EXHIBIT 4.3
SECOND AMENDMENT TO CREDIT AGREEMENT AND RATIFICATION OF GUARANTY
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND RATIFICATION OF GUARANTY
(this "Second Amendment"), dated as of November 10, 2003, among OPRYLAND HOTEL -
FLORIDA LIMITED PARTNERSHIP, a Florida limited partnership, and OPRYLAND HOTEL -
TEXAS LIMITED PARTNERSHIP, a Delaware limited partnership (collectively,
"Co-Borrowers"), Xxxxxxx Entertainment Company, a Delaware corporation ("Parent
Guarantor"), the RL Lenders party to, and as defined in, the Credit Agreement
referred to below DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent
(the "Administrative Agent") and the undersigned Subsidiary Guarantors. All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, Co-Borrowers, Parent Guarantor, the Administrative Agent and
the RL Lenders are parties to that certain Credit Agreement, dated as of May 22,
2003, as amended by First Amendment to Credit Agreement and Ratification of
Guaranty (the "First Amendment") dated as of November 10, 2003 (as so amended,
as amended hereby and as further amended, modified or supplemented from time to
time, the "Credit Agreement");
WHEREAS, Parent Guarantor is considering issuing senior unsecured notes
in an aggregate principal amount not to exceed $350,000,000.00 (as more
particularly described herein, the "Senior Notes");
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of August 4, 2003 (the "Merger Agreement"), among Parent Guarantor, Get
Merger Sub, Inc., a wholly owned subsidiary of Parent Guarantor ("GET Sub") and
ResortQuest International, Inc., a Delaware corporation ("RZT"), it is
anticipated that GET Sub will be merged with and into RZT with RZT continuing as
the surviving corporation and wholly owned subsidiary of Parent Guarantor (the
"Merger");
WHEREAS, Parent Guarantor desires to use the proceeds of the Senior
Notes to prepay certain Indebtedness of Co-Borrowers, Parent Guarantor and
certain of its Subsidiaries, including all of the Term Loans, all of the
Subordinated Loans and, upon consummation of the Merger, certain Indebtedness of
RZT;
WHEREAS, Co-Borrowers, Parent Guarantor and the Subsidiary Guarantors
have requested that the Administrative Agent and the RL Lenders consent to the
issuance of Senior Notes in an aggregate principal amount not to exceed
$350,000,000.00 and agree to waive or modify certain provisions of the Credit
Agreement in connection therewith; and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto wish to amend certain provisions of the Credit Agreement as
provided herein.
NOW, THEREFORE, in consideration of the foregoing, the agreements
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
I. Conditions to the Effectiveness of this Second Amendment.
This Second Amendment will be effective on the date on which all of the
following conditions shall have been satisfied:
1. each of the Co-Borrowers, Parent Guarantor, the Administrative
Agent, the RL Lenders and the Subsidiary Guarantors shall have executed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent in accordance with Section 13.1 of the Credit Agreement;
2. the Administrative Agent shall have received copies, each
certified by the general partner, secretary or assistant secretary, as
applicable, of each Co-Borrower, Subsidiary Guarantor and Parent Guarantor, of
(a) the Organizational Documents of each such Person and (b) consents,
resolutions or other required actions authorizing the execution and delivery by
such Person of this Second Amendment and all other documents being executed and
delivered in connection herewith to which such Person is a party, and such
consents, resolutions or other actions shall be in form and substance reasonably
satisfactory to the Administrative Agent;
3. the Administrative Agent shall have received opinions from
counsel to Co-Borrowers, Parent Guarantor and the Subsidiary Guarantors, each
dated the date hereof and addressed to the Administrative Agent and the RL
Lenders, which opinions shall cover such matters under the laws of such
jurisdictions as the Administrative Agent may require and shall otherwise be in
form and substance reasonably satisfactory to the Administrative Agent;
4. the First Amendment shall have become effective in accordance
with its terms; and
5. the Senior Notes shall have been issued and the Term Loans
shall have been repaid in full.
II. Consents and Waivers.
1. Subject to and in accordance with the terms and conditions of
this Second Amendment, the RL Lenders hereby consent to (a) the issuance of up
to $350,000,000.00 of Senior Notes and (b) the execution and delivery by the
Co-Borrowers and the Subsidiary Guarantors of Note Guarantees in respect of such
Senior Notes, on the terms set forth in Section II.1(a) through (h) of the First
Amendment. From and after the
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effectiveness of this Second Amendment, all references in the Credit Agreement
to "Senior Notes" shall be references to the Senior Notes as defined herein.
2. The Administrative Agent and the RL Lenders hereby waive the
provisions of the second sentence of Section 2.21(a) of the Credit Agreement
solely in respect of the application of the Net Debt/Equity Proceeds of the up
to $350,000,000.00 of Senior Notes described in the preceding paragraph 1;
provided that such Net Debt/Equity Proceeds are applied immediately upon receipt
(or, in the case of the Nashville Mezzanine Loan, applied no later than five
Business Days after receipt) by Parent Guarantor to, among other things, (i)
prepay the Nashville Mezzanine Loan in full, (ii) prepay the Term Loans and the
Subordinated Loans in full and (iii) make the Note Deposit with the Collateral
Agent, it being understood that any remaining portion of Net Debt/Equity
Proceeds of the Senior Notes, after the payments described in the preceding
clauses (i), (ii) and (iii) may be utilized by Parent Guarantor for general
corporate purposes. Section II.2 of the First Amendment is hereby deleted.
3. On the date of issuance of the Senior Notes and upon
application of the Net Debt/Equity Proceeds thereof to the payments described in
the preceding paragraph 2, the Administrative Agent shall release cash in the
amount of $25,000,000.00 from the Completion Reserve Account to or at the
direction of Parent Guarantor.
4. The following is hereby inserted after "one Business Day" in
clause (i) of the last sentence of Section II.4 of the First Amendment:
",provided that with respect to the portion of the RZT Debt evidenced by the
Company Senior Notes (as defined in the Merger Agreement), such period of one
Business Day may be extended to thirty-five (35) days".
III. Amendments to the Credit Agreement With Regard to the Senior Notes.
1. Upon issuance of the Senior Notes and application of the Net
Debt/Equity Proceeds thereof as required by Section II.2(a) hereof, the Credit
Agreement shall be amended by deleting Section 2.21(b) thereof.
IV. Amendments to Credit Agreement With Regard to the Merger.
1. Section IV.1(a) through (d) and Section IV.2(a) of the First
Amendment are hereby deleted. In Section IV.2 of the First Amendment, "On the
Merger Effective Date" is hereby amended to "On the earlier of the date on
which the Company Senior Notes (as defined in the Merger Agreement) are paid in
full or the date which is thirty-five (35) days after the Merger Effective
Date,".
2. Clause (x) of the last sentence of Section 6.18 of the Credit
Agreement is hereby deleted.
3. Notwithstanding the provisions of Section IV.2(b) of the First
Amendment, the three RZT Subsidiaries organized in British Columbia shall not be
required to execute Instruments of Adherence.
4. Section IV.2(e) of the First Amendment is hereby amended by
adding the following at the end thereof: "provided that the Administrative Agent
shall
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not require such opinions of counsel with respect to authorization in respect of
the entities described on Exhibit A hereto."
V. Miscellaneous Provisions.
1. Section V.2 of the First Amendment is hereby deleted.
2. The waivers and consents set forth herein are limited
precisely as written, shall not extend to or affect any right or obligation not
expressly waived, and shall not be deemed a consent or waiver to, or
modification of, any other term or condition in the Credit Agreement, the Loan
Documents or any of the documents referred to herein or therein. Except as
expressly waived and consented to or amended hereby, the Credit Agreement
remains in full force and effect and is hereby ratified and confirmed in all
respects, it being understood that the Administrative Agent and the RL Lenders
hereby expressly reserve all of their rights and remedies under the Credit
Agreement, as amended hereby.
3. In order to induce the RL Lenders to enter into this Second
Amendment, Co-Borrowers and Parent Guarantor hereby represent and warrant to
each of the RL Lenders that (a) all of the representations and warranties
contained in the Credit Agreement are true and correct on and as of the date
hereof (unless such representations and warranties relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date) and (b) there exists no Default on and as of
the date hereof.
4. By signing below, Parent Guarantor and each of the Subsidiary
Guarantors (a) acknowledges, consents and agrees to the execution and delivery
by Co-Borrowers of this Second Amendment, (b) ratifies and confirms its
obligations under the Guaranty, which remains unmodified and in full force and
effect, (c) acknowledges and agrees that its obligations under the Guaranty are
not released, diminished, waived, modified, impaired or affected in any manner
by this Second Amendment or by any of the transactions contemplated hereby, (d)
represents and warrants that it has received and reviewed this Second Amendment
and (e) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, the Guaranty as a result of this Second Amendment
or otherwise.
5. All costs and out-of-pocket expenses incurred by the
Administrative Agent in connection with this Second Amendment and the
transactions contemplated hereby shall be reimbursed to the Administrative Agent
by Co-Borrowers and Parent Guarantor, on demand.
6. This Second Amendment may not be amended, modified or
otherwise changed in any manner except by a writing executed by all of the
parties hereto.
7. This Second Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
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8. This Second Amendment may be signed in any number of
counterparts by the parties hereto, all of which taken together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOW IMMEDIATELY]
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IN WITNESS WHEREOF, Co-Borrowers, Parent Guarantor, the Administrative
Agent, the RL Lenders and the Subsidiary Guarantors have executed this Second
Amendment as of the date first above written.
CO-BORROWER:
OPRYLAND HOTEL - FLORIDA LIMITED
PARTNERSHIP, a Florida limited partnership
By: Opryland Hospitality, LLC, its general
partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
CO-BORROWER:
OPRYLAND HOTEL - TEXAS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Opryland Hospitality, LLC, its general
partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
PARENT GUARANTOR:
XXXXXXX ENTERTAINMENT COMPANY, a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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RL LENDERS:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as the
Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal
CIBC INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
CIBC World Markets Corp.,
AS AGENT
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
MIDFIRST BANK, a Federally Chartered
Savings Association
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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SUBSIDIARY GUARANTORS:
CCK HOLDINGS, LLC, a Delaware limited
liability company
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
CORPORATE MAGIC, INC., a Texas corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX CREATIVE GROUP, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX INVESTMENTS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX PROGRAM SERVICES, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
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XXXXX XXX XXXX TOURS, INC., a Tennessee
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OLH, G.P., a Tennessee general partnership
By: Xxxxxxx Entertainment Company, a
general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
OLH HOLDINGS, LLC, a Delaware limited
liability company
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OPRYLAND ATTRACTIONS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
OPRYLAND PRODUCTIONS, INC., a Tennessee
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
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OPRYLAND THEATRICALS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
WILDHORSE SALOON ENTERTAINMENT VENTURES,
INC., a Tennessee corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
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