EXHIBIT 10.34
FIFTH AMENDMENT
THIS FIFTH AMENDMENT (this "AMENDMENT"), dated as of December 31, 1999,
is by and among RESORTQUEST INTERNATIONAL, INC., a Delaware corporation (the
"BORROWER"), the Subsidiaries of the Borrower party hereto (collectively the
"GUARANTORS"), the Lenders party hereto (the "LENDERS"), SOCIETE GENERALE, as
Co-Agent (the "Co-Agent") and BANK OF AMERICA, N.A., formerly NationsBank, N.A.,
a national banking association as Agent for the Lenders (the "AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of May 26, 1998 (as
amended by a letter agreement dated as of September 30, 1998, a Second Amendment
dated as of December 7, 1998, a Third Amendment dated as of April 16, 1999 and a
Fourth Amendment dated as of June 1, 1999, the "EXISTING CREDIT AGREEMENT"),
among the Borrower, the Guarantors, the Lenders, the Co-Agent and the Agent, the
Lenders have extended commitments to make certain credit facilities available to
the Borrower;
WHEREAS, the Borrower has requested certain amendments to the Existing
Credit Agreement; and
WHEREAS, the Lenders have agreed to amend the Credit Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Credit Agreement is hereby amended in accordance with this
PART I. Except as so amended, the Existing Credit Agreement shall continue in
full force and effect.
SUBPART 1.1. AMENDMENT TO SECTION 1.1. The definition of "CONSOLIDATED
NET INCOME" contained in Section 1.1 of the Existing Credit Agreement is amended
in its entirety so that such definition now reads as follows:
"CONSOLIDATED NET INCOME" means, for any period, net income
(excluding extraordinary items) after taxes for such period of the
Consolidated Parties on a consolidated basis, as determined in
accordance with GAAP; provided, however, (i) one-time write-down
charges made by the Consolidated Parties for secondary offering costs
and pooling transaction costs, in an aggregate post-tax amount of
$335,000, shall not be taken into account for purposes of determining
Consolidated Net Income for the fiscal quarter ending June 30, 1999
and (ii) one-time write-down charges made by the
Consolidated Parties for deferred costs for acquisitions, costs
associated with a study to identify alternative equity sources,
severance pay accruals and asset write-offs, in an aggregate
post-tax amount of $1,445,000, shall not be taken into account for
purposes of determining Consolidated Net Income for the fiscal
quarter ending December 31, 1999.
SUBPART 1.2. AMENDMENT TO SECTION 7.11(B). Section 7.11(b) of the
Existing Credit Agreement is amended in its entirety so that such Section now
reads as follows:
(b) LEVERAGE RATIO. The Leverage Ratio, (i) as of the last day
of each fiscal quarter of the Consolidated Parties other than the
fiscal quarter ending December 31, 1999, shall be less than or equal to
2.5 to 1.0 and (ii) as of the last day of the fiscal quarter of the
Consolidated Parties ending December 31, 1999, shall be less than or
equal to 2.7 to 1.0.
SUBPART 1.3. AMENDMENT TO SECTION 7.11(D). Section 7.11(d) of the
Existing Credit Agreement is amended in its entirety so that such Section now
reads as follows:
(d) CONSOLIDATED CAPITAL EXPENDITURES. The Borrower shall not
permit Consolidated Capital Expenditures to exceed (i) $3,000,000 for
the fiscal year 1998, (ii) $5,300,000 for the fiscal year 1999 and
(iii) $4,000,000 for the fiscal year 2000 and thereafter. In each such
fiscal year Consolidated Capital Expenditures shall be computed on a
non-cumulative basis.
PART II
CONDITIONS TO EFFECTIVENESS
SUBPART 2.1. AMENDMENT EFFECTIVE DATE. Upon satisfaction of all of the
conditions set forth in this PART II, this Amendment shall be deemed effective
on December 31, 1999 (the "AMENDMENT EFFECTIVE DATE"), and thereafter this
Amendment shall be known, and may be referred to, as the "FIFTH AMENDMENT."
SUBPART 2.2. EXECUTION OF COUNTERPARTS OF AMENDMENT. The Agent shall
have received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the Agent) of this Amendment, which collectively shall
have been duly executed on behalf of each of the Borrower, the Guarantors and
the Required Lenders.
SUBPART 2.3. FURTHER ASSURANCES. The Agent shall have received such
other documents, instruments and certificates as the Agent may reasonably
request.
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PART III
MISCELLANEOUS
SUBPART 3.1. CROSS-REFERENCES. References in this Amendment to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 3.2. INSTRUMENT PURSUANT TO EXISTING CREDIT AGREEMENT. This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement.
SUBPART 3.3. REFERENCES IN OTHER CREDIT DOCUMENTS. At such time as this
Amendment shall become effective pursuant to the terms of SUBPART 2.1, all
references in the Existing Credit Agreement and the other Credit Documents to
the "Credit Agreement" shall be deemed to refer to the Existing Credit Agreement
as amended by this Amendment.
SUBPART 3.4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower hereby represents and warrants that (a) the conditions precedent to the
initial Loans were satisfied as of the Closing Date (assuming satisfaction or
waiver, if applicable, of all requirements in such conditions that an item be in
form and/or substance reasonably satisfactory to the Agent or any Lenders or
that any event or action have been completed or performed to the reasonable
satisfaction of the Agent or any Lenders), (b) the representations and
warranties contained in SECTION 6 of the Existing Credit Agreement (as amended
or modified by this Amendment) are correct in all material respects on and as of
the date hereof (except for those which expressly relate to an earlier date) as
though made on and as of such date and after giving effect to the amendments
contained herein and (c) no Default or Event of Default exists under the
Existing Credit Agreement on and as of the date hereof and after giving effect
to the amendments contained herein.
SUBPART 3.5. ACKNOWLEDGMENT OF GUARANTORS. The Guarantors acknowledge
and consent to all of the terms and conditions of this Fifth Amendment and agree
that this Fifth Amendment and all documents executed in connection herewith do
not operate to reduce or discharge the Guarantors' obligations under the Credit
Documents
SUBPART 3.6. COUNTERPARTS. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SUBPART 3.7. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NORTH
CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SUBPART 3.8. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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Each of the parties hereto has caused a counterpart of this Amendment
to be duly executed and delivered as of the date first above written.
BORROWER: RESORTQUEST INTERNATIONAL, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: President and CEO
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GUARANTORS: FIRST RESORT SOFTWARE, INC.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
B&B ON THE BEACH, INC.,
a North Carolina corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
XXXXXXXX & XXXXXXXX REALTY &
DEVELOPMENT, INC., a North Carolina
corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
COASTAL RESORTS REALTY L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
COASTAL RESORTS MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
COLLECTION OF FINE PROPERTIES, INC.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
TEN MILE HOLDINGS, LTD.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
HOTEL CORPORATION OF THE PACIFIC, INC.,
a Hawaii corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
HOUSTON AND X'XXXXX COMPANY,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
MAUI CONDOMINIUM & HOME REALTY, INC.,
a Hawaii corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
THE MAURY PEOPLE, INC.,
a Massachusetts corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
XXXXX ACQUISITION, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
REALTY CONSULTANTS, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
RESORT PROPERTY MANAGEMENT, INC.,
a Utah corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
TELLURIDE RESORT ACCOMMODATIONS, INC.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
XXXXX-XXXXXXX ENTERPRISES, INC.,
a Georgia corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
THE MANAGEMENT COMPANY,
a Georgia corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
WHISTLER CHALETS LTD.,
a British Columbia corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
XXXXXX & XXXXXXX REALTY, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
XXXXXX REALTY SERVICES, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
XXXXXX RESORTS, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
PLANTATION RESORT MANAGEMENT, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
THE TOPS'L GROUP, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
LENDERS: BANK OF AMERICA, N. A.,
formerly NationsBank, N.A., individually
in its capacity as a Lender and in its
capacity as Agent
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------
Title: Managing Director
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SOCIETE GENERALE,
individually in its capacity as a
Lender and in its capacity as Co-Agent
By:
-----------------------------------------
Name:
--------------------------------------
Title:
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UNION PLANTERS BANK, N.A.
By: /s/ Xxxxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxx
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Title: Vice President
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