EXHIBIT 10.14
CREDIT AGREEMENT
among
OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP,
as Borrower,
XXXXXXX ENTERTAINMENT COMPANY,
as Parent Guarantor,
THE LENDERS PARTY HERETO
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Dated as of November 20, 2003
with
DEUTSCHE BANK SECURITIES INC. and
BANC OF AMERICA SECURITIES LLC,
as Joint Book Running Managers and
Co-Lead Arrangers,
and
BANK OF AMERICA, N.A.,
as Syndication Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................ 1
ARTICLE II AMOUNT AND TERMS OF CREDIT................................................................. 28
2.1 The Commitments................................................................................ 28
2.2 Payment on Maturity Date....................................................................... 30
2.3 Ratable Loans.................................................................................. 30
2.4 Types of Advances.............................................................................. 30
2.5 Commitment and Administrative Agency Fees...................................................... 30
2.6 Minimum Amount of Each Revolving Loan Advance; Disbursement Provisions......................... 30
2.7 Optional Principal Payments.................................................................... 31
2.8 Method of Selecting Types and Interest Periods for Advances.................................... 31
2.9 Conversion and Continuation of Outstanding Advances............................................ 33
2.10 Interest Rate; Changes in Interest Rate; Interest Periods; etc................................. 33
2.11 Rates Applicable After Default................................................................. 34
2.12 Method of Payment.............................................................................. 34
2.13 Notes; Evidence of Indebtedness................................................................ 35
2.14 Telephonic Notices............................................................................. 36
2.15 Interest Payment Dates; Interest and Fee Basis................................................. 36
2.16 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................ 37
2.17 Lending Offices................................................................................ 37
2.18 Non-Receipt of Funds by the Administrative Agent............................................... 37
2.19 Incremental Revolving Loan Commitments......................................................... 37
2.20 Letters of Credit.............................................................................. 39
2.20.1 Maximum Letter of Credit Outstandings; Final Maturities, etc................................... 41
2.20.2 Letter of Credit Request; Notices of Issuance.................................................. 41
2.20.3 Letters of Credit Participations............................................................... 42
2.20.4 Agreement to Repay Letter of Credit Drawings................................................... 44
2.20.5 Increased Costs................................................................................ 45
2.20.6 Letter of Credit Fee; Facing Fee............................................................... 46
2.21 Voluntary Reduction of Aggregate Available Commitment.......................................... 46
2.22 FF&E Reserve Account........................................................................... 47
2.23 Replacement of Lender.......................................................................... 47
ARTICLE III YIELD PROTECTION; TAXES.................................................................... 48
3.1 Yield Protection............................................................................... 48
3.2 Changes in Capital Adequacy Regulations........................................................ 49
3.3 Availability of Types of Advances.............................................................. 49
3.4 Funding Indemnification........................................................................ 49
3.5 Taxes.......................................................................................... 50
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3.6 Lender Statements; Survival of Indemnity....................................................... 51
3.7 Reasonable Efforts to Mitigate................................................................. 52
ARTICLE IV CONDITIONS PRECEDENT....................................................................... 52
4.1 Closing Deliveries............................................................................. 52
4.2 Conditions Precedent to Each Revolving Loan Advance and any Swingline Loan and Letter of Credit 55
4.3 Conditions Precedent to Disbursements From FF&E Reserve Account................................ 56
4.4 Limited Nature of Waivers of Requirements...................................................... 56
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................. 56
5.1 Ownership, Existence and Standing.............................................................. 56
5.2 Authorization and Validity..................................................................... 57
5.3 No Conflict; Government Consent................................................................ 57
5.4 Financial Statements and Projections........................................................... 58
5.5 Intentionally Reserved......................................................................... 58
5.6 Taxes.......................................................................................... 58
5.7 Litigation and Contingent Obligations.......................................................... 58
5.8 Subsidiaries................................................................................... 59
5.9 Affiliate Contracts............................................................................ 59
5.10 Accuracy of Information........................................................................ 59
5.11 Margin Regulations............................................................................. 59
5.12 Material Agreements............................................................................ 59
5.13 Compliance With Laws........................................................................... 60
5.14 Ownership of Certain Properties................................................................ 60
5.15 Plan Assets; Prohibited Transactions; ERISA.................................................... 60
5.16 Environmental Matters.......................................................................... 61
5.17 Investment Company Act......................................................................... 62
5.18 Public Utility Holding Company Act............................................................. 62
5.19 Solvency....................................................................................... 62
5.20 Permits, Zoning, Government Approvals, Trademarks, Etc......................................... 63
5.21 Intentionally Reserved......................................................................... 63
5.22 Leasehold Matters.............................................................................. 63
5.23 Ground Lease Matters........................................................................... 63
5.24 Casualty; Condemnation......................................................................... 64
5.25 Intentionally Reserved......................................................................... 64
5.26 Brokerage Fees................................................................................. 64
5.27 Personal Property.............................................................................. 64
5.28 Incentive Agreements........................................................................... 64
5.29 SAILS Contract................................................................................. 65
ARTICLE VI COVENANTS.................................................................................. 65
6.1 Financial Reporting............................................................................ 65
6.2 Use of Proceeds................................................................................ 67
6.3 Notice of Default.............................................................................. 67
6.4 Conduct of Business; Corporate Existence....................................................... 67
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6.5 Taxes and Claims............................................................................... 68
6.6 Insurance...................................................................................... 69
6.7 Compliance with Laws........................................................................... 72
6.8 Alterations.................................................................................... 72
6.9 Inspections; Books and Records................................................................. 72
6.10 Completion of Texas Project.................................................................... 73
6.11 Amount of Title Policy......................................................................... 73
6.12 Intentionally Reserved......................................................................... 73
6.13 Distributions; Mandatory Application of Net Operating Income to the Loans...................... 73
6.14 Indebtedness................................................................................... 74
6.15 Merger......................................................................................... 75
6.16 Ownership of OHTLP and OHN; Management of Texas Project and Opryland Nashville................. 75
6.17 Sales of Assets; Releases of Subsidiary Guarantors............................................. 75
6.18 Investments; New Subsidiary Guarantors; Capital Expenditures................................... 76
6.19 Liens.......................................................................................... 77
6.20 Affiliates..................................................................................... 78
6.21 Secured Rate Management Transactions........................................................... 78
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities........................ 78
6.23 SAILS Forward Exchange Contracts............................................................... 78
6.24 Financial Contracts............................................................................ 78
6.25 Financial Covenants............................................................................ 78
6.25.1 Maximum Total Leverage Ratio................................................................... 78
6.25.2 Opryland Hotel Florida Minimum Adjusted Net Operating Income................................... 79
6.25.3 Minimum Fixed Charge Coverage Ratio............................................................ 79
6.26 Environmental Audits........................................................................... 80
6.27 Insurance and Condemnation Proceeds............................................................ 80
6.28 The Administrative Agent's and the Lenders' Actions for Their Own Protection Only.............. 82
6.29 Intentionally Reserved......................................................................... 83
6.30 Proceedings to Enjoin or Prevent Construction.................................................. 83
6.31 No Obligation to Monitor....................................................................... 83
6.32 Compliance with Agreements..................................................................... 83
6.33 Organizational Documents....................................................................... 84
6.34 Leasing Provisions............................................................................. 84
6.35 Ground Lease Covenants......................................................................... 84
6.36 Zoning Changes................................................................................. 88
6.37 Fiscal Year.................................................................................... 88
6.38 Intentionally Reserved......................................................................... 88
6.39 Security Interest in Accounts; Certain Remedies................................................ 88
6.40 Principal Places of Business; Names............................................................ 91
6.41 Documents of Further Assurance................................................................. 91
6.42 Wetlands....................................................................................... 91
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ARTICLE VII DEFAULTS................................................................................... 92
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................. 95
8.1 Acceleration................................................................................... 95
8.2 All Remedies................................................................................... 96
8.3 Intentionally Reserved......................................................................... 96
8.4 Enforcement.................................................................................... 96
8.5 Preservation of Rights......................................................................... 96
ARTICLE IX GENERAL PROVISIONS......................................................................... 96
9.1 Survival of Representations.................................................................... 96
9.2 Governmental Regulation........................................................................ 97
9.3 Headings....................................................................................... 97
9.4 Entire Agreement............................................................................... 97
9.5 Obligations; Benefits of this Agreement........................................................ 97
9.6 Expenses; Indemnification...................................................................... 97
9.7 Numbers of Documents........................................................................... 98
9.8 Accounting..................................................................................... 98
9.9 Severability of Provisions..................................................................... 98
9.10 Nonliability of Lenders........................................................................ 98
9.11 Confidentiality................................................................................ 99
9.12 Nonreliance.................................................................................... 100
9.13 Disclosure..................................................................................... 100
9.14 Marshalling; Payments Set Aside................................................................ 100
9.15 Successors and Assigns......................................................................... 101
9.16 Inconsistencies................................................................................ 101
9.17 Disclaimer by Lender........................................................................... 101
9.18 Time is of the Essence......................................................................... 101
9.19 Protective Advances............................................................................ 101
ARTICLE X THE ADMINISTRATIVE AGENT AND THE LENDERS................................................... 102
10.1 Appointment.................................................................................... 102
10.2 Nature of Duties............................................................................... 102
10.3 Lack of Reliance on the Administrative Agent................................................... 103
10.4 Certain Rights of the Administrative Agent..................................................... 103
10.5 Reliance....................................................................................... 104
10.6 Indemnification................................................................................ 104
10.7 The Administrative Agent in its Individual Capacity............................................ 104
10.8 Holders........................................................................................ 104
10.9 Resignation by the Administrative Agent........................................................ 105
10.10 Other Agents................................................................................... 105
10.11 Lender Default................................................................................. 105
10.12 Authority...................................................................................... 109
10.13 Borrower Default............................................................................... 112
10.14 Acquisition of Collateral...................................................................... 113
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10.15 Documents...................................................................................... 114
10.16 Receipt and Maintenance of Loan Documents...................................................... 114
10.17 No Representations............................................................................. 114
10.18 No Relation.................................................................................... 114
10.19 Standard of Care............................................................................... 114
10.20 No Responsibility for Loans, Etc............................................................... 115
10.21 Payments After Default......................................................................... 115
10.22 Payments Received.............................................................................. 116
ARTICLE XI SETOFF; RATABLE PAYMENTS................................................................... 116
11.1 Setoff......................................................................................... 116
11.2 Ratable Payments............................................................................... 116
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.......................................... 117
12.1 Successors and Assigns......................................................................... 117
12.2 Participations................................................................................. 117
12.2.1 Permitted Participants; Effect................................................................. 117
12.2.2 Voting Rights.................................................................................. 118
12.2.3 Benefit of Setoff.............................................................................. 118
12.3 Assignments.................................................................................... 118
12.3.1 Permitted Assignments.......................................................................... 118
12.3.2 Transfers...................................................................................... 119
12.3.3 Effect; Effective Date......................................................................... 120
12.4 Dissemination of Information................................................................... 121
12.5 Tax Treatment.................................................................................. 121
ARTICLE XIII NOTICES.................................................................................... 121
13.1 Notices........................................................................................ 121
13.2 Change of Address.............................................................................. 121
ARTICLE XIV COUNTERPARTS............................................................................... 121
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL............................... 122
15.1 CHOICE OF LAW.................................................................................. 122
15.2 CONSENT TO JURISDICTION........................................................................ 122
15.3 WAIVER OF JURY TRIAL........................................................................... 122
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Revolving Note
Exhibit A-2 Form of Swingline Note
Exhibit B Permitted Existing Liens
Exhibit C Legal Description of Opryland Hotel Florida
Exhibit D Form of Assignment Agreement
Exhibit E Form of Borrower's and Parent Guarantor's Compliance Certificate
Exhibit F Revolving Loan Commitment Agreement
Exhibit G Letter of Credit Request
Exhibit H Form of Instrument of Adherence
Schedule 1 Commitments
Schedule 2 Environmental Reports
Schedule 2.20(c) Existing Letters of Credit
Schedule 3 Initial Subsidiary Guarantors
Schedule 5.1 Ownership Chart
Schedule 5.7 Litigation Pending or Threatened
Schedule 5.9 Affiliate Contracts with respect to the Opryland Hotel Florida
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 6.18(a) Certain RZT Subsidiaries
Schedule 6.20 Non-Arms Length Transactions
Schedule 6.39 Certain Accounts
vi
CREDIT AGREEMENT
Credit Agreement, dated as of November 20, 2003 (the "Effective Date"),
among Opryland Hotel - Florida Limited Partnership, a Florida limited
partnership, as Borrower, and 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. and
Bank of America Securities LLC, as Joint Book Running Managers and Co-Lead
Arrangers, and Bank of America, N.A., as Syndication Agent.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein set forth,
the Lenders are willing to make available to Borrower the credit facility
provided for herein;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Account Collateral" is defined in Section 6.39.
"Account Holders" is defined in Section 6.39.
"Account Control Agreement" means, the Account Pledge, Assignment and
Control Agreement dated as of the Effective Date between Borrower,
Administrative Agent and the Reserve Account Bank.
"Accounts" is defined in Section 6.39.
"Adjusted Net Operating Income" for any period means 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 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, 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 Credit
Exposure at such time.
"Aggregate Outstanding Credit Exposure" means, at any time, the sum of
the Outstanding Credit Exposures 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%.
"Appraisal" means, the appraisal by Xxxxxxx & Xxxxxxxxx of the Opryland
Hotel Florida, obtained by the Administrative Agent prior to the Effective Date
or, 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 FF&E Budget" means Borrower's budget for normal maintenance
capital expenditures, as in effect and approved by the Administrative Agent from
time to time.
"Article" means an article of this Agreement unless another document is
specifically referenced.
2
"Asset Sale" means (a) the sale, lease (other than operating leases in
respect of facilities which are ancillary to the operation of Borrower's, Parent
Guarantor's or a Subsidiary's properties), conveyance or other disposition of
any property or assets of Borrower, Parent Guarantor or any Subsidiary of Parent
Guarantor (and including any such transaction by way of a sale-leaseback
transaction and including a disposition by either Borrower, Parent Guarantor or
a Subsidiary of Equity Interests in a Subsidiary), (b) the issuance or sale of
Equity Interests of any of Parent Guarantor's Subsidiaries or (c) any event of
loss by reason of casualty, condemnation or otherwise, other than, with respect
to clauses (a), (b), and (c) above, the following: (i) the sale or disposition
of personal property held for sale in the ordinary course of business, (ii) the
sale or disposal of damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of Borrower, Parent Guarantor or such Subsidiary,
as applicable, or is simultaneously replaced with similar property, (iii) the
transfer of assets (other than assets that constitute Collateral) by Borrower to
Parent Guarantor, or to a Subsidiary Guarantor, or by a Subsidiary of Parent
Guarantor (other than Borrower) to either Borrower, Parent Guarantor or a
Subsidiary Guarantor and (iv) the sale or disposition of any single asset having
a value not in excess of $500,000.00, in a transaction unrelated to any other
Asset Sale.
"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 Borrower, acting singly, or such other representative of
Borrower or the Chief Executive Officer or the Chief Financial Officer of Parent
Guarantor, designated from time to time by Borrower or Parent Guarantor, in a
written notice signed by 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 Outstanding
Credit Exposure of such Lender at such time.
"Borrower" means, Opryland Hotel - Florida Limited Partnership, a
Florida limited partnership.
"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.
"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
3
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 Borrower's or Parent Guarantor's assets to any person or
group (as such term is used in Section 13(d)(3) of the Securities Exchange Act),
(ii) the adoption of a plan relating to the liquidation or dissolution of
Borrower or Parent Guarantor, (iii) the acquisition by any person or group (as
such term is used in Section 13 (d)(3) of the Securities Exchange Act) of a
direct or indirect interest in more than 50% of the ownership of Borrower or
Parent Guarantor or the voting power of the voting stock of Parent Guarantor by
way of purchase, merger or consolidation or otherwise (other than a creation of
a holding company that does not involve a change in the beneficial ownership of
Parent Guarantor as a result of such transaction), (iv) any consolidation of
Parent Guarantor with, or merger of Parent Guarantor into, any other Person or
any merger of another Person into Parent Guarantor in each case with the effect
that immediately after such transaction the stockholders of Parent Guarantor
immediately prior to such transaction hold less than 50% of the total voting
power of all securities generally entitled to vote in the election of directors,
managers, or trustees of the Person surviving such merger or consolidation, (v)
the first day on which a majority of the members of the Board of Directors of
Parent Guarantor are not Continuing Directors or (vi) Parent Guarantor ceases to
own, directly or indirectly 100% of all ownership interests in Borrower, or
Parent Guarantor or Borrower is otherwise in breach of Section 6.16 or Section
6.17(a). A "beneficial owner" shall be determined in accordance with Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act, as in effect on the date hereof.
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"Claim" means any claim, action, suit or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means 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 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 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 Borrower, Parent Guarantor and Opryland Hospitality Group in favor
of the Administrative Agent, for the benefit of the Lenders and other Holders of
Secured Obligations, as each may be amended or modified and in effect from time
to time.
"Collateral Documents" means, collectively, the Mortgage, the
Collateral Assignments, the Account Control Agreement and all other Loan
Documents under which a Lien is granted in, against or with respect to the
Opryland Hotel Florida or any other Property.
"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).
"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, (iv) unrealized gains or losses from the SAILS
Forward Exchange Contracts and any other Financial Contract, and (v) one-time
nonrecurring costs and expenses, up to a maximum of $5,000,000.00 in the
aggregate, incurred in connection with the merger of GET Merger Sub, Inc., and
ResortQuest International, Inc.; provided that, subject to the closing of the
merger of a Subsidiary of Parent Guarantor with
5
RZT, Consolidated EBITDA for each period of four full Fiscal Quarters set forth
below shall be adjusted, but solely for the purpose of determining Consolidated
EBITDA for such period, by the amount set forth below for such period, which
amount represents a pro-forma credit in respect of synergies expected to be
achieved over time by reason of such merger:
PERIOD PRO-FORMA EBITDA CREDIT
---------------------------------------------- -----------------------
Four Fiscal Quarters ending December 31, 2003 $ 5,000,000.00
Four Fiscal Quarters ending March 31, 2004 $ 5,000,000.00
Four Fiscal Quarters ending June 30, 2004 $ 4,000,000.00
Four Fiscal Quarters ending September 30, 2004 $ 3,000,000.00
Four Fiscal Quarters ending December 31, 2004 $ 2,000,000.00
"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 (a) the Hockey
Club Guaranty, provided that no demand for payment thereunder is made and
Indebtedness thereunder is not reflected on Parent Guarantor's balance sheet and
(b) 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 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.
"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
6
such under any statute, law, ordinance, rule or regulation of any Governmental
Authority having jurisdiction over the 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 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.
7
"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,
provided such easements do not adversely affect the Opryland Hotel Florida 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.
"Eligible Assignee" means (a) any Lender, any bank, savings and loan
association, investment bank, insurance company, trust company, commercial
credit corporation, real estate mortgage investment conduit, grantor trust,
pension trust, pension plan, pension fund or pension advisory firm, mutual fund,
government entity or plan, real estate investment trust, investment company,
money management firm, "qualified institutional buyer" (within the meaning of
Rule 144A under the Securities Act of 1933, as amended), "accredited investor"
(as defined in Regulation D of the Securities Act), publicly traded corporation,
publicly or privately held fund engaged in real estate, corporate or commercial
lending or investing, or any entity substantially similar to any of the
foregoing, which in each case has a minimum net worth, net assets or net capital
of $100,000,000, and (b) any Affiliate of any of the foregoing, provided that
under no circumstances shall Parent Guarantor, Borrower or any Affiliate of
Parent Guarantor or Borrower be an Eligible Assignee.
"Environmental Indemnity Agreement" means that certain Environmental
Indemnity Agreement dated as of the Effective Date, executed and delivered by
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.
8
"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 2 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 Letter of Credit" is defined in Section 2.20(c).
"Existing Senior Loans" means certain loans in the aggregate principal
amount of up to $175,000,000.00, made pursuant to Credit Agreement dated as of
May 22, 2003, by certain lenders to Borrower and OHTLP, secured by, among other
things, a first priority mortgage encumbering the Opryland Hotel Florida and a
first priority deed of trust encumbering the Texas Project.
"Existing Subordinated Loans" means certain loans in the aggregate
original principal amount of $50,000,000.00, made as of May 22, 2003 by certain
lenders to Xxxxxxx Hotels, LLC, secured by, among other things, a pledge by
Xxxxxxx Hotels, LLC of its partnership interests in each of Borrower and OHTLP.
"Facility Year" means each period of one year commencing on the
Effective Date and on each anniversary thereof.
"FF&E Reserve" is defined in Section 2.22(b).
9
"FF&E Reserve Account" is defined in Section 2.22(a).
"FF&E Reserve Disbursement" is defined in Section 4.3.
"FF&E Reserve Disbursement Date" means the date of a disbursement from
the FF&E Reserve Account.
"FF&E Reserve Disbursement Request" means a notice given by 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 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.
"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.
"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 Ground Lease Estoppels" means collectively, (i) an estoppel
certificate relating to the Florida Hotel Ground Lease delivered by the Florida
Ground Lessor and (ii) an estoppel certificate relating to the Florida Master
Ground Lease delivered by the Florida Master Lessor, in each case in form and
content satisfactory to the Administrative Agent.
"Florida Ground Leases" means the Florida Hotel Ground Lease and the
Florida Master Ground Lease.
10
"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 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
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.
"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 Opryland Hotel Florida 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, 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 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)
11
interest income on the Opryland Hotel Florida's bank accounts or otherwise
earned by Borrower, and (f) rebates, refunds or discounts (including, without
limitation, free or discounted accommodations).
"Ground Leases" means collectively, the Florida Hotel Ground Lease and
the Florida Master Ground Lease.
"Guaranty" means that certain Guaranty dated as of the Effective Date,
executed and delivered by Parent Guarantor and the Subsidiary Guarantors in
favor of the Administrative Agent, for the benefit of the Lenders and other
Holders of Secured Obligations, as it may be amended or modified and in effect
from time to time, together with any additional guaranty of payment executed and
delivered by a Subsidiary of Parent Guarantor in accordance with Section 6.17 or
Section 6.18.
"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.
"Hockey Club Guaranty" means that certain Guaranty dated June 25, 1997
by Parent Guarantor and certain other Persons in favor of the National Hockey
League and certain other Persons with respect to certain obligations of
Nashville Hockey Club Limited Partnership.
"Holders of Secured Obligations" means the Administrative Agent, the
Lenders and the Secured Counterparties under Secured Rate Management
Transactions, if any.
"Improvements" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or hereafter
constructed at 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 Borrower 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.
"Incremental Lender" shall have the meaning provided in Section
2.19(b).
"Incremental Loan Commitment Requirements" means, with respect to any
request for an Incremental Revolving Loan Commitment made pursuant to Section
2.19 or any provision of an Incremental Revolving Loan Commitment on a given
Incremental Loan Commitment Date, the satisfaction of each of the following
conditions: (i) no Default or Unmatured Default then exists or would result
therefrom; (ii) Borrower shall have provided Administrative Agent with
calculations demonstrating compliance with the covenants contained in Sections
6.14 and 6.25 hereof as of the Fiscal Quarter most recently ended prior to the
date of its request for such
12
Incremental Loan Commitment, on a pro-forma basis; (iii) Borrower shall have
certified to the Administrative Agent that the incurrence of Loans in an
aggregate principal amount equal to the full amount of the Incremental Loan
Commitments then requested or provided is permitted under, and in accordance
with, all other indentures and all other material debt agreements to which
Borrower, Parent Guarantor or any of its Subsidiaries is a party; (iv) all
representations and warranties contained herein and in the other Loan Documents
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made as of such date of
request or Incremental Loan Commitment Date, as the case may be (after giving
effect to the incurrence of the respective Loan), unless stated to relate to a
specified date, in which case such representations and warranties shall be true
and correct in all material respects as of such specified date; and (v) the
delivery by Borrower of an officer's certificate to the Administrative Agent
certifying as to compliance with preceding clauses (i), (ii), (iii) and (iv).
"Incremental Revolving Loan Commitment" means, for each Incremental
Lender, any commitment by such Incremental Lender to make Revolving Loans
pursuant to Section 2.1(a) as agreed to by such Incremental Lender in the
respective Incremental Revolving Loan Commitment Agreement delivered pursuant to
Section 2.19; it being understood, however, that on each date upon which an
Incremental Revolving Loan Commitment of any Incremental Lender becomes
effective, such Incremental Revolving Loan Commitment of such Incremental Lender
shall be added to (and thereafter become a part of) the Revolving Loan
Commitment of such Incremental Lender for all purposes of this Agreement as
contemplated by Section 2.19.
"Incremental Revolving Loan Commitment Agreement" means an Incremental
Revolving Loan Commitment Agreement substantially in the form of Exhibit F
(appropriately completed).
"Incremental Revolving Loan Commitment Date" means each date upon which
an Incremental Revolving Loan Commitment under an Incremental Revolving Loan
Commitment Agreement becomes effective as provided in Section 2.19(b)(i).
"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.
13
"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
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two or three months thereafter;
provided, however, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Interest Period shall end on
the last Eurodollar Business Day of such next, second or third succeeding month.
If an Interest Period would otherwise end on a day which is not a Eurodollar
Business Day, such Interest Period shall end on the next succeeding Eurodollar
Business Day; further provided, however, that if said next succeeding Eurodollar
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Eurodollar Business Day. 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.
"Issuing Bank" means the Administrative Agent (or any of its
subsidiaries or affiliates including but not limited to Deutsche Bank AG, New
York Branch) and any other Lender which at the request of Borrower and with the
consent of the Administrative Agent agrees, in such Lender's sole discretion, to
become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to
Section 2.20.
"Law" means, collectively, all Requirements of Law and all
Environmental Laws.
"L/C Participant" shall have the meaning provided in Section 2.20.3(a).
"L/C Supportable Obligations" means obligations of Borrower, Parent
Guarantor or any of its Subsidiaries incurred in the ordinary course of business
and which do not violate the applicable provisions, if any, of this Agreement.
"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 Borrower, 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).
14
"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" shall have the meaning provided in Section 2.20(a).
"Letter of Credit Collateral Amount" shall have the meaning provided in
Section 8.1(a).
"Letter of Credit Fee" shall have the meaning provided in Section
2.20.6(a).
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i)
the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in Section
2.20.2(a).
"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.
15
"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, each Letter of Credit, the Collateral Documents, the Environmental
Indemnity Agreement, the Guaranty, any Property Manager's subordination
agreement and all other agreements, assignments, consents, acknowledgments and
other instruments, including, without limitation, opinions of counsel, executed
by Borrower, Parent Guarantor, the Subsidiary Guarantors, any Property Manager
or any other Person in favor of the Administrative Agent or the Lenders pursuant
to this Agreement or in connection with the Advances and other transactions
contemplated hereby.
"Loan Pledgee" is defined in Section 12.3.2.
"Loans" means, collectively, 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 held by all the Non-Defaulting Lenders and
(b) the Aggregate Available Commitment held by all the Non-Defaulting Lenders.
"Management Agreement" means the property management agreement, if any,
for the Opryland Hotel Florida, 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).
"Material Adverse Effect" means a material adverse effect on the
business, operations, property or condition (financial or otherwise) of (a)
Borrower or (b) Parent Guarantor and its Subsidiaries, taken as a whole, or an
event, condition or circumstance as a result of which 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 May 22, 2006.
"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,
16
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.
"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 Borrower securing the Secured Obligations, as such
document may be amended, restated, modified or supplemented from time to time.
"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.
"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 OHN, secured by, among other things, a first priority deed of trust
encumbering Opryland Nashville, as in effect on the date hereof.
"Net Income" means, for any period, net after tax income determined in
accordance with Agreement Accounting Principles.
"Net Operating Income" means, for any period, the amount if any by
which Gross Revenues for such period exceeds Operating Expenses for such period,
where Gross Revenues and Operating Expenses are determined on an accrual basis,
except for ground rents payable under the Florida Hotel Ground Lease which, for
the purposes of this definition, will be determined on a cash basis, in
accordance with Agreement Accounting Principles.
"Net Termination Value" shall mean at any time, with respect to all
Rate Management Transactions for which a Net Termination Value is being
determined, the excess, if positive, of (i) the aggregate of the unrealized net
loss position, if any, of Parent Guarantor and/or its Subsidiaries under each of
such Rate Management Transactions on a marked-to-market basis determined no more
than one month
17
prior to such time less (ii) the aggregate of the unrealized net gain position,
if any, of Parent Guarantor and/or its Subsidiaries under each such Rate
Management Transactions on a marked-to-market basis determined no more than one
month prior to such time, with each marked-to-market determination made pursuant
to clauses (i) and (ii) above in connection with a determination of "Net
Termination Value" to be made on the same date.
"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 the
Opryland Hotel Florida in respect of which (a) Borrower has developed a plan for
the Restoration of the Opryland Hotel Florida, which is satisfactory to the
Administrative Agent, (b) Borrower has demonstrated to the Administrative
Agent's satisfaction that such Restoration shall be completed pursuant to such
plan, and (c) 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 is affected, and no portion of the Opryland Hotel Florida
is affected which could reasonably be expected to have a material adverse impact
on the use, operation or value of the Opryland Hotel Florida or any of its
components, including any driveways, accessways, parking areas or recreation
facilities, (b) Borrower has developed a plan for any necessary (in the
Administrative Agent's determination) Restoration of the Opryland Hotel Florida,
which is satisfactory to the Administrative Agent, (c) Borrower has demonstrated
to the Administrative Agent's reasonable satisfaction that such Restoration
shall be completed pursuant to such plan, and (d) 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-U.S. Lender" is defined in Section 3.5(iv).
"Note" means either a Renewal Promissory Note in the form of Exhibit
A-1 or a Swingline Note in the form of Exhibit A-2 issued pursuant to Section
2.13.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans and on Unpaid Drawings, all accrued and unpaid fees and
all expenses, reimbursements, indemnities and other obligations of Borrower and
Parent Guarantor to the Lenders or to any Lender, the Administrative Agent or
any indemnified party arising under the Loan Documents. The term "Obligations"
includes all interest, charges, expenses, fees, Protective Advances, attorneys'
fees and disbursements, the Letter of Credit Collateral Amount and any other sum
18
chargeable to Borrower and Parent Guarantor or any Subsidiary Guarantor under
this Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means (a) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (b) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (c) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (d) any
obligation arising with respect to any other transaction which is the functional
equivalent of or 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.
"OHN" means Opryland Hotel Nashville, LLC, a Delaware limited liability
company.
"OHTLP" means Opryland Hotel - Texas Limited Partnership, a Delaware
limited partnership.
"Omnibus Amendment" is defined in the definition of "Florida Hotel
Ground Lease".
"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 during such period incurred by Borrower, including ground rents
payable for such period under the Florida Ground Leases and actual real estate
taxes; provided 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 Borrower, or any partners, members or Affiliates of Borrower,
(c) income taxes, (d) depreciation and amortization, (e) deposits into the FF&E
Reserve Account, (f) Management Fees, (g) extraordinary items and (h) non-cash
items (except to the extent that they give rise to a liability that would be
required to be reflected on the consolidated balance sheet of Parent Guarantor,
or to the extent that a cash payment will be required to be made in respect
thereof in a future period), including the non-cash portion of ground rents
expense.
"Opryland Hotel Florida" means Borrower's ground lease and other
interests in Real Property more particularly described on Exhibit C 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 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(ix)(a).
19
"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 (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) its Pro Rata Share of the principal amount of any Swingline Loans
outstanding at such time, plus (iii) its Pro Rata Share of Letter of Credit
Outstandings.
"Parent Guarantor" means Xxxxxxx Entertainment Company, a Delaware
corporation.
"Participants" is defined in Section 12.2.1.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission with respect to the Opryland Hotel Florida 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 B.
"Permitted FF&E Expenditures" means expenditures made by Borrower from
time to time after the Effective Date, for normal maintenance capital
expenditures or capital improvements in connection with the Opryland Hotel
Florida, including furniture, fixtures and equipment, provided that all such
expenditures are substantially consistent with 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 Senior
Loan (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 Senior Loan at the time of such refinancing, (ii) that results
in no greater recourse to Parent Guarantor, OHN or any of their Affiliates than
exists under the existing Nashville Senior Loan and (iii) that has a maturity
date at least 6 months after the Maturity Date of the Loans.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PIP" is defined in the definition of "Incentive Agreements."
20
"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.
"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.
"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 the Opryland Hotel Florida,
as approved by the Administrative Agent.
"Pro Rata 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.
"Protective Advances" is defined in Section 9.19.
"Quarterly Payment Date" means the last Business Day of each January,
April, July and October 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
21
such Person and any counterparty which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Real Property" means the present and future right, title and interest
(including any leasehold estate) in (a) any plots, pieces or parcels of land,
(b) any Improvements of every nature whatsoever (the rights and interests
described in clauses (a) and (b) above being, for the purpose of this
definition, the "Premises"), (c) all easements, rights of way, gores of land or
any lands occupied by streets, ways, alleys, passages, sewer rights, water
courses, water rights and powers, and public places adjoining such land, and any
other interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be 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.
22
"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
"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
"Restoration" is defined in Section 6.27(b).
"Restoration Account" is defined in Section 6.27(c).
"Revolving Loan Commitment" means, for each Lender, the obligation of
such Lender to make Revolving Loans to Borrower in an aggregate amount not
exceeding the amount set forth for such Lender in Schedule 1 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 (x) reduced from
time to time pursuant to Section 2.21 or any other applicable terms of this
Agreement or (z) increased from time to time pursuant to Section 2.19 hereof.
"Revolving Loans" is defined in Section 2.1(a).
"Revolving Loans Advance" means a borrowing hereunder (a) advanced by
the Lenders on the same Borrowing Date, or (b) converted or continued by the
Lenders on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several
23
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 A-1
issued pursuant to Section 2.13.
"RZT" means ResortQuest International, Inc.., a Delaware corporation.
"RZT Notes" means The 9.06% Guaranteed Senior Secured Notes in the
aggregate principal amount of $50,000,000.00 due June 16, 2004, issued under
that certain Note Purchase and Guarantee Agreement dated June 1, 1999, by and
among ResortQuest International, Inc., the guarantors party thereto, and each of
the note purchasers set forth and described herein, as amended, modified,
restated or supplemented to the date hereof.
"RZT Subsidiaries" means RZT and each of its domestic Subsidiaries.
"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.
"Secured Counterparties" means Lenders and any Affiliates of any of
them, which in either case are parties to any Secured Rate Management
Transactions entered into by Borrower, Parent Guarantor and/or any Subsidiary.
"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 Borrower, Parent Guarantor and/or any Subsidiary to
one or more Secured Counterparties under a Secured Rate Management Transaction.
24
"Secured Rate Management Transaction" means a Rate Management
Transaction between Borrower, Parent Guarantor and/or any Subsidiary and one or
more of the Secured Counterparties (but not any other Rate Management
Transaction to which Borrower, Parent Guarantor and/or any Subsidiary is or may
hereafter be a party), which Rate Management Transaction is (x) entered into in
order to manage interest rate risk on Permitted Indebtedness (other than Rate
Management Obligations), (y) requested by Borrower to be considered a Secured
Rate Management Transaction and (z) approved by the Administrative Agent, in its
reasonable discretion, as a "Secured Rate Management Transaction" for the
purposes of this Agreement. Any Rate Management Transaction that does not
satisfy all of the requirements of clauses (x), (y) and (z) of the preceding
sentence shall not be a "Secured Rate Management Transaction" for purposes of
this Agreement and shall not be secured by the Collateral.
"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 Notes" means the 8% unsecured Senior Notes of Parent Guarantor
in the aggregate principal amount of $350,000,000.00, maturing November 15,
2013, issued pursuant to Indenture (the "Senior Notes Indenture") dated as of
November 12, 2003.
"Senior Notes Guaranty" means each of the Note Guarantees, as defined
in the Senior Notes Indenture.
"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.
"Standby Letter of Credit" shall have the meaning provided in Section
2.20(a).
"Stated Amount" of each Letter of Credit means, at any time, the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met, but after giving
effect to all previous drawings made thereunder).
"Stop Issue Notice" shall have the meaning provided in Section
2.20.2(b).
25
"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 3,
together with each direct and indirect wholly-owned domestic Subsidiary of
Parent Guarantor formed or acquired after the date hereof, collectively referred
to as the "Subsidiary Guarantors".
"Substantial Completion" means that the Texas Project is substantially
complete and open for business to the general public and accepting paying guests
on a regular daily and nightly basis.
"Survey" means a plat of survey 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, Borrower 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 Mortgage and which Lien shall be insured under the
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, in its
individual capacity.
26
"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 A-2
issued pursuant to Section 2.13.
"Syndication Date" means the earlier to occur of (a) the date that is
90 days after the Effective Date and (b) the date upon which the Administrative
Agent and Joint Book Running Managers determine in their sole discretion (and
notify Borrower) that the primary syndication with respect to the Revolving Loan
Commitment and Loans contemplated hereby (and the resultant addition of Persons
as Lenders pursuant to Article XII) has been completed.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Texas Project" means the first-class hotel and convention center being
constructed in Grapevine, Texas, 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.
"Title Insurer" means, with respect to the Florida Mortgage Title
Insurance Policy, Fidelity National Title Insurance Company of New York.
"Trade Letter of Credit" shall have the meaning provided in Section
2.20(a).
"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.
27
"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.
"Unpaid Drawing" shall have the meaning provided for in Section
2.20.4(a).
"Unrestricted Cash On Hand" means, as of any date of determination, the
sum of the aggregate amount of unrestricted cash held by Borrower 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 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 Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii)
except as hereinafter provided, shall, at the option of Borrower, be incurred
and maintained as, and/or converted into, Floating Rate Loans or LIBO Rate
Loans, 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.
(b) Subject to and upon the terms and conditions set
forth herein, the Swingline Lender agrees to make, from time to time after the
Effective Date and prior to the Swingline Expiry Date, a loan or loans (each, a
"Swingline Loan" and, collectively, the "Swingline Loans") to Borrower, 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 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
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Lenders' Available Commitment. Notwithstanding anything to the contrary
contained in this Section 2.1(b), 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.
(c)In the event that (i) Borrower does 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 Lenders that its outstanding Swingline Loans
shall be funded with a 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 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 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(b) 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(b) 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 Borrower), then each 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 Borrower 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 Lenders
to share in such Swingline Loans ratably based upon their respective Pro Rata
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 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
29
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 Payment on Maturity Date.
The aggregate amount of all Revolving Loans and all other
unpaid Obligations shall be paid in full by Borrower on the Maturity Date or on
any earlier date on which the Obligations become due and payable pursuant to the
terms hereof.
2.3 Ratable Loans. Each Advance hereunder shall consist of Loans
made from the several Lenders ratably according to their respective Pro Rata
Shares.
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 Borrower
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 Lender, according to its Pro Rata 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, due and payable in
arrears on the last day of each calendar quarter following the Effective Date.
All accrued undrawn fees shall be due and 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 October 28, 2003, between Administrative
Agent and Parent Guarantor.
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 $1,000,000, and each Floating Rate
Advance shall be in the minimum amount of $1,000,000. 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:
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(i) make any Loans or issue any Letter of Credit
hereunder unless and until all applicable conditions precedent set forth in
Article IV shall have been satisfied; or
(ii) make any Loans or issue any Letter of Credit 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, (B)
a change in the status of title to or encroachment on or off the Opryland Hotel
Florida (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, or (D) any litigation or proceeding is
commenced to alter in any adverse way the zoning or land use classification of
the Opryland Hotel Florida or any portion thereof, to prohibit the operation of
the Opryland Hotel Florida or any portion thereof, or to enjoin or prohibit
Borrower, Parent Guarantor, the Administrative Agent or the Lenders from
performing their respective obligations under this Agreement.
2.7 Optional Principal Payments. Borrower may from time to time
pay, without penalty or premium, all outstanding Revolving Loan or Swingline
Loan Floating Rate Advances in full. At any time in the case of payments with
respect to Revolving Loans or Swingline Loans, Borrower 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.
Borrower 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 Revolving Loan LIBO Rate Advances in full. At any time in the
case of payments with respect to Revolving Loans, Borrower 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) Borrower 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 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
Borrower that the selection of such Interest Period would interfere with the
closing of the primary syndication of the Revolving Loan Commitments and the
Loans. Borrower shall give the Administrative Agent irrevocable notice
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(a"Borrowing Notice") not later than 1:00 p.m. (Eastern time) at least one
Business Day before the Borrowing Date of each Floating Rate Advance (except for
any Swingline Loan Advance) and 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 Administrative Agent shall
notify each 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 Borrower at the Administrative Agent's aforesaid address.
(b) (i) Whenever Borrower desires to borrow a Swingline
Loan hereunder, it 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(c), Borrower 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(c).
(iii) No later than 4:00 p.m. (New York time) on
the date specified pursuant to 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 Borrower at the Administrative Agent's aforesaid
address.
(c) Prior to the issuance of each Letter of Credit, the
Administrative Agent (if not the Issuing Bank therefor) and the respective
Issuing Bank shall have received a Letter of Credit Request meeting the
requirements of Section 2.20.2.
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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) Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such LIBO Rate 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, Borrower 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). Borrower 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 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 Borrower's 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
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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 Borrower (which notice
may be revoked at the option of the Majority Lenders notwithstanding any
provision of Section 10.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that (i) each LIBO Rate 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.
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
Borrower, by 2:00 p.m. (Eastern time) on the date when due and shall be applied
as follows:
(a) Subject to the provisions of Section 2.12(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 Borrower shall be applied in the following order:
(i) to pay principal of and interest on any
portion of the Loans which the Administrative Agent may (at its sole option, and
without any obligation to do so) have advanced on behalf of any Lender (other
than itself in its capacity as a Lender) for which the Administrative Agent has
not then been reimbursed by such Lender or Borrower;
(ii) to pay principal of and interest on any
Protective Advance made by the Administrative Agent (at its sole option, and
without any obligation to do so) for which the Administrative Agent has not then
been paid by Borrower or reimbursed by the Lenders; and
(iii) to pay all other Obligations then due and
payable and otherwise in the order designated by Borrower and, unless otherwise
designated by Borrower, all principal payments in respect of Loans shall be
applied first, to repay outstanding Floating Rate Loans,
34
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 Revolving Loans shall be evidenced by a
Revolving Note executed and delivered by Borrower on the Effective Date to such
Lender in the form of Exhibit A-1. Swingline Loans shall be evidenced by a
Swingline Note executed and delivered by Borrower on the Effective Date to the
Swingline Lender in the form of Exhibit A-2. If a Lender assigns a part (but
less than all) of its Note or Notes, Borrower shall, upon request, execute and
deliver new Notes to the respective owners of the original note that aggregate
the amount of the original Note or Notes, as directed jointly by the assignor
and assignee, and upon delivery of the new Note or Notes, the original Note
shall be endorsed to state that it has been replaced by such new Note or Notes.
(b) Each Lender is hereby authorized to maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall also maintain accounts
in which it will record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period with respect thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from Borrower
to each Lender hereunder, and (iii) the amount of any sum received by the
Administrative Agent hereunder from Borrower and each Lender's share thereof.
(d) The entries maintained in the accounts maintained
pursuant to paragraphs (b) and (c) above shall be prima facie evidence, absent
manifest error, of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Administrative Agent or any
Lender to maintain such accounts or any error therein shall not in any manner
affect the obligation of Borrower to repay the Obligations in accordance with
their terms.
(e) Notwithstanding anything to the contrary contained
above or elsewhere in this Agreement, Revolving Notes and Swingline Notes shall
only be delivered to the Lenders
35
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
Borrower to pay the Loans (and all related Obligations) which would otherwise be
evidenced thereby in accordance with the requirements of this Agreement, and
shall not in any way affect the guaranties therefor provided pursuant to the
various Loan Documents. At any time when any Lender requests the delivery of a
Note to evidence its Loans, Borrower shall promptly execute and deliver to the
respective Lender the requested Note or Notes in the appropriate amount or
amounts to evidence such Loans.
2.14 Telephonic Notices. Borrower hereby authorizes 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 Borrower, it
being understood that the foregoing authorization is specifically intended to
allow Borrowing Notices and Conversion/Continuation Notices to be given
telephonically. Borrower agrees to deliver promptly to the Administrative Agent
a written confirmation, if such confirmation is requested by the Administrative
Agent or any Lender, of each telephonic notice, signed by an Authorized Officer.
If the written confirmation differs in any material respect from the action
taken by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error.
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, commitment fees, Letter of Credit Fees and Facing 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.
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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 Borrower in accordance with Article XIII, designate
replacement or additional Lending Offices through which Loans will be made by it
and for whose account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless
Borrower 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
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or Borrower, as the case may be, has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by Borrower, the interest rate applicable to the relevant Loan.
2.19 Incremental Revolving Loan Commitments
(a) So long as the Incremental Loan Commitment Requirements
are satisfied at the time of the delivery of the request referred to below,
Borrower shall have the right at any time and from time to time prior to May 22,
2005, but on no more than 3 occasions, and in each case upon at least 5 Business
Days' prior written notice to the Administrative Agent, to request that one or
more Lenders (and/or one or more other Persons which will become Lenders as
provided below) provide Incremental Revolving Loan Commitments and, subject to
the applicable terms and conditions contained in this Agreement, make Revolving
Loans pursuant thereto; it being understood and agreed, however, that (i) no
Lender shall be obligated to provide an Incremental Revolving Loan Commitment as
a result of any such request by Borrower, (ii)
37
until such time, if any, as (x) such Lender has agreed in its sole discretion to
provide an Incremental Revolving Loan Commitment and executed and delivered to
the Administrative Agent an Incremental Revolving Loan Commitment Agreement in
respect thereof as provided in clause (b) of this Section 2.19 and (y) the other
conditions set forth in Section 2.19(b) shall have been satisfied, such Lender
shall not be obligated to fund any Revolving Loans in excess of its Revolving
Loan Commitment as in effect prior to giving effect to such Incremental
Revolving Loan Commitment provided pursuant to this Section 2.19, (iii) any
Lender (or, in the circumstances contemplated by clause (vi) below, any other
Person which will qualify as an Eligible Assignee) may so provide an Incremental
Revolving Loan Commitment without the consent of any other Lender, (iv) each
provision of Incremental Revolving Loan Commitments on a given date pursuant to
this Section 2.19 shall be in a minimum aggregate amount (for all Lenders
(including, in the circumstances contemplated by clause (vi) below, Eligible
Assignees who will become Lenders)) of at least $5,000,000.00 and in integral
multiples of $1,000,000.00 in excess thereof, (v) the aggregate amount of all
Incremental Revolving Loan Commitments permitted to be provided pursuant to this
Section 2.19, shall not exceed $35,000,000.00, (vi) if after Borrower has
requested the then existing Lenders (other than Defaulting Lenders) to provide
Incremental Revolving Loan Commitments pursuant to this Section 2.19, Borrower
has not received Incremental Revolving Loan Commitments in an aggregate amount
equal to that amount of the Incremental Revolving Loan Commitments which
Borrower desires to obtain pursuant to such request (as set forth in the notice
provided by Borrower as provided below), then Borrower may request Incremental
Revolving Loan Commitments from Persons reasonably acceptable to the
Administrative Agent and each Issuing Bank which would qualify as Eligible
Assignees hereunder in an aggregate amount up to such deficiency, on terms which
are no more favorable to such Eligible Assignee in any respect than the terms
offered to the Lenders, provided that any such Incremental Revolving Loan
Commitments provided by any such Eligible Assignee which is not already a Lender
shall be in a minimum amount (for such Eligible Assignee) of at least
$5,000,000.00, and (vii) all actions taken by Borrower pursuant to this Section
2.19 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan
Commitments to be provided pursuant to this Section 2.19, (i) Borrower, the
Administrative Agent and each such Lender or other Eligible Assignee (each, an
"Incremental Lender") which agrees to provide an Incremental Revolving Loan
Commitment shall execute and deliver to the Administrative Agent an Incremental
Revolving Loan Commitment Agreement substantially in the form of Exhibit F
(appropriately completed), with the effectiveness of such Incremental Lender's
Incremental Revolving Loan Commitment to occur upon delivery of such Incremental
Revolving Loan Commitment Agreement to the Administrative Agent, the payment of
any fees required in connection therewith (including, without limitation, any
agreed upon up-front or arrangement fees owing to the Administrative Agent) and
the satisfaction of the other conditions in this Section 2.19(b) to the
reasonable satisfaction of the Administrative Agent, (ii) the Incremental Loan
Commitment Requirements and any other conditions precedent agreed to by Borrower
that may be set forth in the respective Incremental Revolving Loan Commitment
Agreement shall have been satisfied, and (iii) Borrower shall deliver to the
Administrative Agent an opinion or opinions, in form and substance reasonably
satisfactory to the Administrative Agent, from counsel to Borrower, Parent
Guarantor and the Subsidiary Guarantors reasonably satisfactory to the
Administrative Agent and dated such date, covering such of the matters set forth
in the opinions of counsel delivered to the Administrative Agent on the Initial
Funding Date and such
38
other matters as the Administrative Agent may reasonably request. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Incremental Revolving Loan Commitment Agreement, and at such time (i)
the Revolving Loan Commitment under, and for all purposes of, this Agreement
shall be increased by the aggregate amount of such Incremental Revolving Loan
Commitments, (ii) Schedule 1 shall be deemed modified to reflect the revised
Revolving Loan Commitments of the affected Lenders and (iii) to the extent
requested by any Incremental Lender, Revolving Notes will be issued at the
Borrower's expense, to such Incremental Lender, to be in conformity with the
requirements of Section 2.13 (with appropriate modification) to the extent
needed to reflect the new Incremental Revolving Loans made by such Incremental
Lender.
(c) The aggregate principal balance of Revolving Loans
outstanding immediately prior to any increase in Revolving Loan Commitment
pursuant to the preceding subparagraph (b) shall be reallocated among the
Lenders such that from and after any such increase in Revolving Loan Commitment,
the outstanding principal balance of Revolving Loans due and payable to each
Lender shall be equal to such Lender's Pro Rata Share of the Aggregate
Outstanding Credit Exposure with respect to Revolving Loans. Those Lenders whose
Revolving Loan Commitment has increased as shown on Schedule 1 (as deemed
modified pursuant to the preceding subparagraph (b)) shall advance the funds
necessary to effect the increase in their respective Pro Rata Shares to the
Administrative Agent and the funds so advanced shall be immediately thereafter
distributed among the Lenders whose Pro Rata Shares have decreased as necessary
to accomplish the required reallocation of outstanding Revolving Loans. The
funds so advanced shall be Floating Rate Advances until converted to LIBO Rate
Advances. To the extent such reallocation results in certain Lenders receiving
funds which are applied to LIBO Rate Advances prior to the last day of the
applicable Interest Period, Borrower shall pay to the Administrative Agent for
the account of the affected Lenders any amounts payable with respect thereto
pursuant to Section 3.4 of this Agreement.
(d) Borrower shall pay to the Administrative Agent for
distribution to each Incremental Lender such fees and other amounts, if any, as
are specified in the relevant Incremental Revolving Loan Commitment Agreement,
with the fees and other amounts, if any, to be payable on the respective
Incremental Revolving Loan Commitment Date.
2.20 Letters of Credit.
(a) Subject to and upon the terms and conditions set
forth herein, Borrower may request that any Issuing Bank issue, at any time and
from time to time on and after the Initial Funding Date and prior to the tenth
Business Day prior to the Maturity Date (or the 30th day prior to the Maturity
Date in the case of Trade Letters of Credit), for the account of Borrower or
Parent Guarantor and for the benefit of (x) any holder (or any trustee, agent or
other similar representative for any such holders) of L/C Supportable
Obligations of Borrower or Parent Guarantor or any of its Subsidiaries, an
irrevocable sight standby letter of credit, in a form customarily used by such
Issuing Bank or in such other form as has been approved by such Issuing Bank
(each such standby letter of credit, a "Standby Letter of Credit") in support of
such L/C Supportable Obligations and (y) sellers of goods, materials and
services used in the ordinary course of business of Borrower, Parent Guarantor
or any of its Subsidiaries an irrevocable sight commercial letter of credit in a
form customarily used by such Issuing Bank or in such other form
39
as has been approved by such Issuing Bank (each such commercial letter of
credit, a "Trade Letter of Credit," and each such Trade Letter of Credit and
each Standby Letter of Credit, a "Letter of Credit") in support of commercial
transactions of the Borrower, Parent Guarantor and its Subsidiaries.
(b) Each Issuing Bank hereby agrees that it will (subject
to the terms and conditions contained herein), at any time and from time to time
on and after the Initial Funding Date and prior to the tenth Business Day prior
to the Maturity Date (or the 30th day prior to the Maturity Date in the case of
Trade Letters of Credit), following its receipt of the respective Letter of
Credit Request, issue for the account of Borrower or Parent Guarantor, subject
to the terms and conditions of this Agreement, one or more Letters of Credit (x)
in the case of Standby Letters of Credit, in support of such L/C Supportable
Obligations of Borrower, Parent Guarantor or any of its Subsidiaries as are
permitted to remain outstanding without giving rise to a Default and (y) in the
case of Trade Letters of Credit, in support of sellers of goods or materials
used in the ordinary course of business of Borrower, Parent Guarantor or any of
its Subsidiaries as referenced in Section 2.20(a), provided that the respective
Issuing Bank shall be under no obligation to issue any Letter of Credit of the
types described above if at the time of such issuance:
(i) any order, judgment or decree of any
governmental authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit or any requirement
of law applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with jurisdiction
over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such Issuing
Bank is not otherwise compensated) not in effect on the date hereof, or any
unreimbursed loss, cost or expense which was not applicable, in effect or known
to such Issuing Bank as of the date hereof and which such Issuing Bank
reasonably and in good xxxxx xxxxx material to it; or
(ii) such Issuing Bank shall have received a Stop
Issue Notice from the Administrative Agent prior to the issuance of such Letter
of Credit.
(c) Schedule 2.20(c) hereto contains a description of
certain letters of credit issued and outstanding on the Effective Date in
respect of which Parent Guarantor or a Subsidiary is "Applicant" (and setting
forth, with respect to each such letter of credit, (i) the name of the issuing
lender, (ii) the letter of credit number, (iii) the name(s) of the account party
or account parties, (iv) the stated amount (which shall be in U.S. dollars), (v)
the name of the beneficiary, (vi) the expiry date and (vii) whether such letter
of credit constitutes a standby letter of credit or a trade letter of credit).
Each such letter of credit, including any extension or renewal thereof (each, as
amended from time to time in accordance with the terms thereof and hereof, an
"Existing Letter of Credit") shall constitute a "Letter of Credit" and a
"Standby Letter of Credit" or a "Trade Letter of Credit", as the case may be,
for all purposes of this Agreement, notwithstanding that it was issued prior to
the Initial Funding Date and was not issued pursuant
40
to a Letter of Credit Request under Section 2.20.2. Any Lender hereunder which
has issued an Existing Letter of Credit shall constitute an "Issuing Bank" for
all purposes of this Agreement.
2.20.1 Maximum Letter of Credit Outstandings; Final
Maturities; etc.
(a) Notwithstanding anything to the contrary contained in this
Agreement, (i) no Letter of Credit shall be issued the Stated Amount of which,
when added to the Letter of Credit Outstandings at such time, would exceed
$25,000,000.00, (ii) no Letter of Credit shall be issued if, after giving effect
thereto, the Outstanding Credit Exposure of any Lender would exceed its
Revolving Loan Commitment as then in effect, (iii) each Letter of Credit shall
by its terms terminate (A) in the case of Standby Letters of Credit, on or
before the earlier of (x) the date which occurs 12 months after the date of the
issuance thereof (although any such Standby Letter of Credit may be extendible
for successive periods of up to 12 months, but not beyond the tenth Business Day
prior to the Maturity Date, on terms acceptable to the Issuing Bank thereof) and
(y) the tenth Business Day prior to the Maturity Date and (B) in the case of
Trade Letters of Credit, on or before the earlier of (x) the date which occurs
180 days after the date of issuance thereof and (y) 30 days prior to the
Maturity Date, (iv) each Letter of Credit shall be denominated in U.S. dollars
and (v) the Stated Amount of each Letter of Credit shall be no less than
$250,000.00, or such lesser amount as is acceptable to the respective Issuing
Bank.
(b) Notwithstanding the foregoing, if a Lender Default
exists, an Issuing Bank shall not be required to issue any Letters of Credit
requested to be issued by it unless such Issuing Bank has entered into
arrangements satisfactory to it, Borrower and Parent Guarantor to eliminate such
Issuing Bank's risk with respect to the participation in Letters of Credit of
the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender's or Lenders' Pro Rata Share of Letter of Credit Outstandings.
2.20.2 Letter of Credit Requests; Notices of Issuance.
(a) Whenever it desires that a Letter of Credit be issued for
its account, Borrower shall give the Administrative Agent and the respective
Issuing Bank written notice thereof prior to 1:00 P.M. (New York time) at least
five Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) prior to the proposed date of issuance (which shall be a Business
Day). Each notice shall be in the form of Exhibit G (each, a "Letter of Credit
Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by Borrower that (i) such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.20.1 and (ii) all of the applicable conditions set forth in
Article IV shall be met at the time of such issuance. Unless the respective
Issuing Bank has received notice from the Administrative Agent before it issues
a Letter of Credit that one or more of the conditions specified in Article IV
are not satisfied on the Initial Funding Date or are not then satisfied, or that
the issuance of such Letter of Credit would violate Section 2.20.1 (any such
notice, a "Stop Issue Notice"), then such Issuing Bank may issue the requested
Letter of Credit for the account of Borrower in accordance with such Issuing
41
Bank's usual and customary practices. Upon the issuance of or amendment to any
Standby Letter of Credit, the respective Issuing Bank shall promptly notify the
Administrative Agent and Borrower, in writing, of such issuance or amendment,
and such notification shall be accompanied by a copy of the issued Standby
Letter of Credit or amendment thereto. Upon receipt of such notice, the
Administrative Agent shall notify the Lenders, in writing, of such issuance or
amendment, as the case may be, and if so requested by Lender, the Administrative
Agent shall provide such Lender with a copy of the Standby Letter of Credit so
issued or such amendment, as the case may be. For Trade Letters of Credit issued
by an Issuing Bank (other than the Administrative Agent), such Issuing Bank will
send to the Administrative Agent by facsimile transmission, promptly on the
first Business Day of each week, the daily aggregate Stated Amount of Trade
Letters of Credit issued by such Issuing Bank and outstanding during the
preceding week.
2.20.3 Letter of Credit Participations.
(a) Immediately upon the issuance by the respective Issuing
Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold and
transferred to each Lender (other than such Issuing Bank) (each such Lender with
respect to any Letter of Credit, in its capacity under this Section 2.20.3, an
"L/C Participant"), and each such L/C Participant shall be deemed irrevocably
and unconditionally to have purchased and received from such Issuing Bank,
without recourse or warranty, an undivided interest and participation, in a
percentage equal to such L/C Participant's Pro Rata Share, in such Letter of
Credit, each drawing or payment made thereunder and the obligations of Borrower
under this Agreement with respect thereto, and any guaranty pertaining thereto
(although Letter of Credit Fees shall be paid directly to the Administrative
Agent for the ratable account of the Lenders based on their Pro Rata Shares as
provided in Section 2.20.6 and the L/C Participants shall have no right to
receive any portion of any Facing Fees). Upon any change in the Revolving Loan
Commitments or Pro Rata Shares of the Lenders pursuant to this Agreement, it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.20.3 to reflect the new Pro Rata Shares.
(b) In determining whether to pay under any Letter of
Credit, the respective Issuing Bank shall have no obligation relative to the L/C
Participants or any other Lenders other than to confirm that any documents
required to be delivered under such Letter of Credit appear to have been
delivered and that they appear to substantially comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be taken
by any Issuing Bank under or in connection with any Letter of Credit if taken or
omitted in the absence of gross negligence or willful misconduct (as finally
determined by a court of competent jurisdiction), shall not create for such
Issuing Bank any resulting liability to Borrower, Parent Guarantor or any of its
Subsidiaries, any Subsidiary Guarantor, any Lender or any other Person.
(c) If any Issuing Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Issuing Bank pursuant to Section 2.20.4(a), such Issuing Bank shall
promptly notify the Administrative Agent, and the Administrative Agent shall
promptly notify each L/C Participant of such failure, and each L/C Participant
shall promptly and unconditionally pay to the Administrative Agent for the
benefit of
42
such Issuing Bank the amount of such L/C Participant's Pro Rata Share of such
unreimbursed payment in U.S. dollars and in same day funds. If the
Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any
Business Day, any L/C Participant required to fund a payment under a Letter of
Credit, such L/C Participant shall make available to the Administrative Agent
for the benefit of such Issuing Bank, in U.S. dollars, such L/C Participant's
Pro Rata Share of the amount of such payment on such Business Day in same day
funds; provided, however, that no L/C Participant shall be obligated to pay to
the Administrative Agent for the benefit of such Issuing Bank its Pro Rata Share
of such unreimbursed amount for any wrongful payment made by such Issuing Bank
under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Bank (as finally determined by a court of competent jurisdiction). If and to the
extent such L/C Participant shall not have so made its Pro Rata Share of the
amount of such payment available to the Administrative Agent for the benefit of
such Issuing Bank, such L/C Participant agrees to pay to the Administrative
Agent for the benefit of such Issuing Bank, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the benefit of such Issuing Bank
at the overnight Federal Funds Effective Rate for the first three days and at
the interest rate applicable to Revolving Loans maintained as Floating Rate
Loans hereunder for each day thereafter. The failure of any L/C Participant to
make available to such Issuing Bank its Pro Rata Share of any payment under any
Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to such Issuing Bank its Pro Rata Share of any
unreimbursed payment with respect to a Letter of Credit on the date required, as
specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent for the
benefit of such Issuing Bank such other L/C Participant's Pro Rata Share of any
such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the L/C
Participants pursuant to clause (c) above, such Issuing Bank shall pay to the
Administrative Agent for the benefit of each L/C Participant which has paid its
Pro Rata Share thereof, in U.S. dollars and in same day funds, an amount equal
to such L/C Participant's share (based upon the proportionate aggregate amount
originally funded by such L/C Participant to the aggregate amount funded by all
L/C Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations.
The payment required to be made by the respective Issuing Bank to the
Administrative Agent pursuant to the preceding sentence shall be made on the day
the respective payment of a reimbursement is received by such Issuing Bank (if
payment was actually received by such Issuing Bank prior to 12:00 Noon (local
time in the city in which such payments are to be made)).
(e) The obligations of the L/C Participants to make
payments to the Administrative Agent for the benefit of each Issuing Bank with
respect to Letters of Credit issued by it shall be irrevocable and not subject
to any qualification or exception whatsoever (except as otherwise provided in
the proviso to the second sentence of Section 2.20.3(c)) and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
43
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense
or other right which Borrower, Parent Guarantor or any of its Subsidiaries or
Affiliates may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any Issuing Bank, any L/C
Participant, or any other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between Borrower, Parent
Guarantor or any Subsidiary or Affiliate of such Person and the beneficiary
named in any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any guaranty
for the performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default.
2.20.4 Agreement to Repay Letter of Credit Drawings.
(a) Borrower hereby agrees to reimburse the respective Issuing
Bank, by making payment in U.S. dollars and in immediately available funds
directly to the Administrative Agent at its address specified pursuant to
Article XIII for the benefit of such Issuing Bank, for any payment or
disbursement made by such Issuing Bank under any Letter of Credit issued by it
(with each such amount so paid, until reimbursed, an "Unpaid Drawing"), not
later than the Business Day after the Administrative Agent or such Issuing Bank
notifies Borrower of such payment or disbursement, with interest on the amount
so paid or disbursed by such Issuing Bank, to the extent not reimbursed prior to
2:00 P.M. (New York time), on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the date such Issuing Bank
is reimbursed by Borrower therefor at a rate per annum which shall be the
Floating Rate in effect from time to time, provided, however, to the extent such
amounts are not reimbursed prior to 12:00 Noon (New York time) on the third
Business Day following the receipt of notice by Borrower from the Administrative
Agent or the respective Issuing Bank of such payment or disbursement or upon the
occurrence of a Default under Sections 7.6 or 7.7, interest shall thereafter
accrue on the amounts so paid or disbursed by such Issuing Bank (and until
reimbursed by Borrower) at a rate per annum which shall be the Floating Rate as
in effect from time to time plus 300 basis points, in each such case, with
interest to be payable on demand, provided further, that it is understood and
agreed that the notice referred to above in this clause (a) shall not be
required to be given if a Default under Sections 7.6 or 7.7 shall have occurred
and be continuing (in which case the Unpaid Drawings shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of
which are hereby waived by Borrower) and shall bear interest at the rate
provided in the foregoing proviso). The
44
respective Issuing Bank shall give Borrower and the Administrative Agent (if not
the Issuing Bank under the respective Letter of Credit) prompt written notice of
each Drawing under any Letter of Credit, provided that the failure to give any
such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of Borrower under this Section 2.20.4
to reimburse the respective Issuing Bank with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which Borrower may have or have had against any Lender
(including in its capacity as issuer of the Letter of Credit or as an L/C
Participant), including, without limitation, any defense based upon the failure
of any drawing under a Letter of Credit (each, a "Drawing") to conform to the
terms of the Letter of Credit or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing; provided that the respective
Issuing Bank shall be responsible for any damages (excluding consequential
damages) to Borrower for its gross negligence or willful misconduct (as finally
determined by a court of competent jurisdiction) in connection with drawings
made under a Letter of Credit which did not comply or conform to the terms of
the respective Letter of Credit.
2.20.5 Increased Costs.
If at any time after the date of this Agreement, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Bank or any L/C Participant with any
request or directive by any such authority (whether or not having the force of
law), shall either (i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against letters of credit issued by any
Issuing Bank or participated in by any L/C Participant, or (ii) impose on any
Issuing Bank or any L/C Participant any other conditions relating, directly or
indirectly, to this Agreement; and the result of any of the foregoing is to
increase the cost to any Issuing Bank or any L/C Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by any Issuing Bank or any L/C Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit (except for changes in the rate of tax on, or determined by reference to,
the net income or profits or franchise taxes based on net income of such Issuing
Bank or such L/C Participant pursuant to the laws of the jurisdiction in which
it is organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), then, upon written demand to the
Borrower by such Issuing Bank or any L/C Participant (a copy of which
certificate shall be sent by such Issuing Bank or such L/C Participant to the
Administrative Agent), Borrower shall pay to such Issuing Bank or such L/C
Participant such additional amount or amounts as will compensate such Lender for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Any Issuing Bank or any L/C Participant, upon
determining that any additional amounts will be payable pursuant to this Section
2.20.5, will give prompt written notice thereof to Borrower which notice shall
include a certificate submitted to Borrower by such Issuing Bank or such L/C
Participant (a copy of which certificate shall be sent by such Issuing Bank or
such L/C Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate such Issuing Bank or such L/C Participant. The
certificate required to be delivered
45
pursuant to this Section 2.20.5 shall, absent manifest error, be final and
conclusive and binding on Borrower.
2.20.6 Letter of Credit Fee; Facing Fee.
(a) Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment
(based on their respective Pro Rata Shares) in U.S. dollars, a fee in respect of
each Letter of Credit issued for the account of Borrower hereunder (the "Letter
of Credit Fee"), in each case for the period from and including the date of
issuance of the respective Letter of Credit (or in the case of Existing Letters
of Credit, from and including the Effective Date) to and including the date of
termination of such Letter of Credit, computed at a rate equal to 3.50% per
annum on the Stated Amount of such Letter of Credit. Accrued Letter of Credit
Fees shall be due and payable in arrears on each Quarterly Payment Date
following the Effective Date and on the Maturity Date or on any earlier date on
which the Obligations become due and payable pursuant to the terms hereof.
Letter of Credit Fees paid or payable with respect to any Existing Letter of
Credit for periods to but not including the Effective Date shall be retained by
the Issuing Lender by whom such Existing Letter of Credit was issued.
(b) Borrower agrees to pay to each Issuing Bank, for its
own account, in U.S. dollars, a facing fee in respect of each Letter of Credit
issued for the account of Borrower by such Issuing Bank (the "Facing Fee"), for
the period from and including the date of issuance of such Letter of Credit to
and including the date of the termination of such Letter of Credit, computed at
a rate equal to 1/4 of 1% per annum of the Stated Amount of such Letter of
Credit; provided that in no event shall the annual Facing Fee with respect to
any Letter of Credit be less than $500; provided further that no Facing Fee
shall be payable hereunder with respect to the Existing Letters of Credit for
periods to but not including the Effective Date, it being understood and agreed
that the Issuing Bank shall retain any facing fees paid or payable for periods
to but not including the Effective Date with respect to Existing Letters of
Credit issued by it. Accrued Facing Fees shall be due and payable in arrears on
each Quarterly Payment Date and on the Maturity Date or on any earlier date on
which the Obligations become due and payable pursuant to the terms hereof.
(c) Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge and the reasonable expenses which the
applicable Issuing Bank is generally imposing for payment under, issuance of, or
amendment to, Letters of Credit issued by it.
2.21 Voluntary Reduction of Aggregate Available Commitment. Upon at
least three Business Days' prior notice to the Administrative Agent (which
notice the Administrative Agent shall promptly transmit to each of the Lenders),
Borrower shall have the right, at any time or from time to time, without premium
or penalty, to terminate or partially reduce the Aggregate Available Commitment;
provided that (i) any partial reduction pursuant to this Section 2.21 shall be
in an amount of at least $5,000,000 or, if greater, in integral multiples of
$5,000,000 thereof and (ii) no partial reduction shall be made if, after giving
effect thereto, the Aggregate Outstanding Credit Exposure exceeds the aggregate
Revolving Loan Commitment as then in effect. Each reduction to the Aggregate
Available Commitment pursuant to this Section 2.21
46
shall apply to reduce the Revolving Loan Commitments of the various Lenders pro
rata based on their respective Pro Rata Shares.
2.22 FF&E Reserve Account. (a) Borrower shall, on the
Effective Date, establish and maintain a segregated account of Borrower with the
Reserve Account Bank, which account (the "FF&E Reserve Account") shall be
subject to an Account Control Agreement, and Borrower shall deposit into the
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 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. Borrower shall invest all funds from time to
time on deposit in the FF&E Reserve Account solely in Cash Equivalent
Investments.
(b) Borrower shall be permitted to request funds from the
FF&E Reserve Account (the amount on deposit therein from time to time, the "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 FF&E Reserve
Account set forth in Section 4.3 hereof. Simultaneously with each withdrawal,
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
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
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, Borrower shall have no right to request the withdrawal of any funds
from the 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 FF&E Reserve Account to the Secured Obligations
in accordance with the provisions of Section 8.1.
(d) 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, Borrower and Parent Guarantor shall furnish or cause to be
furnished to the Administrative Agent a statement showing Borrower's
calculations (and supporting information) of amounts then required to be
maintained in the FF&E Reserve Account and all disbursements therefrom
(identifying the purpose, amount and type of each expenditure), accompanied by
copies of all bank statements with respect to the FF&E Reserve Account received
to date and not previously delivered to the Administrative Agent, all certified
by an Authorized Officer.
2.23 Replacement of Lender. If Borrower is required pursuant to Section
3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender's
obligation to make or continue, or to convert Floating Rate Advances into, LIBO
Rate Advances shall be suspended pursuant to Section 3.3 (any Lender so affected
an "Affected Lender"), Borrower may elect, if such amounts continue to be
charged or such suspension is still effective, to replace such Affected Lender
as a Lender party to this Agreement,
47
provided that no Default shall have occurred and be continuing at the time of
such replacement, and provided further that, concurrently with such replacement,
(i) another bank or other entity which is reasonably satisfactory to Borrower
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit D and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, and (ii) Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such Affected Lender
by Borrower hereunder to and including the date of termination, including
without limitation payments due to such Affected Lender under Sections 3.1, 3.2
and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had the
Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection. If, on or after the Effective Date, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Office with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable
Lending Office to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect of its LIBO Rate
Loans, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Office (other than reserves and assessments
taken into account in determining the interest rate applicable to LIBO Rate
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,
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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, Borrower shall
pay such Lender such additional amount or amounts as will compensate such Lender
for such increased cost or reduction in amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Office of such Lender or any corporation controlling such
Lender is increased as a result of a Change (as defined below in this Section
3.2), then, within 15 days of demand by such Lender, Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, 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 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, Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such LIBO
Rate Advance, provided that such indemnity shall not
49
apply to any such loss or cost incurred solely by reason of an adjustment to any
Interest Period made by the Administrative Agent in connection with syndicating
the Loans.
3.5 Taxes. (i) All payments by Borrower to or for the account of
any Lender or the Administrative Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes. If Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) Borrower shall make such deductions, (c) Borrower shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d)
Borrower shall furnish to the Administrative Agent the original copy of a
receipt evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, Borrower hereby agrees to pay
any present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note ("Other Taxes").
(iii) Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Administrative Agent or such Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. Payments due under this indemnification shall be made
within 30 days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under
the laws of the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not less than ten Business Days after the
Effective Date (or such later date upon which it becomes a Lender hereunder),
deliver to Borrower and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in
either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, or backup withholding tax. Each Non-U.S. Lender further undertakes to
deliver to Borrower and the Administrative Agent (x) renewals or additional
copies of such form (or any successor form) on or before the date that such form
expires or becomes obsolete, and (y) after the occurrence of any event requiring
a change in the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by Borrower or the
Administrative Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form or amendment with respect to it and such Lender advises Borrower and
50
the Administrative Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S.
Lender has failed to provide Borrower with an appropriate form pursuant to
clause (iv) above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 3.5 with respect to Taxes imposed
by the United States; provided that, should a Non-U.S. Lender which is otherwise
exempt from or subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under clause (iv),
above, Borrower shall take such steps (but without material expense to Borrower)
as such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender
to recover such Taxes.
(vi) Any Lender that is entitled to an exemption
from or reduction of withholding tax with respect to payments under this
Agreement or any Notes pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to Borrower (with a copy to the Administrative Agent), at
the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any
other governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the Administrative Agent and
Borrower fully for all amounts paid, directly or indirectly, by the
Administrative Agent or Borrower, as the case may be, as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent or
Borrower under this subsection, together with all costs and expenses related
thereto (including attorneys' fees and time charges of attorneys for the
Administrative Agent or Borrower, as the case may be, which attorneys may be
employees of the Administrative Agent or Borrower, as the case may be). The
obligations of the Lenders under this Section 3.5(vii) shall survive the payment
of the Obligations and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending Office
with respect to its LIBO Rate Loans to reduce any liability of Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of LIBO
Rate 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 Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on
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Borrower 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
Borrower of such written statement. The obligations of Borrower under Sections
3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination
of this Agreement.
3.7 Reasonable Efforts to Mitigate. Each Lender shall use its
reasonable best efforts (consistent with its internal policy and legal and
regulatory restrictions) to minimize any amounts payable by Borrower under
Section 3.1 and Section 3.2 and to minimize any period of illegality under
Section 3.3. Each Lender further agrees to notify Borrower promptly, but in any
event within 30 Business Days, after such Lender learns of the circumstances
giving rise to such a right of payment or such illegality or any circumstances
that have changed such that such right to payment or such illegality, as the
case may be, no longer exists.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Closing Deliveries On the Effective Date and as conditions
precedent to the effectiveness of this Agreement, Borrower shall satisfy the
following conditions and/or furnish to the Administrative Agent the following:
(a) Borrower shall provide the Administrative Agent with
copies of the articles or certificate of incorporation, certificate of formation
or certificate of limited partnership, and certificates of good standing, of
each 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) Borrower shall provide the Administrative Agent with
copies, each certified by the General Partner of 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 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 to which each such
entity is a party.
(c) Borrower shall provide the Administrative Agent with
incumbency certificates, executed by the General Partner of Borrower, the
Secretary, Assistant Secretary or
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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 to which such Persons are a party, upon which certificates the
Administrative Agent and the Lenders shall be entitled to rely.
(d) Borrower shall provide the Administrative Agent with
written opinions of respective counsel to Borrower, Parent Guarantor, Subsidiary
Guarantors and the other entities specified in the preceding clause (a),
addressed to the Administrative Agent and the Lenders in form and substance
satisfactory to the Administrative Agent.
(e) Borrower shall provide each Lender with the Notes
required to be provided to such Lender pursuant to Section 2.13, payable to the
order of such Lender.
(f) Borrower shall provide the Administrative Agent with
the Guaranty, the Environmental Indemnity Agreement, the Mortgage, the
Collateral Assignments and the other Loan Documents.
(g) Borrower shall provide the Administrative Agent with
the Mortgage Title Insurance Policy with respect to the Mortgage dated as of the
Effective Date in the amount of the sum of the aggregate Revolving Loan
Commitment and the Administrative Agent's initial estimate, as of the Effective
Date, of the aggregate 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. Borrower shall deliver to the Title Insurer all affidavits of
title, ALTA statements, undertakings and such other papers, instructions and
documents as the Title Insurer may require for the issuance of the Mortgage
Title Insurance Policy in the form required hereunder.
(h) Borrower 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) Borrower shall provide the Administrative Agent with
a Survey of the Opryland Hotel Florida.
(j) Borrower shall provide the Administrative Agent with
certified copies of all Leases (if any) and all amendments thereto for premises
located at the Opryland Hotel Florida.
(k) Borrower shall provide the Administrative Agent with
copies of all underlying title documents for the Opryland Hotel Florida.
(l) Borrower shall provide the Administrative Agent with
evidence that all financing statements relating to the Collateral have been (or
will be) timely filed or recorded for the benefit of the Administrative Agent
and the Lenders, and all title charges, recording fees and filing taxes have
been paid.
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(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 an Appraisal and a "phase I" environmental report for the Opryland Hotel
Florida, each satisfactory to the Administration Agent in its sole discretion.
(o) 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.
(p) 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
result in a Material Adverse Effect.
(q) The Administrative Agent shall be reasonably
satisfied (i) with the collective bargaining or other organized labor agreements
to which Borrower, Parent Guarantor and/or any of their respective Affiliates is
or are a party and (ii) that, before and after the Initial Funding Date,
Borrower and Parent Guarantor have not encountered and will not encounter any
adverse labor union organizing activity, employee strike, work stoppage,
shutdown or lockout which results in a Material Adverse Effect.
(r) No Default or Unmatured Default shall have occurred
that is continuing or would result from the making of the Loans.
(s) All of the representations and warranties contained
in the Loan Documents shall be true and correct on and as of the Initial Funding
Date.
(t) Borrower shall have provided to the Administrative
Agent and the Lenders, insurance certificates required under Section 6.6 with
respect to the Opryland Hotel Florida and shall have satisfied all other
requirements of Section 6.6 then applicable.
(u) The Administrative Agent shall have received the
Florida Ground Lease Estoppels.
(v) Borrower shall have established the FF&E Reserve
Account.
(w) The Existing Senior Loans shall have been repaid in
full and terminated (or assigned to the Administrative Agent as agent for the
Lenders and amended and restated in their entirety to evidence and secure a
portion of the credit facilities contemplated by this Agreement).
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(x) The Existing Subordinated Loans shall have been
repaid in full and terminated.
(y) Borrower shall have provided the Administrative Agent
with such other documents as any Lender or its counsel may have reasonably
requested.
4.2 Conditions Precedent to Each Revolving Loan Advance, Swingline
Loan and Letter of Credit. The Lenders shall not be required to make any
Revolving Loan Advance or issue any Letter of Credit and the Swingline Lender
shall not be required to make any Swingline Loan unless the following conditions
are satisfied on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default 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, 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 Borrower with respect to a requested
Revolving Loan Advance or a Letter of Credit Request with respect to a requested
Letter of Credit.
(e) The Administrative Agent shall have received copies
of all Leases (other than Ancillary Space Leases) entered into for space at the
Opryland Hotel Florida since the last Revolving Loan Advance.
(f) 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 making of the requested Revolving
Loan Advance.
(g) No litigation, arbitration, governmental
investigation, proceeding or inquiry shall be pending or threatened against
either 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
Swingline Loan Notice and each Letter of Credit Request shall constitute a
representation and warranty by Borrower to the Administrative Agent and the
Lenders that the conditions contained in this Section 4.2 have been satisfied.
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4.3 Conditions Precedent to Disbursements From FF&E Reserve
Account. The Administrative Agent shall not be required to make any disbursement
(each, a "FF&E Reserve Disbursement") from the 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 Borrower with respect to a
requested disbursement from the 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.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower and Parent Guarantor each represent and warrant to the Lenders
that, as of the Effective Date, and thereafter whenever the representations and
warranties under this Article V are updated, remade or deemed to be remade:
5.1 Ownership, Existence and Standing. Borrower, Parent Guarantor
and each Subsidiary Guarantor is a corporation, limited partnership or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted. True, correct and complete
copies of the Organizational Documents of Borrower, Parent Guarantor 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
56
extent set forth therein and there are no defaults under such Organizational
Documents and, to the best of Borrower's and Parent Guarantor's knowledge, no
events exist which, with the passage of time or giving of notice or both, would
constitute a default under such Organizational Documents. As of the date hereof,
the ownership structure of Borrower, Parent Guarantor and the Subsidiary
Guarantors, and all direct and indirect owners of membership interests therein
are completely and accurately disclosed on the ownership chart attached as
Schedule 5.1. Borrower is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code.
5.2 Authorization and Validity. Borrower, Parent Guarantor and
each Subsidiary Guarantor has the power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by Borrower, Parent Guarantor
or any Subsidiary Guarantor of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate or company proceedings. Each of the Loan Documents to which Borrower,
Parent Guarantor or any Subsidiary Guarantor is a party (A) has been duly
executed and delivered on behalf of Borrower, Parent Guarantor or the Subsidiary
Guarantors, as the case may be, (B) to the extent the same constitutes a
security agreement or a collateral document, creates valid first Liens in the
Collateral covered thereby, securing the payment of all of the Secured
Obligations purported to be secured thereby, (C) assuming due authorization and
execution by the Lenders party thereto, constitutes the legal, valid and binding
obligation of Borrower, Parent Guarantor or the Subsidiary Guarantors, as the
case may be, enforceable against such Person, in accordance with its terms
except to the extent that the enforcement thereof or the availability of
equitable remedies may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent transfer or similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or by general
principles of equity, or by the discretion of any court of competent
jurisdiction in awarding equitable remedies, regardless of whether such
enforcement is considered in a proceeding in equity or at law and (D) is in full
force and effect. All the terms, provisions, agreements and conditions set forth
in the Loan Documents and required to be performed or complied with by Borrower,
Parent Guarantor or the Subsidiary Guarantors have been performed or complied
with and no Default or breach of any covenant by any such Person exists
thereunder.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by Borrower, Parent Guarantor and the Subsidiary Guarantors of the Loan
Documents to which any of them is a party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on any such Person or (ii) such Person's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or limited liability company
operating agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which such Person is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the property of such Person pursuant to the
terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by Borrower, Parent Guarantor or the
57
Subsidiary Guarantors, is required to be obtained by any of them in connection
with the execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by Borrower, Parent Guarantor and the
Subsidiary Guarantors of the Obligations or the legality, validity, binding
effect or enforceability of any of the Loan Documents.
5.4 Financial Statements and Projections. The historical financial
statements of Borrower, Parent Guarantor and the Subsidiary Guarantors
heretofore delivered to the Lenders (a) in the case of Parent Guarantor, were
prepared in accordance with generally accepted accounting principles in effect
on the date such statements were prepared and (b) in the case of Borrower and
the Subsidiary Guarantors, were not prepared in accordance with generally
accepted accounting principles for presentation on a stand-alone basis, but were
prepared in a manner customary for division reporting into a consolidated group
in effect on the date such statements were prepared. All of the historical
financial statements referred to in the preceding sentence fairly present the
financial condition and operations of Borrower, Parent Guarantor and the
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 Borrower) taken as a whole or Parent Guarantor and its
Subsidiaries taken as a whole, or Borrower. All financial projections with
respect to Borrower, Parent Guarantor and the Subsidiary Guarantors heretofore
delivered to Lenders, including, without limitation, financial projections for
the Opryland Hotel Florida 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. Borrower, Parent Guarantor and the Subsidiary
Guarantors have filed all United States federal tax returns and all other tax
returns which are required to be filed and for which the due date (including
extensions) has occurred and has paid all taxes due and payable pursuant to said
returns. All taxes (including real estate taxes), assessments, fees and other
charges of Governmental Authorities upon or relating to Borrower's, Parent
Guarantor's or any Subsidiary Guarantor's assets (including the Opryland Hotel
Florida), receipts, sales, use, payroll, employment, income, licenses and
franchises which are due and payable have been paid, except to the extent such
taxes, assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued with the
security delivered as and to the extent required by the terms of Section 6.5.
Borrower has no knowledge of any proposed tax assessment against Borrower,
Parent Guarantor or any Subsidiary Guarantor, or the Opryland Hotel Florida 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. 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
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hereof, no litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their officers, threatened (a)
against or affecting 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 making of any Advances. Except
as otherwise described on Schedule 5.7, none of Borrower, Parent Guarantor, the
Subsidiary Guarantors or other Subsidiaries of Parent Guarantor has any material
Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 5.4. The aggregate maximum amount of Parent Guarantor's
obligations under the Hockey Club Guaranty is $15,000,000.00.
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 Borrower or Parent
Guarantor and any Affiliate of such parties in effect with respect to the
Opryland Hotel Florida or any part thereof.
5.10 Accuracy of Information. No written or documentary
information, exhibit or report furnished by or on behalf of Borrower, Parent
Guarantor and the Subsidiary Guarantors to the Administrative Agent or to any
Lender in connection with the syndication of the Revolving Loan 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 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 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
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reasonably be expected to have a Material Adverse Effect. Neither 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 agreement to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect or (ii) 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, Borrower, Parent
Guarantor and each of the Subsidiary Guarantors have complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic
or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, and except as otherwise described on Schedule 5.13,
neither Borrower, Parent Guarantor nor any of Parent Guarantor's Subsidiaries
nor the Opryland Hotel Florida 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 Borrower. Borrower has
good, insurable (at normal rates) leasehold title to the Opryland Hotel Florida.
The Opryland Hotel Florida 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, all Property owned by, leased to or used by 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 Borrower
in and to any of such Property (other than Liens in favor of the Administrative
Agent). The Opryland Hotel Florida is taxed separately without regard to any
other Property. The Opryland Hotel Florida may be mortgaged, conveyed and
operated as a parcel separate and independent from any other Real Property,
subject only to Customary Permitted Liens.
(b) Parent Guarantor owns, directly or indirectly, 100%
of all ownership interests in OHTLP and OHN, which are the fee owners,
respectively, of the Texas Project and Opryland Hotel Nashville.
5.15 Plan Assets; Prohibited Transactions; ERISA. Neither Borrower,
Parent Guarantor nor any of its Subsidiaries is an entity deemed to hold "plan
assets" within the meaning of 29 C.F.R. Section 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
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set forth on Schedule 5.15, neither Borrower, Parent Guarantor nor 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 Borrower and the Opryland Hotel
Florida comply, and to Borrower's knowledge and Parent Guarantor's knowledge,
the operations of all prior owners of the Opryland Hotel Florida 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 have been obtained,
and all such Permits are in good standing and Borrower is currently in
compliance with all terms and conditions of such Permits;
(iii) neither Borrower, Parent Guarantor nor the Opryland
Hotel Florida is subject to or, to the knowledge of Borrower and Parent
Guarantor, is the subject of, any investigation, judicial or administrative
proceeding, order, judgment, decree, dispute, negotiations, agreement or
settlement respecting (1) any Environmental Laws, (2) any Remedial Action, (3)
any Claims or Liabilities and Costs arising from the Release or threatened
Release of a Contaminant into the environment or (4) any violation of or
liability under any Environmental Laws;
(iv) except as expressly disclosed in the Environmental
Report, neither Borrower, Parent Guarantor, nor, to the best of the knowledge of
Borrower and Parent Guarantor, any other Person, has filed any notice under any
applicable Requirement of Law with respect to the Opryland Hotel Florida (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;
(v) The Opryland Hotel Florida is not 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 Borrower, Parent Guarantor nor any other
Person (in connection with the Opryland Hotel Florida) has sent or directly
arranged for the transport of any waste to any site listed or proposed for
listing on the NPL, CERCLIS or any similar state list;
(vii) except as expressly disclosed in the Environmental
Report, there is not now, nor, to Borrower's knowledge and Parent Guarantor's
knowledge, has there ever been on the Opryland Hotel Florida (1) any treatment,
recycling, storage or disposal of any hazardous
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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 Borrower, Parent Guarantor, nor, to the
knowledge of Borrower and Parent Guarantor, any other Person has received any
notice or Claim to the effect that it is or may be liable to any Person as a
result of the Release or threatened Release of a Contaminant into the
environment in connection with the Opryland Hotel Florida;
(ix) no Environmental Lien has attached to the Opryland
Hotel Florida;
(x) the Opryland Hotel Florida is not subject to any
Environmental Property Transfer Act, or to the extent such acts are applicable
to the Opryland Hotel Florida, 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; 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.
5.17 Investment Company Act. Neither 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 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.
5.19 Solvency. (a) Immediately after the consummation of the
transactions to occur on the Effective Date, 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 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 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)
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) 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.
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(b) Neither 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 do not violate any Requirements
of Law in any material respect. Borrower owns or has all Permits and other
Governmental Approvals or has 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. No claims are pending and neither
Borrower, nor to 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 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 is to any extent dependent upon or related to any Property other
than the Property comprising the Opryland Hotel Florida.
(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 any part
thereof (except as set forth in Schedule 5.20(b)) or any Permits heretofore
issued with respect thereto, or asserting that such zoning, land use
classification or Permits do not permit the ownership, operation or use of the
Opryland Hotel Florida as a first class hotel and convention center with
associated facilities and, to the best of Borrower's knowledge and Parent
Guarantor's knowledge, no facts exist which would reasonably be expected to
result in the denial, disapproval or revocation of any Governmental Approvals or
Permits necessary to operate the Opryland Hotel Florida or any other Property.
5.21 Intentionally Reserved.
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 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 other than as permitted under
Leases entered into in accordance with Section 6.34. Borrower is not in default
in any material respect under any Lease. Borrower has delivered to the
Administrative Agent true and complete copies of all Leases entered into as of
the date hereof.
5.23 Ground Lease Matters.
(a) The Florida Hotel Ground Lease is in full force and
effect, unmodified by any writing or otherwise, and Borrower has not waived,
canceled or surrendered any of its respective rights thereunder, nor has
Borrower made any election or exercised any option thereunder. To
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the knowledge of Borrower and Parent Guarantor, the Florida Master Lease is in
full force and effect and unmodified by any writing or otherwise.
(b) All rent, additional rent, percentage rent and/or
other charges reserved in or payable under the Florida Hotel Ground Lease have
been paid to the extent that they are payable to the date hereof.
(c) Borrower has not delivered or received any notice of
default under the Florida Hotel Ground Lease and Borrower is not in default
under any of the terms of the Florida 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 Borrower under the Florida Hotel Ground
Lease.
(d) To Borrower's knowledge as of the date hereof, (i)
neither the Florida Master Lessor nor the Florida Ground Lessor is in default
under any of the terms of either the Florida Master Ground Lease or the Florida
Hotel Ground Lease on its part to be observed and/or performed, and (ii) there
are no circumstances which, with the passage of time or the giving of notice, or
both, would constitute a default by either the Florida Master Lessor or the
Florida Ground Lessor under either the Florida Master Ground Lease or the
Florida Hotel Ground Lease.
(e) Borrower has delivered to Lender a true, accurate and
complete copy of each of the Ground Leases, together with all amendments,
renewals and other modifications thereto.
(f) There are no adverse claims to Borrower's title to or
possession of the leasehold estate created by the Florida Hotel Ground Lease.
5.24 Casualty; Condemnation Except for any Non-Material Casualty,
neither the Opryland Hotel Florida 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 (nor any roadways abutting
thereto) or any portion thereof is pending, nor has Borrower received any
written notice of any potential condemnation by any Governmental Authority.
5.25 Intentionally Reserved.
5.26 Brokerage Fees. No brokerage fees or commissions are payable
by or to any Person with whom either 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 are in substantially good condition and repair, are free
from Liens (other than the Customary Permitted Liens) and are usable for their
intended purposes.
5.28 Incentive Agreements. Borrower has furnished to the
Administrative Agent true, complete and correct copies of the Incentive
Agreements, which Agreements are unmodified and in full force and effect.
Borrower
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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.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Majority Lenders shall
otherwise consent in writing, Borrower and Parent Guarantor each covenant and
agree as follows:
6.1 Financial Reporting. Borrower and Parent Guarantor will each
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) Within 30 days after the close of each month end an
unaudited operating statement for the Opryland Hotel Florida for such month.
(vi) Within 45 days after the close of each Fiscal Quarter
after Substantial Completion an unaudited operating statement for the Texas
Project for such quarter.
(vii) Within 45 days after the close of each Fiscal Quarter
an unaudited operating statement for Opryland Nashville for such quarter.
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(viii) As soon as available and in any event within 45 days
after the close of each Fiscal Quarter and 90 days after the close of each
Fiscal Year, a compliance certificate for Borrower and Parent Guarantor in
substantially the form of Exhibit E signed by an Authorized Officer, (1) showing
the calculations necessary to determine compliance with this Agreement,
including those covenants set forth in Section 6.25 and (2) stating that to such
Authorized Officer's knowledge, no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the nature and status thereof.
(ix) Promptly upon the occurrence of any of the following,
and in all events within 10 Business Days after any such occurrence, written
notice of the following:
(a) receipt by either Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida of a notice or claim to the effect that
either 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 Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida of a notice that either Borrower, Parent
Guarantor or any Property Manager or any portion of the Opryland Hotel Florida
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;
(c) receipt by either Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida of a notice that the Opryland Hotel
Florida is subject to an Environmental Lien;
(d) receipt by either Borrower, Parent
Guarantor, any Property Manager or a Person responsible for the environmental
matters at the Opryland Hotel Florida of a notice of a material violation of any
Environmental Laws with respect to the Opryland Hotel Florida;
(e) any condition which might reasonably be
expected to result in a material violation of any Environmental Laws by either
Borrower, Parent Guarantor or any Property Manager or with respect to the
Opryland Hotel Florida; or
(f) commencement or written threat of which
either Borrower, Parent Guarantor or any Property Manager has knowledge of any
judicial or administrative proceeding alleging a violation of any Environmental
Laws by either Borrower, Parent Guarantor or any Property Manager or with
respect to the Opryland Hotel Florida.
(x) (a) Promptly upon either 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 Borrower, Parent Guarantor, any Property Manager or the
Opryland Hotel Florida 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
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any event within 45 days after the end of each Fiscal Quarter, a written
quarterly report covering the institution of any action, suit, proceeding,
governmental investigation or arbitration (not previously reported) against or
affecting either Borrower, Parent Guarantor, any Property Manager or the
Opryland Hotel Florida (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 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.
(xi) Promptly upon either Borrower's or Parent Guarantor's
learning thereof, written notice of any labor dispute to which either Borrower,
Parent Guarantor or any Subsidiary Guarantor may become a party (including any
strikes, lockouts or other disputes relating to the Opryland Hotel Florida).
(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 10 days after the occurrence
thereof.
(xiv) Such other non-proprietary information (including
non-financial information) as the Administrative Agent or any Lender may from
time to time reasonably request.
6.2 Use of Proceeds. Borrower will use the proceeds of any
Revolving Loan Advance and any Swingline Loan Advance for general corporate
purposes. Borrower 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. Borrower and Parent Guarantor will give
prompt notice in writing to the Lenders of the occurrence of any Default or
Unmatured Default of which they have knowledge and of any other development,
financial or otherwise, which could reasonably be expected to have a Material
Adverse Effect.
6.4 Conduct of Business; Corporate Existence. Borrower and Parent
Guarantor shall (and Parent Guarantor shall cause all of the Subsidiary
Guarantors to) (a) maintain in all material respects their Properties (including
the Opryland Hotel Florida) in good, safe and insurable condition and repair,
except ordinary wear and tear scheduled to be repaired in the ordinary course of
67
maintenance, (b) maintain all utilities, access rights, zoning, land use
classification and necessary Permits for the Opryland Hotel Florida, (c) not
permit, commit or suffer any waste or abandonment of the Opryland Hotel Florida,
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, Borrower shall staff, maintain, insure and operate
the Opryland Hotel Florida as a first class hotel and convention center.
Borrower 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. Borrower 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). Borrower will qualify for pass-through entity treatment
under United States federal tax law. Borrower 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. Borrower and/or Parent
Guarantor shall provide copies of property tax bills and other invoices and
evidence of payment of property taxes with respect to the Opryland Hotel
Florida, 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,
Borrower 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 Borrower and/or Parent Guarantor (1) shall
fail to discharge or cause to be discharged within sixty (60) days after the
imposition thereof (but in any event before the same is reasonably likely to
result in either (A) the Property being sold, forfeited or lost or (B) the Lien
in favor of the Administrative Agent for the benefit of the Lenders and other
Holders of Secured Obligations being impaired) any such Lien for taxes,
assessments or other governmental charges or claims filed or otherwise asserted
with respect to any portion of the Opryland Hotel Florida, or (2) shall fail to
contest any of the foregoing and give security therefor within the time period
specified in the preceding clause (1) or, having commenced to contest the same,
and having given such security within such time period, shall thereafter fail to
prosecute such contest in good faith and with due diligence, or fail to maintain
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such security for its full amount, or (3) upon adverse conclusion of any such
contest, shall fail to cause any judgment or decree to be satisfied and such
Lien to be released, then, and in any such event, the Administrative Agent may
(but shall not be required to) at its election, (x) procure the release and
discharge of any such Lien and any judgment or decree thereon, without inquiring
into or investigating the amount, validity or enforceability of such Lien and
(y) effect any settlement or compromise of the same, or furnish security or
indemnity to the Title Insurer, and any amounts so expended by the
Administrative Agent, including premiums paid or security furnished in
connection with the issuance of any surety company bonds, shall be deemed to
constitute additional Obligations and shall be secured by the Collateral.
6.6 Insurance. (a) Borrower and Parent Guarantor will maintain,
and Parent Guarantor will cause all of its Subsidiaries and the Subsidiary
Guarantors to maintain, with financially sound and reputable insurance
companies, insurance coverages in such amounts and covering such risks as is
consistent with sound business practice, and Borrower and Parent Guarantor will
furnish to any Lender upon request full information as to the insurance carried
by Borrower, Parent Guarantor and all such Persons. Without limitation of the
foregoing, Borrower 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. Borrower, Parent Guarantor and any Property
Manager shall obtain and maintain Workers Compensation and Disability insurance
as required by law covering Borrower, Parent Guarantor and any Property Manager.
(b) The following insurance coverages shall be required
at all times for the Opryland Hotel Florida:
(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
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 the Opryland Hotel Florida. 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
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commonly carried by operators of similar high-quality facilities in the
same geographic region and reasonably approved by Administrative Agent.
(2) Business interruption insurance shall be required in
an amount that equals not less than 6 months projected Net Operating
Income and payment of debt service on the Loans, and be endorsed to
provide a 180-day Extended Period of Indemnity, or at least 90 days if
coverage for 180 days is not available at commercially reasonable
terms. The Administrative Agent shall be named as Loss Payee as
respects this coverage.
(3) Borrower, Parent Guarantor and any Property Manager
shall obtain and maintain General Public Liability insurance,
including, without limitation, Commercial General Liability insurance;
Owned, Hired and Non Owned Auto Liability, and Umbrella Liability
coverage for Personal Injury, Bodily Injury, Death, Accident and
Property Damage, providing in combination no less than $100,000,000 per
occurrence and in the annual aggregate, including, but not limited to,
coverage for elevators, escalators, independent contractors,
Contractual Liability (covering, to the maximum extent permitted by
law, Borrower's and Parent Guarantor's obligation to indemnify the
Administrative Agent and Lenders as required under this Agreement),
Products and Completed Operations Liability coverage.
(4) Workers Compensation and Disability insurance as
required by law.
(5) Such other types and amounts of insurance with
respect to the Opryland Hotel Florida and the operation thereof which
are commonly maintained in the case of other property and buildings
similar to the Opryland Hotel Florida in nature, use, location, height,
and type of construction, as may from time to time be reasonably
required by the Administrative Agent.
(c) To the extent the "all risk" property coverages
required to be maintained by the foregoing provisions of this Section 6.6 do not
cover acts of terrorism, Borrower shall obtain separate terrorism coverage for
the Opryland Hotel Florida 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 Revolving Loan Commitment 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, and
reasonably acceptable to the Administrative Agent. The Property, Boiler and
Machinery insurance policies shall also name the Administrative Agent and
Lenders under a standard mortgagee clause or an equivalent endorsement
satisfactory to the mortgagee and shall be otherwise reasonably satisfactory to
the Administrative Agent in form and content. Business interruption insurance
shall name the Administrative Agent as Loss Payee. All Property insurance
policies also shall include a co-insurance waiver and Agreed Amount Endorsement.
The amount of any deductible under any insurance policy must be consistent with
similar projects managed by Parent Guarantor or any of its Subsidiaries. Without
the Administrative Agent's prior written consent, neither Borrower, Parent
Guarantor nor any Property Manager shall carry separate or additional insurance
coverage covering the Improvements concurrent in
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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 Borrower, Parent Guarantor or an Affiliate of either) during
business hours.
(d) Borrower, Parent Guarantor and any Property Manager
shall pay the premiums for the insurance policies required hereunder as the same
become due and payable. Borrower, Parent Guarantor and any Property Manager
shall deliver to the Administrative Agent certificates of the insurance policies
(on forms acceptable to the Administrative Agent) required to be maintained
pursuant to this Agreement provided, however, the Administrative Agent and
Lenders shall not be deemed by reason of the custody of such certificates to
have knowledge of the contents thereof. Borrower and Parent Guarantor also shall
deliver to the Administrative Agent, within ten (10) days of the Administrative
Agent's request, a certificate of Borrower and Parent Guarantor or their
insurance agent setting forth the particulars as to all such insurance policies.
Prior to the expiration date of each of the insurance policies Borrower shall
deliver to the Administrative Agent a certificate of insurance evidencing
renewal of coverage as required herein.
(e) 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 Mortgage or any of the Loan Documents.
(f) Any insurance maintained pursuant to this Agreement
may be evidenced by blanket insurance policies covering the Opryland Hotel
Florida and other properties or assets of Borrower, 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.
(g) Notwithstanding anything to the contrary contained
herein, if at any time the Administrative Agent is not in receipt of written
evidence that all insurance required hereunder is maintained in full force and
effect, the Administrative Agent shall have the right (but not the obligation),
upon ten (10) days' prior written notice to Borrower or Parent Guarantor (or
such lesser notice as may be necessary to prevent the lapse of insurance
coverage), to take
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such action as the Administrative Agent deems necessary to protect its interests
in the Opryland Hotel Florida, including, without limitation, the obtaining of
such insurance coverage as the Administrative Agent deems appropriate, and all
expenses incurred by the Administrative Agent in connection with such action
will be paid by Borrower or Parent Guarantor on demand.
6.7 Compliance with Laws. Borrower 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 their operations and
maintain such Permits in good standing. Without limiting the foregoing, Borrower
and Parent Guarantor shall comply in all respects with all Environmental Laws
with respect to the Opryland Hotel Florida and shall not suffer or permit the
Release or disposal of Contaminants at the Opryland Hotel Florida in any manner
that, in any single instance or in the aggregate, would violate Environmental
Laws.
6.8 Alterations. Neither Borrower nor Parent Guarantor shall,
without the prior written consent of Administrative Agent, make, suffer or
permit any structural alterations to the Opryland Hotel Florida (other than as
contemplated by the Approved FF&E Budget of Borrower) having a cost in excess of
$2,000,000.00 in any Fiscal Year.
6.9 Inspections; Books and Records.
(a) The Administrative Agent, and any authorized
representative(s) designated by the Administrative Agent, shall have the right
at all reasonable times on reasonable notice (and (i) for so long as no Default
exists, at Borrower's and Parent Guarantor's expense, provided that such
inspections and examinations do not take place more often than annually, and
otherwise at the expense of the Lenders and (ii) from and after the occurrence
of a Default, at Borrower's and Parent Guarantor's expense) and any other Lender
shall have the right at its own expense: (i) to enter upon and inspect the
Properties of Borrower, Parent Guarantor and the Subsidiary Guarantors
(including the Opryland Hotel Florida and the Texas Project), as part of the
Administrative Agent's general oversight (both prior to and after Substantial
Completion); and (ii) to examine, copy and make extracts of the books, records,
accounting data and other documents of Borrower, Parent Guarantor, any Property
Manager and the Subsidiary Guarantors, whether or not the same relate in any way
to the Opryland Hotel Florida or the Texas Project, all of which shall be made
available promptly upon the Administrative Agent's written demand therefor
(including in connection with environmental compliance, hazard or liability),
and to discuss Borrower's, Parent Guarantor's, the 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 Texas Project, with their respective executive officers, as applicable,
all upon reasonable notice and at such reasonable times during normal business
hours, as often as may be reasonably requested. At the request of the
Administrative Agent, Borrower and Parent Guarantor shall furnish convenient
facilities for the purposes of conducting such investigations and examinations.
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 Texas
Project (or any other Property) or any books
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and records, that any such inspection shall be for the sole purposes of
determining whether or not the obligations of Borrower and Parent Guarantor
under this Agreement are being properly discharged and of preserving the
Administrative Agent's rights hereunder, and that the Administrative Agent's
failure to inspect or examine any matter shall not constitute a waiver of any of
the Lenders' rights hereunder. If the Administrative Agent or any other Lender
should inspect the Texas Project or any books and records, neither the
Administrative Agent nor any other Lender shall have any liability or obligation
to Borrower, Parent Guarantor or any third party arising out of such inspection
(other than any applicable obligation hereunder with respect to confidentiality)
and none of Borrower, 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 Laws or that the Texas Project is free from defective materials
or workmanship. Neither the Administrative Agent nor any other Lender owes any
duty of care to Borrower, Parent Guarantor or any third person to protect
against, or inform Borrower, Parent Guarantor or any third person of the
existence of, negligent, faulty, inadequate or defective design or construction
of the Opryland Hotel Florida, the Texas Project or of any other Property.
(b) 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, Borrower and Parent Guarantor, upon the
Administrative Agent's request, shall turn over copies of any such records to
the Administrative Agent or its representatives.
6.10 Completion of Texas Project. Parent Guarantor shall cause the
Substantial Completion of the Texas Project to occur on or before June 30, 2004.
6.11 Amount of Title Policy. From time to time, within 30 days of
Administrative Agent's request, Borrower shall cause the amount of the Mortgage
Title Insurance Policy to be increased to an amount equal to the sum of the
Aggregate Revolving Loan Commitment and the Administrative Agent's then current
estimate of the aggregate amount of Secured Rate Management Obligations,
provided that the Administrative Agent shall make such request only if its
current estimate is at least $5,000,000.00 greater than such estimate as of the
Effective Date or as of the date of its prior request, if any, under this
Section 6.11.
6.12 Intentionally Reserved.
6.13 Distributions. Borrower and Parent Guarantor will not, and
Parent Guarantor will not permit any of its Subsidiaries to, declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of
73
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 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 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) neither Borrower nor any 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) Borrower shall not make or
declare any dividend, distribution or other payment to Parent Guarantor, or any
Affiliate of Borrower or Parent Guarantor, for so long as any Default or
Unmatured Default has occurred and is continuing.
6.14 Indebtedness. Neither 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"):
(a) The Loans and Borrower's other Obligations hereunder,
and the Guaranty.
(b) Indebtedness of Borrower, Parent Guarantor or any
Subsidiary Guarantor with respect to Secured Rate Management Transactions,
provided that the aggregate Net Termination Value thereof, together with the
aggregate Revolving Loan Commitment, shall not exceed $125,000,000.00 at any
time.
(c) The Nashville Senior Loan, including any Permitted
Refinancing thereof.
(d) The SAILS Forward Exchange Contracts.
(e) Unsecured payables incurred in the ordinary course of
business, not in excess of $100,000,000.00 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.
(f) 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 Borrower and not in excess, for
all such Persons, in the aggregate at any one time, of $25,000,000.00 and by
Borrower and not in excess, in the aggregate at any one time, of $10,000,000.00.
(g) 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 Borrower or Parent Guarantor
or to another Subsidiary of Parent Guarantor that is a Subsidiary Guarantor, so
long as any such intercompany loans or advances made to Borrower or any
Subsidiary Guarantor are unsecured and subordinate to the Loans on terms and
provisions acceptable to the Administrative Agent.
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(h) Investments permitted under Section 6.18(a) hereof.
(i) The Senior Notes.
(j) The Senior Notes Guaranty.
(k) 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.
(l) Indebtedness of ResortQuest International, Inc. in
respect of the RZT Notes, for a period not to exceed thirty-five (35) days after
the Effective Date.
(m) The Hockey Club Guaranty.
(n) Miscellaneous other Indebtedness in addition to the
Permitted Debt described in clauses (a) through (l) above, including, but not
limited to, (i) reimbursement obligations with respect to letters of credit, not
in excess of $20,000,000.00 in the aggregate at any one time, for all such
Persons and (ii) Parent Guantor's guarantee of any Indebedness or other
obligation of a Subsidiary Guarantor if and to the extent that such Indebtedness
or other obligation is otherwise permitted hereunder.
6.15 Merger. Neither 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 Borrower herein remain true and correct
in all material respects, and no Default or Unmatured Default occurs as a result
thereof.
6.16 Ownership of OHTLP and OHN; Management of Texas Project and
Opryland Nashville. (a) Parent Guarantor shall at all times (i) retain an
indirect or direct ownership interest in OHTLP and OHN (and cause OHTLP and OHN
to retain an ownership interest in the Texas Project and in Opryland Nashville,
respectively) and (ii) retain management of the Texas Project and Opryland
Nashville.
(b) At least ninety (90) days prior to the initial
maturity date of the Nashville Loans, Parent Guarantor shall either (i) cause a
Permitted Refinancing to occur or (ii) exercise its right, under the documents
evidencing and/or securing the Nashville Loans, to extend such initial maturity
date by one year. In the event that the initial maturity date of the Nashville
Loans is so extended by one year, Parent Guarantor shall cause a Permitted
Refinancing to occur at least ninety (90) days prior to such extended maturity
date.
6.17 Sales of Assets; Releases of Subsidiary Guarantors. (a)
Neither Borrower nor Parent Guarantor shall sell, assign, convey, or otherwise
Transfer (or cause or permit the sale,
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assignment, conveyance or other Transfer of) all or any portion of the Opryland
Hotel Florida or any direct or indirect interest therein or in Borrower (except
for the 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, 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 Borrower nor Parent Guarantor shall make or permit any Subsidiary
Guarantor or any other Subsidiary of Parent Guarantor (including OHTLP and OHN)
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
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 OHN 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 OHN 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
$75,000,000.00 in the aggregate for any Facility Year. Parent Guarantor may
create or acquire additional direct or indirect wholly-owned Subsidiaries, only
if concurrently with the creation or acquisition thereof, each such Subsidiary
executes and delivers to the Administrative Agent a guaranty of payment with
respect to the Secured Obligations substantially in the form of the Guaranty and
an environmental indemnity agreement substantially in the form of the
Environmental Indemnity Agreement (or, in lieu thereof, in each case, an
Instrument of Adherence in the form of Exhibit H). Upon repayment of the RZT
Notes, Parent Guarantor shall cause each of the RZT Subsidiaries to deliver an
Instrument of Adherence in the form of Exhibit H (properly completed) to the
Administrative Agent for the benefit of the Lenders, together with (i) all
Organizational Documents, certifications, and other documents as the
Administrative Agent shall reasonably require in connection with such
Instruments of Adherence; (ii) copies, each certified by the general partner,
managing member, secretary or assistant secretary, as applicable, of Parent
Guarantor and the RZT Subsidiaries, of the Organizational Documents of each such
Person; and consents, resolutions or other required actions authorizing the
execution and delivery by such Person of the RZT Instruments of Adherence to
which such Person is a party, such consents, resolutions or other actions to be
in form and substance reasonably satisfactory to the Administrative Agent; and
(iii) opinions of respective counsel to Parent Guarantor and each of the RZT
Subsidiaries, addressed to the Administrative Agent and the Lenders, in form and
substance reasonably satisfactory to the
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Administrative Agent, with respect to the authorization and enforceability of
such Instruments of Adherence and such other matters as the Administrative
Agreement may require in connection therewith; provided that opinions with
respect to authorization shall not be required in respect of the RZT
Subsidiaries listed on Schedule 6.18(a). In any event, Parent Guarantor shall
not cause or permit any Person to execute a Senior Notes Guaranty unless such
Person simultaneously executes and delivers an Instrument of Adherence in the
form of Exhibit H (properly completed) to the Administrative Agent, together
with all applicable items described in clauses (i), (ii) and (iii) of the
preceding sentence.
(b) Borrower and Parent Guarantor shall not make nor
shall Parent Guarantor permit any Subsidiary of Parent Guarantor to make any
Capital Expenditures other than (i) with respect to the Opryland Hotel Florida
or the Texas Project and (ii) Capital Expenditures (excluding those described in
the preceding clause (i)), which in the aggregate, together with Investments
which are permitted under clause (iv) of Section 6.18(a), are not in excess of
$75,000,000.00 in the aggregate for any Facility Year.
6.19 Liens. (a) Neither Borrower nor Parent Guarantor will create,
incur, or suffer to exist any Lien in, of or on the Opryland Hotel Florida, or
any other Property of Borrower, or any easements, covenants, conditions,
restrictions or other encumbrances to be recorded against the Opryland Hotel
Florida, except (i) Customary Permitted Liens and Liens in favor of the
Administrative Agent under the Collateral Documents, (ii) mechanics' and
materialmen's liens that are discharged or being contested in accordance with
the provisions of Section 6.19(b) and (iii) liens in connection with permitted
equipment financings as described in Section 6.14(f).
(b) If any mechanics' lien claims are filed or otherwise
asserted against the Opryland Hotel Florida, or any such claims for Lien or any
proceedings for the enforcement thereof are filed or commenced, then Borrower
and/or Parent Guarantor shall discharge the same within forty-five (45) days of
such filing or commencement; provided, however, that (i) Borrower 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 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 Policy insuring against all such
Claims, Liens or proceedings 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) Borrower 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
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 is secure and the priority of the
Mortgage remains unaffected.
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6.20 Affiliates. Except as set forth on Schedule 6.20, neither
Borrower nor Parent Guarantor will enter into any agreement or transaction
(including, without limitation, the purchase or sale of any Property or service)
with, or Transfer of any Property to, any Affiliate of Borrower or Parent
Guarantor except for any Management Agreement, and other transactions,
agreements and transfers, disclosed to and approved in writing by the
Administrative Agent, in the ordinary course of business and pursuant to the
reasonable requirements of Borrower's and Parent Guarantor's business, as
applicable, and upon fair and reasonable terms no less favorable to Borrower and
Parent Guarantor, than Borrower 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) by Borrower to Parent Guarantor, or to a Subsidiary Guarantor, or by
a Subsidiary of Parent Guarantor (other than Borrower) to Borrower, Parent
Guarantor or a Subsidiary Guarantor.
6.21 Secured Rate Management Transactions. Secured Rate Management
Obligations shall be secured by the Collateral on a pari passu basis with the
Obligations.
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. Neither Borrower nor Parent Guarantor will enter into or suffer to
exist any (a) Sale and Leaseback Transaction with respect to Borrower or
Opryland Hotel Florida or any portion thereof, or (b) any other transaction
pursuant to which it or any Subsidiary Guarantor incurs or has incurred
Off-Balance Sheet Liabilities, except for Secured Rate Management Transactions.
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. Borrower will not enter into or remain
liable upon any Financial Contract, other than Secured Rate Management
Transactions.
6.25 Financial Covenants.
6.25.1 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 (adjusted to exclude
the amounts described in clause (b) of the definition of "Indebtedness" if and
to the extent such amounts are secured by cash collateral held by the issuer of
the applicable Letter of Credit) to (ii) Consolidated EBITDA (before
restructuring charges to the extent reflected as such on Parent Guarantor's GAAP
income statement) to exceed the correlative ratio set forth below (Consolidated
Indebtedness to be determined as of such day and Consolidated EBITDA to be
determined with reference to the last full four Fiscal Quarters preceding such
date after giving effect on a pro forma basis to any acquisitions or
dispositions of assets during such four Fiscal
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Quarter period), provided that, for the purpose of such calculation, for the
first four Fiscal Quarters ending after Substantial Completion, Consolidated
EBITDA shall be adjusted by annualizing the portion thereof related to the Texas
Project (by multiplying Consolidated EBITDA related to the Texas Project for the
period from Substantial Completion 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 Substantial Completion through the last day of
such Fiscal Quarter:
TEST DATE MAXIMUM TOTAL LEVERAGE RATIO
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 6.75 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
6.25.2 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:
TEST DATE MINIMUM ADJUSTED NET OPERATING INCOME
Fiscal Quarters ending December 31, 2003 through and $25,000,000.00
including December 31, 2004
Fiscal Quarters ending March 31, 2005 and thereafter $28,000,000.00
6.25.3 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
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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 Substantial
Completion, Consolidated EBITDA shall be adjusted by annualizing the portion
thereof related to the Texas Project (by multiplying Consolidated EBITDA related
to the Texas Project for the period from Substantial Completion 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 Substantial
Completion 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 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) Borrower 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 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 Borrower or Parent
Guarantor. In the event of any loss or damage to any portion of the Opryland
Hotel Florida 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, 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 which are reasonably likely to result in Property Awards
in excess of $3,000,000 in the aggregate. In the event of 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 Borrower or Parent Guarantor.
(b) Borrower or Parent Guarantor shall promptly after the
occurrence of a Property Award Event with respect to the Opryland Hotel Florida
commence and diligently pursue the repair, restoration or reconstruction of the
damaged portion of the Opryland Hotel Florida and the opening or reopening and
operation of the Opryland Hotel Florida ("Restoration"); provided, however, that
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.
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(c) In the event a Property Award with respect to the
Opryland Hotel Florida is paid to the Administrative Agent, such Property Award
shall be made available to 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,
subject in each case to the following covenants and conditions:
(i) No Default shall have occurred that is
continuing.
(ii) As soon as practicable, but in no event
later than ninety (90) days after the occurrence of the related Property Award
Event (A) Borrower or Parent Guarantor shall 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 Borrower or Parent Guarantor, the Opryland
Hotel Florida will be of at least substantially equal value, quality and
character as it was immediately prior to the Property Award Event, free and
clear of all Liens except the Liens in favor of the Administrative Agent and
Customary Permitted Liens pertaining thereto, (B) the Restoration shall be
performed in compliance with all then applicable Laws and with good construction
scheduling and good construction practices and (C) Borrower or Parent Guarantor
shall 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, Borrower or Parent Guarantor shall
promptly deposit the amount of the insufficiency in a cash collateral account
(the "Restoration Account") in the name of 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. 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 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, 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
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 to the Mortgage Title Insurance Policy
confirming the foregoing, in form and substance reasonably satisfactory to the
Administrative Agent.
(vii) 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 Borrower or Parent Guarantor promptly upon receipt thereof by the
Administrative Agent, which proceeds the Borrower or Parent Guarantor shall
apply for the purposes of Restoration.
(d) Upon 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 the Opryland Hotel Florida, 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.
6.28 The Administrative Agent's and the Lenders' Actions for Their
Own Protection Only. Borrower and Parent Guarantor acknowledge and agree that
the authority herein conferred upon the Administrative Agent and the Lenders,
and any actions taken
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by the Administrative Agent and the Lenders with respect to the Opryland Hotel
Florida, to procure waivers or sworn statements, to approve contracts,
subcontracts and purchase orders, to approve plans and specifications, or
otherwise, will be exercised and taken by the Administrative Agent and the
Lenders for their own protection only and may not be relied upon by Borrower,
Parent Guarantor or any third party for any purposes whatever; and neither the
Administrative Agent nor the Lenders shall be deemed to have assumed any
responsibility to Borrower, Parent Guarantor or any third party with respect to
any such action herein authorized or taken by the Administrative Agent or the
Lenders. Any review, investigation or inspection conducted by the Administrative
Agent, the Lenders, any architectural, engineering or other consultants retained
by the Administrative Agent or the Lenders, or any Administrative Agent or
representative of the Administrative Agent or the Lenders in order to verify
independently Borrower's or Parent Guarantor's satisfaction of any conditions
precedent to disbursements under this Agreement, Borrower's or Parent
Guarantor's performance of any of the covenants, agreements and obligations of
Borrower or Parent Guarantor under this Agreement, or the validity of any
representations and warranties made by Borrower or Parent Guarantor hereunder
(regardless of whether or not the party conducting such review, investigation or
inspection should have discovered that any of such conditions precedent were not
satisfied or that any such covenants, agreements or obligations were not
performed or that any such representations or warranties were not true), shall
not affect (or constitute a waiver by the Administrative Agent or the Lenders
of) (i) any of Borrower's or Parent Guarantor's agreements, covenants,
representations and warranties under this Agreement or the other Loan Documents,
or the Lender's reliance thereon or (ii) the Administrative Agent and Lenders'
reliance upon any certifications of Borrower or Parent Guarantor required under
this Agreement or any of the other Loan Documents, or any other facts,
information or reports furnished to the Administrative Agent or the Lenders by
Borrower or Parent Guarantor hereunder.
6.29 Intentionally Reserved.
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 Texas Project or any portion thereof, 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, 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 Borrower's or
Parent Guarantor's use or application of proceeds of Loans.
6.32 Compliance with Agreements. Borrower and Parent Guarantor
shall comply in all material respects with its obligations under: (a) all Leases
affecting the Opryland Hotel Florida; (b) all agreements with Affiliates; (c)
any underlying covenants, conditions and restrictions of record with respect to
the Opryland
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Hotel Florida; and (d) all other material contractual obligations relating to
the ownership, operation and maintenance of the Opryland Hotel Florida which are
not described in the foregoing clauses (a) through (c) above. In addition to the
foregoing Borrower and Parent Guarantor shall enforce its material rights and
remedies under the agreements described in the foregoing clauses (a) through (d)
above.
6.33 Organizational Documents. Neither Borrower nor Parent
Guarantor shall allow any amendment, modification or other change to any of the
terms or provisions in any of 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. Borrower shall not enter into, terminate,
cancel, amend, restate, supplement or otherwise modify any Lease at the Opryland
Hotel Florida 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 for the Opryland Hotel Florida, (ii) on market-rate
terms and conditions, and (iii) by its terms expressly subordinate to the
Mortgage (any such Lease, an "Ancillary Space Lease") or (b) to terminate any
Lease by reason of a default by the tenant thereunder, provided that such
termination is commercially reasonable. If requested by either 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) Borrower shall pay when due the
rent and all other sums and charges mentioned in, and payable under, the Florida
Hotel Ground Lease.
(b) 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 (including, without limitation,
all payment obligations), (ii) shall do all things necessary to preserve and to
keep unimpaired the Florida Hotel Ground Lease and its leasehold estate and
other rights thereunder; (iii) shall not waive, excuse or discharge any of the
obligations of the Florida Ground Lessor under the Florida Hotel Ground Lease
without the Majority Lenders' prior written consent in each instance; and (iv)
shall diligently and continuously enforce the obligations of the Florida Ground
Lessor, under the Florida Hotel Ground Leases.
(c) Borrower shall not do, permit or suffer (i) any act,
event or omission which would be likely to result in a default or permit the
applicable lessor to terminate or
84
exercise any other remedy under the Ground Leases or (ii) any act, event or
omission which, with the giving of notice or the passage of time, or both, would
constitute a default or permit the lessor to terminate or exercise any other
remedy under the Ground Leases.
(d) Borrower shall not 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 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) Borrower shall deliver to the Administrative Agent
copies of all default and other material notices received by Borrower from any
party under the Ground Leases, and of any notice received by Borrower from
either the Florida Ground Lessor or the Florida Master Lessor, of their
intention to terminate the Florida Hotel Ground Lease or the Florida Master
Lease, respectively, or to re-enter and take possession of any premises demised
by the Ground Leases, immediately and, in any event, within one (1) Business
Day, of delivery or receipt of any such notice, as the case may be.
(f) Borrower shall promptly furnish to the Administrative
Agent copies of such information and evidence as the Administrative Agent may
reasonably request concerning Borrower's due observance, performance and
compliance with the terms, covenants and conditions of the Ground Leases.
(g) Borrower shall not consent to the subordination of
the Florida Hotel Ground Lease or the Florida Master Ground Lease 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 Florida Ground Leases, 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 Florida Ground
Leases.
(i) In the event of a default by Borrower in the
performance of any of its obligations under the Florida Hotel Ground Lease,
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 Borrower thereunder in the name of
and on behalf of Borrower. Borrower shall, on demand, reimburse the
Administrative Agent for all expenses incurred by the Administrative Agent in
curing any such default (including, without limitation, attorneys' fees and
disbursements), together with interest thereon computed at the Default Rate from
the date that such expense is incurred, to and including the date the same is
paid to the Administrative Agent.
(j) Borrower shall give the Administrative Agent written
notice of its intention to exercise each and every option, if any, to renew or
extend the term of the Florida Hotel Ground Lease, 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, Borrower shall duly
85
exercise any renewal or extension option with respect to the Florida Hotel
Ground Lease. If Borrower intends to renew or extend the term of either of the
Florida Hotel Ground Lease, 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 Florida Ground Lessor, together with the terms and conditions
of such renewal or extension. Borrower hereby irrevocably appoints the
Administrative Agent as its attorney-in-fact, coupled with an interest, to
execute and deliver, for and in the name of Borrower, all instruments and
agreements necessary under the Florida Hotel Ground Lease or otherwise to cause
any renewal or extension of the Florida Hotel Ground Lease.
(k) In the event that the Florida Hotel Ground Lease
shall be terminated by reason of a default beyond any applicable cure period
thereunder by Borrower, and the Administrative Agent shall acquire from the
Florida Ground Lessor a novation or replacement ground lease, 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) Borrower shall not elect to treat the Florida 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
Florida Ground Lessor. Borrower shall, in the event of any bankruptcy or similar
proceedings with respect to the Florida Ground Lessor, reaffirm and ratify the
legality, validity, binding effect and enforceability of the Florida Hotel
Ground Lease within the applicable time period therefor in such proceedings,
notwithstanding any rejection thereof by the Florida Ground Lessor or any
trustee, custodian or receiver.
(m) Borrower shall give the Administrative Agent not less
than thirty (30) days prior written notice of the date on which Borrower shall
apply to any court or other governmental authority for authority and permission
to reject the Florida Hotel Ground Lease in the event that there shall be filed
by or against 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 Borrower determines to reject the Florida 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 Borrower within such thirty (30) day period a notice
stating that (i) the Administrative Agent demands that Borrower assume and
assign the Florida 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 the Florida Hotel Ground Lease. If the
Administrative Agent serves upon Borrower the notice described above, Borrower
shall not seek to reject the Florida 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 Borrower under the Florida
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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 Borrower
under the Florida 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 the Florida Hotel Ground Lease and (iii) to enter in and upon the
Opryland Hotel Florida 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 Borrower under the Florida Hotel Ground Lease. 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 Florida Ground Leases in which the Administrative Agent elects to
participate, 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 Borrower in
connection with such arbitration, including, without limitation, the right to
appoint arbitrators and to conduct arbitration proceedings on behalf of Borrower
and the Administrative Agent. All costs and expenses incurred by the
Administrative Agent in connection with such arbitration and the settlement
thereof shall be borne solely by Borrower, 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 Florida Ground Leases by the
relevant ground lessor as a result of bankruptcy or similar proceedings in
respect of such ground lessor, including, without limitation, the right to file
and prosecute any and all proofs of claims, complaints, notices and other
documents in any such bankruptcy case or similar proceeding.
(q) Borrower shall deliver to the Administrative Agent
within ten (10) days after receipt of written demand from the Administrative
Agent, an estoppel certificate in relation to the Florida Ground Lease setting
forth (i) the name of the lessee and the lessor thereunder, (ii) that such
Florida 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 Florida Ground Lease, (iv) the date to which all rental charges have been
paid by the lessee under such Florida Ground Lease, (v) whether any notice of
default has been received by 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 Borrower under such Florida Ground Lease, and, if there are,
setting forth the nature thereof in reasonable detail, and (vii) if Borrower is
in default under the terms of any Florida 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 Florida Ground Leases, setting
forth in detail the nature of such default, fact or circumstance.
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(r) To the extent of its rights under either of the
Florida Ground Leases, 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 Florida 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 Florida Ground Lease, (iv) the date to which all rental
charges have been paid by the lessee under such Florida 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 Florida Ground Lease and, if there are,
setting forth the nature thereof in reasonable detail, and (vii) if the lessee
under such Florida Ground Lease shall be in default, the default.
6.36 Zoning Changes. Neither 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 if such changes or modifications would adversely affect
(i) Borrower's ability to operate the Opryland Hotel Florida as intended or (ii)
the value of the Opryland Hotel Florida. 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
promptly after obtaining knowledge thereof.
6.37 Fiscal Year. Neither 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 Intentionally Reserved.
6.39 Security Interest in Accounts; Certain Remedies. (a) Borrower
and Parent Guarantor covenant and agree not to maintain, and not to permit any
Property Manager to maintain with respect to the Opryland Hotel Florida, any
bank accounts, investment accounts or other accounts other than the following
(collectively, the "Accounts"): the FF&E Reserve Account and the Restoration
Account (all of which shall be maintained by Borrower or Parent Guarantor, and
not by any Property Manager) and the other accounts identified in Schedule 6.39
hereto. To secure the payment and performance of the Secured Obligations,
Borrower and Parent Guarantor hereby pledge and assign to the Administrative
Agent for the benefit of itself and the Lenders and other Holders of Secured
Obligations all of Borrower's 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
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instruments representing the Accounts or any of them; (iv) any and all
substitutions or additions of or with respect to any of the foregoing; and (v)
any and all proceeds and products of any of the foregoing, whether now owned and
existing or hereafter acquired or arising, including, without limitation (A)
interest, principal, dividends and other amounts or distributions received with
respect to any of the foregoing and (B) property received from the sale,
exchange or other disposition of any of the foregoing (collectively, the
"Account Collateral"). Borrower 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. Borrower 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 to exercise and enforce its rights and remedies
hereunder with respect to any Account Collateral. Borrower 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 Borrower or Parent Guarantor where permitted by law. Whenever
applicable law requires the signature of Borrower or Parent Guarantor on a
document to be filed to preserve, perfect or protect the security interest
granted hereby, 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. Borrower
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 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 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.
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(c) In addition to (and not in limitation of) all other
rights or remedies granted to the Administrative Agent and the Lenders pursuant
to the Loan Documents, Borrower and Parent Guarantor hereby 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
expenditures, (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.
(e) The Administrative Agent may also exercise in respect
of the Account Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party under the UCC, and the Administrative Agent may, without notice except as
specified below, sell the Account Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Administrative Agent's offices
or elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. Borrower and
Parent Guarantor shall, upon the request of the Administrative Agent, at
Borrower's and Parent Guarantor's expense, execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and
things, as may be reasonably necessary or, in the opinion of the Administrative
Agent or its counsel, advisable to make such sale of the Account Collateral or
any part thereof valid and binding and in compliance with applicable law.
Borrower 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) BORROWER 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
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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,
Borrower 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 possession of any of the foregoing by any purchaser at any sale under this
Agreement or the other Loan Documents, and Borrower and Parent Guarantor, each
for itself and all who may claim under Borrower and Parent Guarantor to the full
extent that 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 Borrower nor
Parent Guarantor will relocate its principal place of business, chief executive
office, place where it maintains its records, or residence, or change its name
or the name under which it does business or change its jurisdiction of formation
without, in each case, giving the Administrative Agent at least thirty (30) days
advance written notice thereof or without taking such steps as the
Administrative Agent may reasonably require (including, without limitation,
executing additional Financing Statements) to maintain the perfection of all
Liens in favor of the Administrative Agent with respect to the Collateral.
6.41 Documents of Further Assurance. Borrower and Parent Guarantor
shall, from time to time, upon the Administrative Agent's request, promptly
execute, deliver, record and furnish such documents as the Administrative Agent
may reasonably deem necessary to (a) perfect and maintain perfected as valid
Liens upon the Collateral the Liens contemplated by this Agreement, (b) correct
any mistakes of a typographical nature which may be contained herein or in any
of the Loan Documents, (c) replace any Notes or other Loan Documents that may
have been misplaced, lost or destroyed (as evidenced by an affidavit to such
effect from the holder thereof), (d) acknowledge and confirm the unpaid
principal balance of and interest on the Loans and state whether Borrower or
Parent Guarantor claim any off-set or defense with respect thereto and (e)
consummate fully the transaction contemplated under this Agreement and the other
Loan Documents.
6.42 Wetlands. Neither Borrower nor Parent Guarantor shall cause or
permit any construction or other activities at the Opryland Hotel Florida that
affect any wetlands areas except to the extent permitted under Permits or other
Governmental Approvals issued by applicable Government Authorities.
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ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of Borrower, Parent Guarantor 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
Unpaid Drawing (or interest thereon), any commitment fee, undrawn fee, Letter of
Credit Fee, Facing 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 Borrower that the same has not been paid when due or
(ii) on the Maturity Date (or such earlier date on which all of the Obligations
may become due or may be declared due hereunder).
7.3 The breach by Borrower or Parent Guarantor of any of the terms
or provisions of Sections 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 Borrower or Parent Guarantor), 6.13, 6.14, 6.15, 6.16,
6.17, 6.18 (provided that a Default shall not occur in respect of any breach of
the covenant in the last sentence of Section 6.18(a) to deliver documentation
with respect to new Subsidiary Guarantors unless such breach is not remedied
within ten (10) days after receipt of written notice thereof from the
Administrative Agent to Borrower or Parent Guarantor), 6.19, 6.20, 6.22, 6.23,
6.24, 6.25, 6.33, 6.34, 6.35 (provided that a breach of Section 6.35(b)(i) shall
not be a Default unless the same is also a breach of Section 6.35(c)(ii) or the
same remains unremedied for ten (10) days after receipt of written notice
thereof from the Administrative Agent to Borrower or Parent Guarantor; a breach
of Section 6.35(b)(iv) shall not be a Default unless the same results in a
material impairment of the Florida Hotel Ground Lease or the Lien of the
Mortgage or the same remains unremedied for ten (10) Business Days after receipt
of written notice thereof from the Administrative Agent to Borrower; a breach of
Section 6.35(c)(i) shall not be a Default unless the same is also a breach of
Section 6.35(c)(ii) or the same remains unremedied for ten (10) Business Days
after receipt of written notice thereof from the Administrative Agent to
Borrower; and a breach of Section 6.35(f) shall not be a Default unless the same
remains unremedied for ten (10) Business Days after receipt of written notice
thereof from the Administrative Agent to Borrower or Parent Guarantor), 6.36,
6.37, 6.39 or 6.40.
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7.4 The breach by Borrower or Parent Guarantor (other than a
breach which constitutes a Default under another Section of this Article VII) of
any of the terms or provisions of this Agreement or any of the other Loan
Documents which (a) if a default in the payment of money as and when due, is not
remedied within five (5) Business Days after written notice from the
Administrative Agent to Borrower or Parent Guarantor, or (b) if any other breach
or default, is not remedied for thirty (30) days after receipt of written notice
from the Administrative Agent thereof to Borrower or Parent Guarantor, provided
that if Borrower or Parent Guarantor commence to remedy such non-monetary breach
or default within such thirty (30) day time period, such thirty (30) day time
period for cure shall be extended for such time as is reasonably necessary to
complete such cure so long as Borrower or Parent Guarantor 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 Borrower's or
Parent Guarantor's receipt of the initial written notice of breach or default.
7.5 Borrower, 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 $10,000,000.00.
7.6 Borrower, 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 Borrower, any
Property Manager, Parent Guarantor or any Subsidiary Guarantor, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for
Borrower, any Property Manager, Parent Guarantor or any Subsidiary Guarantor or
any of its Property, or a proceeding described in Section 7.6(iv) shall be
instituted against Borrower, any Property Manager, Parent Guarantor or any
Subsidiary
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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 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 Borrower, Parent Guarantor, any Subsidiary
Guarantor or the Opryland Hotel Florida 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 Borrower, Parent
Guarantor, any Subsidiary Guarantor or the Opryland Hotel Florida 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 Borrower, Parent Guarantor, any
Subsidiary Guarantor or the Opryland Hotel Florida, and the aggregate amount of
any or all of the foregoing with respect to Borrower and the Opryland Hotel
Florida exceeds $250,000.00 or with respect to Borrower, Parent Guarantor and
Subsidiary Guarantors, taken together, exceeds $5,000,000.00.
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 Borrower of any Rate Management Obligation when
due or the breach by Borrower of any material term, provision or condition
contained in any Rate Management Transaction and the expiration of the cure
period, if any, applicable thereto under the provisions of the Rate Management
Transaction.
7.12 The Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or Parent Guarantor or any Subsidiary
Guarantor shall fail to comply with any of the terms or provisions of the
Guaranty or shall deny that it has any further liability thereunder, or shall
give notice to such effect.
7.13 Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document.
7.14 The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions; ERISA") shall at any time not be true
and correct.
7.15 Substantial Completion does not occur on or prior to June 30,
2004.
7.16 There shall occur any Change of Control not consented to by
the Majority Lenders.
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7.17 There shall occur an Event of Default under (and as defined
in) the Florida Hotel Ground Lease.
7.18 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.
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 Borrower, Parent Guarantor, any Property Manager or any
Subsidiary Guarantor, the Revolving Loan Commitment and the obligations of the
Lenders to issue Letters of Credit and make Revolving Loans and Swingline 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, and Borrower shall immediately pay to the
Administrative Agent an additional amount of cash, to be held as cash collateral
by Administrative Agent for the benefit of the Issuing Banks as security for
Borrower's and Parent Guarantor's reimbursement obligations in respect of all
Letters of Credit then outstanding, which amount (the "Letter of Credit
Collateral Amount") shall be equal to the aggregate Stated Amount of such
Letters of Credit. If any other Default occurs, the Administrative Agent shall
upon the direction of, and may, with the consent of Majority Lenders, take any
or all of the following actions: (i) terminate or suspend the Revolving Loan
Commitment and the obligations of the Lenders to issue Letters of Credit and
make Revolving Loans and Swingline Loans hereunder, or (ii) declare the
Obligations to be due and payable, whereupon the Obligations, including, without
limitation, the Letter of Credit Collateral Amount, shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which Borrower and Parent Guarantor hereby expressly waive or (iii) terminate
any Letter of Credit which may be terminated in accordance with its terms.
(b) The Administrative Agent may, and, at the request of
the Majority Lenders shall, at any time or from time to time while any Default
exists and is continuing apply any funds deposited in any of the Accounts to the
payment of the Secured Obligations and any other amounts as shall from time to
time have become due and payable by Borrower to the Lenders under the Loan
Documents.
(c) At any time while any Default is continuing, neither
Borrower nor any Person claiming on behalf of or through 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 Borrower or paid to whomever may be
legally entitled thereto at such time.
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(d) If, after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to Borrower or Parent Guarantor) and before any
judgment or decree for the payment of the Obligations due shall have been
obtained or entered, the Majority Lenders (in their sole discretion) shall so
direct, then the Administrative Agent shall, by notice to Borrower, rescind and
annul such acceleration and/or termination.
8.2 All Remedies. Upon the occurrence and during the continuance
of a Default, the Administrative Agent and the Lenders shall have all rights and
remedies set forth herein, in the Loan Documents, at law and in equity and the
Administrative Agent and the Lenders shall have the right (but not the
obligation) to pursue one or more of such rights and remedies concurrently or
successively, it being the intent hereof that all such rights and remedies shall
be cumulative, and that no remedy shall be to the exclusion of any other.
8.3 Intentionally Reserved.
8.4 Enforcement. Borrower and Parent Guarantor each acknowledge
that in the event 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, Borrower and Parent Guarantor
each agree that the Administrative Agent and the Lenders shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
8.5 Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of an Advance notwithstanding the existence
of a Default or the inability of Borrower 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.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties made herein and all obligations, covenants and agreements of Borrower
and Parent Guarantor in respect of taxes, indemnification and expense
reimbursement shall survive the execution and delivery of this Agreement and the
other Loan Documents, the making and repayment of the Advances and the
termination of this Agreement and shall not be
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limited in any way by the passage of time or occurrence of any event and shall
expressly cover time periods when the Administrative Agent or any of the Lenders
may have come into possession or control of any Property of Borrower or Parent
Guarantor.
9.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to any Borrower or Parent Guarantor in violation of any limitation or
prohibition provided by any applicable statute or regulation unless the same has
resulted from the failure of such Lender to comply with any requirements imposed
upon such Lender by applicable Law.
9.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among Borrower, Parent Guarantor, the Administrative
Agent and the Lenders and supersede all prior agreements and understandings
among Borrower, Parent Guarantor, the Administrative Agent and the Lenders
relating to the subject matter hereof.
9.5 Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. Borrower and Parent Guarantor are jointly and
severally liable and obligated for each other's obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns, provided, however, that the parties hereto expressly agree that the
Joint Book Running Managers, Co-Lead Arrangers and Syndication Agent (each, an
Initial Lender Affiliate, and collectively, the "Initial Lender Affiliates")
shall enjoy the benefits of the provisions of Sections 9.6, 9.10, 10.10, 10.18
and 10.20 to the extent specifically set forth therein and shall have the right
to enforce such provisions on their own behalf and in their own names to the
same extent as if each were a party to this Agreement.
9.6 Expenses; Indemnification. (a) Borrower and Parent Guarantor
shall reimburse the Administrative Agent for any costs and out-of-pocket
expenses (including reasonable attorneys' fees) paid or incurred by the
Administrative Agent (but excluding overhead and internal costs) in connection
with the preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents, in connection
with disbursements hereunder and otherwise with respect to the Opryland Hotel
Florida. Borrower and Parent Guarantor agree to reimburse the Administrative
Agent and the Lenders for any costs and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Administrative
Agent and the Lenders, but excluding internal administrative overhead except for
legal fees hereafter referred to in this sentence) paid or incurred by the
Administrative Agent and the Lenders, which
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attorneys may be employees of the Administrative Agent or any Lender in
connection with the collection and enforcement of the Loan Documents in the
event of a Default. Expenses required to be reimbursed by Borrower and Parent
Guarantor under this Section 9.6 include, without limitation, the cost and
expense of obtaining an Appraisal of the Opryland Hotel Florida, provided that
so long as no Default shall exist that is continuing Borrower and Parent
Guarantor shall not be required to pay for an Appraisal other than (i) the
initial Appraisal by Xxxxxxx & Xxxxxxxxx obtained by the Administrative Agent
prior to the Effective Date and (ii) a single further Appraisal of the Opryland
Hotel Florida which the Administrative Agent may commission in its sole
discretion.
(b) Borrower and Parent Guarantor hereby further agree to
indemnify the Administrative Agent, the Initial Lender Affiliates, each Lender,
their respective Affiliates, and each of their agents, shareholders, directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Administrative Agent,
any Initial Lender Affiliate, any Lender or any affiliate is a party thereto)
which any of them may pay or incur arising out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby 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 Borrower and Parent Guarantor under this
Section 9.6 shall survive the termination of this Agreement.
9.7 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10 Nonliability of Lenders. The relationship between Borrower on
the one hand and the Lenders and the Administrative Agent on the other hand
shall be solely that of borrower and lender. None of the Administrative Agent,
any Initial Lender Affiliate, or any Lender shall have any fiduciary
responsibilities to Borrower, Parent Guarantor or any Subsidiary Guarantor. None
of the Administrative Agent, any Initial Lender Affiliate, or any Lender
undertakes any responsibility to Borrower, Parent Guarantor or any Subsidiary
Guarantor to review or inform Borrower, Parent Guarantor or any Subsidiary
Guarantor of any matter in connection with any phase of Borrower's business or
operations.
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Borrower agrees that none of the Administrative Agent, any Initial Lender
Affiliate, or any Lender shall have liability to Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by Borrower in connection with,
arising out of, or in any way related to, the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. None of the Administrative Agent, any Initial Lender
Affiliate, or any Lender shall have any liability with respect to, and Borrower
hereby waives, releases and agrees not to xxx for, any special, indirect or
consequential damages suffered by Borrower, Parent Guarantor or any Subsidiary
Guarantor in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11 Confidentiality. (a) Subject to the provisions of Section
9.11(b) and Section 12.4, each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of Parent Guarantor (other
than to its employees, officers, directors, auditors, advisors or counsel or to
another Lender, provided such Persons shall be subject to the provisions of this
Section 9.11 to the same extent as such Lender) any confidential information
with respect to Parent Guarantor or any of its Subsidiaries which is now or in
the future furnished pursuant to this Agreement or any other Loan Document,
provided that any Lender may disclose any such information (a) as has become
generally available to the public other than by virtue of a breach of this
Section by such Lender, (b) to the extent such information was legally in
possession of such Lender prior to its receipt from or on behalf of Parent
Guarantor or any of its Subsidiaries and was from a source not known to such
Lender to be (x) bound by a confidentiality agreement with Parent Guarantor or
(y) otherwise prohibited from transmitting such information to such Lender by a
contractual, legal or fiduciary obligation, (c) such information becomes
available to such Lender from a source other than Parent Guarantor or any of its
Subsidiaries and such source is not known to such Lender to be (x) bound by a
confidentiality agreement with Parent Guarantor or (y) otherwise prohibited from
transmitting such information to such Lender by a contractual, legal or
fiduciary obligation, (d) as may be required or reasonably appropriate in any
report, statement or testimony submitted to, or in response to a request from,
any municipal, state or Federal governmental or regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board,
the Federal Deposit Insurance Corporation, the NAIC or similar organizations
(whether in the United States or elsewhere) or their successors, (e) as may be
required or reasonably appropriate in response to any summons or subpoena or in
connection with any litigation, (f) in order to comply with any Requirements of
Law applicable to such Lender, (g) to the Administrative Agent or any other
Lender, (h) to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors; provided
that such contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, and (i) to any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of the Notes or Revolving Loan Commitment or any interest
therein by such Lender, provided that such prospective transferee shall have
agreed to be subject to the provisions of this Section 9.11.
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(b) Borrower hereby acknowledges and agrees that each
Lender may, but only in connection with the transactions contemplated by this
Agreement and the other Loan Documents or the participation of such Lender
pursuant to this Agreement and the other Loan Documents, share with any of its
affiliates any information related to Parent Guarantor or any of its
Subsidiaries (including, without limitation, any nonpublic customer information
regarding the creditworthiness of Parent Guarantor and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 9.11 to
the same extent as such Lender).
(c) Notwithstanding anything herein to the contrary,
confidential information shall not include, and the Administrative Agent and
each Lender may disclose without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Administrative Agent or such Lender
relating to such tax treatment and tax structure; provided that with respect to
any document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as other
information, this sentence shall apply only to such portions of the document or
similar item that relate to the tax treatment or tax structure of the Loan and
transactions contemplated hereby.
9.12 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the
Advances provided for herein.
9.13 Disclosure. Borrower, Parent Guarantor and each Lender hereby
(i) acknowledge and agree that Deutsche Bank Trust Company Americas, Deutsche
Banc Alex. Xxxxx Inc. and/or their respective Affiliates from time to time may
hold investments in, make other loans to or have other relationships with
Borrower, Parent Guarantor and any of their Affiliates, and (ii) waive any
liability of Deutsche Bank Trust Company Americas, Deutsche Banc Alex. Xxxxx
Inc. and/or their respective Affiliates to Borrower, Parent Guarantor or any
Lender, respectively, arising out of or resulting from such investments, loans
or relationships.
9.14 Marshalling; Payments Set Aside. Neither the Administrative
Agent nor any Lender shall be under any obligation to marshal any assets in
favor of Borrower or Parent Guarantor, any other party or against or in payment
of any or all of the Secured Obligations. To the extent that Borrower or Parent
Guarantor makes a payment or payments to the Administrative Agent or the Lenders
or any such Person receives payment from the proceeds of the Collateral or
exercises its rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
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9.15 Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. The rights hereunder of
Borrower and Parent Guarantor and any interest therein, may not be assigned
without the written consent of all Lenders, which may be granted or withheld in
the sole discretion of each.
9.16 Inconsistencies. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually inconsistent with the terms and conditions of any other Loan Document,
this Agreement shall govern. Notwithstanding anything to the contrary contained
herein, the existence of (and the Lenders' review of), the Organizational
Documents shall not be deemed to be an approval by the Administrative Agent or
the Lenders of any of the actions that may be permitted to be taken by Borrower,
Parent Guarantor or any other Person thereunder to the extent such actions
violate the terms hereof. In addition to the foregoing, none of the terms or
provisions hereof shall be deemed to be waived or modified by virtue of the fact
that such terms and provisions conflict with, or contradict, any of the terms
and provisions of the Organizational Documents.
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 any other Property. Neither the Administrative
Agent nor the Lenders nor any Initial Lender Affiliate shall be liable for any
debts or claims accruing in favor of any such parties against Borrower, Parent
Guarantor or others or against any Property. Neither Borrower nor Parent
Guarantor shall be an agent of either the Administrative Agent or the Lenders or
any Initial Lender Affiliate for any purposes and neither the Lenders nor the
Administrative Agent nor any Initial Lender Affiliate shall be deemed partners
or joint venturers with Borrower, Parent Guarantor or any other Person. Neither
the Administrative Agent nor the Lenders nor any Initial Lender Affiliate shall
be deemed to be in privity of contract with any contractor or provider of
services to the Opryland Hotel Florida, nor shall any payment of funds directly
to a contractor or subcontractor or provider of services be deemed to create any
third party beneficiary status or recognition of same by either the
Administrative Agent or the Lenders or any Initial Lender Affiliate, and
Borrower and Parent Guarantor each agree to hold the Administrative Agent, the
Lenders and the Initial Lender Affiliates harmless from any of the damages and
expenses resulting from such a construction of the relationship of the parties
or any assertion thereof.
9.18 Time is of the Essence. Time is of the essence of each and
every term and provision of this Agreement and the other Loan Documents.
9.19 Protective Advances. The Administrative Agent may from time to
time, before or after the occurrence and during the continuance of a Default,
subject to the prior written approval of the Majority Lenders, make such
disbursements and advances pursuant to the Loan Documents (which disbursements
and advances shall be deemed to be "Loans" made hereunder) which the
Administrative Agent, in its
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reasonable discretion, deems necessary or desirable to preserve or protect the
Collateral or any portion thereof or to enhance the likelihood or maximize the
amount of repayment of the Secured Obligations ("Protective Advances"). The
Administrative Agent shall notify Borrower, Parent Guarantor and each Lender in
writing of each such Protective Advance, which notice (each a "Protective
Advance Notice") shall include a description of the purpose of such Protective
Advance, the aggregate amount of such Protective Advance, each Lender's Pro Rata
Share thereof and the date each Lender shall be required to pay its Pro Rata
Share of the Protective Advance (the "Protective Advance Date"), which
Protective Advance Date shall be not less than two (2) Business Days after
delivery of the Protective Advance Notice. Each Lender agrees to pay to the
Administrative Agent its Pro Rata Share of any Protective Advance on the
Protective Advance Date in the manner set forth herein for a funding of an
Advance. Borrower 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 Borrower or Parent Guarantor fail to make payment
in respect of any Protective Advance within three (3) Business Days after the
date Borrower or Parent Guarantor receive written demand therefor from the
Administrative Agent, such failure shall constitute a Default. All outstanding
principal of, and interest on, Protective Advances shall constitute Secured
Obligations secured by the Collateral until paid in full by Borrower or Parent
Guarantor. Upon the making of a Protective Advance, the Administrative Agent
shall be subrogated to any and all rights, equal or superior titles, liens and
equities, owned or claimed by any owner or holder of said outstanding liens,
charges and indebtedness, however remote, regardless of whether said liens,
charges and indebtedness are acquired by assignment or have been released of
record by the holder thereof upon payment.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LENDERS
10.1 Appointment. The Lenders hereby designate Deutsche Bank Trust
Company Americas as Administrative Agent to act as specified herein and in the
other Loan Documents. Each Lender hereby irrevocably authorizes, and each holder
of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Loan Documents and any other instruments
and agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
10.2 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Loan Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other Loan
Documents or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined
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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 Borrower, Parent Guarantor and the Subsidiary
Guarantors in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of such Persons and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. The Administrative Agent shall not be responsible
to any Lender or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any other Loan Document
or in any document, certificate or other writing delivered in connection
herewith or therewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of
this Agreement or any other Loan Document or the financial condition of
Borrower, Parent Guarantor or the Subsidiary Guarantors, or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Loan Document, or the
financial condition of Borrower, Parent Guarantor or the Subsidiary Guarantors
or the existence or possible existence of any Default or Unmatured Default.
(b) The Administrative Agent does not represent, warrant
or guaranty to the Lenders the performance of Borrower, Parent Guarantor or any
Subsidiary Guarantor, any architect, any project managers, any contractor,
subcontractor or provider of materials or services in connection with the
construction of the Texas Project and Borrower and Parent Guarantor shall remain
solely responsible for all aspects of the Texas 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 and the accuracy of all
applications for payment.
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
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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 Borrower or Parent Guarantor).
10.6 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by Borrower or Parent Guarantor, the Lenders will
reimburse and indemnify the Administrative Agent, in proportion to their
respective "percentages" as used in determining the Majority Lenders, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Loan Document, in any way relating to or arising out of this Agreement or
any other Loan Document; provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).
10.7 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans, or issue or participate in Letters of
Credit, under this Agreement, the Administrative Agent shall have the rights and
powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Majority Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with Borrower, Parent
Guarantor or any Subsidiary Guarantor or any Affiliate of any such Person as if
it were not performing the duties specified herein, and may accept fees and
other consideration from any such Person for services in connection with this
Agreement or any other Loan Document and otherwise without having to account for
the same to the Lenders.
10.8 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
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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 Borrower, 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, Borrower and Parent Guarantor shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial Lender or
trust company reasonably acceptable to the Majority Lenders (it being understood
and agreed that any Lender is deemed to be acceptable to the Majority Lenders),
provided that, if a Default or an Unmatured Default exists at the time of such
resignation, the Majority Lenders shall appoint such successor Administrative
Agent.
(c) If a successor Administrative Agent shall not have
been so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of Borrower and Parent Guarantor (which consent shall not be
unreasonably withheld), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as Borrower, Parent Guarantor or the Majority Lenders, as the case may be,
appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been
appointed pursuant to clause (b) or (c) above by the 30th Business Day after the
date such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Majority
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Loan Document until such time, if any, as
Borrower, Parent Guarantor or the Majority Lenders, as the case may be, appoint
a successor Administrative Agent as provided above.
10.10 Other Agents. None of the Co-Lead Arrangers nor the Joint Book
Running Managers nor the Syndication Agent shall have any liabilities or
obligations hereunder in their respective capacities as such.
10.11 Lender Default. If any Lender (a "Defaulting Lender") fails to
fund its Pro Rata Share of any 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
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amount owed), such Lender's Pro Rata Share of any out-of-pocket costs, expenses
or disbursements incurred or made by the Administrative Agent pursuant to the
terms of this Agreement (the aggregate amount which the Defaulting Lender fails
to pay or fund is herein referred to as the "Default Amount"; and each such
failure by a Lender is referred to herein as a "Lender Default"), then, in
addition to the rights and remedies that may be available to the Non-Defaulting
Lenders at law and in equity:
(a) The Defaulting Lender's right to participate in the
administration of the Obligations and the Loan Documents, including without
limitation, any rights to vote upon, consent to or direct any action of the
Administrative Agent or the Lenders shall be suspended and such rights shall not
be reinstated unless and until such default is cured, provided, however, that if
the Administrative Agent is a Defaulting Lender, the Administrative Agent shall
continue to have all rights provided for in this Agreement and the Loan
Agreement with respect to the administration of the Loans, unless the Majority
Lenders vote to remove and replace the Administrative Agent, in which event the
Majority Lenders shall notify the Administrative Agent, Borrower, Parent
Guarantor and the other Lenders of the identity of the successor Administrative
Agent so chosen by the Majority Lenders and such successor Administrative Agent
shall assume all the rights and duties of Administrative Agent hereunder as of
the date such notice is given;
(b) If and to the extent the Default Amount includes an
amount which, if advanced by the Defaulting Lender, would be applied to
interest, fees or other amounts due to the Lenders under the Loan Documents
(such portion of the Default Amount is herein referred to as the "Lender Payment
Portion"), the Administrative Agent may, and shall upon the direction of the
Majority Lenders, treat as advanced by the Defaulting Lender to itself (with a
corresponding automatic increase in the Defaulting Lender's Loan balance, and
without necessity for executing any further documents) the Lender Payment
Portion, whereupon a corresponding offset shall be made against the Default
Amount;
(c) If and to the extent any Default Amount remains
(after taking into account the deemed advance and application made under Section
10.11(b) above), any or all of the Non-Defaulting Lenders shall be entitled (but
shall not be obligated) to fund all or part of the remaining Default Amount (the
"Funded Default Amount"), and collect from the Defaulting Lender or from amounts
otherwise payable to the Defaulting Lender interest at the Default Rate on the
Funded Default Amount for the period from the date on which the payment was due
until the date on which payment is made (less any interest actually paid by
Borrower on the Funded Default Amount from time to time, which payments shall be
applied by the Administrative Agent pari passu to the Non-Defaulting Lenders
which shall have so funded the Funded Default Amount);
(d) So long as any Default Amount remains outstanding,
the Defaulting Lender's interest in the Obligations and the Loan Documents and
proceeds thereof shall be subordinated to the interest of the Non-Defaulting
Lenders in the Obligations and the Loan Documents in the manner set forth in
Section 10.11(e) below, without necessity for executing any further documents,
provided that such Defaulting Lender's interest in the Obligations and the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Default Amount (and all interest which has accrued pursuant to Section 10.11(c)
above) shall be repaid
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(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 Borrower being
deemed earned by the Defaulting Lender to the extent of its Pro Rata Share
thereof and paid over to the Non-Defaulting Lenders for application first to
interest (in accordance with Section 10.13(c) above and then to principal upon
the Funded Default Amount); then
(ii) second, the remainder, if any, shall be
deemed earned by the Defaulting Lender to the extent of its Pro Rata Share
thereof and held in escrow by the Administrative Agent for distribution as
follows:
(A) upon payment in full of all the
Secured Obligations, without foreclosure, deed-in-lieu of foreclosure (or other
similar disposition of the Collateral) or other enforcement proceedings with
respect to the Secured Obligations, the funds held in escrow shall be promptly
disbursed to the Defaulting Lender; and
(B) upon completion of any foreclosure,
deed-in-lieu of foreclosure (or other similar disposition of the Collateral) or
other enforcement proceedings with respect to the Secured Obligations the funds
held in trust shall be promptly disbursed as follows:
(1) first, to the Non-Defaulting
Lenders and their Affiliates which
are Holders of Secured Obligations
pari passu in the amount of all
Secured Obligations which have not
been paid and satisfied by the
foreclosure, deed-in-lieu of
foreclosure (or other similar
disposition of the Collateral) or
other enforcement proceedings with
respect to the Secured Obligations
in order to compensate the
Non-Defaulting Lenders for any
failure to recover the full amount
of the Secured Obligations upon
completion of any such disposition
of the Collateral or other
enforcement action; and
(2) second, any remaining funds shall
be disbursed to the Defaulting
Lender.
(f) Each Non-Defaulting Lender shall have the right, but
not the obligation, in its sole discretion, to acquire such Defaulting Lender's
Pro Rata Share of the Advances and the Obligations, together with the Funded
Default Amount, in which case the following provisions shall apply:
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(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 (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
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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
Borrower, Parent Guarantor or any Subsidiary Guarantor under the terms of the
Loan Documents and will promptly provide to the Lenders copies of any material
notices received from Borrower, Parent Guarantor or any Subsidiary Guarantor,
including without limitation notices received under Section 6.18 (and copies of
the documents received by the Administrative Agent thereunder). The
Administrative Agent shall not, however, take the following actions without
first obtaining the consent of requisite Lenders, as set forth below:
(a) The Administrative Agent shall not, without first
obtaining the consent of the Unanimous Lenders, take any of the following
actions:
(i) amend the interest rate, any date on which
interest is due, or the Maturity Date set forth in the Loan Documents;
(ii) release any collateral for the Secured
Obligations, or release any guaranty, indemnity agreement or any Person
(including, without limitation, any Subsidiary Guarantor) with respect to any
such guaranty or indemnity agreement (except for the release of any Subsidiary
Guarantor from the Guaranty upon consummation of an Asset Sale with respect to
such Subsidiary Guarantor or substantially all of its assets and except for
releases otherwise expressly permitted pursuant to the Loan Documents upon
satisfaction of all applicable conditions specified therein), or waive or
release any indemnity obligations of Borrower, Parent Guarantor or any guarantor
(including, without limitation, any Subsidiary Guarantor) to the Lenders under
the Loan Documents;
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(iii) increase the amount of the Revolving Loan
Commitment, except with respect to any increase in the Revolving Loan Commitment
as may occur from time to time pursuant to Section 2.19 hereof;
(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 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 or in connection with an increase in the Revolving Loan
Commitment pursuant to Section 2.19 hereof;
(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) 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;
(iii) consent to the transfer by Borrower or
Parent Guarantor of all or any part of its direct or indirect interest in the
Opryland Hotel Florida or any other Collateral, except to the extent expressly
permitted under the Loan Documents;
(iv) consent to any Change of Control;
(v) agree to cause an additional or updated
Appraisal to be ordered at the Lenders' expense;
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(vi) modify, amend or waive any requirement in
Section 6.25; or
(vii) 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.
(d) The consent of each Issuing Bank shall be required
for any action, waiver, consent, amendment or other agreement which would have
the effect of altering any provision of Sections 2.20 through 2.20.4 or altering
its rights or obligations with respect to Letters of Credit.
As to any matters which are subject to the consent of any or all of the
Lenders, as set forth above or elsewhere in this Agreement, the Administrative
Agent shall not be permitted or required to exercise any discretion or to take
any action except upon the receipt of the written consent or instruction with
respect to such action by the requisite Lenders, which written consent or
instruction shall be binding upon the Lenders. Notwithstanding anything
contained herein to the contrary, it is understood and agreed that the Lenders'
right to consent to or disapprove any particular matter shall be limited to the
extent that the Lenders' or Administrative Agent's rights to consent to or
disapprove of such matter are limited in the Loan Documents.
As to any matter which is subject to a vote of the Lenders hereunder,
any of the Lenders may require the Administrative Agent to initiate such a vote.
In such event, the Administrative Agent shall conduct a vote in accordance with
the provisions of the next paragraph. The Administrative Agent shall be bound by
the results of such vote, so long as the action voted in favor of is permissible
under the Loan Documents and under applicable law, and subject to the obligation
of each Lender to contribute its Pro Rata Share of all expenses and liabilities
incurred in connection therewith as more fully set forth below.
All communications from the Administrative Agent to the Lenders
requesting the Lenders' approval (i) shall be given in the form of a written
notice to each Lender, (ii) shall be accompanied by a description of the matter
as to which such approval is requested and (iii) shall include, if appropriate,
the recommendation of the Administrative Agent, if any.
Subject to the foregoing limitations, each Lender hereby appoints and
constitutes the Administrative Agent as its agent with full power and authority
to exercise on behalf of such Lender any and all rights and remedies which such
Lender may have with respect to, and to the extent necessary under applicable
law for, the enforcement of the Loan Documents, including the right to exercise,
or to refrain from exercising, any and all remedies afforded to such Lender by
the Loan Documents or which such Lender may have as a matter of law.
Subject to the last sentence of this paragraph, each Lender shall be
responsible for its Pro Rata Share of any reasonable out-of-pocket costs,
expenses or liabilities incurred by the Administrative Agent in connection with
the Obligations, the protection of any security for the Secured Obligations, the
enforcement of the Loan Documents or the management or operation of any
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
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respective Pro Rata Share of the out-of-pocket costs and expenses incurred by
the Administrative Agent in accordance with the terms of this Agreement,
including, but not limited to, fees of receivers or trustees, court costs, title
company charges, filing and recording fees, appraisers' fees and expenses of
attorneys.
10.13 Borrower Default. Promptly after the Administrative Agent
acquires actual knowledge that a Default has occurred, the Administrative Agent
shall evaluate the circumstances of such Default, its impact on Borrower, Parent
Guarantor and Subsidiary Guarantors and the courses of action available to the
Lenders, which may include such responses as entering into a forbearance
agreement for a period of time, establishing certain additional credit or
collateral safeguards in exchange for a waiver of such Default or determining
the timing and order of enforcement of the remedies available to the Lenders.
Unless expressly directed in writing to the contrary by the Majority Lenders,
the Administrative Agent is expressly authorized to discuss such Default and
possible resolutions with Borrower, Parent Guarantor and Subsidiary Guarantors
and to refrain from exercising any rights and remedies while conducting such
evaluation, provided that the Administrative Agent shall not enter into any
written forbearance agreement with Borrower, Parent Guarantor or any Subsidiary
Guarantor without the prior consent of the Majority Lenders. The foregoing
provisions shall not limit the right, power or authority of the Administrative
Agent to take actions pursuant to and in accordance with Section 8.1 or Section
9.19.
The Administrative Agent shall, upon completing such evaluation and if
the Administrative Agent deems it appropriate, forward to each Lender a written
proposal outlining the course of action that the Administrative Agent
recommends, if any.
If the Majority Lenders so approve the Administrative Agent's proposal,
the Administrative Agent shall seek to implement such proposal in due course in
the same manner the Administrative Agent generally implements similar proposals
for loans held for its own account.
The Lenders agree to cooperate in good faith and in a commercially
reasonable manner in connection with the exercise by the Administrative Agent of
the rights granted to the Lenders by law and the Loan Documents, including, but
not limited to, providing necessary information to the Administrative Agent with
respect to the Obligations, preparing and executing necessary affidavits,
certificates, notices, instruments and documents and participating in the
organization of applicable entities to hold title to the Opryland Hotel Florida.
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 or any other Collateral. 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.
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10.14 Acquisition of Collateral. If the Administrative Agent (or its
nominee or designee), on behalf of the Lenders, acquires the Opryland Hotel
Florida 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. The Lenders
agree that such agreement shall be consistent with the following:
(a) The Collateral will not be held as a long term
investment but will be marketed in an attempt to sell the Collateral in a time
period consistent with the regulations applicable to national banks for owning
real estate. Current Appraisals of the Collateral shall be obtained by the
Administrative Agent, such Appraisals shall be furnished to the Lenders from
time to time during the ownership period at the Lenders' expense (without
diminishing or releasing any obligation of Borrower or Parent Guarantor to pay
for such costs) and an appraised value shall be established and updated from
time to time based on such Appraisals.
(b) Decision-making with respect to the day to day
operations of the Opryland Hotel Florida 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 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 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 such other Collateral, as
applicable, as established by an Appraisal or Appraisals that have been
completed within six months of such offer, then the Administrative Agent is
irrevocably authorized to accept such offer on behalf of all the Lenders.
(d) All expenses incurred by the Administrative Agent and
the Lenders in connection with the Opryland Hotel Florida 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 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 subject to Section 10.11 above) shall be paid to
the Lenders in accordance with each Lender's Pro Rata Share from time to time
upon authorization by the Majority Lenders.
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(f) All expenditures and other actions taken with respect
to the Opryland Hotel Florida and any other Collateral shall at all times be
subject to the regulations and requirements pertaining to national banks
applicable thereto. Without limiting the generality of the foregoing, all
necessary approvals from regulatory authorities in connection with any
expenditure of funds by the Lenders shall be a condition to such expenditure.
10.15 Documents. Except as otherwise expressly provided herein, it
is acknowledged and agreed that (a) the Administrative Agent has not and shall
not provide to the other Lenders documents, other than Loan Documents delivered
as of the Effective Date, received from Borrower and Parent Guarantor with
respect to the satisfaction of the conditions set forth in Section 4.1 or the
conditions precedent to the initial or any subsequent 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
Sections 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. Borrower and Parent Guarantor
shall deliver to the Administrative Agent and to each of the Lenders party
hereto on the Effective Date executed original counterparts of all of the Loan
Documents, other than the originals of the Notes, each of which shall be
delivered to the Lender named therein.
10.17 No Representations. Each Lender acknowledges and agrees that
the Administrative Agent has not made any representations or warranties, express
or implied, with respect to any aspect of the Loans, including, without
limitation (i) the existing or future solvency or financial condition or
responsibility of Borrower, Parent Guarantor and the 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 Policy or the Surveys furnished by Borrower, or (iv) the validity or
effectiveness of the liens created by the Mortgage 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 Agent 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.
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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 Borrower 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 Borrower or Parent Guarantor or reimbursed by the Lenders;
(iii) third, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Lenders (other than
Rate Management Obligations);
(iv) fourth, to the ratable payment, on a pari
passu basis, of (a) principal and interest on the Loans and on Unpaid Drawings
(such application to be made first to interest and then to principal) together
with the Letter of Credit Collateral Amount 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 Borrower, Parent Guarantor and
Subsidiary Guarantors, on the one hand, and the Administrative Agent and Lenders
on the other, after the occurrence of a Default the Administrative Agent and
Lenders may apply all payments in respect of any Secured Obligations, and all
proceeds of Collateral, to the Secured Obligations, including, without
limitation, the Letter of Credit Collateral Amount, in such order and manner as
the Administrative Agent and Lenders may elect in their sole and absolute
discretion. The order of
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priority set forth in clauses (i) through (iii) of this Section 10.21 may be
changed by the Majority Lenders with the prior written consent of the
Administrative Agent.
10.22 Payments Received. All payments received by the Administrative
Agent from Borrower or Parent Guarantor for the account of the Lenders shall be
disbursed to the applicable Lenders no later than the next Business Day
following the day such payment is received in good funds by the Administrative
Agent. If payments received by the Administrative Agent from Borrower or Parent
Guarantor are not disbursed to the applicable Lenders the same day as they are
received, such funds shall be invested overnight by the Administrative Agent and
each Lender will receive its Pro Rata Share of any interest so earned. The
Lenders acknowledge that the Administrative Agent does not guarantee any
particular level of return on the overnight funds and that the Administrative
Agent will invest such funds as it deems prudent from time to time.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if Borrower, Parent Guarantor or any
Subsidiary Guarantor becomes insolvent, however evidenced, or any Default
occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of Borrower, Parent Guarantor or any
Subsidiary Guarantor may be offset and applied toward the payment of the Secured
Obligations owing to such Lender, whether or not the Secured Obligations, or any
part thereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit Exposure (other
than (x) payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5, (y)
payments to the Swingline Lender in respect of a Swingline Loan, either by
Borrower or by the Lenders, pursuant to a Mandatory Advance or participation in
respect of Swingline Loans, as contemplated by Section 2.1(c) and (z) payments
in respect of Unpaid Drawings or Letter of Credit Participations, as
contemplated by Sections 2.20.4 and 2.20.3) 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 and Letter of Credit Outstandings) 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 and Letter
of Credit Outstandings). 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).
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of Borrower, Parent
Guarantor, Subsidiary Guarantors, the Administrative Agent and the Lenders and
their respective successors and assigns, except that (i) Borrower, Parent
Guarantor and Subsidiary Guarantors shall not have the right to assign their
respective rights or obligations under the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 12.3. The
parties to this Agreement acknowledge that clause (ii) of this Section 12.1
relates only to absolute assignments and does not prohibit assignments creating
security interests, including, without limitation, financings in the nature of
repurchase agreements and any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 12.3. The Administrative Agent may treat the Person which made any Loan
or which holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 12.3; provided, however, that the
Administrative Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person. Any assignee of
the rights to any Loan or any Note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of any Loan (whether or not a Note
has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held by
such Lender, 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 Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
the Loan Documents.
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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 Revolving Loan 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 Revolving Loan 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 Revolving Loan
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 Revolving Loan Commitment (or the available portion thereof) or Loan shall
be permitted without the consent of any participant if the participant's
participation therein is not increased as a result thereof) or (d) consents to
the assignment or transfer by Borrower or Parent Guarantor of any of their
obligations under this Agreement. Notwithstanding the foregoing, Borrower 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. Borrower and Parent Guarantor agree that
each Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
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 D 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 Borrower, Parent Guarantor, the Administrative Agent and the
Swingline Lender, shall be required prior to an assignment becoming effective,
and, unless each of Borrower, Parent
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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 Borrower and Parent Guarantor shall not be required for an
assignment from one Lender to another Lender or an Affiliate thereof; (2) the
consent of Borrower 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 Borrower and Parent Guarantor to any assignment shall be required;
(iii) Unless the Administrative Agent and 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 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; 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
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Agent and the Lenders from any liability to the relevant Lender on account of
Administrative Agent's or any Lender's compliance with any Redirection Notice
reasonably believed by Administrative Agent or Lenders to have been delivered in
good faith. Loan Pledgee shall be permitted fully to exercise its rights and
remedies against the relevant Lender, and realize on any and all collateral
granted by such Lender to Loan Pledgee (and accept an assignment in lieu of
foreclosure as to such collateral), in accordance with applicable law and the
provisions of this Agreement. In such event, Lenders shall recognize Loan
Pledgee, and its successors and assigns which are Eligible Assignees as the
successor to the applicable Lender's rights, remedies and obligations under this
Agreement and the Loan Documents. The rights of Loan Pledgee under this
paragraph shall remain effective unless and until Loan Pledgee shall have
notified Administrative Agent in writing that its interest in the Loans has
terminated. Notwithstanding any provisions herein to the contrary, if a conduit
("Conduit") which is not an Eligible Assignee provides financing to a Lender
then such Conduit will be a permitted "Loan Pledgee" despite the fact it is not
an Eligible Assignee if the following conditions are satisfied: (i) the loan
(the "Conduit Inventory Loan") made by the Conduit to a Lender to finance the
acquisition and holding of such Lender's Loan will require a third party (the
"Conduit Credit Enhancer") to provide credit enhancement; (ii) the Conduit
Credit Enhancer will be an Eligible Assignee; (iii) the applicable Lender will
pledge its interest in the Loan to the Conduit as collateral for the Conduit
Inventory Loan; (iv) the Conduit Credit Enhancer and the Conduit will agree
that, if the applicable Lender defaults under the Conduit Inventory Loan, or if
the Conduit is unable to refinance its outstanding commercial paper even if
there is no default by the applicable Lender, the Conduit Credit Enhancer will
purchase the Conduit Inventory Loan from the Conduit, and the Conduit will
assign the pledge of the applicable Lender's interest in the relevant Loan to
the Conduit Credit Enhancer; and (v) the Conduit will not have any greater right
to acquire the interests in the Loan pledged by the relevant Lender, by
foreclosure or otherwise, than would any other purchaser that is not an Eligible
Assignee at a foreclosure sale conducted by a Loan Pledgee.
12.3.3 Effect; Effective Date. Upon (a) delivery to the
Administrative Agent of an assignment, together with any consents required by
Section 12.3.1, and (b) payment of a non-refundable assignment fee of $3,500 to
the Administrative Agent for processing such assignment (unless such fee is
waived by the Administrative Agent), such assignment shall become effective on
the effective date specified in such assignment. On and after the effective date
of such assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and the
transferor Lender shall be discharged and released with respect to the
percentage of the Revolving Loan Commitment and Outstanding Credit Exposure
assigned to such Purchaser, without any further consent or action by Borrower,
Parent Guarantor, the Lenders or the Administrative Agent. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the transferor
Lender, the Administrative Agent, Borrower and Parent Guarantor shall make
appropriate arrangements so that new Notes or, as appropriate, replacement Notes
are issued to 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 Revolving Loan Commitment and Outstanding
Credit Exposure, as adjusted pursuant to such assignment.
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12.4 Dissemination of Information. Borrower and Parent Guarantor
each authorize each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by operation of law
(each a "Transferee") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of Borrower, Parent
Guarantor and Subsidiary Guarantors; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.14 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 Borrower, Parent Guarantor, the Administrative Agent or any
Lender, at its address or facsimile number set forth on the signature pages
hereof, or (b) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Administrative Agent, Borrower and Parent Guarantor in accordance with the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by certified mail, return receipt
requested, when delivered at the address specified in this Section, as indicated
by the return receipt, or (iii) if given by any other means, when delivered (or,
in the case of electronic transmission, received) at the address specified in
this Section; provided that notices to the Administrative Agent under Article II
shall not be effective until received.
13.2 Change of Address. Borrower, Parent Guarantor, the
Administrative Agent and any Lender may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by Borrower, Parent
Guarantor, the Administrative Agent and the Lenders and each
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party has notified the Administrative Agent by facsimile transmission or
telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (EXCLUDING THE NEW
YORK LIEN LAW AND WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS), BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. BORROWER AND PARENT GUARANTOR EACH
HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK OR ANY UNITED STATES FEDERAL
OR FLORIDA STATE COURT SITTING IN FLORIDA, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND BORROWER AND PARENT GUARANTOR EACH
HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST BORROWER, PARENT GUARANTOR OR ANY SUBSIDIARY
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
BORROWER OR PARENT GUARANTOR AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR
ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK.
15.3 WAIVER OF JURY TRIAL. BORROWER, PARENT GUARANTOR, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIPS ESTABLISHED THEREUNDER.
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* * *
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IN WITNESS WHEREOF, Borrower, Parent Guarantor, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
ADDRESSES: BORROWER:
One Gaylord Drive OPRYLAND HOTEL - FLORIDA LIMITED
Xxxxxxxxx, Xxxxxxxxx 00000 PARTNERSHIP, a Florida limited partnership
Attention: Chief Financial Officer
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
Xxxxxxxxx, Xxxxxxxxx 00000 COMPANY, a Delaware corporation
Attention: Chief Financial Officer
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
LENDERS:
Deutsche Bank DEUTSCHE BANK TRUST COMPANY
000 Xxxxxxxx Xxxxx, Xxxxx 000 XXXXXXXX, Individually and as
Xxxxxx, Xxxxx 00000 Administrative Agent
Attention: Xxxxxx X. Xxxxxx
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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
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