect to any termination of the Revolving Loan Commitments
pursuant to Article VIII), provided that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender until the date
as of which the respective participation is required to be purchased and, to
the extent attributable to the purchased participation, shall be for the
account of the participant from and after such date and (y) at the time any
purchase of participations pursuant to this sentence is actually made, the
purchasing RL Lenders shall be required to pay the Swingline Lender interest on
the principal amount of the participation purchased for each day from and
including the day upon which the respective participation would otherwise have
occurred to but excluding the date of payment for such participation, at the
overnight Federal Funds Effective Rate for the first day and at the rate
otherwise applicable to Revolving Loans maintained as Floating Rate Loans
hereunder for each day thereafter.
2.2 Mandatory Principal Repayments.
(a) If, on any date following the Final Completion Date,
(i) the Senior Debt Service Coverage Ratio is less than 1.75x or (ii) 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 Co-Borrower, Parent Guarantor 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 and reduction of the Revolving Loan Commitment to the
extent necessary to cause (x) the Senior Debt Service Coverage Ratio to be
increased to 1.75x (or to such higher level as may result from satisfying the
requirement of clause (y) of this sentence) and (y) the Total Debt
38
Service Coverage Ratio to be increased to 1.4x (or to such higher level as may
result from satisfying the requirement of clause (x) of this sentence):
(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, such
amounts, after application to any payments required under Section 2.12(a)(i)
and (ii), shall be applied first to reduce the outstanding principal balance of
the Term Loans, and thereafter to reduce the outstanding principal balance of
the Revolving 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 Senior Debt Service Coverage Ratio and Total Debt
Service Coverage Ratio to the required levels may be retained by Co-Borrowers,
Parent Guarantor 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 2.12(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 (i) the
Senior Debt Service Coverage Ratio is less than 1.75x or (ii) 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 and reduction of the
Revolving Loan Commitment to the extent necessary to cause (x) the Senior Debt
Service Coverage Ratio to be increased to 1.75x (or to such higher level as may
result from satisfying the requirement of clause (y) of this sentence) and (y)
the Total Debt Service Coverage Ratio to be increased to 1.4x (or to such
higher level as may result from satisfying the requirement of clause (x) of
this sentence):
(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,
such amounts, after application to any payments required under Section
2.12(a)(i) and (ii), shall be applied first to reduce the outstanding principal
balance of the Term Loans, and thereafter to reduce the outstanding principal
balance of the Revolving 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 Senior Debt Service Coverage Ratio
and Total Debt Service Coverage Ratio to the required levels may be retained by
Co-Borrowers, Parent Guarantor 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 2.12(b) and 10.21 hereof.
(c) In addition to any other mandatory repayments
pursuant to this Section
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2.2, on each date set forth below, unless the Unanimous Lenders otherwise agree
in writing to extend such dates, Co-Borrowers shall make a payment in respect
of the principal amount of Term Loans in the amount set forth below opposite
each such date, as the same may be reduced pursuant to Section 2.2(d) and
Section 2.21(c):
Date Amount
---- ------
June 30, 2005 $5,000,000.00
September 30, 2005 $5,000,000.00
December 31, 2005 $5,000,000.00
(d) Each payment made pursuant to Section 2.2(a) or
Section 2.2(b) in respect of the principal balance of Term Loans shall effect a
pro rata reduction in the then-remaining scheduled amounts of mandatory
repayments in respect of Term Loans pursuant to Section 2.2(c). Each payment in
respect of the principal balance of Revolving Loans made pursuant to Section
2.2(a) or Section 2.2(b) shall effect a permanent pro tanto reduction in the
amount of the Revolving Loan Commitment.
(e) The Aggregate Outstanding Credit Exposure and all
other unpaid Obligations shall be paid in full by Co-Borrowers on the Maturity
Date or on any earlier date on which the Obligations become due and payable
pursuant to the terms hereof.
2.3 Ratable Loans. Each Advance hereunder shall consist of Loans
made from the several Lenders ratably according to their respective Pro Rata
Term Loan Shares or Pro Rata Revolving Loan Shares, as applicable.
2.4 Types of Advances. The Advances may be Floating Rate Advances
or LIBO Rate Advances (except for Swingline Loan Advances, which at all times
shall be Floating Rate Advances), or a combination thereof, selected by
Co-Borrowers in accordance with Sections 2.8 and 2.9.
2.5 Commitment and Administrative Agency Fees.
(a) Parent Guarantor agrees to pay to the Administrative
Agent for the account of each RL Lender, according to its Pro Rata Revolving
Loans Share, an undrawn fee of 0.50% per annum on the average daily undrawn
Aggregate Available Commitment, from the Effective Date until the date on which
all obligations of the Lenders to make Advances hereunder are terminated,
payable in arrears on the last day of each calendar quarter following the
Effective Date. All accrued undrawn fees shall be payable on the effective date
of any termination of the obligations of the Lenders to make Advances
hereunder.
(b) 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
Administrative Agent and Parent Guarantor.
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2.6 Minimum Amount of Each Revolving Loan Advance and Each
Swingline Loan Advance; Disbursement Provisions.
(a) With respect to the Revolving Loans, each LIBO Rate
Advance shall be in the minimum amount of $3,000,000, and each Floating Rate
Advance shall be in the minimum amount of $3,000,000. No more than eight (8)
LIBO Rate Advances may be outstanding at any time. Revolving Loan disbursements
shall be made subject to the provisions of Section 2.8 hereof.
(b) With respect to the Swingline Loans, each Advance
shall be in the minimum amount of $200,000.00.
(c) The Lenders shall not be obligated to:
(i) make any Loan hereunder unless and until
all applicable conditions precedent set forth in Article IV shall have been
satisfied;
(ii) make any Revolving Loan or Swingline Loan
if (A) except for a Non-Material Casualty or a Non-Material Condemnation, the
Improvements are demolished or are in the Administrative Agent's reasonable
determination substantially destroyed or condemnation or eminent domain
proceedings are commenced or threatened against the Opryland Hotel Florida or
the Project, (B) a change in the status of title to or encroachment on or off
the Opryland Hotel Florida or the Project (other than Customary Permitted
Liens) exists or has occurred subsequent to the Initial Funding Date without
the Administrative Agent's prior written consent, (C) subject to Section
6.19(b) hereof, any event has occurred which has given or is likely to give
rise to a Lien claim of equal or superior rank to the Liens in favor of or
benefiting the Administrative Agent and the Lenders intended to be created by
the Loan Documents, or which calls into question the validity or priority of
such Liens, (D) any litigation or proceeding is commenced to enjoin the
construction at the Project or any portion thereof, alter in any adverse way
the zoning or land use classification of the Project or the Opryland Hotel
Florida or any portion of either, to prohibit the construction or operation of
the Project or the Opryland Hotel Florida or any portion of either, or to
enjoin or prohibit either Co-Borrower, Parent Guarantor, the Administrative
Agent or the Lenders from performing their respective obligations under this
Agreement, (E) any material deviation, other than a Permissible Modification,
exists in the construction of the Improvements on the Project from the Approved
Plans and Specifications without the prior written approval of the
Administrative Agent, or the Administrative Agent determines, upon consultation
with the Construction Consultant, that there are material defects in the
workmanship or materials, or (F) the completion of the Project is not being
diligently pursued in accordance with the Approved Project Schedule, subject to
Permissible Modifications; or
(iii) make any Revolving Loan or Swingline Loan
if any material Project Agreement is amended or modified in any material
respect or terminated without the prior written consent of the Administrative
Agent or there shall have occurred and be continuing either (A) a material
default by Texas Co-Borrower thereunder or (B) a material default by any other
Person thereunder.
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2.7 Optional Principal Payments. Co-Borrowers may from time to
time pay, without penalty or premium, all outstanding Term Loan, Revolving Loan
or Swingline Loan Floating Rate Advances in full. Following the Final
Completion Date in the case of payments with respect to Term Loans, and at any
time in the case of payments with respect to Revolving Loans or Swingline
Loans, Co-Borrowers may, from time to time, pay any portion of the outstanding
Floating Rate Advances, in a minimum aggregate amount of $1,000,000 (or in the
case of Swingline Loans, $200,000) or any integral multiple of $100,000 in
excess thereof, upon two Business Days' prior notice (or in the case of
Swingline Loans, upon notice given prior to 12:00 Noon, New York time, on the
date of payment) to the Administrative Agent. Co-Borrowers may from time to
time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding Term
Loan or Revolving Loan LIBO Rate Advances in full. Following the Final
Completion Date in the case of payments with respect to Term Loans, and at any
time in the case of payments with respect to Revolving Loans, Co-Borrowers may
from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4 but without penalty or premium, any portion of
the outstanding LIBO Rate Advances, in a minimum aggregate amount of $1,000,000
or any integral multiple of $100,000 in excess thereof, upon three Business
Days' prior notice to the Administrative Agent.
2.8 Method of Selecting Types and Interest Periods for Advances;
Borrowing Notice. (a) Co-Borrowers shall select the Type of each Advance
(except for any Swingline Loan Advance which at all times shall be a Floating
Rate Advance) and, in the case of each LIBO Rate Advance, the Interest Period
applicable thereto from time to time, provided that (a) the Effective Date
Advance shall be a Floating Rate Advance; (b) the Interest Period with respect
to any Revolving Loan Advance made prior to the Syndication Date shall be one
month, and Interest Periods with respect to all Advances made prior to the
Syndication Date shall begin and end on the same days and (c) no Interest
Period may be selected prior to the Syndication Date if the Administration
Agent has notified Co-Borrowers that the selection of such Interest Period
would interfere with the closing of the primary syndication of the Commitments
and the Loans. Co-Borrowers shall give the Administrative Agent irrevocable
notice (a "Borrowing Notice") not later than 1:00 p.m. (Eastern time) at least
five Business Days (or if such notice is being given after the Substantial
Completion Date, then at least one Business Day) before the Borrowing Date of
each Floating Rate Advance (except for any Swingline Loan Advance) and five
Business Days (or if such notice is being given after the Substantial
Completion Date, then at least three Business Days) before the Borrowing Date
for each LIBO Rate Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day,
of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each LIBO Rate Advance, the Interest
Period applicable thereto,
and containing a certification by an Authorized Officer that all conditions
precedent specified in Article IV are satisfied on the specified Borrowing
Date. Not later than 5:00 p.m. (New York time) on the Business Day on which the
Administrative Agent receives a Borrowing Notice, the
42
Administrative Agent shall notify each RL Lender of the aggregate amount of the
Advance and the amount of such Lender's Loan to be advanced on the Borrowing
Date, the type of Advance and, in the case of each LIBO Rate Advance, the
Interest Period applicable thereto. Not later than 12:00 Noon (New York time)
on each Borrowing Date, each Lender shall make available its Loan or Loans in
immediately available funds to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent will make the
funds so received from the Lenders available to Co-Borrowers at the
Administrative Agent's aforesaid address.
(b) (i) Whenever Co-Borrowers desire to borrow a
Swingline Loan hereunder, they shall give the Swingline Lender not later than
11:00 a.m. (New York time) on the date (or, in the case of any Swingline Loan
to be incurred on the last Business Day of a Fiscal Quarter, at least one
Business Day prior to the date) that a Swingline Loan is to be incurred,
written notice or telephonic notice promptly confirmed in writing (each such
written or telephonic notice, a "Swingline Loan Notice") of each Swingline Loan
to be incurred hereunder. Each such notice shall be irrevocable and specify in
each case (A) the date of the Swingline Loan Advance (which shall be a Business
Day) and (B) the aggregate principal amount of the Swingline Loan to be made
pursuant to such Advance.
(ii) Mandatory Advances shall be made upon the
notice specified in Section 2.1(d), Co-Borrowers hereby irrevocably agreeing,
by their borrowing of any Swingline Loan, to the making of Mandatory Advances
in respect thereof as set forth in Section 2.1(d).
(iii) No later than 4:00 p.m. (New York time) on
the date specified in Section 2.8(b)(i) above, the Swingline Lender shall make
available the applicable Swingline Loan in immediately available funds to the
Administrative Agent at its address specified pursuant to Article XIII and the
Administrative Agent will make the funds so received from the Swingline Lender
available to Co-Borrowers at the Administrative Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into LIBO Rate Advances pursuant to this
Section 2.9 (other than Swingline Loans, which at all times shall be maintained
as Floating Rate Advances) or are repaid in accordance with Sections 2.2 or
2.7. Each LIBO Rate Advance shall continue as a LIBO Rate Advance until the end
of the then applicable Interest Period therefor, at which time such LIBO Rate
Advance shall continue as a LIBO Rate Advance for an interest period of one
month unless (x) such LIBO Rate Advance is or was repaid in accordance with
Sections 2.2 or 2.7, (y) Co-Borrowers 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 Advance be converted to a Floating Rate
Advance or continued as a LIBO Rate Advance 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 Advance shall, unless the Majority
Lenders otherwise agree, be automatically converted into a Floating Rate
Advance. Subject to the terms of Section 2.6, Co-Borrowers may elect from time
to time to convert all or any part of a Floating Rate Advance into a LIBO Rate
Advance (other than Swingline Loans, which at all times shall be maintained as
Floating Rate Advances). Co-Borrowers shall give the Administrative Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion of a
Floating Rate Advance into a LIBO Rate Advance or continuation of a LIBO Rate
Advance not later than 11:00 a.m. (New
43
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
Advance which is to be converted or continued, and
(iii) the amount of such Advance which is to be
converted into or continued as a LIBO Rate Advance and the duration of the
Interest Period applicable thereto.
2.10 Interest Rate; Changes in Interest Rate; Interest Periods;
etc. Each Floating Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Advance
is made or is converted from a LIBO Rate Advance into a Floating Rate Advance
pursuant to Section 2.9, to but excluding the date it is paid or is converted
into a LIBO Rate Advance pursuant to Section 2.9 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 Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each LIBO
Rate Advance 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
Advance based upon Co-Borrowers' selections under Sections 2.8 and 2.9 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
Advance in respect of any single borrowing hereunder shall at all times have
the same Interest Period. The initial Interest Period for any LIBO Rate Advance
shall commence on the date such Advance is made or converted into a LIBO Rate
Advance, and each Interest Period thereafter in respect of such LIBO Rate
Advance shall commence on the day on which the next preceding Interest Period
applicable thereto expires.
2.11 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Monetary Default, no Advance may be made as, converted
into or continued as a LIBO Rate Advance, 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 Co-Borrowers
(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
Advance 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 Advance shall bear interest at a rate per annum
equal to the Floating Rate in effect from time to time plus 300 basis points,
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 Advances without any election or action on the part of the
Administrative Agent or any Lender.
44
2.12 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
Co-Borrowers, 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 2.12(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 Co-Borrowers 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 Co-Borrowers;
(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 Co-Borrowers 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 Co-Borrowers and, in
each case, unless otherwise designated by Co-Borrowers, 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.
2.13 Notes; Evidence of Indebtedness.
(a) Each Lender's Term Loans shall be evidenced by a
Florida Term Note executed and delivered by Florida Co-Borrower on the
Effective Date to such Lender in the form of Exhibit B-1 and a Term Note
executed and delivered by Co-Borrowers on the Effective Date to such Lender in
the form of Exhibit B-2. Each Lender's Revolving Loans shall be evidenced
45
by a Revolving Note executed and delivered by Co-Borrowers on the Effective
Date to such Lender in the form of Exhibit B-3. Swingline Loans shall be
evidenced by a Swingline Note executed and delivered by Co-Borrowers on the
Effective Date to the Swingline Lender in the form of Exhibit B-4. If a Lender
assigns a part (but less than all) of its Note or Notes, Co-Borrowers 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 Co-Borrowers 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
Co-Borrowers to each Lender hereunder, and (iii) the amount of any sum received
by the Administrative Agent hereunder from Co-Borrowers 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 Co-Borrowers to repay the Obligations in
accordance with their terms.
(e) Notwithstanding anything to the contrary contained
above or elsewhere in this Agreement, Florida Term Notes, Term Notes, Revolving
Notes and Swingline Notes shall only be delivered to the Lenders with Loans of
the respective types 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 Co-Borrowers 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, Co-Borrowers (or Florida Co-Borrower with respect to
Florida Term Notes) shall promptly execute and deliver to the respective Lender
the requested Note or Notes in the appropriate amount or amounts to evidence
such Loans.
2.14 Telephonic Notices. Co-Borrowers hereby authorize the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances 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
Co-Borrowers, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given
46
telephonically. Co-Borrowers agree 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.
2.15 Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance 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 Advance 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 Advance converted into a
LIBO Rate Advance on a day other than a Quarterly Payment Date shall be payable
on the date of conversion. Interest accrued on each LIBO Rate Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
the LIBO Rate Advance 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
an Advance 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 an Advance 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.
2.16 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. 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 Advance promptly upon determination of such
interest rate.
2.17 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 Co-Borrowers 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.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless
Co-Borrowers or a Lender, as the case may be, notify 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 Co-Borrowers, 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 Co-Borrowers, 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
47
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 Co-Borrowers, the interest rate applicable to the
relevant Loan.
2.19 Equity Contributions. Parent Guarantor hereby represents and
warrants to the Administrative Agent and the Lenders that it has made cash
equity contributions to Texas Co-Borrower as of the date hereof, in the
aggregate amount of $248,467,680.00.
2.20 Intentionally Reserved.
2.21 Completion Reserve. (a) On the Effective Date, Co-Borrowers
have deposited the sum of $133,972,737.70 in a segregated account of Texas
Co-Borrower maintained with the Reserve Account Bank (the "Completion Reserve
Account"), which account is subject to an Account Control Agreement. In
addition, except as otherwise required under Section 2.2, prior to the Final
Completion Date, Parent Guarantor and Co-Borrowers shall deposit or cause to be
deposited into the Completion Reserve Account as and when received (i) 100% of
all Net Cash Proceeds of Asset Sales and (ii) 100% of all Net Debt/Equity
Proceeds. Co-Borrowers will direct that all funds from time to time on deposit
in the Completion Reserve Account be invested solely in Cash Equivalent
Investments. In no event shall the amount held in the Completion Reserve
Account ever be reduced to less than $35,000,000 (other than by application of
such amount to the Secured Obligations pursuant to Section 2.21(f)) prior to
the date on which all Post-Closing Requirements have been met in accordance
with Section 6.43.
(b) If as of the last day of any calendar month after
the Effective Date, the aggregate amount of Available Sources is less than 100%
of the Cost to Complete, Parent Guarantor and Co-Borrowers shall, on or before
the thirtieth (30th) day after each such date, deposit or cause to be deposited
into the Completion Reserve Account 100% of the Adjusted Net Operating Income
of the Opryland Hotel Florida for the preceding calendar month. Not later than
thirty (30) days after the end of each calendar month prior to the Final
Completion Date, Co-Borrowers and Parent Guarantor shall deliver to the
Administrative Agent a detailed statement of the aggregate amount of Available
Sources and the Cost to Complete as of the end of the preceding calendar month.
Such statement shall be accompanied by a certificate from an Authorized Officer
of Parent Guarantor, dated as of the date of delivery, certifying that such
statement is true, correct and complete in all material respects as of its
date.
(c) Texas Co-Borrower shall be permitted to request
funds from the Completion Reserve Account for the purpose of paying or
reimbursing Co-Borrowers for Approved Construction Costs in accordance with the
procedures for disbursements from the Completion Reserve Account set forth in
Section 4.2 hereof; provided, however, that in no event shall the amount held
in the Completion Reserve Account ever be reduced to less than $10,000,000.00
prior to the Final Completion Date, except that such $10,000,000.00 may be used
from and after the date which is one day after the Substantial Completion Date
for the purpose of paying any costs required to satisfy the Completion
Conditions, other than Project Operating Expenses for the 6 month period ending
on the Final Completion Date. Any funds disbursed from the Completion Reserve
Account for the purpose of paying Approved
48
Construction Costs shall be deemed to be made first from funds on deposit in
the Completion Reserve Account other than Net Cash Proceeds of Asset Sales made
by Parent Guarantor of its Media Assets. In addition, if at any time prior to
the Final Completion Date, the amount held in the Completion Reserve Account is
both (i) greater than 120% of the then Cost to Complete and (ii) greater than
$10,000,000.00, and provided that no Default or Unmatured Default has then
occurred and is continuing, then any such excess funds shall be applied as
follows: (x) first, such excess funds, to the extent of amounts previously
deposited as Net Cash Proceeds of Asset Sales made by Parent Guarantor of its
Media Assets, may, at Parent Guarantor's election, be released to Co-Borrowers
and (y) second, any remaining portion of such excess funds not released
pursuant to the preceding clause (x), may, at Texas Co-Borrowers' election, be
released and applied 50% to repayment of the Term Loans with the remaining 50%
to be released to Co-Borrowers to be used for general corporate purposes in
accordance with the terms hereof. Each repayment of Term Loans pursuant to this
Section 2.2(c) shall effect a pro rata reduction in the then remaining
scheduled amounts of mandatory repayments in respect of Term Loans pursuant to
Section 2.2(c).
(d) On the day after the Final Completion Date, provided
that no Default or Unmatured Default has then occurred and is continuing, any
amounts remaining in the Completion Reserve Account shall be applied as
follows:
(i) if the Senior Debt Service Coverage Ratio
for the Project and the Opryland Hotel Florida is equal to or exceeds 1.75x and
the Total Debt Service Coverage Ratio for the Project and the Opryland Hotel
Florida is equal to or exceeds 1.4x, all remaining funds in the Completion
Reserve Account shall be released to Co-Borrowers; or
(ii) if the Senior Debt Service Coverage Ratio
for the Project and the Opryland Hotel Florida is less than 1.75x or the Total
Debt Service Coverage Ratio for the Project and the Opryland Hotel Florida is
less than 1.4x, the remaining funds in the Completion Reserve Account shall be
applied (A) first to repay the Term Loans and (B) second to repay the Revolving
Loans in amounts sufficient to achieve the aforementioned Senior Debt Service
Coverage Ratio and Total Debt Service Coverage Ratio, with any remaining
proceeds being thereafter released to Co-Borrowers.
(e) Each payment made pursuant to Section 2.21(c) or
Section 2.21(d) in respect of the principal balance of Term Loans shall effect
a pro rata reduction in the then-remaining scheduled amounts of mandatory
repayments in respect of Term Loans pursuant to Section 2.2(c). Each payment in
respect of the principal balance of Revolving Loans made pursuant to Section
2.21(d) shall effect a permanent pro tanto reduction in the amount of the
Revolving Loan Commitment.
(f) If a Default or Unmatured Default has occurred and
is continuing, Co-Borrowers shall have no right to request the withdrawal of
any funds from the Completion Reserve Account, and if a Default has occurred
and is continuing, the Administrative Agent may apply or direct the Reserve
Account Bank to apply all funds then on deposit in the Completion Reserve
Account to the Secured Obligations in accordance with the provisions of Section
8.1.
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2.22 FF&E Reserve Accounts. (a) Florida Co-Borrower shall, on the
Effective Date, establish and maintain a segregated account of Florida
Co-Borrower with the Reserve Account Bank, which account (the "Florida FF&E
Reserve Account") shall be subject to an Account Control Agreement, and Florida
Co-Borrower shall deposit into the Florida FF&E Reserve Account, within 45 days
after the last day of each Fiscal Quarter, an amount equal to the Required FF&E
Percentage of the Gross Revenues from the Opryland Hotel Florida for such
Fiscal Quarter, and shall insure that the total deposits into the Florida FF&E
Reserve Account for each calendar year are not less than the Required FF&E
Percentage of the Gross Revenues from the Opryland Hotel Florida for such
calendar year. Florida Co-Borrower shall invest all funds from time to time on
deposit in the Florida FF&E Reserve Account solely in Cash Equivalent
Investments.
(b) Florida Co-Borrower shall be permitted to request
funds from the Florida FF&E Reserve Account (the amount on deposit therein from
time to time, the "Florida FF&E Reserve") from time to time as necessary, but
no more often than once in any calendar month, to pay for Permitted FF&E
Expenditures as the same are incurred in accordance with the procedures for
disbursements from the Florida FF&E Reserve Account set forth in Section 4.3
hereof. Simultaneously with each withdrawal, Florida Co-Borrower shall furnish
or cause to be furnished to Administrative Agent a complete statement and
accounting of any use or disbursement of funds in the Florida FF&E Reserve
Account, identifying the purpose, amount and type of each expenditure and
accompanied by copies of all bank statements with respect to the Florida FF&E
Reserve Account not previously delivered to the Administrative Agent, all
certified by an Authorized Officer and by any Property Manager for the Opryland
Hotel Florida.
(c) If a Default or Unmatured Default has occurred and
is continuing, Florida Co-Borrower shall have no right to request the
withdrawal of any funds from the Florida FF&E Reserve Account, and if a Default
has occurred and is continuing, the Administrative Agent may apply or direct
the Reserve Account Bank to apply all funds then on deposit in the Florida FF&E
Reserve Account to the Secured Obligations in accordance with the provisions of
Section 8.1.
(d) Texas Co-Borrower shall, on or before the Final
Completion Date, establish and thereafter maintain a segregated account of
Texas Co-Borrower with the Reserve Account Bank, which account (the "Texas FF&E
Reserve Account") shall be subject to an Account Control Agreement, and Texas
Co-Borrower shall deposit into the Texas FF&E Reserve Account, within 45 days
after the last day of each Fiscal Quarter, an amount equal to the Required FF&E
Percentage of the Gross Revenues from the Project for such Fiscal Quarter, and
shall insure that the total deposits into the Texas FF&E Reserve Account for
each calendar year are not less than the Required FF&E Percentage of the Gross
Revenues from the Project for such calendar year. Texas Co-Borrower shall
invest all funds from time to time on deposit in the Texas FF&E Reserve Account
solely in Cash Equivalent Investments.
(e) Texas Co-Borrower shall be permitted to request
funds from the Texas FF&E Reserve Account (the amount on deposit therein from
time to time, the "Texas FF&E Reserve") from time to time as necessary, but no
more often than once in any calendar month, to pay for Permitted FF&E
Expenditures as the same are incurred in accordance with the procedures for
disbursements from the Texas FF&E Reserve Account set forth in Section 4.3
hereof. Simultaneously with each withdrawal, Texas Co-Borrower shall furnish or
cause to be
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furnished to Administrative Agent a complete statement and accounting of any
use or disbursement of funds in the Texas FF&E Reserve Account, identifying the
purpose, amount and type of each expenditure and accompanied by copies of all
bank statements with respect to the Texas FF&E Reserve Account not previously
delivered to the Administrative Agent, all certified by an Authorized Officer
and by any Property Manager for the Project.
(f) If a Default or Unmatured Default has occurred and
is continuing, Texas Co-Borrower shall have no right to request the withdrawal
of any funds from the Texas FF&E Reserve Account, and if a Default has occurred
and is continuing, the Administrative Agent may apply or direct the Reserve
Account Bank to apply all funds then on deposit in the Texas FF&E Reserve
Account to the Secured Obligations in accordance with the provisions of Section
8.1.
(g) 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, Co-Borrowers and Parent Guarantor shall furnish or cause to be
furnished to the Administrative Agent a statement showing Co-Borrowers'
calculations (and supporting information) of amounts then required to be
maintained in the Completion Reserve Account and the FF&E Reserve Accounts and
all disbursements therefrom (identifying the purpose, amount and type of each
expenditure), accompanied by copies of all bank statements with respect to the
Completion Reserve Account and the FF&E Reserve Accounts received to date and
not previously delivered to the Administrative Agent, all certified by an
Authorized Officer.
2.23 Replacement of Lender. If Co-Borrowers are 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
Advances into, LIBO Rate Advances shall be suspended pursuant to Section 3.3
(any Lender so affected an "Affected Lender"), Co-Borrowers 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 Co-Borrowers
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Advances 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) Co-Borrowers 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 Co-Borrowers 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.
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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 Advances), 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 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
Revolving Loan Commitment or to reduce the return received by such Lender or
applicable Lending Office in connection with such LIBO Rate Loans or Revolving
Loan Commitment, then, within 15 days of demand by such Lender, Co-Borrowers
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, Co-Borrowers 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, its Outstanding Credit Exposure or its
Revolving Loan Commitment to make Loans hereunder (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
52
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 Advances. 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 Advances are not available or (ii)
the interest rate applicable to LIBO Rate Advances does not accurately reflect
the cost of making or maintaining LIBO Rate Advances, then the Administrative
Agent shall suspend the availability of LIBO Rate Advances until the first date
on which the circumstances causing such suspension cease to exist and require
any affected LIBO Rate Advances to be repaid or converted to Floating Rate
Advances, 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
Advance 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 Advance is not made on the date specified by the Borrower for any reason
other than default by the Lenders, Co-Borrowers 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 Advance, 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 Co-Borrowers 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
Co-Borrowers 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) Co-Borrowers shall make such deductions, (c)
Co-Borrowers shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) Co-Borrowers 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, Co-Borrowers hereby agree to
pay any present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar
53
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) Co-Borrowers hereby agree 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 Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers 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 advises Co-Borrowers 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 Co-Borrowers 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, Co-Borrowers shall take such steps (but without material expense
to Co-Borrowers) 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 Co-Borrowers (with a copy to the \
54
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
Co-Borrowers fully for all amounts paid, directly or indirectly, by the
Administrative Agent or Co-Borrowers, 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
Co-Borrowers under this subsection, together with all costs and expenses
related thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent or Co-Borrowers, as the case may be, which attorneys may
be employees of the Administrative Agent or Co-Borrowers, 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 Co-Borrowers to
such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
LIBO Rate Advances 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 Co-Borrowers (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 Co-Borrowers in the absence of manifest error.
Determination of 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 Co-Borrowers of such written statement. The
obligations of Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers 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.
55
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 and any
Advance of Revolving Loans, Co-Borrowers shall satisfy the following conditions
and/or furnish to the Administrative Agent the following:
(a) Co-Borrowers 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 each Co-Borrower, Parent Guarantor and each of the Subsidiary
Guarantors, together with all amendments, certified by the appropriate
governmental officer in its jurisdiction of organization.
(b) Co-Borrowers shall provide the Administrative Agent
with copies, each certified by the General Partner of each Co-Borrower, the
Secretary or Assistant Secretary of Parent Guarantor, 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) Co-Borrowers shall provide the Administrative Agent
with incumbency certificates, executed by the General Partner of each
Co-Borrower, the Secretary, Assistant Secretary or manager of Parent Guarantor,
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
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) Co-Borrowers shall provide the Administrative Agent
with written opinions of respective counsel to Co-Borrowers, Parent Guarantor,
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) Co-Borrowers shall provide each Lender with the
Notes required to be provided to such Lender pursuant to Section 2.13, payable
to the order of such Lender.
(f) Co-Borrowers shall provide the Administrative Agent
with the Guaranty, the Texas Co-Borrower Guaranty, the Environmental Indemnity
Agreement, the Mortgages, the Collateral Assignments and the other Loan
Documents.
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(g) Co-Borrowers shall provide the Administrative Agent
with the Mortgage Title Insurance Policies with respect to the Mortgages dated
as of the Effective Date in the amount of the sum of the Aggregate Commitment
and the Administrative Agent's determination of the amount of the Secured Rate
Management Obligations (without limiting the amount of the Secured Rate
Management Obligations for any other purposes under the Loan Documents) with
all premiums paid in full on or before the date of issuance and under which
Lenders are not considered to be co-insurers. Co-Borrowers 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 Mortgage Title Insurance Policies in the form required
hereunder.
(h) Co-Borrowers shall provide the Administrative Agent
with 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.
(i) Co-Borrowers shall provide the Administrative Agent
with Surveys of the Project and the Opryland Hotel Florida.
(j) Co-Borrowers 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) Co-Borrowers shall provide the Administrative Agent
with copies of all underlying title documents for the Project and the Opryland
Hotel Florida.
(l) Co-Borrowers 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 title charges, 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 and all expenses incurred by the
Administrative Agent on or before the Effective Date, including the Agency Fee
and commitment fees as set forth in Section 2.5 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 Co-Borrower 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
57
agreements, as well as any modifications thereto approved by Texas Co-Borrower
and the Administrative Agent in writing and any Permissible Modifications
thereto shall constitute the "Project Architect's Agreement."
(p) Texas Co-Borrower shall have submitted 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 Co-Borrower's schedule
of the Plans and Specifications to the Lenders.
(q) Texas Co-Borrower shall have furnished evidence
reasonably satisfactory to the Administrative Agent that all Persons (other
than Texas Co-Borrower) 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 Co-Borrower shall have submitted and the
Administrative Agent shall have approved (and provided to the Lenders) 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.
(s) Texas Co-Borrower'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 Co-Borrower 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 Construction Consultant.
(t) To the extent requested by the Construction
Consultant, Texas Co-Borrower 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 from
the Construction Consultant 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 Co-Borrower shall have provided the
Administrative Agent with (i) evidence reasonably satisfactory to it that each
of the Approved Plans and Specifications,
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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
Co-Borrower) 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 Co-Borrower 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 Co-Borrower, 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 Co-Borrower 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, 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) Each Co-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 Initial 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 Term Loans or the Effective
Date Advance on the Initial 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 Co-Borrowers, Parent Guarantor and/or any of their
respective Affiliates is or are a party and (ii) that, before and after the
Initial Funding Date, Co-Borrowers and Parent Guarantor have not encountered
and will not
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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 Term 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 Initial
Funding Date.
(dd) Co-Borrowers 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 Subordinated Loan Agreement and all other documents evidencing
and/or securing the Subordinated Loans.
(jj) The Subordinated Loans shall have been advanced by
the Subordinated Lenders to Subordinated Borrower and Subordinated Borrower
shall have contributed to Texas Co-Borrower all proceeds thereof (net only of
closing costs incurred in connection with the closing of the Subordinated
Loans).
(kk) Texas Co-Borrower shall have established the
Completion Reserve Account and Co-Borrowers shall have made the deposit therein
required by Section 2.21 with the net proceeds of the Term Loans and
Subordinated Loans.
(ll) Florida Co-Borrower shall have established the
Florida FF&E Reserve Account.
(mm) Co-Borrowers 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.
(nn) Co-Borrowers shall have provided the Administrative
Agent with such other documents as any Lender or its counsel may have
reasonably requested.
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4.2 Conditions Precedent to Each Revolving Loan Advance and Each
Disbursement From Completion Reserve Account. The Lenders shall not be required
to make any Revolving Loan Advance, the Swingline Lender shall not be required
to make any Swingline Loan, and the Administrative Agent shall not be required
to permit any disbursement (each, a "Completion Reserve Disbursement") from the
Completion Reserve Account unless the following conditions are satisfied on the
applicable Borrowing Date or Completion Reserve Disbursement Date:
(a) There exists no Default or Unmatured Default
(including, without limitation, any failure to comply with Section 6.21 hereof)
that has occurred and is continuing.
(b) No Material Adverse Effect shall have occurred.
(c) The representations and warranties contained in
Article V are true and correct as of such Borrowing Date or Completion Reserve
Disbursement Date, as applicable, except to the extent any such representation
or warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such
earlier date.
(d) The Administrative Agent shall have received a
Borrowing Notice properly completed by Co-Borrowers with respect to a requested
Revolving Loan Advance, or a Completion Reserve Disbursement Request properly
completed by Texas Co-Borrower with respect to a requested disbursement from
the Completion Reserve Account.
(e) The Administrative Agent shall have received a
current report from the Construction Consultant to verify that as of the date
of each Revolving Loan Advance or Completion Reserve Disbursement, as
applicable, all work and materials have been performed and incorporated into
the Project substantially in accordance with the Approved Plans and
Specifications, and that the Completion Conditions will be achieved within the
Approved Project Budget and on or before the Final Completion Date.
(f) With respect to any requested Revolving Loan Advance
prior to Completion of the Project and any Completion Reserve Disbursement, the
Administrative Agent shall have received Required Lien Waivers.
(g) With respect to any requested Revolving Loan Advance
prior to Completion of the Project and any Completion Reserve Disbursement, the
Administrative Agent shall have received an updated title report for the
Project dated as of a date no more than ten (10) days prior to the date on
which the requested Revolving Loan Advance or Completion Reserve Disbursement,
as applicable, is to be made, and showing no mechanics' liens or claims of
liens or other matters in excess of $500,000.00 in the aggregate, and not being
contested in accordance with the proviso in Section 6.19(b) or previously
approved by the Administrative Agent in writing.
(h) The Administrative Agent shall have received copies
of and (except in the case of Permissible Modifications) approved in writing
any amendments, supplements, or modifications to the Approved Plans and
Specifications and any Project Agreements which have not been previously
provided to and (except in the case of Permissible Modifications) approved in
writing by the Administrative Agent, together with copies of any such
amendments,
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supplements and modifications which are proposed to be made and which have been
submitted to contractors.
(i) The Administrative Agent shall have received copies
of and approved in writing all Project Agreements (other than Non-Material
Project Agreements) executed since the last disbursement or not previously
provided to the Administrative Agent, together with (i) evidence reasonably
satisfactory to the Administrative Agent, including the written acknowledgment
of Texas Co-Borrower, that all such Project Agreements (other than Non-Material
Project Agreements) have been collaterally assigned 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 (each, a
"Consent and Agreement") respecting such collateral assignment, in form and
substance in all respects satisfactory to the Administrative Agent, duly
authorized, executed and delivered by each of the Persons (other than Texas
Co-Borrower) party to such Project Agreements (other than Non-Material Project
Agreements) from whom or which the Administrative Agent requires such Consent
and Agreement.
(j) The Administrative Agent shall have received copies
of all Leases (other than Ancillary Space Leases) entered into for space at the
Opryland Hotel Florida and the Project since the last Revolving Loan Advance or
Completion Disbursement Request, as the case may be.
(k) If any material dispute has arisen between Texas
Co-Borrower and any other Person party to a Project Agreement or if any
material extra or change order is being negotiated by Texas Co-Borrower, the
Administrative Agent shall have received a written summary of the nature of
such dispute or negotiation and the current status thereof.
(l) No law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Administrative Agent shall not have
received from any Lender, notice that, any litigation is pending or threatened
which is likely to, in the reasonable judgment of the Administrative Agent or
such Lender, enjoin, prohibit or restrain, or impose or result in the
imposition of any material adverse condition upon the construction and
completion of the Project or the making of the requested Revolving Loan
Advance.
(m) No litigation, arbitration, governmental
investigation, proceeding or inquiry shall be pending or threatened against
either Co-Borrower, Parent Guarantor, or any other Subsidiary of Parent
Guarantor that, in the reasonable judgment of the Administrative Agent, is
likely to have a Material Adverse Effect.
Each Borrowing Notice with respect to a Revolving Loan Advance, each
Completion Reserve Disbursement Request with respect to a Completion Reserve
Disbursement and each Swingline Loan Notice shall constitute a representation
and warranty by Co-Borrowers to the Administrative Agent and the Lenders that
the conditions contained in this Section 4.2 have been satisfied.
Notwithstanding the foregoing, following the occurrence of 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), the conditions described in subsections
(e), (f), (g), (h), (i) and (k) above shall not be conditions
62
precedent to any Swingline Loan and shall no longer be conditions precedent to
any Revolving Loan Advance.
4.3 Conditions Precedent to Disbursements From FF&E Reserve
Accounts. The Administrative Agent shall not be required to make any
disbursement (each, a "FF&E Reserve Disbursement") from either the Florida FF&E
Reserve Account or the Texas FF&E Reserve Account unless the following
conditions are satisfied on the applicable FF&E Reserve Disbursement Date:
(a) There exists no Default or Unmatured Default that
has occurred and is continuing.
(b) The representations and warranties contained in
Article V are true and correct as of such FF&E Reserve Disbursement Date,
except to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or warranty shall
have been true and correct on and as of such earlier date.
(c) The Administrative Agent shall have received a FF&E
Reserve Disbursement Request properly completed by either Florida Co-Borrower
or Texas Co-Borrower, as applicable, with respect to a requested disbursement
from either the Florida FF&E Reserve Account or the Texas FF&E Reserve Account,
and the Administrative Agent shall be satisfied, in its reasonable discretion,
that the requested disbursement is consistent with the applicable Approved FF&E
Budget.
4.4 Limited Nature of Waivers of Requirements. It is expressly
understood and agreed that if any of the Lenders shall intentionally or
unintentionally waive or fail to require satisfaction of any condition
precedent or other provision or requirement set forth in this Agreement for any
Advance, the Administrative Agent shall be deemed to have reserved the right to
require compliance with such condition precedent or other provision or
requirement prior to any subsequent Advance, notwithstanding any previous
continuing or intermittent pattern of such waivers or failures to require such
satisfaction thereof.
4.5 Notices to Owner. In the event that, from and after the
Effective Date, any Person delivers a notice or claim to Texas Co-Borrower
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 Co-Borrower 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
Each of the Co-Borrowers 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:
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5.1 Ownership, Existence and Standing. Each of the Co-Borrowers,
Parent Guarantor 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 each Co-Borrower, Parent
Guarantor 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 Co-Borrowers'
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
each Co-Borrower, Parent Guarantor 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. Neither
Co-Borrower is a "foreign person" within the meaning of Section 1445 of the
Internal Revenue Code.
5.2 Authorization and Validity. Each of the Co-Borrowers, Parent
Guarantor and the Subsidiary Guarantors 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 each of the
Co-Borrowers, Parent Guarantor or any Subsidiary Guarantor of the Loan
Documents to 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 Co-Borrowers, Parent Guarantor
or any Subsidiary Guarantor is a party (A) has been duly executed and delivered
on behalf of Co-Borrowers, 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
Co-Borrowers, 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 Co-Borrowers,
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 Co-Borrowers, 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
64
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
either Co-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 Co-Borrowers, 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 Co-Borrowers, 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 the Co-Borrowers and 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 were
prepared. All of the historical financial statements referred to in the
preceding sentence fairly present the financial condition and operations of
Co-Borrowers, 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 Co-Borrower
or Texas Co-Borrower) taken as a whole or Parent Guarantor and its Subsidiaries
taken as a whole, or either of the Co-Borrowers. All financial projections with
respect to either Co-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 Intentionally Reserved.
5.6 Taxes. Co-Borrowers, Parent Guarantor 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 Co-Borrowers',
Parent Guarantor'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
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Section 6.5. Neither Co-Borrower has any knowledge of any proposed tax
assessment against either Co-Borrower, Parent Guarantor or any Subsidiary
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
Co-Borrower 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 Co-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 Advances. Except as otherwise described on
Schedule 5.7, none of the Co-Borrowers, 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 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 Co-Borrower
or 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 Co-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
66
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 Co-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 Co-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, Co-Borrowers,
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 Co-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) Parent Guarantor owns,
directly or indirectly 100% of all ownership interests in each of the
Co-Borrowers. Each Co-Borrower 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 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 Co-Borrower
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
Co-Borrower in and to any of such Property (other than in connection with Liens
in favor of the Subordinated Administrative Agent under the Subordinated 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.
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(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
Co-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 Advances
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,
none of the Co-Borrowers, Parent Guarantor or any of Parent Guarantor's
Subsidiaries is or shall while any Advances 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 Co-Borrower and the Opryland
Hotel Florida and the Project comply, and to each Co-Borrower's respective
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
Co-Borrower is currently in compliance with all terms and conditions of such
Permits;
(iii) neither Co-Borrower, Parent Guarantor nor the
Opryland Hotel Florida nor the Project is subject to or, to the knowledge of
each Co-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 Co-Borrower, Parent Guarantor, nor, to the best of the
knowledge of each Co-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;
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(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 Co-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 each Co-Borrower's knowledge 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 Co-Borrower, Parent Guarantor, nor, to the
knowledge of each Co-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 the extent such
acts are applicable to the Opryland Hotel Florida or the Project, the
respective Co-Borrower and/or Parent Guarantor 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 Co-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 Co-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.
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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 Co-Borrowers, Parent Guarantor and the Subsidiary Guarantors
and to the application of the proceeds of such 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 Co-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 of Co-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 Co-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 Co-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 Co-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. Co-Borrowers 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 Co-Borrower 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
Co-Borrower, nor to each Co-Borrower's knowledge and Parent Guarantor's
knowledge, any other Person, has received written notice of any threatened
claim, in either case, asserting that either Co-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))
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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 each Co-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 Co-Borrower has received no written
notice of any denial of access to the Project nor does Texas Co-Borrower have
knowledge that any such denial is being contemplated by any Governmental
Authority.
(c) To the best of Texas Co-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 Co-Borrower is in default in any material respect under
any Lease. Each Co-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 Co-Borrower has waived, canceled or surrendered any
of its respective rights thereunder, nor has either Co-Borrower made any
election or exercised any option thereunder. To the knowledge of Co-Borrowers
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).
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(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 Co-Borrower has delivered or received any
notice of default under the Florida Hotel Ground Lease or the Texas Hotel
Ground Lease and neither Co-Borrower 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 Co-Borrower under either
of such Ground Leases.
(d) To Florida Co-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 Texas Co-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) Co-Borrowers have 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 Co-Borrower'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 Co-Borrower received any written notice of any potential condemnation by
any Governmental Authority.
5.25 Construction. On the Initial Funding Date and on the date of
any Advance and Completion Reserve Disbursement, (i) the statements contained
in all certificates of Co-
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Borrowers delivered in connection with the disbursement of Loans and Completion
Reserve Disbursements shall be, in all material respects, true, correct,
complete and not misleading, whether by omission to state facts or otherwise,
(ii) the amounts set forth in the Approved Construction Budget present a full,
complete and accurate representation of all Construction Costs which Texas
Co-Borrower 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 Advance (or Completion Reserve
Disbursement) made on such date, 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) Texas Co-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 Texas Co-Borrower'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 either Co-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 and as of the date of each Advance hereunder, 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. Florida Co-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.
Florida Co-Borrower acknowledges and agrees that it will not 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.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Majority Lenders shall
otherwise consent in writing, Co-Borrowers and Parent Guarantor covenant and
agree as follows:
6.1 Financial Reporting. Each Co-Borrower and Parent Guarantor
will 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 Co-Borrowers 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
74
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:
(a) receipt by either Co-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 Co-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 Co-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
Co-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 Co-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 Co-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
Co-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 Co-Borrower, Parent Guarantor or any Property Manager has knowledge of
any judicial or administrative proceeding alleging a violation of any
Environmental Laws by either Co-Borrower, Parent Guarantor or any Property
Manager or with respect to the Opryland Hotel Florida or the Project.
(x) (a) Promptly upon either Co-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 Co-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
75
investigation or arbitration (not previously reported) against or affecting
either Co-Borrower, Parent Guarantor, any Property Manager, the Opryland Hotel
Florida or the Project (including, without limitation, all Ordinary Course
Claims), 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
Co-Borrower'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 Co-Borrower's or Parent
Guarantor's learning thereof, written notice of any labor dispute to which the
either Co-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. Co-Borrowers will use the proceeds of the
Effective Date Advance and any Revolving Loan Advance solely for the purpose of
(i) refinancing the Existing Indebtedness and (ii) funding the Completion
Reserve Account and closing costs in accordance with this Agreement, provided
that, following 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), the Revolving Loans and any Swingline Loans may be used for general
corporate purposes. Co-Borrowers and/or Parent Guarantor will not use any of
the proceeds of the Advances 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. Co-Borrowers 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. Co-Borrowers and
Parent Guarantor shall (and Parent Guarantor shall cause all of the Subsidiary
Guarantors to) (a) maintain in all
76
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 capital
improvements which may be required to maintain the same in good condition and
repair. Without any limitation on the foregoing, Co-Borrowers shall staff,
maintain, insure and operate both the Opryland Hotel Florida and the Project as
a first class hotel and convention center. Co-Borrowers and Parent Guarantor
will (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. Co-Borrowers and Parent Guarantor shall
(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). Co-Borrowers will qualify for pass-through
entity treatment under United States federal tax law. Co-Borrowers, Parent
Guarantor and all other Subsidiaries of Parent Guarantor shall 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. Co-Borrowers 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, Co-Borrowers and/or
Parent Guarantor shall have deposited with the 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 Co-Borrowers 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
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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 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) Co-Borrowers 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 Co-Borrowers and
Parent Guarantor will furnish to any Lender upon request full information as to
the insurance carried by Co-Borrowers, Parent Guarantor and all such Persons.
Without limitation of the foregoing, Co-Borrowers and Parent Guarantor 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) Texas Co-Borrower and Parent Guarantor shall 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. 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;
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(bb) soft costs, plans, specifications, blueprints and
models in connection with any Restoration following
a casualty;
(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 Co-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) Texas Co-Borrower and Parent Guarantor shall 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) Co-Borrowers and Parent Guarantor shall 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) Co-Borrowers, Parent Guarantor and any Property
Manager shall obtain and maintain Workers Compensation and Disability
insurance as required by law covering Co-Borrowers, Parent Guarantor
and any Property Manager.
(5) Texas Co-Borrower and Parent Guarantor shall obtain
and maintain or ensure that the Project General Contractor maintains
Commercial General Liability coverage through the Owner Controlled
Insurance Program or other programs
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implemented by Texas Co-Borrower 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
Co-Borrower, Parent Guarantor, Administrative Agent and Lenders as
additional insureds. Texas Co-Borrower and Parent Guarantor shall also
ensure that all subcontractors to the Project General Contractor
maintain similar coverage with limits satisfactory to Texas
Co-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) Co-Borrowers, Parent Guarantor and any Property
Manager shall obtain and maintain General Public Liability insurance,
including, without limitation,
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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, Co-Borrowers' 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, Co-Borrowers shall 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 aggregate amount of the Commitments 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 Co-Borrower, Parent Guarantor nor any Property Manager
shall 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 Parent Guarantor, may examine the insurance policies
(whether in the possession of Co-Borrowers, Parent Guarantor or an Affiliate of
either) during business hours.
(e) Co-Borrowers, Parent Guarantor and any Property
Manager shall pay the premiums for the insurance policies required hereunder as
the same become due and payable. Co-Borrowers, Parent Guarantor and any
Property Manager shall 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. Co-Borrowers and Parent
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Guarantor also shall deliver to the Administrative Agent, within ten (10) days
of the Administrative Agent's request, a certificate of each Co-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 Co-Borrowers 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 Administrative
Agent pursuant to any provision of the Mortgages or any of the 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 Co-Borrowers, Parent
Guarantor 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 Co-Borrowers or Parent Guarantor
(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
Co-Borrowers or Parent Guarantor on demand.
6.7 Compliance with Laws. Co-Borrowers and Parent Guarantor
shall, 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
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their operations and maintain such Permits in good standing. Without limiting
the foregoing, Co-Borrowers and Parent Guarantor shall 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 Co-Borrower nor Parent Guarantor shall, without the prior written
consent of 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 Co-Borrower) 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) Texas Co-Borrower shall not commence construction of
the Restaurant Facility, unless and until (i) Texas Co-Borrower 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 Co-Borrower 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 Co-Borrowers' 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 Co-Borrowers' 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 Co-Borrowers, Parent Guarantor 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 Co-Borrowers, Parent Guarantor,
any Property Manager and Subsidiary 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 Co-Borrowers', 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
83
reasonably requested. At the request of the Administrative Agent, Co-Borrowers
and Parent Guarantor shall furnish convenient facilities for the purposes of
conducting such investigations and examinations. No Construction Agreements let
or amended by Texas Co-Borrower 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 Co-Borrowers 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
Co-Borrowers, Parent Guarantor or any third party arising out of such
inspection (other than any applicable obligation hereunder with respect to
confidentiality) and none of Co-Borrowers, Parent Guarantor or 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 Co-Borrowers, Parent Guarantor or any
third person to protect against, or inform Co-Borrowers, 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 Co-Borrowers' 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 Co-Borrower, 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
Co-Borrower'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 Co-Borrower shall furnish convenient facilities
for the purposes of conducting such investigations and examinations. No
Construction Agreements let or amended by Texas Co-Borrower 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 Texas Co-Borrower under this
Agreement are being properly discharged and of preserving the Administrative
Agent's rights hereunder, and that the Construction Consultant's
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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
Co-Borrowers, Parent Guarantor or any third party arising out of such
inspection (other than any applicable obligation hereunder with respect to
confidentiality) and none of Co-Borrowers, Parent Guarantor or 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 Co-Borrowers, Parent Guarantor or any third person to protect against,
or inform Co-Borrowers, 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) Each Co-Borrower and Parent Guarantor shall keep and
maintain, 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, Co-Borrowers 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) Texas Co-Borrower shall 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. Texas Co-Borrower
shall (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.
(b) At such time as Texas Co-Borrower has determined
that the Completion Conditions have been satisfied, Texas Co-Borrower shall
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.
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6.11 Correction of Defects. Texas Co-Borrower shall 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, Texas Co-Borrower shall not (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 Co-Borrower has taken any action in contravention of
this Section 6.12 without first notifying Texas Co-Borrower of the matter in
question and giving Texas Co-Borrower ten (10) Business Days within which to
refute or contest such determination.
(b) Until the Final Completion Date, Texas Co-Borrower shall
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. Co-Borrowers 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 Co-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 Co-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 payment to any Subsidiary
that is not a Subsidiary Guarantor (or a direct or indirect Subsidiary of a
Subsidiary Guarantor) and (ii) neither Co-Borrower shall make or declare any
dividend, distribution or other payment to Parent Guarantor or any Affiliate of
Co-Borrowers or Parent Guarantor, except that, for so long as no Default or
Unmatured Default has occurred and is continuing, (x) Co-Borrowers may pay
management fees in accordance with any Management Agreements when due and
payable, (y) Co-Borrowers may distribute Net Operating Income with respect to
the Opryland Hotel Florida and the Project to Parent Guarantor and (z) Texas
Co-Borrower may distribute to Parent Guarantor amounts released to Texas
Co-Borrower from the Completion Reserve Account,
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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) Neither Co-Borrower nor Parent Guarantor will
create, incur or suffer to exist any Indebtedness with respect to itself or any
Subsidiary Guarantor or other Subsidiary of Parent Guarantor, except the
following ("Permitted Debt"):
(i) The Loans and the Guaranty.
(ii) Indebtedness of Co-Borrowers arising under Rate
Management Transactions required or expressly permitted under this Agreement.
(iii) The Subordinated Loans.
(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.
(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 Co-Borrowers and not in excess,
for all such Persons, in the aggregate at any one time, of $15,000,000.00 and by
Co-Borrowers and not in excess, in the aggregate at any one time, of
$10,000,000.00.
(viii) Loans, advances or other Indebtedness by Parent
Guarantor to any of its Subsidiaries that are Subsidiary Guarantors and loans or
advances by any Subsidiary of Parent Guarantor to Co-Borrowers 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
Co-Borrowers or any Subsidiary Guarantor are unsecured and subordinate to the
Loans on terms and provisions acceptable to the Administrative Agent.
(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 Sections 2.2 and
2.21.
87
(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) a
Permitted Refinancing and (iii) 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 Co-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,
including, without limitation, the Subordinated Loans, provided that all or any
portion of the Subordinated Loans may be voluntarily prepaid at any time after
the first anniversary of the Effective Date, so long as (i) the Term Loans have
been repaid in full and (ii) no Default then exists or would result therefrom.
6.15 Merger. Neither Co-Borrower nor Parent Guarantor will merge or
consolidate with or into any other Person, provided that any direct or indirect
wholly-owned Subsidiary may be merged into Parent Guarantor if Parent Guarantor
is the surviving entity, after giving effect to such merger, all representations
and warranties by Parent Guarantor and Co-Borrowers 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.
(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.
88
6.17 Sales of Assets; Releases of Subsidiary Guarantors. (a) Neither
Co-Borrower nor Parent Guarantor shall 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 Co-Borrower (except for the
Liens in favor of the Administrative Agent under the Subordinated Loan Agreement
as in effect on the date hereof and 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 Parent Guarantor has given the Administrative Agent at least 10
Business Days' prior notice thereof, simultaneously with the closing of any
Asset Sale with respect to a Subsidiary Guarantor or substantially all of its
assets and application of the Net Cash Proceeds thereof, to the extent required
by Sections 2.2 and 2.21, to prepayment of the Loans or deposits to the
Completion Reserve Account, such Subsidiary Guarantor shall be released from the
Guaranty, and the Administrative Agent shall execute and deliver such
confirmatory instrument evidencing such release as Parent Guarantor shall
reasonably request to facilitate such transaction.
6.18 Investments; New Subsidiary Guarantors; Capital Expenditures. (a)
Neither Co-Borrower nor Parent Guarantor shall 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 Co-Borrower 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
Guarantor may create or acquire additional direct or indirect wholly-owned
Subsidiaries, only if concurrently with the creation or acquisition thereof, (x)
100% of the Capital Stock of each such Subsidiary is pledged and delivered to
the Administrative Agent for the benefit of the Holders of Secured Obligations
pursuant to documentation, including a pledge and security agreement, creating a
first, perfected lien on and security interest in such Capital Stock and
otherwise in form and substance satisfactory to the Administrative Agent and (y)
each such Subsidiary executes and delivers to
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the Administrative Agent a guaranty of payment with respect to the Secured
Obligations substantially in the form of the Guaranty.
(b) Co-Borrowers and Parent Guarantor shall not make nor shall
Parent Guarantor permit any 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) Neither Co-Borrower nor Parent Guarantor will create,
incur, or suffer to exist (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 Co-Borrowers, 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
pledge agreements with respect to Parent Guarantor's and certain of its
Subsidiaries' direct and indirect ownership interests in Co-Borrowers in effect
on the date hereof with respect to the Subordinated Loan, the Florida Second
Mortgage and the Texas Second Mortgage (as defined in the Subordinated Loan
Agreement), (iii) Customary Permitted Liens and Liens in favor of the
Administrative Agent under the Collateral Documents, (iv) mechanics' and
materialmen's liens that are discharged or being contested in accordance with
the provisions of Section 6.19(b) and (v) 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
Co-Borrowers and/or Parent Guarantor shall discharge the same within forty-five
(45) days of such filing or commencement; provided, however, that (i)
Co-Borrowers or Parent Guarantor shall have the right to contest in good faith
and with due diligence the validity of any such Lien or Claim upon (A)
furnishing to the Title Insurer such security or indemnity as it may require to
induce the Title Insurer to issue endorsements to the Mortgage Title Insurance
Policies insuring against all such Claims, Liens or proceedings or (B) 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 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;
and (ii) the Lenders will not be required to make any further Loans unless and
until (A) any such Lien has been released or insured against by the Title
Insurer or (B) Co-Borrowers or Parent Guarantor shall have provided the
Administrative Agent, for the benefit of the Lenders, with such other security
with respect to such Claim as may be acceptable to the
90
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). 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 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 remain unaffected.
6.20 Affiliates. Except as set forth on Schedule 6.20, neither
Co-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 either Co-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 each Co-Borrower's and, Parent Guarantor's business,
as applicable, and upon fair and reasonable terms no less favorable to
Co-Borrowers and, Parent Guarantor, than Co-Borrowers and, 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 Co-Borrowers or by either Co-Borrower to
Parent Guarantor, or to a Subsidiary Guarantor, or by a Subsidiary of Parent
Guarantor (other than Co-borrowers) to either Co-Borrower, Parent Guarantor or a
Subsidiary Guarantor.
6.21 Required Rate Management Transactions. Within five Business Days
after the Effective Date, Co-Borrowers will 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 the 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 with respect to Term
Loans plus (ii) the aggregate outstanding principal balance of the Subordinated
Loans, (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.
Co-Borrowers shall deliver to the Administrative Agent for the benefit of the
Lenders and other Holders of Secured Obligations valid, first priority,
perfected collateral assignments of all Rate Management Transactions required to
be maintained hereunder with respect to the Loans and Subordinated Loans and
shall obtain the acknowledgment and agreement of the counterparty or
counterparties thereto (whether or not such counterparty or counterparties
include the Administrative Agent or all or any of the Lenders) to pay any
amounts which would otherwise be payable to Co-Borrowers directly to the
Administrative Agent for the benefit of the Lenders and other Holders of Secured
Obligations upon the occurrence and during the continuance of a Default
hereunder. Co-Borrowers' Rate Management Obligations under any Rate Management
Transaction with a Secured Counterparty shall be secured by the Collateral on a
pari passu basis with the Obligations. Co-Borrowers shall increase the amount of
the Mortgage Title Insurance Policies from time to time as necessary to an
amount equal to the sum of the Aggregate Commitment and the Administrative
Agent's determination of the Secured Rate Management Obligations (without
limiting the amount of the Secured Rate Management Obligations for any other
purpose under the Loan Documents).
91
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. Neither Co-Borrower nor Parent Guarantor will 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 it 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. Co-Borrowers will not enter into or remain
liable upon any Financial Contract, except Rate Management Transactions required
under Section 6.21.
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
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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):
=====================================================================================
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 Maximum Senior Leverage Ratio. As of the last day of any Fiscal
Quarter set forth below, Parent Guarantor shall not permit the ratio of (i)
Senior 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 (Senior 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
93
Fiscal Quarter by a fraction, the numerator of which is 365 and the denominator
of which is the number of days in the period from the Opening Date through the
last day of such Fiscal Quarter):
=====================================================================================
TEST DATE MAXIMUM SENIOR LEVERAGE RATIO
=====================================================================================
Fiscal Quarter ending June 30, 2003 5.0 to 1.0
Fiscal Quarter ending September 30, 2003 5.25 to 1.0
Fiscal Quarter ending December 31, 2003 5.75 to 1.0
Fiscal Quarter ending March 31, 2004 6.75 to 1.0
Fiscal Quarter ending June 30, 2004 5.75 to 1.0
Fiscal Quarter ending September 30, 2004 5.25 to 1.0
Fiscal Quarter ending December 31, 2004 4.75 to 1.0
Fiscal Quarters ending March 31, 2005 and thereafter 4.0 to 1.0
=====================================================================================
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
TEST DATE INCOME
=====================================================================================
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 purpose of such calculation, for the first four Fiscal Quarters ending
after the Opening Date,
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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) Co-Borrowers and Parent
Guarantor hereby direct 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 the Co-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 Co-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 Co-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 Co-Borrower or Parent Guarantor.
(b) Either Co-Borrower or Parent Guarantor shall 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 the relevant Co-Borrower
or Parent Guarantor shall have prepared and delivered to the Administrative
Agent a budget for such Restoration which is satisfactory to the Administrative
Agent.
(c) 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
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to the relevant Co-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)
the relevant Co-Borrower or Parent Guarantor shall deliver to the Administrative
Agent written evidence reasonably satisfactory to the Majority Lenders that,
upon completion of the Restoration, by the expenditure of the Property Award
together with any funds made available by such Co-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) such Co-Borrower or Parent Guarantor shall
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, the relevant
Co-Borrower or Parent Guarantor shall promptly deposit the amount of the
insufficiency in a cash collateral account (the "Restoration Account") in the
name of such Co-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 Co-Borrower or Parent Guarantor
may not use and, if applicable, the Administrative Agent shall not, without the
consent of the Majority Lenders, 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 Co-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 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.
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(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 Co-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 and the Administrative Agent shall have received
a date down endorsement (or the Texas equivalent thereof) to the relevant
Mortgage Title Insurance Policy confirming the foregoing, in form and substance
reasonably satisfactory to the Administrative Agent.
(vii) The relevant Co-Borrower or Parent Guarantor shall
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 Co-Borrower or Parent Guarantor promptly upon receipt
thereof by the Administrative Agent, which proceeds the relevant Co-Borrower or
Parent Guarantor shall apply for the purposes of Restoration.
(d) Upon the relevant Co-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 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 2.12(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.
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6.28 The Administrative Agent's and the Lenders' Actions for Their Own
Protection Only. Co-Borrowers 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 Co-Borrowers, Parent Guarantor or any third party for any
purposes whatever; and none of the Administrative Agent, the Lenders, or the
Construction Consultant shall be deemed to have assumed any responsibility to
Co-Borrowers, Parent Guarantor or any third party with respect to any such
action herein authorized or taken by the Administrative Agent, the Lenders or
the Construction Consultant, 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, the Construction Consultant, 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 either Co-Borrower's or Parent
Guarantor's satisfaction of any conditions precedent to disbursements under this
Agreement, either Co-Borrower's or Parent Guarantor's performance of any of the
covenants, agreements and obligations of such Co-Borrower or Parent Guarantor
under this Agreement, or the validity of any representations and warranties made
by such Co-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 either
Co-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 Co-Borrowers or 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 Co-Borrowers or Parent Guarantor hereunder.
6.29 Storage of Property. Texas Co-Borrower shall 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 Co-Borrower and approved by the Administrative Agent, all charges for such
storage to be paid by Texas Co-Borrower 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 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. Texas
Co-Borrower shall provide the Administrative Agent with satisfactory evidence
that the insurance required to be obtained
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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, the relevant Co-Borrower and/or
Parent Guarantor shall 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, the relevant Co-Borrower and/or Parent Guarantor
shall 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 Co-Borrowers' or
Parent Guarantor's use or application of proceeds of Loans.
6.32 Compliance with Agreements. Co-Borrowers and Parent Guarantor shall
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 Co-Borrowers and Parent Guarantor shall enforce its
material rights and remedies under the agreements described in the foregoing
clauses (a) through (e) above.
6.33 Organizational Documents. Neither Co-Borrower nor Parent Guarantor
shall allow any amendment, modification or other change to any of the terms or
provisions in any of their respective Organizational Documents (or any
Organizational Documents of 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. Co-Borrowers shall not 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 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
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tenant thereunder, provided that such termination is commercially reasonable. If
requested by either Co-Borrower, the Administrative Agent shall, in its
reasonable discretion, agree to enter into a subordination, non-disturbance and
attornment agreement with the tenant under any permitted Lease, in the form
required by the Administrative Agent, subject to reasonable modifications
requested by the tenant.
6.35 Ground Lease Covenants. (a) Each Co-Borrower shall 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) Each Co-Borrower (i) shall 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) shall
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) shall 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
Majority Lenders' prior written consent in each instance; and (iv) shall
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) Co-Borrowers 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) Co-Borrowers shall not 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 Majority Lenders' prior written consent in
each instance.
(e) Co-Borrowers shall deliver to the Administrative Agent copies
of all default and other material notices received by either Co-Borrower from
any party under the Ground Leases, and of any notice received by either
Co-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) Co-Borrowers shall promptly furnish to the Administrative
Agent copies of such information and evidence as the Administrative Agent may
reasonably request concerning either Co-Borrower's due observance, performance
and compliance with the terms, covenants and conditions of the Ground Leases.
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(g) Co-Borrowers shall not 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, either Co-Borrower, at its sole cost and expense, shall 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 Co-Borrower 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, with the consent of
the Majority Lenders, cause the default or defaults to be remedied and otherwise
exercise any and all rights of such Co-Borrower thereunder in the name of and on
behalf of such Co-Borrower. The relevant Co-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) Each Co-Borrower shall give the Administrative Agent written
notice of its 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 Majority Lenders, each Co-Borrower shall duly exercise any
renewal or extension option with respect to the Hotel Ground Leases. If either
Co-Borrower intends to renew or extend the term of either of the Hotel Ground
Leases, it shall 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. Each Co-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 Co-Borrower, all instruments and agreements necessary
under the Hotel Ground Leases or otherwise to cause any renewal or extension of
the Hotel Ground Leases.
(k) In the event that either of the Hotel Ground Leases shall be
terminated by reason of a default beyond any applicable cure period thereunder
by either Co-Borrower, and the Administrative Agent shall acquire from the
relevant Ground Lessor a novation or replacement Ground Lease, such Co-Borrower
hereby waives any right, title and interest in and to such Novation Ground Lease
and the leasehold estate created thereby, together with all rights of redemption
now or hereafter operable under any law.
(l) Neither Co-Borrower shall 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 Majority Lenders' prior written consent in the
event of the bankruptcy of, or any similar proceedings with respect to, the
relevant Ground Lessor. Each Co-Borrower shall, in the event of any bankruptcy
or similar proceedings with respect to a Ground Lessor, reaffirm and ratify the
legality, validity,
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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) Each Co-Borrower shall give the Administrative Agent not less
than thirty (30) days prior written notice of the date on which such Co-Borrower
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 Co-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 Co-Borrower
determines to reject such Hotel Ground Lease. The Administrative Agent shall
have the right, exercisable only with the consent or at the direction of the
Majority Lenders, but not the obligation, to serve upon such Co-Borrower within
such thirty (30) day period a notice stating that (i) the Administrative Agent
demands that such Co-Borrower 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 Co-Borrower
the notice described above, such Co-Borrower shall not 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, exercisable only with the consent or at the direction of
the Majority Lenders, but not the obligation, (i) to perform and comply with all
obligations of the relevant Co-Borrower 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 Co-Borrower under
such Hotel Ground Lease, including, without limitation, any act, deed, matter or
thing whatsoever that 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 Co-Borrower under the relevant Hotel
Ground Lease. Each Co-Borrower shall, 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
relevant Co-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 Co-Borrower in
connection with such arbitration, including, without limitation, the right to
appoint arbitrators and to conduct arbitration proceedings on behalf of such
Co-Borrower and the Administrative Agent. All costs and expenses incurred by the
Administrative Agent in
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connection with such arbitration and the settlement thereof shall be borne
solely by such Co-Borrower, 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, exercisable
only with the consent or at the direction of the Majority Lenders, 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) Each Co-Borrower shall 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 Co-Borrower 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 Co-Borrower under such Ground Lease, and, if there are, setting
forth the nature thereof in reasonable detail, and (vii) if such Co-Borrower 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,
each Co-Borrower shall 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 Co-Borrower nor Parent Guarantor shall
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 Co-Borrower to construct the Project
in accordance with the Approved Plans and Specifications or either Co-Borrower
to
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operate the Opryland Hotel Florida or the Project as intended or (ii) the value
of the Opryland Hotel Florida or the Project. Each Co-Borrower shall give to the
Administrative Agent notice of any material change in 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 Co-Borrower nor Parent Guarantor shall change,
and Parent Guarantor shall not permit 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. Texas Co-Borrower shall
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) Co-Borrowers
and Parent Guarantor covenant and agree not to maintain, and not to permit 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 Co-Borrowers or Parent Guarantor, 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, Co-Borrowers and
Parent Guarantor hereby pledge and assign to the Administrative Agent for the
benefit of itself and the Lenders and other Holders of Secured Obligations all
of Co-Borrowers' and Parent Guarantor's right, title and interest in, and hereby
grant 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"). Co-Borrowers and Parent
Guarantor 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 Initial Funding Date or
upon establishing each Account, as applicable. Co-Borrowers and Parent Guarantor
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 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
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to exercise and enforce its rights and remedies hereunder with respect to any
Account Collateral. Co-Borrowers and Parent Guarantor each hereby authorize
Administrative Agent to file one or more financing or continuation statements,
and amendments thereto, and authorize 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 the
either Co-Borrower or Parent Guarantor where permitted by law. Whenever
applicable law requires the signature of either Co-Borrower or Parent Guarantor
on a document to be filed to preserve, perfect or protect the security interest
granted hereby, each Co-Borrower and Parent Guarantor hereby appoint
Administrative Agent as their respective attorney-in-fact, with full power of
substitution, to sign their names (or the names of any of them) on any such
document. Co-Borrowers and Parent Guarantor 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. Neither Co-Borrower nor Parent Guarantor shall
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 either Co-Borrower or Parent
Guarantor, 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, each Co-Borrower and Parent Guarantor hereby grant 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
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.
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(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. Co-Borrowers
and Parent Guarantor shall, upon the request of the Administrative Agent, at
Co-Borrowers' 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.
Co-Borrowers and Parent Guarantor 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) CO-BORROWERS AND PARENT GUARANTOR 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 they may lawfully so agree,
Co-Borrowers and Parent Guarantor agree that they 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 any portion of the Opryland Hotel
Florida or the Project, or the possession of any of the foregoing by any
purchaser at any sale under this Agreement or the other Loan Documents, and
Co-Borrowers and Parent Guarantor, each for itself and all who may claim under
Co-Borrowers and Parent Guarantor to the full extent that either Co-Borrower or
Parent Guarantor now or hereafter lawfully may do so, hereby each waives the
benefit of all such laws.
6.40 Principal Places of Business; Names. Neither Co-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
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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. Co-Borrowers 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 either
Co-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 Co-Borrower nor Parent Guarantor shall 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) Co-Borrowers 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 Co-Borrower 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.
(d) Notwithstanding anything to the contrary in this Agreement, in
no event shall the amount held in the Completion Reserve Account ever be reduced
to less than $35,000,000.00 (other than by application of such amount to the
Secured Obligations pursuant to Section 2.21(f)) prior to the date on which all
Post-Closing Requirements have been met in
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accordance with this Section 6.43.
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 Co-Borrowers, Parent Guarantor or any Subsidiary Guarantor to the Lenders or
the Administrative Agent under or in connection with this Agreement, any
Advance, 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
under any of the Loan Documents, (i) within five Business Days after written
notice from the Administrative Agent to Co-Borrowers 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 Co-Borrowers or Parent Guarantor of any of the terms
or provisions of Sections 2.21, 2.22, 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 Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers 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 Mortgages or the same remains
unremedied for ten (10) Business Days after receipt of written notice thereof
from the Administrative Agent to Co-Borrowers; 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 Co-Borrowers; and a
breach of Section 6.35(f) shall not be a Default unless the same remains
unremedied for ten (10) Business Days
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after receipt of written notice thereof from the Administrative Agent to
Co-Borrowers or Parent Guarantor), 6.36, 6.37, 6.39 or 6.40.
7.4 The breach by Co-Borrowers 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
Co-Borrowers 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 Co-Borrowers or Parent Guarantor, provided that
if Co-Borrowers 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 Co-Borrowers or Parent Guarantor are 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 Co-Borrowers'
or Parent Guarantor's receipt of the initial written notice of breach or
default.
7.5 Co-Borrowers, Parent Guarantor or any of their 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 Either of the Co-Borrowers, any Property Manager, Parent Guarantor
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 Co-Borrowers, any
Property Manager, Parent Guarantor or any Subsidiary Guarantor, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for either
Co-Borrower, any Property Manager, Parent
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Guarantor or any Subsidiary Guarantor or any of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against either Co-Borrower, any
Property Manager, Parent Guarantor or any Subsidiary Guarantor and such
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 Co-Borrower
or Parent Guarantor.
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 Co-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 Co-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 Co-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 Co-Borrower and either the Opryland Hotel
Florida or the Project exceeds $100,000 or with respect to Co-Borrowers, Parent
Guarantor, 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 Co-Borrowers of any Rate Management Obligation when
due or the breach by Co-Borrowers 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 Either the Guaranty or the Texas Co-Borrower 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 either the Guaranty or the Texas
Co-Borrower Guaranty, or Parent Guarantor, any Subsidiary Guarantor or Texas
Co-Borrower, as applicable, shall fail to comply with any of the terms or
provisions of either the Guaranty or the Texas Co-Borrower Guaranty, as
applicable, 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.
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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.
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 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 Subordinated Lenders or the Subordinated Administrative Agent.
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 Co-Borrower, Parent Guarantor, any Property Manager or any
Subsidiary Guarantor, the Revolving Loan Commitments and the obligations of the
Lenders to make Revolving Loans hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the 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, terminate or suspend the Revolving Loan
Commitments and the obligations of the Lenders to make Revolving Loans
hereunder, or declare the Obligations to be
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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 Co-Borrowers 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 Co-Borrowers to the Lenders under the Loan
Documents.
(c) At any time while any Default is continuing, neither
Co-Borrowers nor any Person claiming on behalf of or through either Co-Borrower
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 and the Revolving Loan
Commitment has been terminated, any funds remaining in the Accounts shall be
returned by the Administrative Agent to Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers, 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
Co-Borrowers 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, each
Co-Borrower and Parent Guarantor 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, Completion Reserve
Account or any other Account or unadvanced funds remaining in the Revolving Loan
Commitment or which may be
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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 either or both
Co-Borrowers 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. Co-Borrowers and Parent Guarantor each acknowledge that
in the event either Co-Borrower or Parent Guarantor 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, Co-Borrowers 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 an Advance notwithstanding the existence of a Default
or the inability of Co-Borrowers or Parent Guarantor to satisfy the conditions
precedent to such Advance 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 Co-Borrowers 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 Advances 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 Co-Borrowers 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 any
Co-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 Co-Borrowers, Parent Guarantor, the Administrative Agent and
the Lenders and supersede all prior agreements and understandings among
Co-Borrowers, 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. Co-Borrowers 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) Co-Borrowers 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
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connection with disbursements hereunder and otherwise with respect to the
Opryland Hotel Florida or the Project. Co-Borrowers 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 Co-Borrowers 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
Co-Borrowers 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) Co-Borrowers 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 any 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 Co-Borrowers
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.
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9.10 Nonliability of Lenders. The relationship between Co-Borrowers on
the one hand and the Lenders and the Administrative Agent on the other hand
shall be solely that of borrower and lender. None of the Administrative Agent,
any Initial Lender Affiliate, or any Lender shall have any fiduciary
responsibilities to Co-Borrowers, Parent Guarantor or any Subsidiary Guarantor.
None of the Administrative Agent, any Initial Lender Affiliate, or any Lender
undertakes any responsibility to Co-Borrowers, Parent Guarantor or any
Subsidiary Guarantor to review or inform Co-Borrowers, Parent Guarantor or any
Subsidiary Guarantor of any matter in connection with any phase of either
Co-Borrower's business or operations. Co-Borrowers agree that none of the
Administrative Agent, any Initial Lender Affiliate, or any Lender shall have
liability to Co-Borrowers (whether sounding in tort, contract or otherwise) for
losses suffered by Co-Borrowers 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 Co-Borrowers hereby waive, release and agree not
to xxx for, any special, indirect or consequential damages suffered by
Co-Borrowers, 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
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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 connection with any contemplated transfer or
participation of any of the Notes or Commitments 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) Each of the Co-Borrowers 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 Advances
provided for herein.
9.13 Disclosure. Co-Borrowers, 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
Co-Borrowers, 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 Co-Borrowers, 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
Co-Borrowers or Parent Guarantor any other party or against or in payment of any
or all of the Secured Obligations. To the extent that either Co-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
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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.
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 Co-Borrowers 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 Co-Borrowers, 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
Co-Borrowers, Parent Guarantor or others or against any Property. Neither
Co-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 either or both
Co-Borrowers, 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
Co-Borrowers 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.
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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) 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 Co-Borrowers, 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, it being understood that Protective
Advances shall be allocated as between Term Lenders and RL Lenders in the
proportions that the aggregate Outstanding Credit Exposure of all Term Lenders
and the aggregate Outstanding Credit Exposure of all RL Lenders, respectively,
bear to the Aggregate Outstanding Credit Exposure (or, in the case of Protective
Advances, if any, made before the occurrence of a Default, in the proportions
that the aggregate of all Term Loan Commitments and the aggregate of all
Revolving Loan Commitments, respectively, bear to the Aggregate Commitment).
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 a funding of an Advance. Co-Borrowers or Parent Guarantor agree 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 2.11 applicable in the event of a Default. If Co-Borrowers or Parent
Guarantor fail to make payment in respect of any Protective Advance within three
(3) Business Days after the date Co-Borrowers 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 Co-Borrowers 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
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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 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 Co-Borrowers, 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 Co-Borrowers,
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 Co-Borrowers, 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 Co-Borrowers, 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 Co-Borrowers 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.
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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 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
Co-Borrowers or Parent Guarantor).
10.6 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by Co-Borrowers 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 Co-Borrowers,
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.
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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 Documents at any time by giving 15 Business Days'
prior written notice to Co-Borrowers, Parent Guarantor and the Lenders. Any such
resignation by the Administrative Agent hereunder shall also constitute its
resignation as the Swingline Lender, if applicable, in which case the Swingline
Lender shall not be required to make any additional Swingline Loans hereunder
and shall maintain all of its rights as the Swingline Lender with respect to
Swingline Loans made by it prior to the date of such resignation. 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, Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers, 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 Co-Borrowers, 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.
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10.11 Lender Default. If any Lender (a "Defaulting Lender") fails to fund
its Pro Rata Share of any Advance 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, it
being understood that such costs, expenses and disbursements shall be allocated
as between Term Lenders and RL Lenders pursuant to the applicable provisions 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:
(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, Co-Borrowers, 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
Co-Borrowers 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);
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(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:
(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 Co-Borrowers 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
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(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 Advances 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)) the Defaulting Lender's Pro Rata Share
in the Advances 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
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 Advances 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
Advances and the Obligations of a Defaulting Lender (the "Purchase Price") shall
be equal to one hundred percent
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(100%) of the sum of all of the Defaulting Lender's Advances (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.
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 Advance 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 Advance.
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 Co-Borrowers,
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 Co-Borrowers, 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
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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 Co-Borrowers, 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;
(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;
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(iv) consent to the transfer by Co-Borrowers 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.
(c) The consent of the Swingline Lender shall be required for any
action, waiver, consent, amendment or other agreement which would have the
effect of altering any of the Swingline Lender's rights or obligations with
respect to Swingline Loans.
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.
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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, it being understood
that all such amounts shall be allocated as between Term Lenders and RL Lenders
(x) for so long as no Default has occurred and is continuing, in the proportions
that the aggregate of all Term Loan Commitments and the aggregate of all
Revolving Loan Commitments, respectively, bear to the Aggregate Commitment and
(y) after the occurrence and during the continuance of a Default, in the
proportions that the aggregate Outstanding Credit Exposure of all Term Lenders
and the aggregate Outstanding Credit Exposure of all RL Lenders, respectively,
bear to the Aggregate Outstanding Credit Exposure.
10.13 Co-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 Co-Borrowers,
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 writing to the contrary by the Majority Lenders,
the Administrative Agent is expressly authorized to discuss such Default and
possible resolutions with Co-Borrowers, 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 Co-Borrowers, 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
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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 or any other
Collateral (it being understood that such interests shall be allocated as
between Term Lenders and RL Lenders in the proportions that the aggregate
Outstanding Credit Exposure of all Term Lenders and the aggregate Outstanding
Credit Exposure of all RL Lenders, respectively, bear to the Aggregate
Outstanding Credit Exposure, 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 Co-Borrowers 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.
(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
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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, allocated
between Term Lenders and RL Lenders in the proportions that the aggregate
Outstanding Credit Exposure of all Term Lenders and the aggregate Outstanding
Credit Exposure of all RL Lenders, respectively, bear to the Aggregate
Outstanding Credit Exposure, 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 allocated to Term Lenders and RL
Lenders in the proportions that the aggregate Outstanding Credit Exposure of all
Term Lenders and the aggregate Outstanding Credit Exposure of all RL Lenders,
respectively, bear to the Aggregate Outstanding Credit Exposure and 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 Co-Borrowers 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 Advances, 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 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. Co-Borrowers 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
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respect to any aspect of the Loans, including, without limitation (i) the
existing or future solvency or financial condition or responsibility of
Co-Borrowers, 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 Mortgage Title Insurance Policies or the
Surveys furnished by Co-Borrowers, or (iv) the validity or effectiveness of the
liens created by the 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 Advance 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
Co-Borrowers or Parent Guarantor.
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
Co-Borrowers or Parent Guarantor or reimbursed by the Lenders;
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(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 (a) principal and interest on the Loans (such application to be made
first to interest and then to principal) and (b) Secured Rate Management
Obligations; 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 Co-Borrowers, 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 Co-Borrowers 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 Co-Borrowers 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,
as allocated to Term Lenders and RL Lenders in the proportions that the
aggregate Outstanding Credit Exposure of all Term Lenders and the aggregate
Outstanding Credit Exposure of all RL Lenders, respectively, bear to the
Aggregate Outstanding Credit Exposure. 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 Co-Borrowers, Parent Guarantor or any
Subsidiary Guarantor becomes insolvent, however evidenced, or any Default
occurs, any and all deposits (including all account balances, 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 Co-Borrowers, 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.
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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 and payments to the Swingline
Lender in respect of a Swingline Loan, either by Co-Borrowers or by the RL
Lenders, pursuant to a Mandatory Advance or participation in respect of
Swingline Loans, as contemplated by Section 2.1(d)) 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 (other than
Swingline Loans) 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 (other than Swingline Loans). 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 2.12(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 Co-Borrower, Parent
Guarantor, Subsidiary Guarantors, the Administrative Agent and the Lenders and
their respective successors and assigns, except that (i) Co-Borrowers, 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.
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
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entities ("Participants") participating interests in any Outstanding Credit
Exposure of such Lender, any Note held by such Lender, any Revolving Loan
Commitment of 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 Co-Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and Co-Borrowers 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 Advance 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 Advance or Commitment, (b) releases any guarantor of any such Advance
(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 Advance;
(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 Co-Borrowers or Parent Guarantor
of any of their obligations under this Agreement. Notwithstanding the foregoing,
Co-Borrowers and 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. Co-Borrowers 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) the consent, not to be unreasonably withheld or
delayed, of Co-Borrowers, Parent Guarantor, the Administrative Agent and, in the
case of any proposed assignment by an RL Lender, the Swingline Lender, shall be
required prior to an assignment becoming effective, and, unless each of the
Co-Borrowers, Parent Guarantor and 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 sum (calculated as at the date of such assignment) of the
assigning Lender's Available Commitment and Outstanding Credit Exposure;
provided, however, that (1) the consent of Co-Borrowers and Parent Guarantor
shall not be required for an assignment from one Lender to another Lender or an
Affiliate thereof; (2) the consent of Co-Borrowers and Parent Guarantor shall
not be required in connection with any such assignments occurring in connection
with the primary syndication of this facility and (3) if a Default has occurred
and is continuing, no consent of Co-Borrowers and Parent Guarantor to any
assignment shall be required;
(iii) Unless the Administrative Agent and, in the case of
any proposed assignment by an RL Lender, the Swingline Lender, otherwise
consents, a Lender shall not be permitted to assign less than the entire
remaining amount of the assigning Lender's Available Commitment and 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
Available Commitment and 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
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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 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
137
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 Commitment and Outstanding Credit Exposure assigned to such
Purchaser, without any further consent or action by Co-Borrowers, 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, Co-Borrowers and Parent Guarantor shall make
appropriate arrangements so that new Notes or, as appropriate, replacement Notes
are issued to 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. Co-Borrowers 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 Co-Borrowers, 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 2.14 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 Co-Borrowers, 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, Co-Borrowers 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.
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13.2 Change of Address. Co-Borrowers, 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 executed by Co-Borrowers, 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.
139
15.2 CONSENT TO JURISDICTION. CO-BORROWERS 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
CO-BORROWERS 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 CO-BORROWERS,
PARENT GUARANTOR OR ANY SUBSIDIARY GUARANTOR IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY CO-BORROWERS 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. CO-BORROWERS, 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.
* * *
140
IN WITNESS WHEREOF, Co-Borrowers, Parent Guarantor, the Lenders and
the Administrative Agent have executed this Agreement as of the date first above
written.
ADDRESSES: CO-BORROWER:
One Gaylord Drive OPRYLAND HOTEL - FLORIDA LIMITED
Xxxxxxxxx, Xxxxxxxxx 00000 PARTNERSHIP, a Florida limited
Attention: Chief Financial Officer partnership
By: Opryland Hospitality, LLC, its
general partner
By: /s/ XXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
CO-BORROWER:
One Gaylord Drive OPRYLAND HOTEL - TEXAS LIMITED
Xxxxxxxxx, Xxxxxxxxx 00000 PARTNERSHIP, a Delaware limited
Attention: Chief Financial Officer partnership
By: Opryland Hospitality, LLC, its
general partner
By: /s/ XXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
PARENT GUARANTOR:
One Xxxxxxx Drive XXXXXXX ENTERTAINMENT COMPANY,
Xxxxxxxxx, Xxxxxxxxx 00000 a Delaware corporation
Attention: Chief Financial Officer
By: /s/ XXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial
Officer
141
LENDERS:
Deutsche Bank DEUTSCHE BANK TRUST COMPANY AMERICAS,
000 Xxxxxxxx Xxxxx, Xxxxx 000 Individually and as Administrative
Xxxxxx, Xxxxx 00000 Agent
Attention: Xxxxxx X. Xxxxxx
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Bank of America BANK OF AMERICA, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
XXX-000-00-00
Xxxxxx, Xxxxx 00000 By: /s/ XXXXX X. XXXXX
Attention: Xxxxx X. Xxxxx -----------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal, Portfolio Manager
c/o CIBC World Markets CIBC INC.
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx By: /s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: CIBC World Markets Corp., as
AGENT
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 and Xxxx Xxxxx By: iStar Financial Inc., a 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
142
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
Xxxxxxx Xxxxx XXXXXXX XXXXX CAPITAL, a Division
000 X. XxXxxxx of Xxxxxxx Xxxxx Business
Xxxxxxx, Xxxxxxxx 00000 Financial Services Inc.
Attention: Xxxx Xxxxxx
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Asst. Vice President
MidFirst Bank MIDFIRST BANK, a Federally
000 XX Xxxxx Xxxx. Chartered Savings Association
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
143
