exv10w1






Exhibit 10.1




[A REQUEST FOR CONFIDENTIAL TREATMENT HAS BEEN MADE WITH RESPECT TO

PORTIONS OF THE FOLLOWING DOCUMENT THAT ARE MARKED “[***]”. THE REDACTED

PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SEC.]




PUBLISHED CUSIP NUMBERS: 36814PAA2

36814PAB0

36814PAC8




 

 






SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of July 25, 2008



among



GAYLORD ENTERTAINMENT COMPANY,

as the Borrower,



The Subsidiaries of the Borrower

from time to time party hereto,

as Guarantors,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,




and

The Other Lenders Party Hereto



BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arranger and Joint Book Manager,




DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arranger and Joint Book Manager,



WELLS FARGO BANK, N.A.,

as Joint Lead Arranger and Joint Book Manager,



DEUTSCHE BANK SECURITIES INC.,

as Syndication Agent,



WELLS FARGO BANK, N.A.,

KEYBANK NATIONAL ASSOCIATION,

CALYON NEW YORK BRANCH,

and

ROYAL BANK OF SCOTLAND

as Co-Documentation Agent




 

 








 









 




TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE 1A. AMENDMENT AND RESTATEMENT
	 	 	1	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	27	 
	1.03 Accounting Terms
	 	 	27	 
	1.04 Rounding
	 	 	28	 
	1.05 Times of Day
	 	 	28	 
	1.06 Letter of Credit Amounts
	 	 	28	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	29	 
	2.01 Revolving Loans and the Term Loan
	 	 	29	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	29	 
	2.03 Letters of Credit
	 	 	30	 
	2.04 Swing Line Loans
	 	 	37	 
	2.05 Prepayments
	 	 	39	 
	2.06 Termination, Reduction or Increase of Commitments
	 	 	42	 
	2.07 Repayment of Loans
	 	 	43	 
	2.08 Interest
	 	 	43	 
	2.09 Fees
	 	 	44	 
	2.10 Computation of Interest and Fees; Retroactive Adjustment of Applicable Margin
	 	 	45	 
	2.11 Evidence of Debt
	 	 	45	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	45	 
	2.13 Sharing of Payments by Lenders
	 	 	47	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	47	 
	3.01 Taxes
	 	 	47	 
	3.02 Illegality
	 	 	49	 
	3.03 Inability to Determine Rates
	 	 	49	 
	3.04 Increased Costs
	 	 	49	 
	3.05 Compensation for Losses
	 	 	51	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	51	 
	3.07 Survival
	 	 	51	 
	ARTICLE IV GUARANTY
	 	 	52	 
	4.01 The Guaranty
	 	 	52	 
	4.02 Obligations Unconditional
	 	 	52	 
	4.03 Reinstatement
	 	 	53	 
	4.04 Certain Additional Waivers
	 	 	53	 
	4.05 Remedies
	 	 	53	 
	4.06 Rights of Contribution
	 	 	53	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	53	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	54	 
	5.01 Conditions of Closing Date and Initial Credit Extension
	 	 	54	 
	5.02 Conditions to all Credit Extensions
	 	 	58	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	59	 






 









 






	 	 	 	 	 
	Section	 	Page	 
	6.02 Authorization; No Contravention
	 	 	59	 
	6.03 Governmental Authorization; Other Consents
	 	 	59	 
	6.04 Binding Effect
	 	 	59	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	60	 
	6.06 Litigation
	 	 	60	 
	6.07 No Default
	 	 	60	 
	6.08 Ownership of Property; Liens
	 	 	61	 
	6.09 Environmental Compliance
	 	 	61	 
	6.10 Insurance
	 	 	61	 
	6.11 Taxes
	 	 	62	 
	6.12 ERISA Compliance
	 	 	62	 
	6.13 Capital Structure/Subsidiaries
	 	 	62	 
	6.14 Margin Regulations; Investment Company Act
	 	 	63	 
	6.15 Disclosure
	 	 	63	 
	6.16 Compliance with Laws
	 	 	63	 
	6.17 Intellectual Property
	 	 	63	 
	6.18 Solvency
	 	 	64	 
	6.19 Investments
	 	 	64	 
	6.20 Business Locations
	 	 	64	 
	6.21 Brokers’ Fees
	 	 	64	 
	6.22 Labor Matters
	 	 	64	 
	6.23 Representations and Warranties from Other Loan Documents
	 	 	64	 
	6.24 Collateral Documents
	 	 	64	 
	6.25 Borrowing Base Properties; Leases and Ground Leases
	 	 	64	 
	6.26 Nature of Business
	 	 	65	 
	6.27 SAILS Forward Exchange Contracts
	 	 	65	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	65	 
	7.01 Financial Statements
	 	 	65	 
	7.02 Certificates; Other Information
	 	 	66	 
	7.03 Notices and Information
	 	 	68	 
	7.04 Borrowing Base Property Ownership; Guarantors
	 	 	69	 
	7.05 Preservation of Existence, Etc.
	 	 	69	 
	7.06 Maintenance of Properties
	 	 	69	 
	7.07 Maintenance of Insurance; Condemnation and Casualty
	 	 	69	 
	7.08 Compliance with Laws and Material Contractual Obligations
	 	 	75	 
	7.09 Books and Records
	 	 	75	 
	7.10 Inspection Rights
	 	 	75	 
	7.11 Use of Proceeds
	 	 	76	 
	7.12 Additional/Update Appraisals
	 	 	76	 
	7.13 Removal of Borrowing Base Properties
	 	 	76	 
	7.14 Pledged Assets
	 	 	76	 
	7.15 Ground Leases
	 	 	77	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	79	 
	8.01 Liens
	 	 	79	 
	8.02 Investments
	 	 	80	 
	8.03 Indebtedness
	 	 	81	 






 









 






	 	 	 	 	 
	Section	 	Page	 
	8.04 Fundamental Changes
	 	 	82	 
	8.05 Dispositions
	 	 	82	 
	8.06 Restricted Payments
	 	 	83	 
	8.07 Change in Nature of Business
	 	 	83	 
	8.08 Transactions with Affiliates and Insiders
	 	 	83	 
	8.09 Burdensome Agreements
	 	 	84	 
	8.10 Use of Proceeds
	 	 	84	 
	8.11 Financial Covenants
	 	 	84	 
	8.12 [Intentionally Omitted]
	 	 	85	 
	8.13 Prepayment of Other Indebtedness, Etc.
	 	 	85	 
	8.14 Organization Documents; Fiscal Year
	 	 	85	 
	8.15 Ownership of Subsidiaries
	 	 	85	 
	8.16 Sale Leasebacks
	 	 	85	 
	8.17 Leases
	 	 	85	 
	8.18 Foreign Subsidiaries
	 	 	86	 
	8.19 Borrowing Base Property Matters
	 	 	86	 
	8.20 [Intentionally Omitted]
	 	 	86	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	86	 
	9.01 Events of Default
	 	 	86	 
	9.02 Remedies Upon Event of Default
	 	 	88	 
	9.03 Application of Funds
	 	 	88	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	89	 
	10.01 Appointment and Authority
	 	 	89	 
	10.02 Rights as a Lender
	 	 	89	 
	10.03 Exculpatory Provisions
	 	 	89	 
	10.04 Reliance by Administrative Agent
	 	 	90	 
	10.05 Delegation of Duties
	 	 	90	 
	10.06 Resignation/Removal of Administrative Agent
	 	 	90	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	91	 
	10.08 No Other Duties, Etc.
	 	 	92	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	92	 
	10.10 Collateral and Guaranty Matters
	 	 	92	 
	ARTICLE XI MISCELLANEOUS
	 	 	93	 
	11.01 Amendments, Etc.
	 	 	93	 
	11.02 Notices. Effectiveness of Electronic Communications
	 	 	95	 
	11.03 No Waiver; Cumulative Remedies
	 	 	96	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	96	 
	11.05 Payments Set Aside
	 	 	97	 
	11.06 Successors and Assigns
	 	 	98	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	101	 
	11.08 Set-off
	 	 	101	 
	11.09 Interest Rate Limitation
	 	 	102	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	102	 
	11.11 Survival of Representations and Warranties
	 	 	102	 
	11.12 Severability
	 	 	102	 
	11.13 Replacement of Lenders
	 	 	102	 






 









 






	 	 	 	 	 
	Section	 	Page	 
	11.14 Governing Law; Jurisdiction; Etc.
	 	 	103	 
	11.15 Waiver of Jury Trial
	 	 	104	 
	11.16 USA PATRIOT Act Notice
	 	 	104	 
	11.17 ENTIRE AGREEMENT
	 	 	104	 
	11.18 Subordination of Intercompany Debt
	 	 	104	 
	11.19 No Advisory or Fiduciary Responsibility
	 	 	104	 
	11.20 Replacement of Existing Credit Agreement
	 	 	105	 











 









 











SCHEDULES




	 	 	 

	1.01(a)

	 	Guarantors
	1.01(b)

	 	Borrowing Base Properties
	1.01(c)

	 	Existing Letters of Credit
	1.01(d)

	 	Designated Outparcels
	2.01

	 	Commitments and Applicable Percentages
	6.03

	 	Required Consents, Authorizations, Notices and Filings
	6.05

	 	Supplement to Interim Financial Statements
	6.06

	 	Litigation
	6.09

	 	Environmental Matters
	6.10

	 	Insurance
	6.12

	 	Unfunded Pension Liabilities
	6.13(a)

	 	Corporate Structure
	6.13(b)

	 	Subsidiaries; Capital Stock of Borrower
	6.13(c)

	 	Equity Investments
	6.17

	 	Intellectual Property Matters
	6.20(a)

	 	Real Properties
	6.20(b)

	 	Collateral Locations
	6.20(c)

	 	Chief Executive Office, Jurisdiction of Incorporation, Principal Place of Business
	6.22

	 	Multiemployer Plans/Collective Bargaining Agreements
	8.01

	 	Existing Liens
	8.02

	 	Existing Investments
	8.03

	 	Existing Indebtedness
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	A-1

	 	Form of Committed Loan Notice
	A-2

	 	Form of Swing Line Loan Notice
	B

	 	Form of Security Agreement
	C

	 	Form of Pledge Agreement
	D-1

	 	Form of Revolving Note
	D-2

	 	Form of Term Note
	E

	 	Form of Compliance Certificate
	F

	 	Form of Joinder Agreement
	G

	 	Form of Assignment and Assumption











 









 








SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (as amended, modified, restated or
supplemented from time to time, the “Agreement”) is entered into as of July 25, 2008 by and
among GAYLORD ENTERTAINMENT COMPANY, a Delaware corporation (together with any permitted successors
and assigns, the “Borrower”), the Guarantors (as defined herein), the Lenders (as defined
herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (each,
as defined herein). BANC OF AMERICA SECURITIES LLC, will act as Joint Lead Arranger and Joint Book
Manager (each, as defined herein) with respect hereto, DEUTSCHE BANK SECURITIES INC., will act as
Joint Lead Arranger and Joint Book Manager with respect hereto, WELLS FARGO BANK, N.A., will act as
Joint Lead Arranger and Joint Book Manager with respect hereto, DEUTSCHE BANK SECURITIES INC., will
act as Syndication Agent (as defined herein) and the parties set forth on the cover page attached
hereto as Co-Documentation Agents will act in such capacity, but such Joint Lead Arrangers, Joint
Book Managers, Syndication Agents and Co-Documentation Agents shall not be deemed parties hereto.



     WHEREAS, the Borrower is a party to the Existing Credit Agreement (as defined herein);



     WHEREAS, the Borrower has requested that the Lenders amend and restate the Existing Credit
Agreement; and



     WHEREAS, the Lenders are willing to amend and restate the Existing Credit Agreement on the
terms and conditions set forth herein.


NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements herein contained, and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto covenant and agree as follows:




ARTICLE 1A. AMENDMENT AND RESTATEMENT.




     This Credit Agreement amends and restates the Existing Credit Agreement.



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS



1.01 Defined Terms.




     As used in this Agreement, the following terms shall have the meanings set forth below:



     “Acquired Assets” means, for any 12 month period, all assets purchased or otherwise
acquired by the Consolidated Parties during such period.



     “Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of all of the Capital Stock or all or
substantially all of the Property (or an entire business unit or product line) of another Person,
whether or not involving a merger or consolidation with such other Person and whether for cash,
property, services, assumption of Indebtedness, securities or otherwise.



     “Adjusted Consolidated EBITDA” means, for any period, (a) Consolidated EBITDA for such
period, minus (b) the FF&E/Capex Reserve.



     “Adjusted NOI” means, for any period, (a) the NOI for such period, minus (b)
the FF&E/Capex Reserve with respect to all Borrowing Base Properties held as of the end of such
period.



     “Administrative Agent” means Bank of America, in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



 









 





     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Agent Lenders” means a collective reference to each Lender hereunder that also holds
the title of Administrative Agent or Syndication Agent hereunder (whether such agency is held
solely or jointly with another Person).



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders,
as adjusted from time to time in accordance with the terms hereof. The initial amount of the
Aggregate Revolving Commitments in effect on the Closing Date is THREE HUNDRED MILLION DOLLARS
($300,000,000.00).



     “Aggregate TL Borrowings” means, as of any date of determination, the aggregate amount
of Term Loan Borrowings that have occurred under this Agreement (which shall include all such Term
Loan Borrowings under the Existing Credit Agreement) on or prior to such date (regardless of
whether the amounts of such Borrowings may have been previously repaid). The amount of Aggregate
TL Borrowings that have occurred as of the Closing Date is SEVEN HUNDRED MILLION DOLLARS
($700,000,000.00).



     “Aggregate TL Commitments” means, as of any date of determination, the Term Loan
Commitments of all of the Lenders, after reductions for Aggregate TL Borrowings made on or prior to
such date and as otherwise adjusted from time to time in accordance with the terms hereof.



     “Aggregate TL Principal Payments” means, as of any date of determination, the
aggregate amount of principal payments (whether mandatory or voluntary) made by the Borrower on or
prior to such date with respect to the Term Loans.



     “Agreement” has the meaning assigned to such term in the heading hereof.



     “Applicable Margin” means, from time to time, the following percentages per annum:”



	 	 	 	 	 
	Applicable Margin for Letter of	 	 
	Credit Fees and Eurodollar Rate	 	Applicable Margin for Base Rate
	Loans	 	Loans
	2.50%

	 	 	0.50	%






     “Applicable Percentage” means as to each Lender (a) with respect to such Lender’s
Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the
Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time;
provided that if the commitment of each Lender to make Revolving Loans and the obligation
of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section
9.02 or if the Revolving Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments, (b) with respect to such Lender’s Term Loan
Commitment at any time, the percentage (carried out to the ninth decimal place) of the Aggregate TL
Commitments represented by such Lender’s Term Loan Commitment at such time and (c) with respect to
such Lender’s outstanding Term Loans at any time, the percentage (carried out to the ninth decimal
place), of the Total Term Loan Outstandings represented by Term Loans held by such Lender at such
time. The initial Applicable Percentage of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.



2









 





     “Appraised Value” means, as of any date of determination, for each Borrowing Base
Property existing as of such date, the most-recently obtained “as-is” appraised value of such
Borrowing Base Property as set forth in an appraisal in form and substance acceptable to the
Administrative Agent and each arranger (in their respective discretion) and prepared by an
appraiser acceptable to the Administrative Agent; provided, however that (a) the “Appraised Value”
for Gaylord National and the Gaylord National Property (if owned by an Loan Party as of the
applicable date of determination) shall, for all dates prior to the date occurring twelve (12)
months following the delivery of a certificate of occupancy with respect to such property, the
aggregate capitalized construction costs incurred by the Loan Parties as of such date of
determination plus the value of the underlying land, at cost; (b) the “Appraised Value” for any
Borrowing Base Property which is the subject of a Substantial Casualty or Substantial Condemnation
and which is being rebuilt, reconstructed and restored pursuant to the terms of Section
7.07 hereof shall, following the receipt by the Administrative Agent of any new “as completed”
appraisal pursuant to Section 7.12 hereof and prior to the receipt by the Administrative
Agent of a new “as-is” appraisal of such property following the completion of the applicable
rebuilding, reconstruction and restoration, equal the “as-completed” appraised value of such
Borrowing Base Property, and (c) if as of the Stabilization Date for any Borrowing Base Property
(as specified in such appraisal for such Borrowing Base Property), the trailing 12 month net
operating income for such Borrowing Base Property is within five percent (5%) of the net operating
income projected by such appraisal in its determination of the “as stabilized” value for such
Borrowing Base Property, then the “as stabilized” value reflected in such appraisal.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arranger” means a collective reference to BAS, Deutsche Bank Securities Inc. and
Wells Fargo Bank, N.A., in their capacities as joint lead arrangers and joint book managers.



     “Assigned Interests” has the meaning given to such term in Section 11.20.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assigning Lenders” has the meaning given to such term in Section 11.20.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit G or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the calendar year ended December 31, 2007, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
calendar year, including the notes thereto.



     “Availability Period” means, with respect to the Revolving Commitments, the period
from the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the
Aggregate Revolving Commitments pursuant to Section 2.06 and (iii) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 9.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Bank of America Assignment” has the meaning given to such term in Section
11.20.



3









 





     “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as
amended, modified, succeeded or replaced from time to time.



     “BAS” means Banc of America Securities LLC, its successors and assigns.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Base Rate Revolving Loan” means a Revolving Loan that is a Base Rate Loan.



     “BBP Insurance Proceeds” has the meaning specified in Section 7.07(b).



     “BBP Condemnation Proceeds” has the meaning specified in Section 7.07(c).



     “BBP Value” means, as of any date of determination, the sum of the most recently
obtained (or determined) Appraised Values of each of the Borrowing Base Properties existing as of
such date.



     “Borrower” has the meaning specified in the heading hereof.



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



     “Borrowing Base” means, as of any date of determination, an amount equal to (a)
fifty-five percent (55.0%) (as such percentage may be irrevocably reduced pursuant to and in
accordance with Section 2.05(b)(iv)), multiplied by (b) the BBP Value as of such
date.



     “Borrowing Base Leverage Ratio” means, as of any date of determination, the ratio
(expressed as a percentage) of (a) the amount of all Indebtedness secured in any manner by all or
any portion of any of the Borrowing Base Properties or by the Capital Stock of any Loan Party
owning (whether directly or indirectly) any such Borrowing Base Properties; to (b) the BBP Value.



     “Borrowing Base Properties” means, as of any date of determination, the properties
(including, without limitation, all related land, improvements and fixtures) listed on Schedule
1.01(b) attached hereto (as such schedule may be adjusted (or deemed adjusted) pursuant to
Section 7.13 hereof).



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



     “Businesses” means, at any time, a collective reference to the businesses operated by
the Consolidated Parties at such time.



     “Capital Lease” means, as applied to any Person, any lease of any Property (whether
real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is required to be
accounted for as a capital lease on the balance sheet of that Person.



     “Capital Stock” means (i) in the case of a corporation, capital stock, (ii) in the
case of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a



4









 




limited liability company, membership interests, (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person; and (vi) means, with respect to any Person, all other ownership or
profit interests in such Person (including partnership, member or trust interests therein), all of
the warrants, options or other rights for the purchase or acquisition from such Person of any of
the previously-noted interests in such Person, all of the securities convertible into or
exchangeable for any of the previously-noted interests in such Person or warrants, rights or
options for the purchase or acquisition from such Person of such interests, in each case, whether
voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests
are outstanding on any date of determination.




     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means, as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or
the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of
not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof)
or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank
or trust company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States in which such Person shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations; (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under the Investment Company
Act of 1940, as amended, which are administered by reputable financial institutions having capital
of at least $500,000,000 and the portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d); and (f) notwithstanding the GAAP
classification of same, Investments in AAA-rated auction rate securities with maturities of thirty
(30) days or less purchased pursuant to underwriting agreements and/or other documentation with
terms and conditions reasonably acceptable to the Administrative Agent and which are administered
by reputable financial institutions having capital of at least $500,000,000.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:



     (a) other than the creation of a holding company that does not involve a change in the
beneficial ownership of the Borrower as a result of such transaction, any “person” or “group” (as
such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of time),
directly or indirectly, of thirty-five percent (35.0%) or more of the equity securities of the
Borrower entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right); or



     (b) during any period of twelve (12) consecutive months, a majority of the members of the
board of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were



5









 




members of that board or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii),
any individual whose initial nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of the board of directors).




     (c) any Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower, or control over the equity
securities of the Borrower entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis (and taking into account all such
securities that such Person or group has the right to acquire pursuant to any option right)
representing thirty-five percent (35.0%) or more of the combined voting power of such securities.



     “Closing Date” means the first date all the conditions precedent in Section
5.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Collateral” means a collective reference to all real and personal Property with
respect to which Liens in favor of the Administrative Agent are purported to be granted pursuant to
and in accordance with the terms of the Collateral Documents.



     “Collateral Documents” means a collective reference to the Pledge Agreement, the
Mortgage Instruments, the Security Agreement and such other security documents as may be executed
and delivered by the Loan Parties pursuant to the terms of Section 7.13 and 7.14.



     “Committed Borrowing” means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section 2.01.



     “Committed Loan” means each Revolving Loan and each Term Loan.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A.



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender and/or
the Term Loan Commitment of such Lender.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
E setting forth detailed calculations of both (a) the financial covenants contained herein
(including calculation of those covenants set forth in Sections 8.01(d), 8.02(f)
and 8.11; provided, that with respect to the calculations of the amounts of existing Liens
with respect to Section 8.01(d), such amounts shall, to the extent such Liens are related
to work that has not yet been invoiced to the applicable Loan Party, be based on good faith
estimates of the Loan Parties of the outstanding amount of such un-invoiced work); and (b) the
Borrowing Base as of the date of the financial information provided in connection therewith.



     “Consolidated Cash Taxes” means for any period for Consolidated Parties on a
consolidated basis, the aggregate of all taxes, as determined in accordance with GAAP, to the
extent the same are paid in cash during such period.



6









 





     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period (provided, that
for purposes of this definition, (x) when the applicable calculation period is 12 months and
notwithstanding contrary provisions of GAAP, income allocable to each Acquired Asset for such
period shall equal the net income, calculated on a trailing twelve month basis, derived from such
Acquired Asset during such period, regardless of how long such Acquired Asset has been owned by a
Consolidated Party, (y) when the applicable calculation period is 12 months and notwithstanding
contrary provisions of GAAP, income allocable to Newly Operational Assets shall (i) only be
included to the extent such Newly Operational Assets have been open and operational for a full
calendar quarter and (ii) until such Newly Operational Asset has been opened and operating for a
full calendar year, the net income allocable to each Newly Operational Asset for such period shall
equal the annualized net income of the Consolidated Parties derived from such Newly Operational
Asset based on the net income derived during the full calendar quarters during which such Newly
Operational Asset has been opened and operating (i.e., if the Newly Operational Asset is opened and
operating for one quarter, the net income for such quarter multiplied by four, if such Newly
Operational Asset is opened and operating for two quarters, the net income for such quarters
multiplied by two and if such Newly Operational Asset is opened and operating for three quarters,
the net income for such quarters multiplied by one and one third) and (z) notwithstanding contrary
provisions of GAAP, net income derived from assets disposed of during any such period shall not be
included in the determination of Consolidated Net Income for such period), plus



     (a) the following to the extent deducted in calculating such Consolidated Net Income (and, in
each case, without duplication):




     (i) Consolidated Fixed Charges for such period;




     (ii) non-cash interest expenses;




     (iii) the provision for Federal, state, local and foreign income taxes payable by the
Borrower and its Subsidiaries for such period;




     (iv) depreciation and amortization expense (including amortization of goodwill and
other intangibles, but excluding amortization of prepaid cash expenses that were paid in a
prior period);




     (v) preopening costs relating to the hotel operations of the Borrower or its
Subsidiaries for such period;




     (vi) interest payments and other fixed charges payable for such period in connection
with the SAILS Forward Exchange Contracts;




     (vii) losses related to discontinued operations (as calculated and presented in
accordance with GAAP);




     (viii) any unrealized losses related to the SAILS Forward Exchange Contracts or the
refinancing thereof or to the sale of any of the Viacom Stock;




     (ix) all other non-cash expenses (including, but not limited to, the non-cash portion
of (A) non-cash write-offs of goodwill, intangibles and long-lived assets, (B) the
amortization of prepaid deferred finance charges on the SAILS Forward Exchange Contracts,
(C) ground rents expense and (D) expense with respect to the Naming Rights Agreement dated
as of November 24, 1999 between Nashville Hockey Club Limited Partnership and the Borrower;
provided, that in the case of clauses (C) and (D), the cash portion of each such expense not
deducted in computing Consolidated Net Income in any future period shall be deducted in
computing Consolidated EBITDA for such future period, but excluding any other such non-cash
expense to the extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior period) and
minus



     (b) the following to the extent included in calculating such Consolidated Net Income (and
without duplication):



7









 






     (i) Federal, state, local and foreign income tax credits of the Borrower and its
Subsidiaries for such period;




     (ii) any unrealized gains related to the SAILS Forward Exchange Contracts or the
refinancing thereof or to the sale of any of the Viacom Stock;




     (iii) gains related to discontinued operations; and




     (iv) all other non-cash items increasing Consolidated Net Income for such period;


provided that, any add-backs or deductions related to a Newly Operational Asset
will be calculated on an annualized basis in the same manner used to determine net income for such
Newly Operational Asset; provided, further, that, any add-backs or
deductions related to an Acquired Asset will be calculated on a trailing twelve month basis in the
same manner used to determine net income for such Acquired Asset. Notwithstanding the preceding,
provisions for taxes based on income or profits of, Consolidated Fixed Charges and other fixed
charges of and the depreciation and amortization and other non-cash expenses of the Consolidated
Parties which are Subsidiaries shall be added to Consolidated Net Income (A) in the same proportion
that the net income of such Consolidated Party was added to compute Consolidated Net Income and (B)
only to the extent that a corresponding amount would be permitted at the date of determination to
be dividended or distributed to the Borrower by the applicable Consolidated Party without prior
governmental approval (that has not been obtained), and without direct or indirect restriction
pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Consolidated Party or its
stockholders.




     “Consolidated Fixed Charge Coverage Ratio” means for the Consolidated Parties in
connection with any four calendar quarter period for which the Borrower has delivered the Required
Financial Information, the ratio of (a) Adjusted Consolidated EBITDA for such period (after giving
effect on a Pro Forma Basis to any Dispositions or acquisitions of assets during such period) to
(b) Consolidated Fixed Charges for such period.



     “Consolidated Fixed Charges” means for any period for the Consolidated Parties, the
sum of (a) Consolidated Interest Charges for such period, to the extent the same come due or are
paid during such period (without duplication of amounts included in “Consolidated Fixed Charges”
for prior period), plus (b) Consolidated Scheduled Funded Debt Payments for such period
plus (c) all cash dividends required to be paid on preferred capital stock, whether
expensed or capitalized; determined without duplication of items included in Consolidated Interest
Charges.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) the
principal portion of all obligations for borrowed money, (b) the principal portion of all
obligations evidenced by bonds, debentures, notes or similar instruments, or upon which interest
payments are customarily made, (c) the principal portion of all obligations under conditional sale
or other title retention agreements relating to Property purchased by the Consolidated Parties
(other than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) the principal portion of all obligations issued or
assumed as the deferred purchase price of Property or services purchased by the Consolidated
Parties (other than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance sheet of the
Consolidated Parties, (e) the Attributable Indebtedness with respect to Capital Leases and
Synthetic Lease Obligations, (f) all direct and contingent obligations arising under letters of
credit (including standby and commercial and bankers’ acceptances, including, without duplication,
all unreimbursed drafts drawn thereunder (less the amount of any cash collateral securing any such
letters of credit or and bankers’ acceptances), (g) all obligations to repurchase any securities
issued by the Consolidated Parties at any time prior to the Maturity Date which repurchase
obligations are related to the issuance thereof, including, without limitation, obligations
commonly known as residual equity appreciation potential shares, (h) the aggregate amount of
uncollected accounts receivable subject at such time to a sale or securitization of receivables (or
similar transaction) to the extent such transaction is effected with recourse to the Consolidated
Parties (whether or not such transaction would be reflected on the balance sheet of the
Consolidated Parties in accordance with GAAP) (all such Indebtedness of the types described in the
forgoing clauses (a) through (h), as to any Person, “Funded Indebtedness”), (i) all Funded
Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of



8









 




production from, Property owned or acquired by the Consolidated Parties, whether or not the
obligations secured thereby have been assumed, (j) all Guarantees with respect to Funded
Indebtedness of another Person and (k) the Funded Indebtedness of any partnership or unincorporated
joint venture in which a Consolidated Party is a general partner or a joint venturer or of any
assets in which Borrower owns less than a majority interest based on the greater of (i) such
Consolidated Party’s pro rata share of such Indebtedness based on its ownership percentage with
respect to such partnership or unincorporated joint venture or other asset and (ii) the extent to
which such Indebtedness is recourse to a Consolidated Party; provided that “Consolidated
Funded Indebtedness” shall not, in any case, include Indebtedness with regard to the SAILS Forward
Exchange Contracts (but shall include any Indebtedness arising in connection with the refinancing
or other termination of such SAILS Forward Exchange Contracts). To the extent that the rights and
remedies of the oblige of any Consolidated Funded Indebtedness are limited to certain property and
are otherwise non-recourse to any Consolidated Party, the amount of such Consolidated Funded
Indebtedness shall be limited to the value of the Consolidated Parties’ interest in such property
(valued at the higher of book value or market value as of such date of determination).




     “Consolidated Funded Indebtedness to Total Asset Value Ratio” means, as of any date of
determination, the ratio (expressed as a percentage) of (a) Consolidated Funded Indebtedness as of
such date, to (b) Consolidated Total Asset Value as of such date.



     “Consolidated Interest Charges” means for any period for the Consolidated Parties on a
consolidated basis, interest expense (including the amortization of debt discount and premium, the
interest component under Capital Leases and the implied interest component of Synthetic Lease
Obligations), as determined in accordance with GAAP; provided, however, that notwithstanding the
foregoing, (a) all non-cash interest expenses and (b) capitalized interest reflected on any
entity’s financial statements shall be excluded.



     “Consolidated Net Income” means for any period for the Consolidated Parties on a
consolidated basis, net income (excluding extraordinary items and applicable Designated
Non-Recurring Items for such period (in each case, to the extent such items would increase or
decrease such net income)) after interest expense, income taxes and depreciation and amortization,
all as determined in accordance with GAAP; provided, that (a) net income attributable to
any interests of the Consolidated Parties in non-Consolidated Parties shall be included in the
determination of “Consolidated Net Income” only to the extent of the amount of cash dividends or
distributions paid by such non-Consolidated Parties to Consolidated Parties during the applicable
period, (b) notwithstanding contrary provisions of GAAP, proceeds of any business interruption or
rent loss insurance received by any Consolidated Party in connection with any Property owned by
them shall be included in the determination of net income upon the receipt thereof by the Borrower
or the applicable Loan Party(ies); provided, however, that to the extent any such
proceeds are delivered in lump sum format for the purpose of covering losses over a period
extending to more than one calendar quarter, addition of such proceeds to net income shall be pro
rated over such period in a manner reasonably acceptable to the Administrative Agent.



     “Consolidated Parties” means a collective reference to the Borrower and the
Subsidiaries of the Borrower, and “Consolidated Party” means any one of them.



     “Consolidated Scheduled Funded Debt Payments” means for any period for the
Consolidated Parties on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this
definition, “scheduled payments of principal” (a) shall be determined without giving effect to any
reduction of such scheduled payments resulting from the application of any voluntary or mandatory
prepayments made during the most-recently ended calendar quarter (but shall give effect to all such
payments made prior thereto), (b) shall be deemed to include the Attributable Indebtedness in
respect of Capital Leases and Synthetic Lease Obligations and (c) shall not include any voluntary
prepayments or mandatory prepayments required pursuant to Section 2.04.



     “Consolidated Tangible Net Worth” means, as of any date of determination, the Tangible
Net Worth of the Consolidated Parties as of that date.



     “Consolidated Total Asset Value” means, for any date of calculation, the sum of (a)
the Appraised Value of all Borrowing Base Properties as of such date, (b) cash and cash equivalents
set forth on the balance sheet of the Borrower, (c) the appraised value of the Borrower’s interest
in any property formerly qualifying as a Borrowing



9









 




Base Property but which no longer qualifies as such as a result of the Borrower’s sale,
transfer or other disposition of an interest in such property to a third party, as determined by an
appraisal in form and substance reasonably acceptable to the Administrative Agent and with respect
to which the Administrative Agent does not have a reasonable basis for believing that the value of
such asset has been materially decreased since the date of such appraisal; (d) for all other assets
or entities in which the Borrower owns a majority interest, the greater of (i) the depreciated book
asset value of such asset as reported for the most recently ended calendar quarter and (ii) the
“as-is” appraised value of such asset, as determined by an appraisal in form and substance
reasonably acceptable to the Administrative Agent and with respect to which the Administrative
Agent does not have a reasonable basis for believing that the value of such asset has been
materially decreased since the date of such appraisal and (e) for all other assets in which
Borrower owns less than a majority interest, Borrower’s pro rata share of the greater of (i) the
depreciated book value of such asset as reported for the most recently ended calendar quarter and
(ii) the “as-is” appraised value of such asset, as determined by an appraisal in form and substance
reasonably acceptable to the Administrative Agent and with respect to which the Administrative
Agent does not have a reasonable basis for believing that the value of such asset has been
materially decreased since the date of such appraisal.




     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debt Issuance” means the issuance by any Consolidated Party of any Indebtedness of
the type referred to in clause (a) or (b) of the definition thereof set forth in this Section
1.01.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (a) the Base Rate plus (b) the Applicable Margin, if
any, applicable to Base Rate Loans plus (c) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Margin plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans, participations in L/C Obligations or participations in Swing Line Loans required to be
funded by it hereunder within one Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.



     “Designated Force Majeure Events” means strikes, lock-outs, war, civil disturbance,
natural disaster, acts of terrorism or acts of God or other matters beyond the control of Borrower
(which cannot be immediately cured merely through the payment of money) which prevent the operation
of any Borrowing Base Property; provided, however, that (a) events qualifying as “Designated Force
Majeure Events” hereunder shall not, in any case, exceed fifteen (15) days in the aggregate during
the term hereof with respect to the operation of any Borrowing Base Property except as set forth in
the following clause (b); and (b) events qualifying as “Designated Force Majeure Events” hereunder
may, notwithstanding the foregoing clause (a), continue with respect to any Designated Force



10









 




Majeure Event (i) if the costs and expenses related to the construction, re-construction
and/or restoration work necessitated by such Designated Force Majeure Event is, in the reasonable
judgment of the Administrative Agent (based on the information provided by the Borrower), fully
covered by casualty or other insurance then-maintained by any Consolidated Party (plus any
applicable deductibles, to the extent the Consolidated Parties hold such deductible amount in cash
and/or Cash Equivalents), (ii) to the extent the Borrower provides evidence of such insurance
coverage promptly following such event, delivers all information required by the applicable insurer
for processing of the applicable claim within thirty (30) days of the occurrence of such event (or,
to the extent delivery within such time frame is not reasonably possible, as soon as reasonably
practicable following such event) and proceeds to use commercially reasonable good faith efforts to
pursue and resolve such claim with the applicable insurer as expeditiously as is reasonably
possible without compromising any material rights of the Borrower or any other Loan Party with
respect to such claim, and (iii) to the extent the Borrower has provided the Administrative Agent
with restoration plans and other information with respect to the applicable damage to the extent
required herein and is proceeding with the restoration, repair or reconstruction work with all due
diligence and in good faith, and (c) circumstances that can be remedied or mitigated merely through
the payment of money shall not constitute Designated Force Majeure Events hereunder to the extent
such remedy or mitigation is deemed reasonable by Administrative Agent in its sole discretion.




     “Designated Non-Recurring Items” means, for any period of determination, (a) lawsuit
and settlement costs of the Consolidated Parties incurred during such period, plus (b)
merger transaction and integration costs of the Consolidated Parties incurred during such period,
plus (c) asset impairment charges of the Consolidated Parties incurred during such period,
plus (d) the amount of other non-recurring charges paid or incurred by the Consolidated
Parties during such period; provided that the amount calculated pursuant to this clause (d) shall
not exceed $10,000,000 for any twelve (12) month period.



     “Designated Outparcels” means those parcels of Real Property referenced on
Schedule 1.01(d) attached hereto.



     “Disposition” or “Dispose” means any sale, disposition or other transfer
(including pursuant to a Sale and Leaseback Transaction) of any or all of the Property (including
without limitation the Capital Stock of a Subsidiary) of any Consolidated Party whether by sale,
lease, licensing, transfer or otherwise, but other than pursuant to any casualty or condemnation
event; provided, however, that the term “Disposition” shall be deemed to exclude
any Equity Issuance.



     “Dollar” and “$” mean lawful money of the United States.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent and, in the case of the assignment of any Revolving Commitment, the L/C Issuer, and (ii)
unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, binding agreements or binding governmental restrictions relating to pollution
and the protection of the environment or the release of any materials into the environment,
including those related to hazardous substances or wastes, air emissions and discharges to waste or
public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the



11









 




environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.




     “Equity Issuance” means any issuance by any Consolidated Party to any Person of (a)
shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants, (c) any shares of its Capital Stock pursuant to the conversion of any debt
securities to equity or the conversion of any class equity securities to any other class of equity
securities or (d) any options or warrants relating to its Capital Stock. The term “Equity
Issuance” shall not be deemed to include any Disposition.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



     “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 9.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
11.06), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of



12









 




designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a).




     “Existing Credit Agreement” that certain Amended and Restated Credit Agreement dated
as of March 23, 2007 among the Borrower, Bank of America, as administrative agent, the lenders
party thereto and the other parties named therein, as the same may have been amended, restated,
supplemented or otherwise modified from time to time prior to the date hereof.



     “Existing Letters of Credit” means those letters of credit issued pursuant to the
Existing Credit Agreement and set forth on Schedule 1.01(c) attached hereto, which letters
of credit shall, as of the Closing Date, be deemed to be Letters of Credit hereunder.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) 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 by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means the letter agreement, dated as of July 23, 2008, among the
Borrower, the Administrative Agent and BAS.



     “FF&E/Capex Reserve” means, for any period and with respect to any one or more of the
Real Properties that are hotels which are owned at any time during such period, an amount equal to
the applicable Reserve Percentage of Gross Revenues of such Real Properties. For purposes of this
definition, the term “Reserve Percentage” means (a) for properties in operation for less than one
(1) year, 1.0%; (b) for properties in operation for less than two (2) years, but equal to or more
than one (1) year, 2.0%; (c) for properties in operation for less than three (3) years, but equal
to or more than two (2) years, 3.0%; and (c) for all other properties, 4.0%. Notwithstanding the
foregoing, the “Reserve Percentage” for Newly Operational Assets shall be 1.0% during the year such
property is a Newly Operational Asset, and shall increase one percent per year thereafter, to a
maximum of 4.0%.



     “FIRREA” means the Financial Institutions Reform, Recovery, and Enforcement Act of
1989, as amended, and any successor statute thereto, as interpreted by the rules and regulations
thereunder, as amended, including, without limitation, 12 CFR part 34.41 to 34.47.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



     “FRB” means the Board of Governors of the Federal Reserve System of the United States.



     “Fully Satisfied” means, with respect to the Obligations as of any date, that, as of
such date, (a) all principal of and interest accrued to such date which constitute Obligations
shall have been irrevocably paid in full in cash, (b) all fees, expenses and other amounts then due
and payable which constitute Obligations shall have been irrevocably paid in cash, (c) all
outstanding Letters of Credit shall have been (i) terminated, (ii) fully irrevocably Cash
Collateralized or (iii) secured by one or more letters of credit on terms and conditions, and with
one or more financial institutions, reasonably satisfactory to the L/C Issuer and (d) the
Commitments shall have expired or been terminated in full.



13









 





     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



     “Funded Indebtedness” has the meaning given to such term in the definition of
Consolidated Funded Indebtedness in Section 1.01.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Gaylord National” means the first-class hotel and convention center located at and on
the Gaylord National Property.



     “Gaylord National Contractor Liens” means, collectively, all Liens in favor of, or
subject to a notice sent by, the general contractor or any subcontractor respecting the Gaylord
National Property, whether or not such Liens have attached to the Gaylord National Property.



     “Gaylord National Property” means the real property described as such on Schedule
1.01(b) attached hereto.



     “Gaylord Palms Ground Lease” means that certain Opryland Hotel — Florida Hotel Lease
by and between GP Limited Partnership, as ground lessor/landlord, and Opryland Hotel — Florida
Limited Partnership, as hotel lessee/tenant, dated as of March 3, 1999, as the same has been
amended, restated, supplemented or otherwise modified from time to time prior to the date hereof
(for purposes of this definition, the “Sub-Ground Lease”), which Sub-Ground Lease
constitutes a sub-ground lease by GP Limited Partnership of its interest in the Property referenced
therein arising pursuant to that certain GP / Xentury Master Ground Lease dated as of March 3, 1999
between GP Limited Partnership and Xentury City Development Company, L.C.).



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Gross Revenues” means, for any Real Property that is a hotel over any period, all
receipts resulting from the operation of such Real Property, determined net of allowances in
accordance with GAAP 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 or required
to be 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) interest income, and (f) rebates, refunds or discounts (including, without
limitation, free or discounted accommodations).



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of



14









 




such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or
any other financial statement condition or liquidity or level of income or cash flow of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to protect such obligee
against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person
securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness
or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder
of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has a corresponding meaning.




     “Guarantors” means a collective reference to the Persons identified as “Guarantors“on
the signature pages hereto, and each other Person that subsequently becomes a Guarantor by
executing a Joinder Agreement as contemplated by Section 7.13, and “Guarantor”
means any one of them. A list of the Guarantors as of the Closing Date is set forth on
Schedule 1.01(a) attached hereto.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV hereof.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Implied Debt Service Coverage Ratio” means, for any four (4) calendar quarter period
for which the Borrower has delivered the Required Financial Information, the ratio of (a) Adjusted
NOI for such period to (b) Minimum Debt Service for such period.



     “Indebtedness” means, with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of business), (d) all
obligations of such Person issued or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the ordinary course of business and due
within six months of the incurrence thereof) which would appear as liabilities on a balance sheet
of such Person, (e) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) the Attributable Indebtedness of such Person with respect to
Capital Leases and Synthetic Lease Obligations, (g) all net obligations of such Person under Swap
Contracts, (h) all direct and contingent obligations arising under letters of credit (including
standby and commercial) and bankers’ acceptances, including, without duplication, all unreimbursed
drafts drawn thereunder (less the amount of any cash collateral securing any such letters of credit
or and bankers’ acceptances), (i) all obligations of such Person to repurchase any securities
issued by such Person at any time prior to the Maturity Date which repurchase obligations are
related to the issuance thereof, including, without limitation, obligations commonly known as
residual equity appreciation potential shares, (j) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale or securitization of receivables (or
similar transaction) to the extent such transaction is effected with recourse to such Person
(whether or not such transaction would be reflected on the balance sheet of such Person in
accordance with GAAP), (k) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (l) all Guarantees of such Person with
respect to Indebtedness of another Person and (m) the Indebtedness of any partnership or
unincorporated joint venture in which a Person is a general partner or a joint venturer based on
the greater of (i) such Person’s pro rata share of such Indebtedness based on its ownership
percentage with respect to such partnership or unincorporated joint venture and (ii) the extent to
which such Indebtedness is recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.
To the extent that the rights and remedies of the obligee of any Indebtedness are limited to
certain property and are otherwise non-



15









 




recourse to such Person, the amount of such Indebtedness shall be limited to the value of the
Person’s interest in such property (valued at the higher of book value or market value as of such
date of determination).




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 11.04(b).



     “Intangible Assets” means all assets which would be properly classified as intangible
assets under GAAP. For purposes of clarification “Intangible Assets” shall include intangible
lease assets.



     “Intellectual Property” has the meaning specified in Section 6.17.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date (with Swing
Line Loans being deemed made as Revolving Loans for purposes of this definition).



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter (or such earlier date which is at
least seven (7) days thereafter as may be approved by the Administrative Agent; provided,
that the Administrative Agent shall not approve any such shorter Interest Periods to the extent any
Lender has notified the Administrative Agent in writing that it is unable, for any reason, to fund,
maintain or otherwise account for such shorter Interest Periods; and provided,
further, that the Borrower shall not request any Interest Periods with a duration of less
than one month with respect to any Loans hereunder more than once during every thirty (30) day
period), as selected by the Borrower in its Committed Loan Notice; provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period (subject to the effectiveness of an Interest Period which is
shorter than one month, as provided for above); and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Investment” by any Person (a) in any Person means (i) any Acquisition of such Person
or its Property, (ii) any other acquisition of Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other securities of such other Person,
(iii) any deposit with, or advance, loan or other extension of credit to, such Person (other than
deposits made in connection with the purchase of equipment inventory and supplies in the ordinary
course of business) or (iv) any other capital contribution to or investment in such Person,
including, without limitation, any Guarantee (including any support for a letter of credit issued
on behalf of such Person) incurred for the benefit of such Person and any Disposition to such
Person for consideration less than the fair market value of the Property disposed in such
transaction, but excluding any Restricted Payment to such Person; and (b) means the purchase price
paid, acquisition costs and expenses incurred and any other value given by such Person in
connection with the purchase or other acquisition for value of any Property which qualifies as a
capital asset or is otherwise purchased outside the ordinary course of business of such Person.
Investments which are capital contributions or purchases of Capital Stock which have a right to
participate in the profits of the issuer thereof shall be valued at the amount (or, in the case of
any Investment made with Property other than cash, the book value of such Property) actually
contributed or paid (including cash and non-cash consideration and any assumption of Indebtedness)
to purchase such Capital Stock as of the date of such contribution or payment, less the amount of
all repayments and returns of principal or capital thereon to the extent paid in cash or Cash
Equivalents (or, in the case of any Investment made with Property other



16









 




than cash, upon return of such Property, by an amount equal to the lesser of the book value of
such Property at the time of such Investment or the fair market value of such Property at the time
of such return) and received after the Closing Date. Investments which are loans, advances,
extensions of credit or Guarantees shall be valued at the principal amount of such loan, advance or
extension of credit outstanding as of the date of determination or, as applicable, the principal
amount of the loan or advance outstanding as of the date of determination actually guaranteed by
such Guarantees.




     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property of any Consolidated Party.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of
Credit.



     “Joinder Agreement” means a Joinder Agreement substantially in the form of Exhibit
F hereto, executed and delivered by a new Guarantor in accordance with the provisions of
Section 7.13.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Advance” means, with respect to each Lender with a Revolving Commitment, such
Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable
Percentage of the Revolving Commitments.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of
Revolving Loans.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For the purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lease” means a lease, sublease, license, concession agreement or other agreement or
other agreement (not including any ground lease) providing for the use or occupancy of any portion
of any Real Property owned or leased by any Loan Party, including all amendments, supplements,
restatements, assignments and other modifications thereto.



17









 





     “Lenders” means a collective reference to the Persons identified as “Lenders” on the
signature pages hereto, together with any Person that subsequently becomes a Lender by way of
assignment in accordance with the terms of Section 11.7, together with their respective
successors, and “Lender” means any one of them, and, as the context requires, includes the
Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit
may be a standby letter of credit only.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Expiration Date” means the day that is 35 days prior to the Maturity
Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).



     “Letter of Credit Sublimit” means, as of any date of determination, an amount equal to
the lesser of (a) $50,000,000 and (b) the Aggregate Revolving Commitments as of such date. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments
and only Lenders holding Revolving Commitments shall participate in exposure related to Letters of
Credit.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means any extension of credit by a Lender to the Borrower under Article II in
the form of a Revolving Loan, a Swing Line Loan and/or a Term Loan, as the context may require.
The term “Loan” also shall mean, as appropriate, (i) any portion of the Revolving Loans
bearing interest at the same rate of interest and having an Interest Period which begins and ends
on the same date and (ii) any portion of the Term Loan bearing interest at the same rate of
interest and having an Interest Period which begins and ends on the same date.



     “Loan Documents” means this Agreement, each Note, each Letter of Credit, each Issuer
Document, each Joinder Agreement, the Collateral Documents and the Fee Letter.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.



     “Maturity Date” means as to the Revolving Loans, Letters of Credit (and the related
L/C Obligations) and the Term Loan, July 25, 2012.



     “Minimum Debt Service” means, for any date of calculation over any specified period,
the sum of the monthly principal and interest payments that would be required to be made during
such period in order to amortize the aggregate of the Total Facility Outstandings as determined as
of 12:00 p.m. Charlotte, North Carolina time on such date over a 25-year period at an interest rate
equal to the greater of (a) the then-current yield for a seven year U.S. Treasury Notes plus 250
basis points and (b) 7.50%.



18









 





     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Mortgage Commitments” shall have the meaning assigned such term in Section
5.01(d).



     “Mortgage Instruments” shall have the meaning assigned such term in Section
5.01(d).



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by
any Consolidated Party in respect of any Disposition, Equity Issuance, Debt Issuance or Involuntary
Disposition, net of (a) direct costs incurred in connection therewith (including, without
limitation, legal, accounting and investment banking fees, and sales commissions), (b) taxes paid
or payable as a result thereof and (c) in the case of any Disposition, the amount necessary to
retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the
Administrative Agent) on the related Property; it being understood that “Net Cash Proceeds” shall
include, without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by any such Consolidated Party in any
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition.



     “Newly Operational Assets” means, for any 12 month period, real property assets of the
Consolidated Parties with respect to which either (a) construction of the primary improvements
related thereto has been substantially completed and such assets have been opened for business for
the first time during such period or (b) construction of substantial renovations or expansions
thereto have been completed and, to the extent closed for such renovations, such assets have
re-opened for business during such period.



     “NOI” means, for any period, an amount equal to (a) Gross Revenues for such period for
all Borrowing Base Properties existing as of the end of such period, minus, (b) Operating
Expenses for such period for all such Borrowing Base Properties, where Gross Revenues and Operating
Expenses are determined on an accrual basis, except for ground rents payable under the Gaylord
Palms Ground Lease which, for the purposes of this definition will be determined on a cash basis.
Notwithstanding the foregoing, for the first twelve months after Gaylord National is Substantially
Completed, NOI for Gaylord National for any twelve month period shall be determined on an
annualized basis such that NOI for the first quarter after Substantial Completion will be
multiplied by four, NOI for the first two quarters after Substantial Completion will be multiplied
by two and NOI for the first three quarters after Substantial Completion will be multiplied by one
and one third.



     “Note” or “Notes” means the Revolving Notes and/or the Term Notes,
individually or collectively, as appropriate.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including (i) interest
and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof
of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding and (ii) any
Swap Contract of any Loan Party to which a Lender or any Affiliate of such Lender is a party and
(iii) all obligations under any Treasury Management Agreement between any Loan Party and any Lender
or Affiliate of a Lender.



     “Operating Expenses” means, with respect to any Borrowing Base Property for any
period, the actual costs and expenses of owning, operating, managing, repairing and maintaining
such Borrowing Base Property during such period (other than extraordinary costs and expenses,
pre-opening costs, applicable Designated Non-Recurring Items, in each case to the extent related to
such Borrowing Base Properties), including ground rents payable for such period and actual real
estate taxes, as determined in accordance with GAAP.



19









 





     “Operating Lease” means, as applied to any Person, any lease (including, without
limitation, leases which may be terminated by the lessee at any time) of any Property (whether
real, personal or mixed) which is not a Capital Lease other than any such lease in which that
Person is the lessor.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Original Closing Date” means March 23, 2007.



     “Other Covered Events” means all events and circumstances (other than those referenced
in the definition of the term “Designated Force Majeure Events”) which cause any shutdown or
cessation of construction or operations at any Borrowing Base Property and (a) which either (i) is
related to a condemnation event with respect to which any related condemnation award is or will be
delivered to the Administrative Agent for application pursuant to the terms of Section
7.07(c) hereof and which are reasonably expected to be (in the reasonable judgment of the
Administrative Agent), together with any amounts on deposit with the Administrative Agent in any
related escrow account, sufficient to rebuild or restore the applicable Property or (ii) gives rise
to a fully insured claim (subject to applicable deductibles) in favor of the Borrower or any Loan
Party pursuant to the terms of valid insurance policies and the proceeds of which are reasonably
expected to be, together with any amounts on deposit with the Administrative Agent for the account
of the Borrower or the applicable Loan Party, sufficient to rebuild or restore the applicable
Property; (b) to the extent such circumstance or event is a casualty event, the Borrower provides
evidence of the applicable insurance coverage promptly following such event, delivers all
information required by the applicable insurer for processing of the applicable claim within thirty
(30) days of the occurrence of such event (or, to the extent delivery within such time frame is not
reasonably possible, as soon as reasonably practicable following such event) and proceeds to use
commercially reasonable good faith efforts to pursue and resolve such claim with the applicable
insurer as expeditiously as is reasonably possible without compromising any material rights of the
Borrower or any other Loan Party with respect to such claim; and (c) the Borrower has provided the
Administrative Agent with restoration plans and other information with respect to the applicable
damage to the extent required herein and, in any case, is proceeding with the restoration, repair
or reconstruction work with all due diligence and in good faith.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (i) with respect to Revolving Loans, Swing Line Loans and
Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Revolving Loans, Swing Line Loans or Term Loans as
the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.



     “Participant” has the meaning specified in Section 11.07(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an



20









 




obligation to contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five
plan years.




     “Permitted Investments” means, at any time, Investments by the Consolidated Parties
permitted to exist at such time pursuant to the terms of Section 8.02.



     “Permitted Liens” means, at any time, Liens in respect of Property of the Consolidated
Parties permitted to exist at such time pursuant to the terms of Section 8.01; provided,
that with respect to Liens related to Borrowing Base Properties, the term “Permitted Liens” means
Liens permitted to exist at such time pursuant to the terms of Sections 8.01(c),
(d), (g) or (j) which Liens, in the reasonable judgment of the
Administrative Agent do not adversely affect in any material respect the value of the applicable
Borrowing Base Property and such other Liens that have been approved in writing by the
Administrative Agent in its sole discretion.



     “Permitted PILOT Transaction” means any PILOT Transaction consummated pursuant to
documentation in form and substance reasonably satisfactory to the Administrative Agent.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “PILOT Transaction” means a transaction or series of related transactions in which (a)
the Guarantor that owns the Borrowing Base Property known as Gaylord Opryland (as described on
Schedule 1.01(b)) transfers the legal title of such Borrowing Base Property (subject to the
Mortgage Instrument then in existence with respect to such Borrowing Base Property) to The
Industrial Development Board of the Metropolitan Government of Nashville and Davidson County (the
“IDB”) and simultaneously leases such Borrowing Base Property back pursuant to a lease
which (i) obligates the Borrower and/or such Guarantor to make payments in lieu of ad valorem taxes
(“PILOT Payments”) equal to what such taxes would be if such Guarantor had retained legal
title to such Borrowing Base Property, (ii) obligates the Borrower and/or such Guarantor to make
nominal rent payments and (iii) grants to the Borrower and/or such Guarantor the option to
reacquire title of such Borrowing Base Property for a nominal sum at such time as the Bonds (as
herein defined) have been paid, and (b) the IDB issues bonds (the “Bonds”) which are
payable from all or a portion of such PILOT Payments and/or other payments to be made by the
Borrower and/or such Guarantor.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Pledge Agreement” means the second amended and restated pledge agreement in the form
of Exhibit C dated as of the Closing Date executed in favor of the Administrative Agent by
the Borrower and/or certain Subsidiaries of the Borrower (as required to meet the requirements set
forth herein and therein), as amended, modified, restated or supplemented from time to time.



     “Pledged Interests” means, as of any date of determination, a collective reference to
100.0% of the Capital Stock of each Person owning a Borrowing Base Property as of such date.



     “Pro Forma Basis” means, for purposes of calculating (utilizing the principles set
forth in Section 1.03(c)) the Borrowing Base or compliance with each of the financial
covenants set forth in Sections 8.02(f) and 8.11 in respect of a proposed
transaction, that such transaction shall be deemed to have occurred as of the first day of the four
calendar quarter period ending as of the most recent calendar quarter end preceding the date of
such transaction with respect to which the Administrative Agent has received the Required Financial
Information. As used herein, “transaction” shall mean (a) any incurrence or assumption of
Indebtedness as referred to in Section 8.03(i), (b) any Disposition referred to in
Section 8.05; (c) any Acquisition as referred to in Section 8.02; (d) any removal
of a Real Property as a Borrowing Base Property pursuant to Section 7.13; or (e) any
unwinding of the SAILS Forward Exchange Contracts prior to the Closing Date. In connection with
any calculation of the financial covenants set forth in Sections 8.02(f) and 8.11
upon giving effect to a transaction on a Pro Forma Basis:



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	 	(i)	 	for purposes of any such calculation in respect of any incurrence or assumption
of Indebtedness as referred to in Section 8.03(i), any Indebtedness which is
retired in connection with such incurrence or assumption shall be excluded and deemed
to have been retired as of the first day of the applicable period;
	 
	 	(ii)	 	for purposes of any such calculation in respect of any Disposition as referred
to in Section 8.05 or 7.13, all income statement items (whether
positive or negative) attributable to the applicable Borrowing Base Property disposed
of shall be excluded;
	 
	 	(iii)	 	for purposes of any such calculation in respect of any Acquisition as referred
to in Section 8.02 or any such calculation in respect of the unwinding of the
SAILS Forward Exchange Contracts prior to the Closing Date, (A) any Indebtedness
incurred or assumed by any Consolidated Party (including the Person or Property
acquired) in connection with such transaction and any Indebtedness of the Person or
Property acquired which is not retired in connection with such transaction (1) shall be
deemed to have been incurred as of the first day of the applicable period and (2) if
such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such Indebtedness as
at the relevant date of determination, (B) income statement items (whether positive or
negative) attributable to the Person or Property acquired shall be included beginning
as of the first day of the applicable period, (C) pro forma adjustments may be included
to the extent that such adjustments would give effect to events that are (1) directly
attributable to such transaction, (2) expected to have a continuing impact on the
Consolidated Parties and (3) factually supportable (in the reasonable judgment of the
Administrative Agent) and, if applicable, (D) any Indebtedness which is retired in
connection with such transaction shall be excluded and deemed to have been retired as
of the first day of the applicable period.





     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower delivered to the Administrative Agent in connection with (a) any incurrence, assumption or
retirement of Indebtedness as referred to in Section 8.03(i), (b) any Disposition as
referred to in Section 8.05, (c) any Acquisition as referred to in Section 8.02,
(d) any removal of a Real Property as a Borrowing Base Property pursuant to Section 7.13;
or (e) any unwinding of the SAILS Forward Exchange Contracts prior to the Closing Date, as
applicable, and containing reasonably detailed calculations, upon giving effect to the applicable
transaction on a Pro Forma Basis, of the Borrowing Base Leverage Ratio, the Consolidated Funded
Indebtedness to Total Asset Value Ratio, Implied Debt Service Coverage Ratio and Consolidated
Tangible Net Worth as of the most recent calendar quarter end preceding the date of the applicable
transaction with respect to which the Administrative Agent shall have received the Required
Financial Information.



     “Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.



     “Real Properties” means, at any time, a collective reference to each of the facilities
and real properties (including the Borrowing Base Properties) owned or leased by the Consolidated
Parties at such time.



     “Register” has the meaning specified in Section 11.07(c).



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Committed Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing
Line Loan Notice.



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     “Required Financial Information” means, with respect to each calendar period or
quarter of the Borrower, (a) the financial statements required to be delivered pursuant to
Section 7.01(a) or (b) for such calendar period or quarter, and (b) the certificate
of a Responsible Officer of the Borrower required by Section 7.02(b) to be delivered with
the financial statements described in clause (a) above.



     “Required Lenders” means, at any time, (a) the Required Revolver Lenders and (b) the
Required Term Loan Lenders.



     “Required Revolver Lenders” means, at any time, Lenders holding in the aggregate more
than 50% of (a) the Aggregate Revolving Commitments (and participations therein) or (b) if the
Aggregate Revolving Commitments have been terminated, the Total Revolving Outstandings (and
participations therein). The unfunded Revolving Commitments of, and the share of Total Revolving
Outstandings allocable to, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Revolver Lenders.



     “Required Term Loan Lenders” means, at any time, Lenders holding in the aggregate more
than 50% of (a) the Aggregate TL Commitments and Total Term Loan Outstandings (and participations
therein) or (b) if the Aggregate TL Commitments have been terminated, the Total Term Loan
Outstandings (and participations therein). The unfunded Term Loan Commitments of, and the Term
Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Term Loan Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, vice president of treasury or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



     “Restricted Payment” means (a) any dividend or other payment or distribution, direct
or indirect, on account of any shares of any class of Capital Stock of any Consolidated Party, now
or hereafter outstanding (including without limitation any payment in connection with any
dissolution, merger, consolidation or disposition involving any Consolidated Party), or to the
holders, in their capacity as such, of any shares of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding, (b) any purchase, redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any
class of Capital Stock of any Consolidated Party, now or hereafter outstanding, or (c) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding.



     “Revolver Unused Fee” has the meaning specified in Section 2.09(a).



     “Revolving Commitment” means, as to each Lender, its obligation to (a) make Committed
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.



     “Revolving Facility Unused Percentage” means, as of any date of determination, the
percentage amount equal to (a) the Aggregate Revolving Commitments as of such date minus
the Total Revolving Outstandings (exclusive of the amount of any Swing Line Loans outstanding) as
of such date, divided by (b) the Aggregate Revolving Commitments as of such date.



     “Revolving Loan” has the meaning specified in Section 2.01(a).



     “Revolving Note” has the meaning specified in Section 2.11(a).



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.




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     “SAILS Forward Exchange Contracts” means, collectively, the SAILS Mandatorily
Exchangeable Securities Contract dated May 22, 2000, among Borrower, OLH, G.P. Credit Suisse First
Boston International and Credit Suisse First Boston Corporation, as agent, together with the SAILS
Pledge Agreement dated as of May 22, 2000, among the Borrower, Credit Suisse First Boston
International and Credit Suisse First Boston Corporation, as amended by the letter dated October 6,
2000 by Credit Suisse First Boston International and Credit Suisse First Boston Corporation to OLH,
G.P. and Merrill Lynch Mortgage Capital, Inc.



     “Sale and Leaseback Transaction” means any arrangement pursuant to which any
Consolidated Party, directly or indirectly, becomes liable as lessee, guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any Property (a) which
such Consolidated Party has sold or transferred (or is to sell or transfer) to a Person which is
not a Consolidated Party or (b) which such Consolidated Party intends to use for substantially the
same purpose as any other Property which has been sold or transferred (or is to be sold or
transferred) by such Consolidated Party to another Person which is not a Consolidated Party in
connection with such lease.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Secured Parties” mean a collective reference to the Administrative Agent, the L/C
Issuer, the Lenders, each Lender or Affiliate of a Lender that is a party to a Swap Contract and
each other Person to whom any Loan Party owes any of the Obligations which are secured by the Loan
Documents.



     “Security Agreement” means that certain Second Amended and Restated Security Agreement
dated as of the date hereof among the Loan Parties owning Borrowing Base Properties and the
Administrative Agent (for the benefit of itself and the Lenders) and in form and substance similar
to the document attached as Exhibit B hereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time.



     “Senior Note Indentures” means a collective reference to (a) that certain Indenture
dated as of November 12, 2003 with respect to the 8% Senior Notes due 2013 issued by the Borrower,
pursuant to which U.S. Bank National Association is the trustee and (b) that certain Indenture
dated as of November 30, 2004 with respect to the 6.75% Senior Notes due 2014 issued by the
Borrower, pursuant to which U.S. Bank National Association is the trustee; and “Senior Note
Indenture” means either of them.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c)
such Person is not engaged in a business or a transaction, and is not about to engage in a business
or a transaction, for which such Person’s Property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in which such Person is
engaged or is to engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such Person
and (e) the present fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts as they become
absolute and matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of Capital Stock
having ordinary voting power for the election of directors or other governing body (other than
Capital Stock having such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Borrower.



     “Substantial Casualty” has the meaning assigned to such term in Section
7.07(b).



24









 





     “Substantial Completion” and “Substantially Completed” means, with respect to
Gaylord National, that such property has been substantially completed or is substantially complete,
is open for business to the general public and is accepting paying guests on a regular daily and
nightly basis.



     “Substantial Condemnation” has the meaning assigned to such term in Section
7.07(c).



     “Supermajority Lenders” means, at any time, Lenders holding in the aggregate more than
662/3% of (a) (i) the Aggregate Revolving Commitments (and participations therein) or
(ii) if the Aggregate Revolving Commitments have been terminated, the Total Revolving Outstandings
(and participations therein); plus (b)(i) the Aggregate TL Commitments and Total Term Loan
Outstandings (and participations therein) or (ii) if the Aggregate TL Commitments have been
terminated, the Total Term Loan Outstandings (and participations therein); provided, that the
unfunded Revolving Commitments of, the share of Total Revolving Outstandings allocable to, the
unfunded Term Loan Commitments of, and the Term Loans held or deemed held by any Defaulting Lender
shall be excluded for purposes of making a determination of Supermajority Lenders



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $30,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Syndication Agent” means Deutsche Bank Securities Inc., in its capacity as the
syndication agent hereunder.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



25









 





     “Tangible Net Worth” means, for any Person as of any date of determination, the
consolidated shareholders’ equity of such Person determined in accordance with GAAP, less
(without duplication), the sum of the following: (a) all intangibles determined in accordance with
GAAP (including, without limitation, goodwill and deferred or capitalized acquisition costs), (b)
unamortized debt discount and expense, (c) any non-cash gain (or plus any non-cash loss, as
applicable) resulting from any mark-to-market adjustments made directly to consolidated
shareholders’ equity as a result of fluctuations in the value of financial instruments owned by
Borrower or any of its Subsidiaries as mandated under FAS 133.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Term Loans” has the meaning specified in Section 2.01(b).



     “Term Loan Commitment” means, as to each Lender, its obligation to make its Term Loans
to the Borrower pursuant to Section 2.01(b), in a principal amount not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01; provided, that the Term Loan
Commitments of the Lenders shall be reduced by each such Lender’s Applicable Percentage of the
amount of each Term Loan Borrowing concurrently with each such Borrowing.



     “Term Note” has the meaning specified in Section 2.11(a).



     “Threshold Amount” means $10,000,000.



     “Title Insurance Company” means Fidelity National Title Insurance Company.



     “TL Unused Fee” has the meaning specified in Section 2.09(b).



     “Total Facility Outstandings” means, as of any date of determination, the Total
Revolving Outstandings as of such date plus the Total Term Loan Outstandings as of such date.



     “Total Revolving Outstandings” means, as of any date of determination, the aggregate
Outstanding Amount of all Revolving Loans, all L/C Obligations and all Swing Line Loans as of such
date.



     “Total Term Loan Outstandings” means, as of any date of determination, the aggregate
Outstanding Amount of all Term Loans as of such date.



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.



     “Type” means, with respect to any Revolving Loan or Term Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “Unused Fee” means either or both of the Revolver Unused Fee or the TL Unused Fee, as
applicable.



26









 





     “Unused Rate” means, with respect to the Aggregate Revolving Commitments or the
Aggregate TL Commitments as of any date, a percentage per annum equal to 0.25%.



     “Viacom Stock” means the 10,937,900 shares of Class B common stock, par value $0.01
per share, of Viacom, Inc. owned by the Borrower, and any other securities into which such shares
may be converted or reclassified or that may be issued in respect of, in exchange for, or in
substitution of, such shares of Class B common stock by reason of any stock splits, stock
dividends, distributions, mergers, consolidations or other similar events.



     “Wholly Owned Subsidiary” means any Person 100% of whose Capital Stock is at the time
owned by the Borrower directly or indirectly through other Persons 100% of whose Capital Stock is
at the time owned, directly or indirectly, by the Borrower.


1.02 Other Interpretive Provisions.




     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, and (v) any reference to
any law shall include all statutory and regulatory provisions consolidating, amending
replacing or interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.


1.03 Accounting Terms.




     (a) Generally. Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations of
Attributable Indebtedness under any Synthetic Lease Obligations or the implied interest component
of any Synthetic Lease Obligations shall be made by the Borrower in accordance with accepted
financial practice and consistent with the terms of such Synthetic Lease Obligations.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such



27









 




ratio or requirement to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.




     (c) Effect of Transactions on Calculations. Notwithstanding the above, the parties
hereto acknowledge and agree that, for purposes of all calculations made under the financial
covenants set forth in Sections 8.02(f) and 8.11 (including without limitation for
purposes of the definitions of “Applicable Margin” and “Pro Forma Basis” set forth in Section
1.01), (i) after consummation of any Disposition (A) income statement items (whether positive
or negative) and capital expenditures attributable to the Property disposed of shall be excluded
and (B) Indebtedness which is retired shall be excluded and deemed to have been retired as of the
first day of the applicable period, (ii) after consummation of any Acquisition (A) income statement
items (whether positive or negative) and capital expenditures attributable to the Person or
Property acquired shall, to the extent not otherwise included in such income statement items for
the Consolidated Parties in accordance with GAAP or in accordance with any defined terms set forth
in Section 1.01, be included to the extent relating to any period applicable in such
calculations, (B) to the extent not retired in connection with such Acquisition, Indebtedness of
the Person or Property acquired shall be deemed to have been incurred as of the first day of the
applicable period and (C) pro forma adjustments may be included to the extent that such adjustments
would give effect to items that are (1) directly attributable to such transaction, (2) expected to
have a continuing impact on the Consolidated Parties and (3) factually supportable (in the
reasonable judgment of the Administrative Agent) and (iii) commencing as of the first quarter
during which operations at Gaylord National or any other hotel built or owned by the Consolidated
Parties during the term hereof have continued for thirty (30) days or more, all calculations of
income, net income, revenues, costs, expenses, operating income, net operating income or other
items related to the financial covenant calculations set forth herein shall, for each of the first
four calendar quarters in which Gaylord National or such hotel is in operation, be annualized based
on the information and calculations for the period elapsed since the opening of such property.


1.04 Rounding.




     Any financial ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).


1.05 Times of Day.




     Unless otherwise specified, all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).


1.06 Letter of Credit Amounts.




     Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS



2.01 Revolving Loans and the Term Loan.




     (a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Loan”) in Dollars to
the Borrower from time to time, on any Business Day during the applicable Availability Period, in
an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving
Commitment; provided, however, that after giving effect to any Borrowing of
Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, (ii) the Total Facility Outstandings shall not exceed the Borrowing Base, and (iii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.01(a), prepay under Section 2.05(a), and reborrow under this Section 2.01(a).
Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



     (b) Term Loan. Subject to the terms and conditions set forth herein (including each
proviso hereto), each Lender severally agrees to make term loans (the “Term Loans”) in
Dollars to the Borrower on the Closing Date in an aggregate amount (as determined cumulatively over
the term of this Agreement and disregarding any principal payments made on the Term Loans) not to
exceed such Lender’s Term Loan Commitment; provided, however, that after giving
effect to any Borrowing of Term Loans, (i) the Total Term Loan Outstandings plus the
aggregate amount of Aggregate TL Principal Payments as of such date shall not exceed the amount
equal to Aggregate TL Commitments plus the Aggregate TL Borrowings as of such date; and
(ii) the Total Facility Outstandings shall not exceed the Borrowing Base; provided,
further, in the event that the Aggregate TL Commitments are increased pursuant to
Section 2.06(b), the Lenders approving such increase in the Aggregate TL Commitments shall
make Term Loans pursuant to such increased Aggregate TL Commitments on the effective date of any
such increase. Amounts repaid on the Term Loans may not be reborrowed. The Term Loans may consist
of Base Rate Loans or Eurodollar Rate Loans, as further provided herein.


2.02 Borrowings, Conversions and Continuations of Committed Loans.




     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the irrevocable notice from the
Borrower to the Administrative Agent, which may be given by telephone (provided that such
telephonic notice complies with the information requirements of the form of Committed Loan Notice
attached hereto). Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to
or continuation of Eurodollar Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans; provided, however, all Committed Borrowings made on the Closing Date
shall be made as Base Rate Loans; and provided further, that if the Borrower wishes
to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months
in duration as provided in the definition of “Interest Period”, the applicable notice must be
received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the
requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent
shall give prompt notice to the Lenders of such request and determine whether the requested
Interest Period is acceptable to all of them. Not later than 11:00 a.m., three Business Days
before the requested date of such Borrowing, conversion or continuation, the Administrative Agent
shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest
Period has been consented to by all the Lenders. Each telephonic notice by the Borrower pursuant
to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent
of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of
the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the



29









 




Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month.
Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a
Eurodollar Rate Loan.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date a Committed Loan Notice with respect to a Borrowing
consisting of Revolving Loans is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing first shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided above.



     (c) Subject to Section 3.05, a Eurodollar Rate Loan may be continued or converted only
on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans having
Interest Periods greater than one month without the consent of the Required Lenders. During the
existence of an Event of Default, no Loans may be converted to or continued as Eurodollar Rate
Loans without the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than (i) ten (10) Interest Periods in effect with respect to Revolving Loans, and (ii) ten
(10) Interest Periods in effect with respect to the Term Loan.


2.03 Letters of Credit.




     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of
the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters
of Credit; and (B) the Lenders holding Revolving Commitments and Revolving Loans severally
agree to participate in Letters of Credit issued for the account of the Borrower or its



30









 






Subsidiaries and any drawings thereunder (based on their respective Applicable
Percentages of the Aggregate Revolving Commitments); provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total
Facility Outstandings shall not exceed the Borrowing Base, (x) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Revolving Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for
the issuance or amendment of a Letter of Credit shall be deemed to be a representation by
the Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




     (ii) The L/C Issuer shall not issue any Letter of Credit if, subject to Section
2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension, unless the Required Revolver
Lenders have approved such expiry date; or the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders
holding Revolving Commitments have approved such expiry date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems material
to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer; or




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $250,000.




     (D) such Letter of Credit is to be denominated in a currency other than
Dollars;




     (E) such Letter of Credit contains any provision for automatic reinstatement of
the stated amount after any drawing thereunder; or




     (F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.



31









 






     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




     (vi) The L/C Issuer shall act on behalf of the Lenders holding Revolving Commitments
with respect to any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article X with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article X included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with respect to
the L/C Issuer.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of such Letter of Credit and (H) such other matters as the L/C Issuer may
require. In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory to the L/C
Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof
(which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such
other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the
L/C Issuer and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer Documents, as
the L/C Issuer or the Administrative Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit , that one or more of the applicable conditions contained in
Article V shall not then be satisfied, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter
into the applicable amendment, as the case may be, in each case in accordance with the L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an
amount equal to the product of such Lender’s Applicable Percentage times the amount
of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be



32









 






agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation at such time to issue such Letter of Credit in its
revised form under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any Lender or any
Loan Party that one or more of the applicable conditions specified in Section 5.02
is not then satisfied, and in each case directing the L/C Issuer not to permit such
extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender holding a Revolving Commitment of
the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Lender’s Applicable Percentage thereof (which shall be based on such
Lender’s Applicable Percentage of the Revolving Commitments). In such event, the Borrower
shall be deemed to have requested a Borrowing of Base Rate Revolving Loans to be disbursed
on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 5.02 (other than the delivery of
a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.




     (ii) Each Lender holding a Revolving Commitment shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent for the account
of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable
Percentage (with respect to the Revolving Commitments) of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Revolving Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to the
L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Revolving Loans because the conditions set forth in Section
5.02 (other than delivery of a Committed Loan Notice) cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03.



33









 






     (iv) Until each applicable Lender funds its Revolving Loan or L/C Advance pursuant to
this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount
shall be solely for the account of the L/C Issuer.




     (v) Each applicable Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
(but not to reimburse the L/C Issuer for any L/C Advance in the event the Borrower fails to
do so) pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.02 (other than delivery by the Borrower of a Committed Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any applicable Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the Federal Funds Rate
from time to time in effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;



34









 






     (ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such 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; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender holding a Revolving Commitment and the Borrower
agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any such
document. None of the L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable to any Lender for (i)
any action taken or omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Letter of Credit
Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however, that
this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other agreement.
None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only
to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit for any reason remains outstanding and



35









 




partially or wholly undrawn, the Borrower shall immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined
as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may be).
Sections 2.05 and 9.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and
Section 9.02(c), “Cash Collateralize” means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders holding Revolving
Commitments, as collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of
the L/C Issuer and the applicable Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.




     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender holding a Revolving Commitment in accordance with its Applicable Percentage
(based on the respective Lenders’ Revolving Commitments/Loans) a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Margin
times the daily amount available to be drawn under such Letter of Credit. For the purposes
of computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) computed on a quarterly basis in arrears, and (ii) due and payable on the first
Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. If there is any change in the Applicable Margin during any quarter,
the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied
by the Applicable Margin separately for each period during such quarter that such Applicable Margin
was in effect. Notwithstanding anything to the contrary contained herein, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Processing Charges Payable to L/C Issuer. The Borrower shall, in
connection with the issuance or extension (whether or not pursuant to an automatic extension) of
each Letter of Credit, pay directly to the L/C Issuer for its own account a fronting fee for each
Letter of Credit equal to the greater of (i) $1,500.00 and (ii) 0.125% times the maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum amount is then in
effect with respect to such Letter of Credit). Such fronting fee shall be payable upon issuance or
extension of the applicable Letter of Credit. For the purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. In addition to the foregoing, the Borrower
shall pay directly to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Documents, the terms hereof shall control.



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.



36









 






2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders holding Revolving
Commitments as set forth in this Section 2.04, to make loans (each such loan, a “Swing
Line Loan”) to the Borrower from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable
Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as
Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and provided,
further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be
a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender holding a
Revolving Commitment shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Lender’s Applicable Percentage (with respect to such Lender’s Revolving
Commitment) times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $250,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender with a Revolving Commitment make a Base Rate
Revolving Loan in an amount equal to such Lender’s Applicable Percentage (with respect to
such Lender’s Revolving Commitment) of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Revolving Commitments and the conditions set forth in Section 5.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage (with respect to such Lender’s Revolving
Commitment) of the amount specified in such Committed Loan Notice available to the
Administrative Agent in immediately available funds for the account of the Swing Line Lender
at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that
so makes funds



37









 







available shall be deemed to have made a Base Rate Revolving Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Revolving
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing
or funded participation in the relevant Swing Line Loan, as the case may be. A certificate
of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent manifest
error.




     (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage (with
respect to such Lender’s Revolving Commitment) thereof in the same funds as those received
by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage (with respect to such Lender’s Revolving
Commitment) thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage (with respect to such Lender’s Revolving Commitment)
of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the
account of the Swing Line Lender.



38









 





     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.


2.05 Prepayments.




     (a) Voluntary Prepayments of Loans.




     (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time
to time (A) voluntarily prepay Base Rate Loans in whole or in part without premium or
penalty, and (B) subject to Section 3.05 hereof, voluntarily prepay Eurodollar Rate
Loans in whole or in part on the last day of the applicable Interest Period without premium
or penalty; provided that (1) such notice must be received by the Administrative
Agent not later than 11:00 a.m. (x) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (y) on the date of prepayment of Base Rate Loans; (2) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof
then outstanding); (3) any prepayment of Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding); and (4) any prepayment of the Term Loan shall be
applied ratably to the Term Loan. Each such notice shall specify the date and amount of
such prepayment and the Type(s) of Committed Loans to be prepaid. The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of the amount of
such Lender’s Applicable Percentage of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance with their
respective Applicable Percentages.




     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.



     (b) Mandatory Prepayments.




     (i) Aggregate Revolving Commitments. If for any reason the Total Revolving
Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the
Borrower shall immediately prepay Revolving Loans or Swing Line Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after
the prepayment in full of the Revolving Loans and Swing Line Loans the Total Revolving
Outstandings exceed the Letter of Credit Sublimit.




     (ii) Maximum Term Loan Amount Exceeded. If for any reason (A) the Total Term
Loan Outstandings plus the aggregate amount of Aggregate TL Principal Payments as of
any date of determination exceed (B) the Aggregate TL Commitments plus the Aggregate
TL Borrowings as of such date, the Borrower shall immediately prepay the Term Loans in an
aggregate amount equal to such excess.




     (iii) Total Facility Outstandings. If for any reason the Total Facility
Outstandings as of any date of determination exceed the Borrowing Base as of such date, the
Borrower shall immediately prepay the Term Loans, Revolving Loans or Swing Line Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash



39









 






Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iii) unless
after the prepayment in full of the Term Loans, Revolving Loans and Swing Line Loans the
remaining L/C Obligations exceed the Letter of Credit Sublimit.




     (iv) Borrowing Base Property Dispositions.




     (A) Upon the Disposition of any Borrowing Base Property, the Borrower shall,
immediately upon the receipt of the Net Cash Proceeds related thereto (and, in any
case, not later than the day following the date on which an applicable Disposition
occurs) prepay the Term Loans, Revolving Loans or Swing Line Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to the lesser of (1)
100.0% of such Net Cash Proceeds and (2) the amount of the prepayment required to
cause the Total Facility Outstandings as of the date of such prepayment to be equal
to or less than fifty percent (50.0%) of the then-applicable BBP Value.
Notwithstanding anything to the contrary contained herein, upon the first occurrence
of any such Disposition of a Borrowing Base Property, the percentage referenced in
clause (b) of the definition of the term “Borrowing Base” contained in Section
1.01 shall, immediately upon the consummation of such Disposition, be
irrevocably reduced from fifty-five percent (55.0%) to fifty percent (50.0%).
Further, all Dispositions of Borrowing Base Properties hereunder remain subject to
the terms and conditions set forth in Section 8.05 (including, without
limitation, the timely delivery by the Borrower of a Pro Forma Compliance
Certificate giving Pro Forma Effect to such Disposition). The Administrative Agent
shall, in connection with any assertion or claim by the Borrower that it is entitled
to prepay an amount that is less than 100% of the Net Cash Proceeds with respect to
any Disposition of a Borrowing Base Property, have the right to obtain, at the
expense of the Borrower, a new appraisal with respect to any one or more of the
remaining Borrowing Base Properties as of such date for recalculation of the
Appraised Values associated therewith (such appraisal to be in form and substance
acceptable to the Administrative Agent, in its discretion). The Borrower shall,
pending the completion of such re-appraisals, deposit 100.0% of the Net Cash
Proceeds related to such Disposition in an account controlled by the Administrative
Agent to be held in escrow pending the final determination of the new Appraised
Values for the remaining Borrowing Base Properties and shall execute any and all
other documents, instruments or agreements requested by Administrative Agent in
connection with such account or to establish Administrative Agent’s rights with
respect thereto. Upon the final determination of the new Appraised Values for the
remaining Borrowing Base Properties, the Administrative Agent shall release any
amount of such Net Cash Proceeds to which the Borrower may be entitled pursuant to
the proviso set forth above.




     (B) In addition to any prepayments required pursuant to item (A) above, to the
extent any Net Cash Proceeds from the Disposition of a Borrowing Base Property are
applied to pay down any Indebtedness of any Loan Party or any of their Subsidiaries,
such Net Cash Proceeds shall be applied to discharge or otherwise prepay the
Obligations prior to any payment being made against any Indebtedness evidenced by or
related to any Senior Note Indenture.




     (v) Casualty and Condemnation Events Related to Borrowing Base Properties. The
Borrower shall deliver to the Administrative Agent the Net Cash Proceeds related to any
Involuntary Disposition with respect to any Borrowing Base Property immediately upon the
receipt of such Net Cash Proceeds. Such Net Cash Proceeds will be held in escrow by the
Administrative Agent subject to the terms of Section 7.07 hereof. If the Borrower
and Loan Parties elect, pursuant to Section 7.07 hereof, not to fully rebuild,
reconstruct and otherwise restore the applicable Borrowing Base Property with such Net Cash
Proceeds, such Net Cash Proceeds will, following the sixty (60) day decision period provided
the Borrower in such Section 7.07 or upon the written direction of the Borrower, be
applied to the Obligations in the manner described in subsection (vi) below except to the
extent that (A) such prepayment would be in an amount that would necessarily result in a
paydown of the principal balance of the Term Loans (assuming the Borrower’s election to
cause such proceeds to be first applied to the Revolving Loans and the Cash
Collateralization of the L/C Obligations); (B) the Borrower delivers to the Administrative
Agent, prior to the end of such sixty (60) day period and prior to its delivery of any
written direction for application of the funds against the Obligations, a request for the
re-appraisal of such Borrowing Base Property (which such appraisal shall constitute an
appraisal obtained in connection with a casualty or condemnation event pursuant to
Section 7.12 hereof) and return of any Net Cash



40









 






Proceeds held by the Administrative Agent which would otherwise necessarily be used for
the prepayment of the Term Loans; (C) there exists, at the time of the Borrower’s written
request and upon receipt of such new appraisal, no Default or Event of Default hereunder;
(D) the Borrowing Base, once calculated taking into account such new appraisal, is
sufficient to cover the Total Facility Outstandings as of the date on which such new
appraisal is obtained. If Borrower provides a request pursuant to item (B) above, the Net
Cash Proceeds held in escrow by the Administrative Agent (1) shall, upon the receipt of the
Borrower’s request pursuant to item (B) above, be applied, to the extent possible, to the
outstanding Swing Line Loans and Revolving Loans and to the Cash Collateralization of the
L/C Obligations; and (2) if items (A) — (D) are fully satisfied, the excess proceeds
remaining after application to the Revolving Loans and to the Cash Collateralization of the
L/C Obligations shall be returned to the Borrower. To the extent the Borrower delivers a
request pursuant to item (B) above and the new appraisal obtained shows that the Borrowing
Base is not sufficient to cover the Total Facility Outstandings, the remaining amount held
by the Administrative Agent in escrow shall be immediately applied to the Obligations in
accordance with subclause (vi) below. The parties hereto each acknowledge and agree that
the funds held by the Administrative Agent in escrow shall, at all times prior to
application to the Obligations or return to the Borrower, be subject to a first priority
security interest in favor of the Administrative Agent for the benefit of the Secured
Parties.




     (vi) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.05(b) shall be applied as follows:




     (A) with respect to all amounts prepaid pursuant to Section 2.05(b)(i),
to Swing Line Loans and Revolving Loans and (after all Revolving Loans and Swing
Line Loans have been repaid) to Cash Collateralize L/C Obligations;




     (B) with respect to all amounts prepaid pursuant to Section
2.05(b)(ii), to Term Loans; and




     (C) with respect to all amounts prepaid pursuant to Sections
2.05(b)(iii), (iv) or (v), to Term Loans, Revolving Loans or
Swing Line Loans (at the option and written direction of the Borrower delivered
concurrently with such prepayment) and (after all Term Loans, Revolving Loans and
Swing Line Loans have been repaid) to Cash Collateralize L/C Obligations; provided,
that to the extent no direction is given by Borrower with respect to the application
of any such prepayments, such prepayments shall be applied first, to the Swing Line
Loans, second, to the Revolving Loans and, third, to the Term Loans.




Within the parameters of the applications set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.05(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.




     (vii) Prepayment Account. If the Borrower is required to make a mandatory
prepayment of Eurodollar Rate Loans under this Section 2.05(b), the Borrower shall
have the right, in lieu of making such prepayment in full, to deposit an amount equal to
such mandatory prepayment with the Administrative Agent in a cash collateral account
maintained (pursuant to documentation reasonably satisfactory to the Administrative Agent)
by and in the sole dominion and control of the Administrative Agent. Any amounts so
deposited shall be held by the Administrative Agent as collateral for the prepayment of such
Eurodollar Rate Loans and shall be applied to the prepayment of the applicable Eurodollar
Rate Loans at the end of the current Interest Periods applicable thereto. At the request of
the Borrower, amounts so deposited shall be invested by the Administrative Agent in Cash
Equivalents maturing prior to the date or dates on which it is anticipated that such amounts
will be applied to prepay such Eurodollar Rate Loans; any interest earned on such Cash
Equivalents will be for the account of the Borrower and the Borrower will deposit with the
Administrative Agent the amount of any loss on any such Cash Equivalents to the extent
necessary in order that the amount of the prepayment to be made with the deposited amounts
may not be reduced.




     (viii) Availability. Without limiting the provisions contained in Section
2.05(b)(iv) relating to the reduction of the percentages used in determining the
Borrowing Base, prepayments of the Revolving



41









 







Loans or Swing Line Loans made pursuant to this Section 2.05(b) shall not be
deemed to permanently reduce the Revolving Commitments.


2.06 Termination, Reduction or Increase of Commitments.




     (a) Voluntary and Mandatory Reductions.



     (i) The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Revolving Commitments or the remaining Aggregate TL Commitments, or from time to time permanently
reduce the Aggregate Revolving Commitments or Aggregate TL Commitments; provided that (i)
any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof,
(iii) the Borrower shall not terminate or reduce the Aggregate Revolving Commitments or Aggregate
TL Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, (A)
with respect to the termination or reduction of any of the Aggregate Revolving Commitments, the
Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, or (B) with respect
to any Commitment reduction or termination, the Total Facility Outstandings would exceed the
Borrowing Base, and (iv) if, after giving effect to any reduction of the Aggregate Revolving
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Revolving Commitments, such Sublimit shall be automatically reduced by the amount of such
excess.



     (ii) The Aggregate Revolving Commitments shall automatically be reduced to zero ($0) upon the
termination or expiration of the Availability Period.



     (b) Voluntary Increases. Following the Closing Date, the Aggregate Revolving
Commitments or the Aggregate TL Commitments may, at the option of the Borrower, be increased by an
aggregate amount of up to $400,000,000.00 (with the total amount of such increase (up to a total of
$400,000,000.00 across the Aggregate Revolving Commitments and Aggregate TL Commitments) and the
allocation of such increase between the Aggregate Revolving Commitments and Aggregate TL
Commitments to be at the option of the Borrower; provided, however, that
notwithstanding the foregoing, the amount of any requested increase under this clause (b) shall be
equal to or in excess of $10,000,000 or $500,000 increments in excess thereof) if:




     (i) to the extent it desires to increase one or both of the Aggregate Revolving
Commitments or the Aggregate TL Commitments, the Borrower, on or before the date occurring
one year prior to the Maturity Date, shall request such increase in writing to the
Administrative Agent and shall specify therein its desired allocation of such increase
between the Aggregate Revolving Commitments and Aggregate TL Commitments;




     (ii) BAS is able, within ninety (90) days of receiving an increase request pursuant to
subclause (i) above, to syndicate the amount of such increase (A) to one or more Lenders or
one or more financial institutions qualifying as an Eligible Assignee and otherwise
acceptable to the Borrower, Administrative Agent and BAS and (B) in a manner otherwise in
accordance with the terms and conditions set forth in the Fee Letter; provided, that the
Borrower shall pay all fees, costs and expenses due and owing pursuant to the terms of the
Fee Letter regardless of whether BAS is able to syndicate the amount of the requested
increase;




     (iii) such increase does not increase the amount of the Revolving Commitment or Term
Loan Commitment of any Lender without the written consent of such Lender;




     (iv) the Borrower executes a signature page to this Agreement and/or new Notes
reflecting the increase in the Aggregate Revolving Commitments and/or Aggregate TL
Commitments (in each case, to the extent requested by the Administrative Agent or any Lender
in connection with the documentation of such increase) and executes such other amendments to
the Loan Documents as are reasonably deemed necessary by the Administrative Agent;




     (v) no Default or Event of Default exists as of the date of such request or as of the
date on which such increase is to occur;



42









 






     (vi) the Borrower pays to BAS (or such other parties entitled thereto) all fees
required in connection with such increase in the Aggregate Revolving Commitments and/or
Aggregate TL Commitments (including those set forth in the Fee Letter and any other fees
agreed to between the Borrower and BAS) and all costs and expenses (including attorneys’
costs and fees) incurred by the Administrative Agent in documenting or implementing such
increase; and




     (vii) the Borrowing Base Leverage Ratio as of the date of any increase in the amount of
the Aggregate Revolving Commitments and/or the Aggregate TL Commitments under this
Section 2.06(b), after giving effect to any new Borrowings as of the date of such
increase in such Aggregate Revolving Commitments and/or Aggregate TL Commitments, is not
greater than 55.0%.



     Notwithstanding anything contained herein to the contrary, the Borrower may make a request for
increase (whether with respect to the Aggregate Revolving Commitments, the Aggregate TL Commitments
or both) pursuant to this Section 2.06(b) not more than three (3) occasions during the term
of this Agreement (with the total increase in the Aggregate Revolving Commitments and Aggregate TL
Commitments resulting from such requests subject, in all cases, to the $400,000,000 limitation and
the other terms and conditions set forth above).



     Upon the effectiveness of any increase in the Aggregate Revolving Commitments or the Aggregate
TL Commitments pursuant to this section, all of the terms and conditions of the Loan Documents
shall apply to the such increased amounts as if such amounts were in effect as of the date hereof.
Each Lender that may be a party hereto from time to time hereby acknowledges that the Aggregate
Revolving Commitments or the Aggregate TL Commitments may be increased pursuant to this Section
2.06(b) regardless of whether such Lender approves such increase or increases its Revolving
Commitment or Aggregate TL Commitments hereunder.



     (c) General. The Administrative Agent will promptly notify the Lenders of any such
notice of termination, reduction or increase of the Aggregate Revolving Commitments or Aggregate TL
Commitments (as applicable). Any reduction of the Aggregate Revolving Commitments shall be applied
to the Revolving Commitment of each Lender according to its Applicable Percentage and any reduction
of the Aggregate TL Commitments shall be applied to the Term Loan Commitment of each Lender
according to its Applicable Percentage. All Unused Fees accrued until the effective date of any
termination of the Aggregate Revolving Commitments or Aggregate TL Commitments shall be paid on the
effective date of such termination. To the extent the Aggregate Revolving Commitments or the
Aggregate TL Commitments are increased pursuant to clause (b) above, all Lenders (including both
previously-existing and new Lenders) shall receive new Notes reflecting their respective
Commitments and new Lenders shall, to the extent necessary to cause the outstanding principal
amount of the Obligations allocable to each Lender to equal each such Lender’s Applicable
Percentage, fund Term Loans or Revolving Loans (as applicable) directly to the other Lenders, as
directed by the Administrative Agent. The Loan Parties hereby agree to execute and deliver any new
Notes required pursuant to this Section 2.05 to evidence the Loans made by the Lenders and
acknowledge, consent and agree to the funding by any new Lenders of Term Loans or Revolving Loans
pursuant to the previous sentence for the purpose of causing the Outstanding Amount thereof to
equal each Lender’s Applicable Percentage.


2.07 Repayment of Loans.




     (a) Revolving Loans. The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Revolving Loans outstanding on such date.



     (b) Term Loans. The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of the Term Loans outstanding on such date.



     (c) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date fifteen (15) Business Days after such Swing Line Loan is made and (ii) the
Maturity Date.


2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate



43









 




for such Interest Period plus the Applicable Margin; (ii) each Base Rate Loan and each
Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin.





(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan ) payable by the Borrower under
any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then, unless otherwise agreed to
by the Required Lenders, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default (other than
an Event of Default predicated on the failure of the Borrower to pay amounts due under the
Loan Documents, as addressed in subclauses (i) and (ii) above) exists, the Borrower shall
pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.


2.09 Fees.




     In addition to certain fees described in subsections (i) and (j) of Section 2.03:



     (a) Revolver Unused Fees. The Borrower shall, for each day during the term of this
Agreement on which there exist any Revolving Commitments, pay to the Administrative Agent for the
account of each Lender holding a Revolving Commitment (in accordance with such Lender’s Applicable
Percentage thereof), an unused fee (the “Revolver Unused Fee”) equal to the Unused Rate
times the actual daily amount by which the Aggregate Revolving Commitments exceed the Total
Revolver Outstandings (less the amount of any outstanding Swing Line Loans) as of such date. The
Revolver Unused Fee shall accrue at all times during the term of this Agreement on which there
exist any Revolving Commitments, including at any time during which one or more of the conditions
in Article V is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing on September 30, 2008 (with
such initial payment to include such fees commencing from the Closing Date), and on the Maturity
Date. The Revolver Unused Fee shall be calculated quarterly in arrears, based on the applicable
daily Unused Rates during each day of such quarter.



     (b) Term Loan Unused Fees. The Borrower shall, for each day during the term of this
Agreement on which there exist any Aggregate TL Commitments, pay to the Administrative Agent for
the account of each Lender holding a Term Loan Commitment (in accordance with such Lender’s
Applicable Percentage thereof), an unused fee (the “TL Unused Fee”) equal to the Unused
Rate times the actual daily amount of the Aggregate TL Commitments as of such date. The TL
Unused Fee shall accrue at all times during the term of this Agreement on which there exist any
Term Loan Commitments, including at any time during which one or more of the conditions in
Article V is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing on September 30, 2008 (with
such initial payment to include such fees commencing from the Closing Date), and on the Maturity
Date. The TL Unused Fee shall be calculated quarterly in arrears, based on the daily Unused Rate
during each day of such quarter.



44









 





     (c) Other Fees. The Borrower shall pay to BAS and the Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in the Fee Letter (without
duplication of fees otherwise referenced herein). Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


2.10 Computation of Interest and Fees; Retroactive Adjustment of Applicable Margin.




     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that any Loan that
is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.



     (b) [Intentionally omitted].


2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
promissory note which shall evidence such Lender’s Loans in addition to such accounts or records.
Each such promissory note shall (i) in the case of Revolving Loans, be in the form of Exhibit
D-1 (a “Revolving Note”), and (ii) in the case of the Term Loan, be in the form of
Exhibit D-2 (a “Term Note”). Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.


2.12 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall
come due on a day other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or fees, as the case may
be.



45









 





     (b) Fundings and Payments; Presumptions by Administrative Agent.




     (i) Funding by Lenders. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Committed Borrowing that such Lender
will not make available to the Administrative Agent such Lender’s share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Committed Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable
Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender’s Loan included in such Committed Borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrower. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the Lenders or the
L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article V are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans and to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, purchase its participation or make its payment pursuant to
Section 11.04(c).



46









 





     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.


2.13 Sharing of Payments by Lenders.




     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Committed Loans or participations
and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Committed Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).


Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of
such participation.




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY



3.01 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) 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) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable



47









 




under this Section) paid by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the L/C Issuer, shall be conclusive absent manifest error.




     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, 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 of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender



48









 




or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority. This subsection shall not
be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.



3.02 Illegality.




     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.


3.03 Inability to Determine Rates.




     If the Required Lenders determine that for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.



     3.04 Increased Costs.



     (a) Increased Costs Generally. If any Change in Law shall:



     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement contemplated by
Section 3.04(e)) or the L/C Issuer;



     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in
respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and
the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer); or



     (iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein;



49









 




and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower shall have
received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.




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3.05 Compensation for Losses.




     Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss,
cost or expense incurred by it as a result of:




     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);




     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower; or




     (c) any assignment or other termination of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 11.13 or in connection with Section 2.06(b);



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.




For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded.




3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 11.13.



3.07 Survival.




     All of the Borrower’s obligations under this Article III shall survive termination of
the Aggregate Revolving Commitments and repayment of all other Obligations hereunder.



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ARTICLE IV

GUARANTY




4.01 The Guaranty.




     Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Swap Contract, and the Administrative Agent as hereinafter provided,
as primary obligor and not as surety, the prompt payment of the Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of
any of the Obligations, the same will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.



     Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents or Swap Contracts, the obligations of each Guarantor under this Agreement and the other
Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not
render such obligations subject to avoidance under the Debtor Relief Laws, any comparable
provisions of any applicable state Law or any applicable corporate or other organizational Laws
relating to the ability of an entity to approve and authorize Guarantees or Indebtedness (or the
effectiveness of any such approval or authorization) in excess of an amount that would render such
entity insolvent or such other amount as may be established by such Law.



4.02 Obligations Unconditional.




     The obligations of the Guarantors under Section 4.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents or Swap Contracts, or any other agreement or instrument referred to
therein, or any substitution, release, impairment or exchange of any other guarantee of or security
for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of
any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor, it being the intent of this Section 4.02 that the
obligations of the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts
paid under this Article IV until such time as the Obligations have been Fully Satisfied.
Without limiting the generality of the foregoing, it is agreed that, to the fullest extent
permitted by law, the occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and unconditional as described
above:




     (a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




     (b) any of the acts mentioned in any of the provisions of any of the Loan Documents,
any Swap Contract between any Consolidated Party and any Lender, or any Affiliate of a
Lender, or any other agreement or instrument referred to in the Loan Documents or such Swap
Contracts shall be done or omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents, any Swap Contract between any Consolidated Party and any Lender,
or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan
Documents or such Swap Contracts shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or exchanged in whole or in
part or otherwise dealt with;




     (d) any Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be perfected; or



52









 






     (e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract between any Consolidated Party and any Lender,
or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan
Documents or such Swap Contracts, or against any other Person under any other guarantee of, or
security for, any of the Obligations.



4.03 Reinstatement.




     The obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise,
and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including, without limitation, fees and expenses of counsel)
incurred by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.



4.04 Certain Additional Waivers.




     Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.



4.05 Remedies.




     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be
deemed to have become automatically due and payable in the circumstances provided in said
Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and
agree that their obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms
thereof.



4.06 Rights of Contribution.




     The Guarantors hereby agree as among themselves that, in connection with payments made
hereunder, each Guarantor shall have a right of contribution from each other Guarantor in
accordance with applicable Law. Such contribution rights shall be subordinate and subject in right
of payment to the Obligations until such time as the Obligations have been Fully Satisfied, and
none of the Guarantors shall exercise any such contribution rights until the Obligations have been
Fully Satisfied.



4.07 Guarantee of Payment; Continuing Guarantee.




     The guarantee in this Article IV is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Obligations whenever arising.



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ARTICLE V

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Closing Date and Initial Credit Extension.




     The occurrence of the Closing Date, the effectiveness of this Agreement and the obligation of
the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:




     (a) Loan Documents, Organization Documents, Etc. The Administrative Agent’s
receipt of the following, each of which shall be originals or telecopies (followed promptly
by originals) unless otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) or such other date as
specified herein and each in form and substance satisfactory to the Administrative Agent and
each of the Lenders:




     (i) executed counterparts of this Agreement and the other Loan Documents
(provided, that with respect to the Mortgage Instruments, the originals thereof and
the amendments executed in connection with this Agreement shall have been delivered
to title agents or other parties acceptable to the Administrative Agent for
recording in the land records of the applicable jurisdictions in which the Borrowing
Base Properties are located (or, if acceptable to the Administrative Agent, shall
have been executed, delivered and recorded in such jurisdictions in connection with
the closing related to the Existing Credit Agreement) and the Administrative Agent
shall have received fully executed copies of same);




     (ii) Notes executed by the Borrower in favor of each Lender requesting same;




     (iii) copies of the Organization Documents of each Loan Party certified to be
true and complete as of a recent date by the appropriate Governmental Authority of
the state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of such Loan Party
to be true and correct as of the Closing Date;




     (iv) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party
is a party; and




     (v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
is validly existing, in good standing and qualified to engage in business in (A) the
jurisdiction of its incorporation or organization and (B) each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.




     (b) Opinions of Counsel. The Administrative Agent shall have received, in each
case dated as of the Closing Date and in form and substance reasonably satisfactory to the
Administrative Agent:




     (i) a legal opinion of Bass, Berry & Sims, PLC, general counsel for the Loan
Parties;




     (ii) a legal opinion of special local counsel for each Loan Party not organized
in the State of Tennessee or Delaware; and




     (iii) a legal opinion of special local counsel for the Loan Parties for each
state in which any Borrowing Base Property is located.



54









 






     (c) Personal Property Collateral. The Administrative Agent shall have received
the following (including any of the following delivered in connection with or under the
Existing Credit Agreement with respect to any applicable Collateral, the further delivery of
which would, in the judgment of the Administrative Agent, be redundant or duplicative of
such items previously delivered):




     (i) updated searches of Uniform Commercial Code filings in the jurisdiction of
organization of each Loan Party and each jurisdiction where any Collateral is
located or where a filing would need to be made in order to perfect the
Administrative Agent’s security interest in the Collateral, copies of the financing
statements on file in such jurisdictions and evidence that no Liens exist other than
Permitted Liens;




     (ii) duly executed UCC financing statements for each appropriate jurisdiction
as is necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the Collateral;




     (iii) updated searches of ownership of, and Liens on, intellectual property of
each Loan Party in the appropriate governmental offices;




     (iv) all certificates evidencing any certificated Capital Stock pledged to the
Administrative Agent pursuant to the Pledge Agreement, together with duly executed
in blank, undated stock powers attached thereto;




     (v) duly executed notices of grant of security interest in the form required by
the Pledge Agreement as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Administrative Agent’s security interest in the
Collateral;




     (vi) all instruments and chattel paper (if any) in the possession of any of the
Loan Parties, together with allonges or assignments as may be necessary or
appropriate to perfect the Administrative Agent’s security interest in the
Collateral; and




     (vii) duly executed consents as are necessary, in the Administrative Agent’s
sole discretion, to perfect the Administrative Agent’s security interest in the
Collateral.




     (d) Real Property Collateral. The Administrative Agent shall have received the
following, in each case in form and substance reasonably satisfactory to the Administrative
Agent (including any of the following delivered in connection with or under the Existing
Credit Agreement with respect to any applicable Collateral, the further delivery of which
would, in the judgment of the Administrative Agent, be redundant or duplicative of such
items previously delivered):




     (i) fully executed and notarized mortgages, deeds of trust or deeds to secure
debt (each, as the same may be amended, modified, restated or supplemented from time
to time, a “Mortgage Instrument” and collectively the “Mortgage
Instruments”) encumbering the fee interest and/or leasehold interest of any Loan
Party in each of the Borrowing Base Properties existing as of the Closing Date and,
to the extent necessary, amendments to the Mortgage Instruments filed in connection
with the Existing Credit Agreement reflecting changes necessitated by the execution
and delivery hereof as an amendment and restatement thereof;




     (ii) in the case of each real property leasehold interest of any Loan Party
constituting a Borrowing Base Property, (A) such estoppel letters, consents and
waivers from the landlords on such real property as may be required by the
Administrative Agent, which estoppel letters shall be in the form and substance
reasonably satisfactory to the Administrative Agent and (B) evidence that the
applicable lease, a memorandum of lease with respect thereto, or other evidence of
such lease in form and substance reasonably satisfactory to the Administrative
Agent, has been or will be recorded in all places to the extent necessary or
desirable, in the reasonable judgment of the Administrative Agent, so as to enable
the Mortgage Instrument encumbering such leasehold interest to effectively create a
valid and enforceable first priority lien (subject only to



55









 






Liens acceptable to the Administrative Agent, in its discretion) on such
leasehold interest in favor of the Administrative Agent (or such other Person as may
be required or desired under local law) for the benefit of Lenders;




     (iii) maps or plats of an ALTA (or other form acceptable to the Administrative
Agent in its discretion) survey of the sites of the real property covered by the
Mortgage Instruments certified to the Administrative Agent and the Title Insurance
Company in a manner reasonably satisfactory to each of the Administrative Agent and
the Title Insurance Company, dated a date reasonably satisfactory to each of the
Administrative Agent and the Title Insurance Company by an independent professional
licensed land surveyor, which maps or plats and the surveys on which they are based
shall be sufficient to delete any standard printed survey exception contained in the
applicable title policy and be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the American
Land Title Association and the American Congress on Surveying and Mapping in 1997
with all items from Table A thereof completed, except for Nos. 5 and 12;




     (iv) marked-up or pro forma updated commitments for ALTA mortgagee title
insurance policies issued by the Title Insurance Company (the “Mortgage
Commitments”) with respect to each Borrowing Base Property, assuring the
Administrative Agent that each of the Mortgage Instruments, as amended as of the
Closing Date, creates a valid and enforceable first priority mortgage lien on the
applicable Borrowing Base Property, free and clear of all defects and encumbrances
except Permitted Liens, which Mortgage Commitments shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent and shall include such
endorsements as are reasonably requested by the Administrative Agent, together with
evidence of recording of the Mortgage Instruments in the land records of the proper
jurisdictions and evidence of the Borrower’s payment of all premiums required to be
paid as a condition to the issuance of policies with respect to such Commitments;




     (v) evidence as to (A) whether any Borrowing Base Property is in an area
designated by the Federal Emergency Management Agency as having special flood or mud
slide hazards (a “Flood Hazard Property”) and (B) if any Borrowing Base
Property is a Flood Hazard Property, (1) whether the community in which such
Borrowing Base Property is located is participating in the National Flood Insurance
Program, (2) the applicable Loan Party’s written acknowledgment of receipt of
written notification from the Administrative Agent (a) as to the fact that such
Borrowing Base Property is a Flood Hazard Property and (b) as to whether the
community in which each such Flood Hazard Property is located is participating in
the National Flood Insurance Program and (3) copies of insurance policies or
certificates of insurance of the Consolidated Parties evidencing flood insurance
satisfactory to the Administrative Agent and naming the Administrative Agent as sole
loss payee on behalf of the Lenders;




     (vi) evidence reasonably satisfactory to the Administrative Agent that each of
the Borrowing Base Properties, and the uses of the Borrowing Base Properties, are in
compliance in all material respects with all applicable zoning laws (the evidence
submitted as to which should include the zoning designation made for each of the
Borrowing Base Properties, the permitted uses of each such Borrowing Base Properties
under such zoning designation and, if available, zoning requirements as to parking,
lot size, ingress, egress and building setbacks);




     (vii) an updated “as-is” and “as-stabilized” appraisal of each Borrowing Base
Property dated no more than sixty (60) days prior to the Closing Date, each such
appraisal to be in form and substance acceptable to the Administrative Agent in its
discretion and from an appraiser acceptable to the Administrative Agent in its
discretion; provided, that to the extent required by FIRREA, each such appraisal
shall either satisfy the requirements of FIRREA or be accompanied by appraisals
meeting such requirements;




     (viii) an environmental site assessment with respect to each Borrowing Base
Property issued not more than three (3) years prior to the date hereof showing no
significant environmental



56









 






conditions which have not been properly addressed through a duly approved and
completed remediation (or such other resolution which has been accepted in writing
by either the Administrative Agent or all applicable Governmental Authority(ies)
with jurisdiction relating to the applicable property and such conditions and having
authority to enforce any Environmental Laws with respect thereto) and otherwise
showing conditions which are acceptable to the Administrative Agent, together with
an updated property condition report with respect to each Borrowing Base Property in
form and substance acceptable to the Administrative Agent; and




     (ix) updated evidence of insurance with respect to each Borrowing Base Property
in form and substance acceptable to the Administrative Agent and otherwise meeting
the requirements set forth in Section 7.07 hereof and in the Mortgage
Instrument executed with respect thereto.




     (e) Evidence of Insurance. Receipt by the Administrative Agent of copies of
all other insurance policies or certificates of insurance of the Loan Parties evidencing
liability and casualty insurance meeting the requirements set forth in Section 7.07
hereof and otherwise set forth in the Loan Documents, including, but not limited to, naming
the Administrative Agent as additional insured (in the case of liability insurance) or loss
payee (in the case of hazard insurance) on behalf of the Lenders.




     (f) Officer’s Certificates. The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of the Borrower as of the
Closing Date, in form and substance satisfactory to the Administrative Agent, stating that
(A) the conditions specified in Sections 5.02(a) and (b) have been
satisfied, (B) each Loan Party is in compliance with all existing financial obligations,
(C) all material governmental, shareholder and third party consents and approvals, if any,
with respect to the Loan Documents and the transactions contemplated thereby have been
obtained (and attaching copies thereof), and (D) no action, suit, investigation or
proceeding is pending or threatened in any court or before any arbitrator or governmental
instrumentality that purports to affect any Loan Party or any transaction contemplated by
the Loan Documents, if such action, suit, investigation or proceeding could reasonably be
expected to have a Material Adverse Effect.




     (g) Solvency. The Administrative Agent shall have received (i) a certificate
executed by a Responsible Officer of the Borrower as of the Closing Date, in form and
substance satisfactory to the Administrative Agent, regarding the Solvency of each of the
Loan Parties on a consolidated basis.




     (h) Fees. Any fees required to be paid on or before the Closing Date, together
with any Unused Fees that have accrued but that are not yet payable under the Existing
Credit Agreement, shall have been paid.




     (i) Attorney Costs. The Borrower shall have paid all reasonable fees, charges
and disbursements of counsel of the Administrative Agent to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude a final settling of accounts between the
Borrower and the Administrative Agent).




     (j) Compliance Certificate. The Administrative Agent shall have received a
duly completed Compliance Certificate as of March 31, 2008, signed by a Responsible Officer
of the Borrower and a Pro Forma Compliance Certificate as of the Closing Date and taking
into account any unwinding of the SAILS Forward Exchange Contracts, any material
Acquisitions, Dispositions or Debt Issuances or any other events or circumstances which, on
a Pro Forma Basis, have had an effect on the calculations presented in the Compliance
Certificate as of March 31, 2008;




     (k) [Intentionally omitted.]




     (l) Accuracy of Representations and Warranties. The representations and
warranties of the Borrower and each other Loan Party contained in Article VI or any
other Loan Document, or which are



57









 






contained in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the Closing Date.




     (m) No Default. No Default shall exist, or would result from, such proposed
Credit Extension or from the application of the proceeds thereof.




     (n) Material Adverse Changes. There shall not have occurred a material adverse
change (i) in the business, assets, properties, liabilities (actual or contingent),
operations, condition (financial or otherwise) of the Loan Parties and their respective
Subsidiaries, taken as a whole, during the period from December 31, 2007 through and
including the Closing Date or (ii) in the facts and information regarding such entities as
represented to date and the Administrative Agent shall have completed a due diligence
investigation of the Loan Parties (with the aid of such parties) revealing no material
adverse changes or departures from the information and materials previously provided by such
parties.




     (o) Material Adverse Effect. The absence of any condition, circumstance,
action, suit, investigation or proceeding pending or, to the knowledge of the Borrower
and/or Guarantors, threatened in any court or before any arbitrator or governmental
authority that could reasonably be expected to have a Material Adverse Effect.




     (p) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably requested by any Lender, including, but not limited
to, information regarding litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, environmental conditions,
asset valuations/appraisals, debt agreements, property ownership and contingent liabilities
of the Consolidated Parties.



5.02 Conditions to all Credit Extensions.




     The obligation of each Lender to honor any Request for Credit Extension (other than a
Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:




     (a) The representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct in all material respects on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and except that
for purposes of this Section 5.02, the representations and warranties contained in
subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.




     (b) No Default shall exist, or would result from, such proposed Credit Extension.




     (c) There shall not have been commenced against any Consolidated Party an involuntary
case under any applicable Debtor Relief Law, now or hereafter in effect, or any case,
proceeding or other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain undismissed.




     (d) The Administrative Agent and, if applicable, the L/C Issuer or Swing Line Lender
shall have received a Request for Credit Extension in accordance with the requirements
hereof.




     (e) Assuming the effectiveness of the requested Credit Extension, (i) the Total
Facility Outstandings as of such date do not exceed the Borrowing Base; (ii) the Total
Revolving Outstandings do not exceed the Aggregate Revolving Commitments; and (iii) the
Total Term Loan Outstandings plus the aggregate amount of Aggregate TL Principal
Payments as of such date do not exceed the amount equal to Aggregate TL Commitments
plus the Aggregate TL Borrowings as of such date.



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     (f) [Intentionally omitted].



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans)
submitted by the Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections 5.02(a), (b), (c), (e) and (f) have
been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:



6.01 Existence, Qualification and Power; Compliance with Laws.




     Each Consolidated Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority under the laws of its jurisdiction of incorporation or organization and all
requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and
carry on its business and (ii) execute, deliver and perform its obligations under the Loan
Documents, if any, to which it is a party and (c) is duly qualified and is licensed and in good
standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in each case referred
to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.



6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party, have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or result in or require
the creation of any Lien under, or require any payment to be made under (i) any material
Contractual Obligation to which such Person is a party or affecting such Person or the Property of
such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject; or
(c) violate any Law (including, without limitation, Regulation U or Regulation X issued by the
FRB). Each Loan Party and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.



6.03 Governmental Authorization; Other Consents.




     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document, except for (a) consents, authorizations, notices and filings described
in Schedule 6.03, all of which have been obtained or made or have the status described in
such Schedule 6.03 and (b) filings or recordations to perfect the Liens created by the
Collateral Documents.



6.04 Binding Effect.




     This Agreement has been, and each other Loan Document, when delivered hereunder, will have
been, duly executed and delivered by each Loan Party that is party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms except as enforceability may be limited by applicable Debtor Relief Laws
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).



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6.05 Financial Statements; No Material Adverse Effect.




     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition of the Consolidated Parties as of the date thereof and
their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material Indebtedness, material commitments for Indebtedness and material tax
liabilities of the Consolidated Parties as of the date of such financial statements.



     (b) The unaudited consolidated balance sheet of the Consolidated Parties dated March 31, 2008,
and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for the calendar quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Consolidated Parties as of the date
thereof and their results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 6.05 sets forth all material Indebtedness, material commitments for Indebtedness
and material tax liabilities of the Consolidated Parties as of the date of such financial
statements.



     (c) Except as disclosed on Schedule 6.05, during the period from December 31, 2007 to
and including the Closing Date, there has been no sale, transfer or other disposition by any
Consolidated Party of any material part of the business or Property of the Consolidated Parties,
taken as a whole, and no purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Consolidated Parties, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date.



     (d) The financial statements delivered pursuant to Section 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted under
Section 7.01(a) and (b)) and present fairly (on the basis disclosed in the
footnotes to such financial statements) the consolidated financial condition, results of operations
and cash flows of the Consolidated Parties as of such date and for such periods.



     (e) During the period from December 31, 2007, to and including the Closing Date, there has
been no event or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.



     (f) Each delivery hereunder by the Borrower or any of its Subsidiaries of any financial
statements, compliance certificates or other calculations involving pro forma determinations or
calculations fairly presents the pro forma financial condition of the Borrower and/or its
Subsidiaries (as applicable) as at the date set forth thereon.



6.06 Litigation.




     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Loan Parties, threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Consolidated Party or against any of its properties or
revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any
of the transactions contemplated hereby or (b) except as specifically disclosed in Schedule
6.06, as to which there is a reasonable probability of an adverse determination that could
reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect,
and there has been no material adverse change in the status, or financial effect on any Loan Party
or any Subsidiary thereof, of the matters described on Schedule 6.06.



6.07 No Default.




     No Consolidated Party is in default under or with respect to any Contractual Obligation that
could, either individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. No Default has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.



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6.08 Ownership of Property; Liens.




     Each Consolidated Party has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the Consolidated Parties
is subject to no Liens, other than Permitted Liens.



6.09 Environmental Compliance.




     Except, with respect to the Borrowing Base Properties, as disclosed and described in
Schedule 6.09 attached hereto and, with respect to all Real Properties, where the
occurrence and/or existence of any of the following could not reasonably be expected to have a
Material Adverse Effect:




     (a) Each of the Real Properties and all operations at the Real Properties are in
material compliance with all applicable Environmental Laws, there is no material violation
of any Environmental Law with respect to the Real Properties or the Businesses, and there
are no conditions relating to the Real Properties or the Businesses that could give rise to
material liability of any Consolidated Party under any applicable Environmental Laws.




     (b) None of the Real Properties contains, or, to the best knowledge of the Consolidated
Parties, has previously contained, any Hazardous Materials at, on or under the Real
Properties in amounts or concentrations that constitute or constituted a material violation
of, or could give rise to material liability of any Consolidated Party under, Environmental
Laws.




     (c) In the past five (5) years, no Consolidated Party has received any written notice
of, or inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Real Properties or the
Businesses, nor does any Responsible Officer of any Loan Party have knowledge or reason to
believe that any such notice will be received or is being threatened.




     (d) Hazardous Materials have not been transported or disposed of from the Real
Properties, or generated, treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by or on behalf of any Consolidated Party in
material violation of, or in a manner that could give rise to material liability under, any
applicable Environmental Law.




     (e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Responsible Officers of the Loan Parties, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a party, nor are
there any consent decrees or other decrees, consent orders, administrative orders or other
orders, or other binding administrative or judicial requirements outstanding under any
Environmental Law with respect to the Consolidated Parties, the Real Properties or the
Businesses.




     (f) There has been no release, or threat of release, of Hazardous Materials at or from
the Real Properties, or arising from or related to the operations (including, without
limitation, disposal) of any Consolidated Party in connection with the Real Properties or
otherwise in connection with the Businesses, in violation of or in amounts or in a manner
that could give rise to material liability of any Consolidated Party under Environmental
Laws.



6.10 Insurance.




     The properties of the Borrower and its Subsidiaries are insured with financially sound and
reputable insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates and otherwise in compliance with the requirements of



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Section 7.07. The present insurance coverage of the Loan Parties is outlined as to
carrier, policy number, expiration date, type and amount on Schedule 6.10.




6.11 Taxes.




     The Consolidated Parties have filed all Federal, state and other material tax returns and
reports required to be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower or any Subsidiary
that Borrower or any Subsidiary has received written notice of and would, if made, be reasonably
expected to have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.



6.12 ERISA Compliance.




     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Loan Parties, nothing has occurred which would prevent, or cause the loss
of, such qualification. Each Loan Party and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.



     (b) There are no pending or, to the best knowledge of the Loan Parties, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has, except as set forth on Schedule 6.12 hereof, any Unfunded Pension Liability and the
existence of the Unfunded Pension Liabilities set forth on Schedule 6.12 is not reasonably
likely to result in a Material Adverse Effect; (iii) no Loan Party nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.



6.13 Capital Structure/Subsidiaries.




     The corporate capital and ownership structure of the Consolidated Parties as of the Closing
Date is as described in Schedule 6.13(a). Set forth on Schedule 6.13(b) is a
complete and accurate list as of the Closing Date with respect to each of the direct and indirect
Subsidiaries of the Borrower of (i) jurisdiction of incorporation, (ii) percentage of outstanding
shares of each class owned (directly or indirectly) by the Consolidated Parties and the number of
such shares owned by the Consolidated Parties with respect to the Loan Parties or where the
Consolidated Parties own less than 100.0% of the applicable entity and (iii) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or purchase and all other
similar rights with respect thereto as of the Closing Date. The outstanding Capital Stock of all
such Persons is validly issued, fully paid and non-assessable and is owned by the Consolidated
Parties, directly or indirectly, in the manner set forth on Schedule 6.13(b), free and
clear of all Liens (other than those arising under or contemplated in connection with the Loan
Documents). As of the Closing Date, other than as set forth in Schedule 6.13(b), neither
the Borrower nor any of the other Loan Parties has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any rights to
subscribe for or to purchase or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character
relating to its Capital Stock. As of the Closing Date, the Borrower has



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no equity investments in any other Person constituting 10.0% of more of the outstanding equity
interests in such Person other than those equity investments set forth on Schedule 6.13(c)
hereto.




6.14 Margin Regulations; Investment Company Act.




     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



6.15 Disclosure.




     Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the
time.



6.16 Compliance with Laws.




     Each Consolidated Party is in compliance in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except
in such instances in which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to
comply therewith, either individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.



6.17 Intellectual Property.




     Each Loan Party owns, or has the legal right to use, all material trademarks, service marks,
trade names, trade dress, patents, copyrights, technology, know-how and processes (the
“Intellectual Property”) necessary for each of them to conduct its business as currently conducted,
except to the extent that failure to own or maintain the right to use such Intellectual Property
could not reasonably be expected to have a Material Adverse Effect. Set forth on
Schedule 6.17 is a list of all Intellectual Property registered or pending registration
with the United States Copyright Office or the United States Patent and Trademark Office and owned
by each Loan Party or that any Loan Party has the right to use and that are necessary or useful in
the operation, ownership, maintenance, development or marketing of any one or more of the Borrowing
Base Properties or otherwise related thereto. The Intellectual Property set forth on such
Schedule 6.17 constitutes all of the material Intellectual Property required for the
continued operation, ownership, maintenance, development or marketing of the Borrowing Base
Properties. Except as provided on Schedule 6.17, no claim has been asserted and is pending
by any Person challenging or questioning the use of such Intellectual Property or the validity or
effectiveness of such Intellectual Property, nor does any Loan Party know of any such claim, and,
to the knowledge of the Responsible Officers of the Loan Parties, the use of such Intellectual
Property by any Loan Party or the granting of a right or a license in respect of any such
Intellectual Property from any Loan Party does not infringe on the rights of any Person, except for
such claims and infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. As of the Closing Date, none of the material Intellectual Property of the
Loan Parties set forth on Schedule 6.17 is subject to any licensing agreement or similar
arrangement providing for material rights with respect thereto except as set forth on such
Schedule 6.17.



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6.18 Solvency.




     The Loan Parties are Solvent on a consolidated basis.



6.19 Investments.




     All Investments of each Consolidated Party are Permitted Investments.



6.20 Business Locations.




     Set forth on Schedule 6.20(a) is a list of all Real Properties located in the United
States that are owned or leased by the Loan Parties as of the Closing Date. Set forth on
Schedule 6.20(b) is a list of all locations where any tangible personal property of a Loan
Party is located as of the Closing Date. Set forth on Schedule 6.20(c) is the chief
executive office, jurisdiction of incorporation or formation and principal place of business of
each Loan Party as of the Closing Date.



6.21 Brokers’ Fees.




     No Consolidated Party has any obligation to any Person in respect of any finder’s, broker’s,
investment banking or other similar fee in connection with any of the transactions contemplated
under the Loan Documents.



6.22 Labor Matters.




     Except as set forth on Schedule 6.22, there are no collective bargaining agreements or
Multiemployer Plans covering the employees of a Consolidated Party as of the Closing Date and none
of the Consolidated Parties has suffered any strikes, walkouts, work stoppages or other material
labor difficulty within the last five years.



6.23 Representations and Warranties from Other Loan Documents.




     Each of the representations and warranties made by any of the Loan Parties in any of the other
Loan Documents is true and correct in all material respects.



6.24 Collateral Documents.




     The provisions of the Collateral Documents are effective to create in favor of the
Administrative Agent for the benefit of the Lenders and any other secured parties identified
therein, a legal, valid and enforceable first priority (subject only to Permitted Liens) security
interest or Lien in all right, title and interest of the Borrower and its Subsidiaries in the
Collateral described therein and all proceeds thereof. Except for filings completed prior to the
Closing Date and as contemplated by this Agreement and the Collateral Documents, no filing or other
action will be necessary to perfect or protect such security interest.



6.25 Borrowing Base Properties; Leases and Ground Leases.




     (a) Each of the Borrowing Base Properties is either (i) wholly owned in fee by a Loan Party or
(ii) leased by a Loan Party pursuant to a long term ground lease which has been reviewed and
approved by the Administrative Agent in its discretion, in each case subject to no Liens other than
Permitted Liens.



     (b) To the extent a Borrowing Base Property is leased by a Loan Party pursuant to a ground
lease, (i) such lease is in full force and effect and remains unmodified except to the extent
disclosed to the Administrative Agent in writing; (ii) no rights in favor of the applicable Loan
Party lessee have been waived, canceled or surrendered; (iii) no election or option under such
ground lease has been exercised by the Loan Party lessee; (iv) all rental and other charges due and
payable thereunder have been paid in full (except to the extent such payment is not yet overdue);
(v) no Loan Party or other Consolidated Party is in default under or has received any notice of
default with respect to such ground lease; (vi) to the knowledge of the Loan Parties, no lessor
under such a ground lease is in default thereunder; (vii) a true and correct copy of such ground
lease (together with any amendments, modifications, restatements or supplements



64









 





thereof) has been delivered to the Administrative Agent; and (viii) there exist no adverse claims
as to the applicable Loan Party’s title or right to possession of the leasehold premises referenced
therein.




6.26 Nature of Business.




     As of the Closing Date, the Loan Parties are engaged principally in the business of
developing, owning and operating hotel properties, providing vacation condominiums and home rental
property management services and other businesses described in the Borrower’s SEC Filings.



6.27 SAILS Forward Exchange Contracts.




     All SAILS Forward Exchange Contracts have expired, matured or been terminated in accordance
with their respective terms on or prior to the Closing Date, and are no longer in force or effect.



ARTICLE VII

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall not be Fully Satisified, or any Letter of Credit shall remain outstanding, each
Loan Party shall, and shall (except in the case of the covenants set forth in
Sections 7.01, 7.02, 7.03 and 7.11) cause each Subsidiary to:



7.01 Financial Statements.




     Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:




     (a) as soon as available, but in any event within 90 days after the end of each
calendar year (commencing with the calendar year ended 2008), a consolidated balance sheet
of the Consolidated Parties as at the end of such calendar year, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for
such calendar year, setting forth in each case in comparative form the figures for the
previous calendar year, all in reasonable detail and prepared in accordance with GAAP, such
consolidated statements to be audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going concern”
or like qualification, exception, assumption or explanatory language or any qualification,
exception, assumption or explanatory language as to the scope of such audit and such
statements to be certified by a Responsible Officer of the Borrower to the effect that such
statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its Subsidiaries; and




     (b) as soon as available, but in any event within 45 days after the end of each of the
first three calendar quarters of each calendar year, a consolidated balance sheet of the
Consolidated Parties as at the end of such calendar quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such calendar
quarter and for the portion of the calendar year then ended, setting forth in each case in
comparative form the figures for the corresponding calendar quarter of the previous calendar
year and the corresponding portion of the previous calendar year, all in reasonable detail,
such consolidated statements to be certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations, shareholders’ equity and
cash flows of the Consolidated Parties in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes and such statements to be certified
by a Responsible Officer of the Borrower to the effect that such statements are fairly
stated in all material respects when considered in relation to the consolidated financial
statements of the Borrower and its Subsidiaries.



     As to any information contained in materials furnished pursuant to Section 7.02(h),
the Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in



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derogation of the obligation of the Borrower to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein.




7.02 Certificates; Other Information.




     Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Section 7.01(a), a certificate of its independent certified public accountants
certifying such financial statements;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), (i) a duly completed Compliance Certificate signed
by a Responsible Officer of the Borrower and calculating the financial covenants and
Borrowing Base using the financial information provided in such financial statements;
provided, without limiting the foregoing, such Compliance Certificate shall include
a schedule identifying each Lien of the type referenced in Section 8.01(d)
respecting or relating to any hotel under construction or expansion by the Loan Parties
(including any Gaylord National Contractor Liens, to the extent such Liens relate to the
construction or expansion respecting the Gaylord National Property) which have been filed,
subject to notice, or subject to some other enforcement action, but only to the extent such
Lien secures an asserted claim that exceeds $1,000,000 (which schedule shall include, in
such detail as is reasonably acceptable to the Administrative Agent, the name of the
claimant, the filing date respecting such Lien, the amount of such underlying claim, a brief
description of the claimant’s business and the nature of the work performed by such
claimant, and the then-current status of the Lien), and (ii) operating statements for each
of the Borrowing Base Properties for the most-recently ended calendar quarter;




     (c) within thirty (30) days following the final completion thereof and, in any case,
not more than sixty (60) days following the end of each calendar year, beginning with the
calendar year ending December 31, 2008, an annual budget and forecasted balance sheet of the
Consolidated Parties containing, among other things, pro forma financial statements for the
next calendar year, in each case prepared in good faith on the basis of the assumptions
stated therein, which assumptions shall be fair in light of the conditions existing at the
time of delivery of such forecasts, and shall represent, at the time of delivery, the
Borrower’s best estimate of its future financial performance;




     (d) within 90 days after the end of each calendar year, a certificate containing
information regarding the amount of all material Dispositions, Debt Issuances, Equity
Issuances and Acquisitions that occurred during the prior calendar year;




     (e) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;




     (f) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 7.01 or any other clause of this
Section 7.02;




     (g) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial
or other operational results of any Loan Party or any Subsidiary thereof; and




     (h) promptly after the same are available, (i) copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be



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required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act
of 1934 or to a holder of any Indebtedness owed by any Consolidated Party in its capacity as
such a holder and not otherwise required to be delivered to the Administrative Agent
pursuant hereto and (ii) upon the request of the Administrative Agent, all reports and
written information to and from the United States Environmental Protection Agency, or any
state or local agency responsible for environmental matters, the United States Occupational
Health and Safety Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning environmental, health or
safety matters;




     (i) promptly upon receipt thereof, a copy of any other report or “management letter”
submitted by independent accountants to any Consolidated Party in connection with any
annual, interim or special audit of the books of such Person;




     (j) to the extent not previously delivered to the Administrative Agent (including under
the Existing Credit Agreement), promptly, a copy of the construction contract(s) and any
amendments thereto entered into with the general contractor(s) with respect to Gaylord
National; provided, that all such contracts shall be guaranteed maximum price contracts in
form and substance reasonably acceptable to the Administrative Agent;




     (k) upon demand by the Administrative Agent, evidence of any lien waivers and/or
affirmative title coverage with respect to Gaylord National required to evidence the Loan
Parties’ compliance with the terms and conditions hereof and of the other Loan Documents;




     (l) to the extent not previously delivered to the Administrative Agent (including under
the Existing Credit Agreement), promptly following the completion thereof, each of the
following with respect to Gaylord National and the Gaylord National Property: (i) a copy of
the projected construction budget and completion schedule for the property, together with
the plans and specifications for such project, and any amendments to any of the foregoing;
(ii) copies of all material contracts relating to the construction of such project and any
amendments thereto; and (iii) such other materials and information relating to the
construction of the project that the Administrative Agent may reasonably request; and




     (m) promptly, such additional information regarding the business, financial or
corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably
request.



     Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(f) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents, or provides a link
thereto, on the Borrower’s website on the Internet at the website address listed on
Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier
or electronic mail) of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to provide paper copies
of the Compliance Certificates required by Section 7.02(b) to the Administrative Agent and
each of the Lenders. Except for such Compliance Certificates, the Administrative Agent shall have
no obligation to request the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the Borrower with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the respective securities
of any of



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the foregoing, and who may be engaged in investment and other market-related activities with
respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower
Materials as either publicly available information or not material information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities for purposes of United
States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public Investor.”




7.03 Notices and Information.




     (a) Promptly notify the Administrative Agent and each Lender of the occurrence of any Default
and the nature thereof.



     (b) Promptly notify the Administrative Agent and each Lender of any matter that has resulted
or could reasonably be expected to result in a Material Adverse Effect (including, without
limitation, any of the following (to the extent reasonably expected to result in a Material Adverse
Effect): (i) breach or non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension
between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws).



     (c) Promptly notify the Administrative Agent and each Lender of the occurrence of any ERISA
Event.



     (d) Promptly notify the Administrative Agent and each Lender of any material change in
accounting policies or financial reporting practices by the Borrower or any Subsidiary, including
any determination by the Borrower referred to in Section 2.10(b).



     (e) Upon the reasonable written request of the Administrative Agent following the occurrence
of any event or the discovery of any condition which the Administrative Agent or the Required
Lenders reasonably believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 6.09 to be untrue in any material
respect, the Loan Parties will furnish or cause to be furnished to the Administrative Agent, at the
Loan Parties’ expense, a report of an environmental assessment of reasonable scope, form and depth,
(including, where appropriate, invasive soil or groundwater sampling) by a consultant reasonably
acceptable to the Administrative Agent as to the nature and extent of the presence of any Hazardous
Materials on any Real Properties and as to the compliance by any Consolidated Party with
Environmental Laws at such Real Properties. If the Loan Parties fail to deliver such an
environmental report within seventy-five (75) days after receipt of such written request then the
Administrative Agent may arrange for same, and the Consolidated Parties hereby grant to the
Administrative Agent and its representatives access to the Real Properties to reasonably undertake
such an assessment (including, where appropriate, invasive soil or groundwater sampling). The
reasonable cost of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Loan Parties on demand and added to the obligations secured by the
Collateral Documents.



     (f) At the time of delivery of the financial statements and reports provided for in
Section 7.01(a), deliver to the Administrative Agent a report signed by an Responsible
Officer of the Borrower setting forth (i) a list of registration numbers for all patents,
trademarks, service marks, trade names and copyrights awarded to any Loan Party since the last day
of the immediately preceding calendar year and (ii) a list of all patent applications, trademark
applications, service mark applications, trade name applications and copyright applications
submitted by any Loan Party since the last day of the immediately preceding calendar year and the
status of each such application, all in such form as shall be reasonably satisfactory to the
Administrative Agent.



     Each notice pursuant to this Section 7.03(a) through (e) shall be accompanied
by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action



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the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to
Section 7.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.




7.04 Borrowing Base Property Ownership; Guarantors.




     Each of the Real Properties set forth on Schedule 1.01(b) shall, at all times during
the term hereof, either (a) be wholly owned in fee by a Loan Party, (b) be ground leased by a Loan
Party pursuant to a long-term ground lease in form and substance acceptable to the Administrative
Agent or (c) have been transferred, sold or otherwise disposed of by the applicable Loan Party
strictly in accordance with the terms and conditions contained herein permitting such transfers,
sales or other dispositions (although treatment of such Real Properties as “Borrowing Base
Properties” shall, at all times, remain subject to the terms of Section 7.13 hereof and the
other terms and conditions set forth herein). To the extent any Subsidiary of the Borrower owns
any interest in any of the Real Properties set forth on Schedule 1.01(b), such Subsidiary
shall be a Guarantor hereunder. If any such Subsidiary obtains, for any reason, such interest
following the date hereof, such Subsidiary shall, immediately upon obtaining such interest, (x)
enter into and deliver to the Administrative Agent a Joinder Agreement and (y) deliver to the
Administrative Agent the materials and information which would have been required from such
Subsidiary pursuant to Sections 5.01(a)(iii) – (v), (b), (c) and
(e), together with any additional information or materials as may be reasonably requested
by the Administrative Agent in connection therewith.



7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a transaction permitted
by Section 8.04 or 8.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its
business; and (c) preserve or renew all of its material registered copyrights, patents, trademarks,
trade names and service marks to the extent necessary for the continued conduct of its business.



7.06 Maintenance of Properties.




     With respect to each of the Borrowing Base Properties: (a) maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its business in good working
order and condition, ordinary wear and tear and Involuntary Dispositions excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof; (c) use the standard of care
typical in the industry in the operation and maintenance of its facilities and the personal
property related thereto; (d) comply in all material respects with the terms, conditions,
restrictions and other requirements of all recorded documents related thereto; (e) comply in all
material respects with the terms, conditions, restrictions and other requirements set forth in all
applicable local, state and Federal ordinances, zoning laws and other applicable laws; and (f)
cause the Loan Party owning each such respective Borrowing Base Property to also own all material
personal and real Property (including, without limitation, furnishings, equipment, software and
other Property) required for the continued operation and maintenance of such Borrowing Base
Property in the ordinary course of business (except for (i) such Property as has been traditionally
leased by such Loan Party in connection with such operation and maintenance, to the extent such
leases have been disclosed to the Administrative Agent in writing prior to the date of this
Agreement and (ii) leasing arrangements with respect to the central plant equipment related to such
Borrowing Base Property, to the extent such arrangements are on terms and conditions similar to
those typically found in the convention center hotel industry and otherwise on terms and conditions
and subject to documentation acceptable to the Administrative Agent in its discretion).



7.07 Maintenance of Insurance; Condemnation and Casualty.




     (a) Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, property insurance and business interruption insurance) in such amounts,
covering such risks and liabilities and with such deductibles or self insurance retentions (i) as
are, with respect to the Borrowing Base Properties, generally maintained by Persons who own,
operate and/or maintain convention center hotel properties or as may be otherwise reasonable given
the risks and liabilities associated with the operation, ownership and maintenance of convention
center hotel properties; (ii) as are, with respect to all other Property held by such Persons, in
accordance with normal industry practice; (iii) in any case (with respect to all Properties), as
may be required pursuant to the terms of the Collateral



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Documents; and (iv) with respect to any self-insurance retentions, in amounts and subject to
terms and conditions disclosed in writing to the Administrative Agent and reasonably acceptable to
the Administrative Agent; provided, that the Administrative Agent hereby pre-approves changes or
other increases in such retention amounts to an amount up to $1,400,000 per Borrowing Base
Property. The Administrative Agent shall be named as mortgagee and loss payee, as its interest may
appear or as it may deem necessary, and as certificate holder and additional insured with respect
to any such insurance providing coverage in respect of any Collateral, and each provider of any
such insurance shall agree, by endorsement upon the policy or policies issued by it or by
independent instruments furnished to the Administrative Agent, that it will give the Administrative
Agent thirty (30) days prior written notice before any such policy or policies shall be altered or
canceled. Not in limitation of the foregoing, the Loan Parties shall, with respect to each
Borrowing Base Property, maintain builder’s risk and contractor’s liability insurance during any
period of construction in an amount equal to not less than 100% of the value of the work completed
and, upon completion, “all risk” insurance in an amount equal to not less than 100% of the
replacement cost of such assets, in all cases with insurers having an A.M. Best policyholder’s
rating of not less than A- and financial size category of not less than IX (or, in the case of any
general liability coverage of the Loan Parties in excess of $50,000,000, but less than
$100,000,000, B++/VII (or such lesser rating and size as may be approved by the Administrative
Agent in its sole discretion), and above $100,000,000 at the option and discretion of the
Borrower), which insurance shall in any event not provide for materially less coverage than the
insurance in effect on the date hereof; provided, that (A) in the case of general liability
insurance, coverage equal to or in excess of $100,000,000 per occurrence/annual aggregate shall not
be deemed to be “materially less” coverage for purposes of this provision and (B) with respect to
“all risk” coverage of the Loan Parties in excess of $50,000,000, the A.M. Best rating of the
applicable insurer may be less than A- and/or have a financial size category of less than VII to
the extent requested by the Borrower and consented to by the Administrative Agent (such consent to
be in the absolute discretion of the Administrative Agent). The Loan Parties will deliver to the
Administrative Agent upon request of the Administrative Agent from time to time full information as
to the insurance carried and within ten (10) days of receipt of notice from any insurer a copy of
any notice of cancellation or material change in coverage from that existing on the date hereof.




     (b) If any loss occurs at any time when any applicable Loan Party has failed to perform any of
the covenants and agreements set forth in this Section 7.07 with respect to any insurance
payable because of loss sustained to any part of the Borrowing Base Properties or the Property
related thereto, whether or not such insurance is required by Administrative Agent, Administrative
Agent shall (for the benefit of the Secured Parties) nevertheless be entitled to the benefit of all
insurance covering the loss and held by or for any such Loan Party, to the same extent as if it had
been made payable to Administrative Agent. Upon any foreclosure hereof or transfer of title to any
Borrowing Base Property in extinguishment of the whole or any part of the Obligations, all of the
applicable Loan Party’s right, title and interest in and to the insurance policies referred to in
this Agreement (including unearned premiums) and all proceeds payable thereunder shall thereupon
vest in the purchaser at foreclosure or other such transferee, to the extent permissible under such
policies. Insurance proceeds from any loss with respect to any Borrowing Base Property (or the
Property related thereto) shall also be subject to the following terms and conditions:




     (i) Administrative Agent shall (for the benefit of the Secured Parties) have the right
(but not the obligation) to make proof of loss for, settle and adjust any claim under, and
receive the proceeds of, all insurance for loss of or damage to the Borrowing Base
Properties or the Property related thereto regardless of whether or not such insurance
policies are required by Administrative Agent, and the expenses incurred by Administrative
Agent in the adjustment and collection of insurance proceeds shall be a part of the
Obligations and shall be due and payable to Administrative Agent in accordance with
Section 11.04 hereof. Administrative Agent shall not be, under any circumstances,
liable or responsible for failure to collect or exercise diligence in the collection of any
of such proceeds or for the obtaining, maintaining or adequacy of any insurance or for
failure to see to the proper application of any amount paid over to any Loan Party.




     (ii) To the extent any of the proceeds related to insurance coverage with respect to
any of the Borrowing Base Properties or the Property related thereto (the “BBP Insurance
Proceeds”) are delivered to or otherwise obtained by the Borrower or any other Loan
Party and are (A) in the aggregate, in a gross amount in excess of $50,000,000 (the
applicable casualty constituting, in such case, a “Substantial Casualty”) or (B) the
Borrower and Loan Parties do not intend to use such BBP Insurance Proceeds for the purpose
of restoring or rebuilding the applicable Borrowing Base Property or the Property related
thereto, such proceeds shall be immediately delivered to the Administrative Agent to be held
or applied in



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accordance with the provisions of this Section 7.07(b). Prior to any required
delivery of BBP Insurance Proceeds by the Loan Parties to the Administrative Agent, such BBP
Insurance Proceeds shall be held in escrow by the applicable Loan Party(ies) for the account
and benefit of the Administrative Agent and the Secured Parties.




     (iii) Any BBP Insurance Proceeds received by Administrative Agent (whether from the
applicable insurer or from a Loan Party pursuant to subclause (ii) above) shall, after
deduction therefrom of all reasonable expenses actually incurred by Administrative Agent in
the collection of the same, including attorneys’ fees, be (A) held by the Administrative
Agent in escrow in a cash collateral account subject to a first priority security interest
in favor of the Administrative Agent (for the benefit of the Secured Parties), to the extent
such BBP Insurance Proceeds relate to a Substantial Casualty and the Borrower has elected to
fully rebuild, reconstruct and restore the Property pursuant to and in accordance with the
terms of this Section 7.07(b); (B) applied by the Administrative Agent to the
Obligations in the priority set forth in Section 2.05(b)(vi), to the extent the
Borrower has elected not to fully rebuild, reconstruct and restore the Property pursuant to
and in accordance with the terms of this Section 7.07(b) (provided, that the
Borrower will have a period of sixty (60) days following the delivery of such proceeds to
the Administrative Agent in which to deliver written notice to the Administrative Agent
stating whether it intends to rebuild, reconstruct and restore the Property or cause such
proceeds to be applied to the Obligations and provided, further, that any failure to deliver
any such notice shall evidence the Borrower’s election to cause such proceeds to be applied
to the Obligations in accordance with this subclause (iii)(B)); or (C) delivered to the
Borrower or any Loan Party designated by the Borrower for the purpose of financing the
rebuilding, reconstruction and restoration of the applicable Property, to the extent such
BBP Insurance Proceeds do not relate to a Substantial Casualty and the Borrower has elected
to fully rebuild, reconstruct and restore the Property pursuant to and in accordance with
the terms of this Section 7.07(b); provided, that if (1) the BBP Insurance Proceeds
paid in connection with any given casualty event are in excess of the amount that is spent
on the reconstruction, rebuilding or restoration of the applicable Borrowing Base Property,
(2) the Borrower requests in writing the return of such funds following the completion of
such rebuilding, reconstruction and restoration and (3) there is no then-continuing Default
or Event of Default, the Administrative Agent shall return such excess funds to the
Borrower. The Borrower and each Loan Party hereby assigns to, and grants Administrative
Agent a security interest in, all BBP Insurance Proceeds (prior to application thereof) and
to any escrow account established pursuant to the terms of this Section 7.07(b) and
in the funds held therein to secure the payment and performance of the Obligations.




     (iv) In the event that the Borrower elects to cause the full rebuilding, restoration
and reconstruction of any Borrowing Base Property or the Property related thereto following
any casualty resulting in BBP Insurance Proceeds, the Borrower and Loan Parties shall (A) if
such BBP Insurance Proceeds relate to a Substantial Casualty, (1) certify to the
Administrative Agent that, in its good faith judgment, such casualty event is covered by the
insurance held by the Borrower or the applicable Loan Party; (2) deliver all information
required by the applicable insurer for processing of the applicable claim within thirty (30)
days of the occurrence of such event (or, to the extent delivery within such time frame is
not reasonably possible, as soon as reasonably practicable following such event); (3) upon
receipt of the applicable BBP Insurance Proceeds or, if earlier, upon receipt of the
applicable insurer’s confirmation of the approved amounts thereof, deliver evidence to the
Administrative Agent (in form and substance reasonably acceptable to the Administrative
Agent) that there are sufficient funds from such BBP Insurance Proceeds (or prospective BBP
Insurance Proceeds) and from cash and Cash Equivalents available to the applicable Loan
Party, if needed, to completely restore or repair the applicable Property to its use, value
and condition immediately prior to the casualty as well as to maintain compliance with the
financial and other covenants set forth herein; and (4) proceed to use commercially
reasonable good faith efforts to pursue and resolve such claim with the applicable insurer
as expeditiously as is reasonably possible without compromising any material rights of the
Borrower or any other Loan Party with respect to such claim; (B) diligently commence to (1)
prepare (or cause to be prepared) all plans and specifications with respect to the full
rebuilding, reconstruction and restoration of the applicable Property (to the extent
necessary in connection with such rebuilding, reconstruction and/or restoration), such plans
and specifications to be, in the case of a Substantial Casualty, in all material respects
acceptable to the Administrative Agent in its reasonable discretion, and (2) enter into any
necessary engineering, architects and construction contracts required to fully complete such
rebuilding, reconstruction and restoration on reasonable market-based terms



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and conditions; provided that the Borrower shall, in the case of a Substantial
Casualty, complete items (1) and (2) of this subclause (iv)(B) within twelve (12) months
following the applicable casualty event in a manner that is satisfactory to the
Administrative Agent, in its reasonable discretion and shall, within (6) months following
the applicable casualty, provide preliminary plans and specifications and a summary budget
with respect to the applicable restoration; (C) in the case of any Substantial Casualty,
deposit into the escrow account being maintained by the Administrative Agent pursuant to
clause (iii) above any amount of cash and Cash Equivalents (in addition to the BBP Insurance
Proceeds held therein), which, in the reasonable judgment of Administrative Agent, is
necessary and sufficient to fund the full rebuilding, reconstruction and restoration of the
applicable Property to its use, value and condition immediately prior to the casualty;
provided, that the Administrative Agent shall be entitled, at the expense of the
Loan Parties, to consult such professionals as Administrative Agent may deem necessary, in
its sole discretion, to determine the total costs of restoring the applicable Property; (D)
cause the applicable rebuilding, reconstruction and restoration to be diligently completed
in a workmanlike manner under, if necessary for such rebuilding, reconstruction and
restoration, the supervision of an architect and/or engineer selected and paid for by the
Borrower or the Loan Parties but, in the case of a Substantial Casualty, approved in advance
by the Administrative Agent in its reasonable discretion, and, in the case of a Substantial
Casualty, by a general contractor who must be acceptable in all material respects to
Administrative Agent, in its reasonable discretion and who shall have, if required by the
Administrative Agent, obtained (1) payment and performance bonds from a corporate surety
reasonably acceptable to Administrative Agent and naming Administrative Agent as dual
obligee or (2) such other protections concerning performance of the applicable contractor as
may be reasonably satisfactory to the Administrative Agent; and (E) have otherwise complied
with any of the terms, conditions or restrictions set forth herein or in any Mortgage
Instrument or other Loan Document with respect to the consummation of such rebuilding,
reconstruction and restoration. If any of the foregoing conditions are not satisfied,
Administrative Agent may, in its sole discretion (subject to the direction of the Required
Lenders), apply all BBP Insurance Proceeds held by it to the payment of the Obligations in
accordance with the priorities established pursuant to Section 2.05(b)(vi).




     (v) With respect to BBP Insurance Proceeds held by the Administrative Agent pursuant to
the terms of this Section 7.07(b) in connection with any Substantial Casualty, the
Administrative Agent shall, following the satisfaction of the conditions set forth in
subclauses (iv)(B)(1) and (2), disburse such BBP Insurance Proceeds to the Borrower or any
Loan Party for the payment of invoices related to the rebuilding, reconstruction or
restoration of the applicable Property (A) to the extent the Administrative Agent will not
incur any liability to any other person as a result of such use or release of such BBP
Insurance Proceeds; (B) subject to such holdbacks and other terms, conditions and
restrictions as may be in accordance with the construction lending practices of the
Administrative Agent and (C) to the extent no Default or Event of Default is
then-continuing.




     (vi) Notwithstanding anything contained in the foregoing to the contrary, (1)
immediately upon the occurrence and during the continuance of any Default, Administrative
Agent may cease the distribution of any amounts related to the BBP Insurance Proceeds or
otherwise held in the escrow account related thereto until such Default is cured or waived
by the Lenders in accordance with the terms hereof; (2) immediately upon the occurrence and
during the continuance of any Event of Default, Administrative Agent may apply all BBP
Insurance Proceeds and any other sums deposited with Administrative Agent pursuant to the
terms of this Section 7.07(b) to the repayment of the Obligations in accordance with
the priorities established pursuant to Section 2.05(b)(vi); and (3) Administrative
Agent may apply all BBP Insurance Proceeds and any other sums deposited with Administrative
Agent pursuant to the terms of this Section 7.07(b) and held by Administrative Agent
as of the Maturity Date to the repayment of the Obligations in accordance with the
priorities established pursuant to Section 2.05(b)(vi).




     (vii) Regardless of whether any BBP Insurance Proceeds are applied to reduce the
Obligations pursuant to the terms of this Section 7.07(b), the unpaid portion of the
Obligations shall remain in full force and effect and the payment thereof shall not be
excused. The Loan Parties shall at all times comply with the requirements of the insurance
policies required hereunder and of the issuers of such policies and of any board of
underwriters or similar body as applicable to or affecting the Borrowing Base Properties or
the Property related thereto.




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     (c) The Borrower shall notify Administrative Agent immediately of any threatened or
pending proceeding for condemnation affecting any Borrowing Base Property or the Property related
thereto or arising out of damage to any Borrowing Base Property or the Property related thereto,
and Borrower shall, at Borrower’s expense, diligently prosecute any such proceedings.
Administrative Agent shall (for the benefit of the Secured Parties) have the right (but not the
obligation) to participate in any such proceeding and to be represented by counsel of its own
choice. Proceeds related to any condemnation event with respect to any Borrowing Base Property or
the Property related thereto shall also be subject to the following terms and conditions:




     (i) Administrative Agent shall be entitled to receive all sums which may be awarded or
become payable to any Loan Party for the condemnation of any Borrowing Base Property or the
Property related thereto, or any part thereof, for public or quasi-public use, or by virtue
of private sale in lieu thereof (such proceeds constituting the “BBP Condemnation
Proceeds”). The applicable Loan Party(ies) shall, promptly upon request of
Administrative Agent, execute such additional assignments and other documents as may be
necessary from time to time to permit such participation and to enable Administrative Agent
to collect and receive any such BBP Condemnation Proceeds. Administrative Agent shall not
be, under any circumstances, liable or responsible for failure to collect or to exercise
diligence in the collection of any BBP Condemnation Proceeds or for failure to see to the
proper application of any amount paid over to any Loan Party. Administrative Agent is
hereby authorized, in the name of any applicable Loan Party, to execute and deliver valid
acquittances for, and to appeal from, any award, judgment or decree constituting BBP
Condemnation Proceeds. All costs and expenses (including but not limited to attorneys’
fees) incurred by Administrative Agent in connection with any condemnation shall be a demand
obligation owing by the Borrower and the Loan Parties payable to Administrative Agent in
accordance with Section 11.04 hereof.




     (ii) To the extent any of the BBP Condemnation Proceeds are delivered to or otherwise
obtained by the Borrower or any other Loan Party and are (A) in the aggregate, in a gross
amount in excess of $50,000,000 (the applicable condemnation constituting, in such case, a
“Substantial Condemnation”) or (B) the Borrower and Loan Parties do not intend to
use such BBP Condemnation Proceeds for the purpose of restoring or rebuilding the applicable
Borrowing Base Property or the Property related thereto, such proceeds shall be immediately
delivered to the Administrative Agent to be held or applied in accordance with the
provisions of this Section 7.07(c). Prior to any required delivery of BBP
Condemnation Proceeds by the Loan Parties to the Administrative Agent, such BBP Condemnation
Proceeds shall be held in escrow by the applicable Loan Party(ies) for the account and
benefit of the Administrative Agent and the Secured Parties.




     (iii) Any BBP Condemnation Proceeds received by Administrative Agent (whether from the
applicable Governmental Authority or from a Loan Party pursuant to subclause (ii) above)
shall, after deduction therefrom of all reasonable expenses actually incurred by
Administrative Agent in the collection of the same, including attorneys’ fees, be (A) held
by the Administrative Agent in escrow in a cash collateral account subject to a first
priority security interest in favor of the Administrative Agent (for the benefit of the
Secured Parties), to the extent such BBP Condemnation Proceeds relate to a Substantial
Condemnation and the Borrower has elected to fully rebuild, reconstruct and restore the
Property pursuant to and in accordance with the terms of this Section 7.07(c); (B)
applied by the Administrative Agent to the Obligations in the priority set forth in
Section 2.05(b)(vi), to the extent the Borrower has elected not to fully rebuild,
reconstruct and restore the Property pursuant to and in accordance with the terms of this
Section 7.07(c) (provided, that the Borrower will have a period of sixty (60) days
following the delivery of such proceeds to the Administrative Agent in which to deliver
written notice to the Administrative Agent stating whether it intends to rebuild,
reconstruct and restore the Property or cause such proceeds to be applied to the Obligations
and provided, further, that any failure to deliver any such notice shall evidence the
Borrower’s election to cause such proceeds to be applied to the Obligations in accordance
with this subclause (iii)(B)); or (C) delivered to the Borrower or any Loan Party designated
by the Borrower for the purpose of financing the rebuilding, reconstruction and restoration
of the applicable Property, to the extent such BBP Condemnation Proceeds do not relate to a
Substantial Condemnation and the Borrower has elected to fully rebuild, reconstruct and
restore the Property pursuant to and in accordance with the terms of this Section
7.07(c); provided, that if (1) the BBP Condemnation Proceeds paid in connection with any
given condemnation event are in excess of the amount that is spent on the reconstruction,
rebuilding or



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restoration of the applicable Borrowing Base Property, (2) the Borrower requests in
writing the return of such funds following the completion of such rebuilding, reconstruction
and restoration and (3) there is no then-continuing Default or Event of Default, the
Administrative Agent shall return such excess funds to the Borrower. The Borrower and each
Loan Party hereby assigns to, and grants Administrative Agent a security interest in, all
BBP Condemnation Proceeds (prior to application thereof) and to any escrow account
established pursuant to the terms of this Section 7.07(c) and in the funds held
therein to secure the payment and performance of the Obligations.




     (iv) In the event that the Borrower elects to cause the full rebuilding, restoration
and reconstruction of any Borrowing Base Property or the Property related thereto following
any condemnation resulting in BBP Condemnation Proceeds, the Borrower and Loan Parties shall
(A) if such BBP Condemnation Proceeds relate to a Substantial Condemnation, provide to the
Administrative Agent, within thirty (30) days of the related condemnation event (or, to the
extent delivery within such time frame is not reasonably possible, as soon as reasonably
practicable following such event), evidence satisfactory to the Administrative Agent in its
reasonable discretion that there are sufficient funds from the BBP Condemnation Proceeds and
from cash and Cash Equivalents available to the applicable Loan Party, if needed, to
completely restore or repair the applicable Property to its use, value and condition
immediately prior to the condemnation as well as to maintain compliance with the financial
and other covenants set forth herein; (B) diligently commence to (1) prepare (or cause to be
prepared) all plans and specifications with respect to the full rebuilding, reconstruction
and restoration of the applicable Property (to the extent necessary in connection with such
rebuilding, reconstruction and/or restoration), such plans and specifications to be, in the
case of a Substantial Condemnation, in all material respects acceptable to the
Administrative Agent in its reasonable discretion, and (2) enter into any necessary
engineering, architects and construction contracts required to fully complete such
rebuilding, reconstruction and restoration on reasonable market-based terms and conditions;
provided that the Borrower shall, in the case of a Substantial Condemnation, complete items
(1) and (2) of this subclause (iv)(B) within twelve (12) months following the applicable
condemnation event in a manner that is satisfactory to the Administrative Agent, in its
reasonable discretion and shall, within (6) months following the applicable condemnation
event, provide preliminary plans and specifications and a summary budget with respect to the
applicable restoration; (C) in the case of any Substantial Condemnation, deposit into the
escrow account being maintained by the Administrative Agent pursuant to clause (iii) above
any amount of cash and Cash Equivalents (in addition to the BBP Condemnation Proceeds held
therein), which, in the reasonable judgment of Administrative Agent, is necessary and
sufficient to fund the full rebuilding, reconstruction and restoration of the applicable
Property to its use, value and condition immediately prior to the condemnation;
provided, that the Administrative Agent shall be entitled, at the expense of the
Loan Parties, to consult such professionals as Administrative Agent may deem necessary, in
its sole discretion, to determine the total costs of restoring the applicable Property; (D)
cause the applicable rebuilding, reconstruction and restoration to be diligently completed
in a workmanlike manner under the supervision of an architect and/or engineer, if necessary
for such rebuilding, reconstruction and restoration, selected and paid for by the Borrower
or the Loan Parties but, in the case of a Substantial Condemnation, approved in advance by
the Administrative Agent in its reasonable discretion, and, in the case of a Substantial
Condemnation, by a general contractor who must be acceptable in all material respects to
Administrative Agent, in its reasonable discretion and who shall have, if required by the
Administrative Agent, obtained (1) payment and performance bonds from a corporate surety
reasonably acceptable to Administrative Agent and naming Administrative Agent as dual
obligee or (2) such other protections concerning performance of the applicable contractor as
may be reasonably satisfactory to the Administrative Agent; and (E) have otherwise complied
with any of the terms, conditions or restrictions set forth herein or in any Mortgage
Instrument or other Loan Document with respect to the consummation of such rebuilding,
reconstruction and restoration. If any of the foregoing conditions are not satisfied,
Administrative Agent may, in its sole discretion (subject to the direction of the Required
Lenders), apply all BBP Condemnation Proceeds held by it to the payment of the Obligations
in accordance with the priorities established pursuant to Section 2.05(b)(vi).




     (v) With respect to BBP Condemnation Proceeds held by the Administrative Agent pursuant
to the terms of this Section 7.07(c) in connection with any Substantial
Condemnation, the Administrative Agent shall, following the satisfaction of the conditions
set forth in subclauses (iv)(B)(1) and (2), disburse



74









 







such BBP Condemnation Proceeds to the Borrower or any Loan Party for the payment of
invoices related to the rebuilding, reconstruction or restoration of the applicable Property
(A) to the extent the Administrative Agent will not incur any liability to any other person
as a result of such use or release of such BBP Condemnation Proceeds; (B) subject to such
holdbacks and other terms, conditions and restrictions as may be in accordance with the
construction lending practices of the Administrative Agent and (C) to the extent no Default
or Event of Default is then-continuing.




     (vi) Notwithstanding anything contained in the foregoing to the contrary, (1)
immediately upon the occurrence and during the continuance of any Default, Administrative
Agent may cease the distribution of any amounts related to the BBP Condemnation Proceeds or
otherwise held in the escrow account related thereto until such Default is cured or waived
by the Lenders in accordance with the terms hereof; (2) immediately upon the occurrence and
during the continuance of any Event of Default, Administrative Agent may apply all BBP
Condemnation Proceeds and any other sums deposited with Administrative Agent pursuant to the
terms of this Section 7.07(c) to the repayment of the Obligations in accordance with
the priorities established pursuant to Section 2.05(c)(v); and (3) Administrative
Agent may apply all BBP Condemnation Proceeds and any other sums deposited with
Administrative Agent pursuant to the terms of this Section 7.07(c) and held by
Administrative Agent as of the Maturity Date to the repayment of the Obligations in
accordance with the priorities established pursuant to Section 2.05(b)(vi).




     (vii) Regardless of whether any BBP Condemnation Proceeds are applied to reduce the
Obligations pursuant to the terms of this Section 7.07(c), the unpaid portion of the
Obligations shall remain in full force and effect and the payment thereof shall not be
excused.


7.08 Compliance with Laws and Material Contractual Obligations.




     Comply with the requirements of all Laws, all material Contractual Obligations and all orders,
writs, injunctions and decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law, material Contractual Obligation or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.


7.09 Books and Records.




     (a) Maintain proper books of record and account, in which entries that are full, true and
correct in all material respects in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the Borrower or such
Subsidiary, as the case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.


7.10 Inspection Rights.




     Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the expense of
the Administrative Agent and Lenders (as applicable) and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any time during normal
business hours and without advance notice. The Loan Parties agree that the Administrative Agent,
and its representatives, may, notwithstanding the foregoing provisions concerning the allocation of
expenses related to inspections, conduct an annual audit of the Collateral and books and records of
the Consolidated Parties at the expense of the Loan Parties.



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7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions: (a) in the case of the Revolving Loans and Letters
of Credit, for working capital, capital expenditures, and other lawful corporate purposes; and (b)
in the case of the Term Loans, to finance any remaining costs and expenses (direct or indirect,
soft or hard) related to the construction of Gaylord National and for working capital, capital
expenditures, and other lawful corporate purposes, as designated by the Borrower from time to time.


7.12 Additional/Update Appraisals.




     Acknowledge and agree that the Administrative Agent shall have the right, in its discretion,
to obtain, at the expense of the Borrower, a new or updated “as-is” appraisal with respect to any
Borrowing Base Property once every eighteen (18) months during the term for use in determining such
Borrowing Base Property’s Appraised Value. In addition to the foregoing, the Loan Parties hereby
acknowledge and agree that the Administrative Agent shall, upon the occurrence of any Substantial
Casualty or Substantial Condemnation, have the right to obtain a new appraisal with respect to the
Borrowing Base Property which is the subject thereof both upon the delivery of the plans and
specifications related to the rebuilding, reconstruction and restoration of such Property and upon
the completion of such rebuilding, reconstruction and restoration; provided, that the appraisal
obtained in connection with the delivery of the applicable plans and specifications related to such
rebuilding, reconstruction and restoration shall be performed on as “as-completed” basis. To the
extent the Administrative Agent initially incurs any costs or expenses related to any new appraisal
provided for in this Section 7.12, the Borrower and/or other Loan Parties shall reimburse
the Administrative Agent upon demand in the amount of such costs or expenses. Each appraisal
obtained pursuant to this Section 7.12 shall be in form and substance and from an appraiser
acceptable to the Administrative Agent.


7.13 Removal of Borrowing Base Properties.




     Notwithstanding anything contained herein to the contrary, to the extent any property
qualifying as a Borrowing Base Property (a) ceases to be wholly owned by a Loan Party or ground
leased by a Loan Party pursuant to an acceptable ground lease; or (b) ceases to be encumbered by a
first priority perfected Lien (subject only to Permitted Liens) in favor of the Administrative
Agent (for the benefit of the Lenders, Administrative Agent and other secured parties referenced
herein), such property shall cease to qualify as a Borrowing Base Property hereunder and
Schedule 1.01(b) attached hereto shall be deemed to have been amended to remove such Real
Property from the list of Borrowing Base Properties; provided, that no such removal of a Borrowing
Base Property from qualification as such shall result in the release of any remaining Liens in
favor of the Administrative Agent except to the extent otherwise provided herein or in any other
Loan Document.


7.14 Pledged Assets.




     Each Loan Party will (a) cause all real Property interests related to the Borrowing Base
Properties (other than the Designated Outparcels), all personal Property (including, without
limitation, any and all construction drawings, construction plans and architectural renderings
relating thereto) owned by the Loan Parties and relating to any Borrowing Base Properties (other
than vehicles subject to certificates of title) and all of the Pledged Interests to be subject at
all times to first priority, perfected and, in the case of the real Property interest in each
Borrowing Base Property (whether leased or owned), title insured Liens in favor of the
Administrative Agent to secure the Obligations pursuant to the terms and conditions of the
Collateral Documents or, with respect to any such Property acquired subsequent to the Closing Date,
such other additional security documents as the Administrative Agent shall reasonably request,
subject in any case only to Permitted Liens; (b) except to the extent the delivery of the following
would, in the judgment of the Administrative Agent, be redundant or duplicative of such items
delivered in connection with or under the Existing Credit Agreement with respect to any Collateral
described in the foregoing clause (a), deliver such other documentation as the Administrative Agent
may reasonably request in connection with the foregoing, including, without limitation, appropriate
UCC-1 financing statements, real estate title insurance policies, surveys, environmental reports,
landlord’s waivers, certified resolutions and other organizational and authorizing documents of
such Person, favorable opinions of counsel to such Person (which shall cover, among other things,
the legality, validity, binding effect and enforceability of the documentation referred to above
and the perfection of the Administrative Agent’s Liens thereunder) and other items of the types
required to be delivered



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pursuant to Section 5.01(c) and (d), all in form, content and scope reasonably
satisfactory to the Administrative Agent and (c) indemnify and/or reimburse (as applicable) the
Administrative Agent for any and all costs, expenses, losses, claims, fees or other amounts paid or
incurred by the Administrative Agent to the extent paid or incurred in connection with the filing
or recording of any documents, agreement or instruments related to the Collateral, the protection
of any of the Collateral, its rights and interests therein or any Loan Party’s underlying rights
and interests therein or the enforcement of any of its other rights with respect to the Collateral;
provided, that the reimbursement and indemnity obligations set forth in this clause (c) shall be in
addition to and in furtherance of all other reimbursement or indemnity obligations of the Loan
Parties referenced herein or in any other Loan Document.



7.15 Ground Leases.




     Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease
related to any Borrowing Base Property or material easement agreements in favor of such Loan Party
and related to any Borrowing Base Property (as applicable):



     (a) pay when due the rent and other amounts due and payable thereunder (subject to applicable
cure or grace periods);



     (b) timely perform and observe all of the material terms, covenants and conditions required to
be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);



     (c) do all things necessary to preserve and keep unimpaired such ground lease or easement
agreement and its rights thereunder;



     (d) not waive, excuse or discharge any of the material obligations of the lessor or other
obligor thereunder;



     (e) diligently and continuously enforce the material obligations of the lessor or other
obligor thereunder;



     (f) 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 or other obligor to terminate or exercise any other
remedy with respect to the applicable ground lease or easement 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 or such other obligor to exercise any other remedy under the applicable
agreement;



     (g) cancel, terminate, surrender, modify or amend any of the provisions of any such ground
lease or easement or agree to any termination, amendment, modification or surrender thereof without
the prior written consent of the Administrative Agent;



     (h) deliver to the Administrative Agent all default and other material notices received by it
or sent by it under the applicable ground lease or easement agreement;



     (i) at Administrative Agent’s request, provide to Administrative Agent any information or
materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due
observance and performance of its obligations thereunder;



     (j) not permit or consent to the subordination of such ground lease or easement agreement to
any mortgage or other leasehold interest of the premises related thereto;



     (k) execute and deliver (to the extent permitted to do so under such ground lease or easement
agreement), upon the request of the Administrative Agent, any documents, instruments or agreements
as may be required to permit the Administrative Agent to cure any default under such ground lease
or easement agreement;



     (l) provide to Administrative Agent written notice of its intention to exercise any option or
renewal or extension rights with respect to such ground lease or easement at least thirty (30) days
prior to the expiration of the



77









 




time to exercise such right or option and, upon the direction of the Administrative Agent,
duly exercise any renewal or extension option with respect to any such ground lease or easement
(provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its
attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such
Person, all instruments, documents or agreements necessary to extend or renew any such ground lease
or easement;




     (m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground
lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or
surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written
consent;



     (n) in connection with the bankruptcy or other insolvency proceedings of any ground lessor or
other obligor, ratify the legality, binding effect and enforceability of the applicable ground
lease or easement agreement within the applicable time period therefore in such proceedings,
notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver
related thereto;



     (o) provide to the Administrative Agent not less than thirty (30) days prior written notice of
the date on which the applicable Loan Party shall apply to any court or other governmental
authority for authority or permission to reject the applicable ground lease or easement agreement
in the event that there shall be filed by or against any Loan Party any petition, action or
proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the
Administrative Agent shall have the right, but not the obligation, to serve upon the applicable
Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent
demands that such Loan Party assume and the assign the relevant ground lease or easement agreement
to the Administrative Agent subject to an 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 susceptible of being cured by the Administrative Agent and of future
performance under the applicable ground lease or easement agreement; provided, further, that if the
Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not
seek to reject the applicable agreement and shall promptly comply with such demand;



     (p) permit the Administrative Agent (at its option), during the continuance of any Event of
Default, to (i) perform and comply with all obligations under the applicable ground lease or
easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or
desirable to prevent or cure any default by such Loan Party under such ground lease or easement
agreement and (iii) enter in and upon the applicable premises related to such ground lease or
easement agreement to the extent and as often as the Administrative Agent deems necessary or
desirable in order to prevent or cure any default under the applicable ground lease or easement
agreement;



     (q) in the event of any arbitration, court or other adjudicative proceedings under or with
respect to any such ground lease or easement agreement, permit the Administrative Agent (at its
option) to exercise all right, title and interest of the applicable Loan Party in connection with
such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint
the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with
an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all
costs, fees and expenses related to such proceedings; provided, further, that each Loan Party
hereby further agrees that the Administrative Agent shall have the right, but not the obligation,
to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of
the ground leases or easement agreements referenced above by the relevant ground lessor or obligor
as a result of bankruptcy or similar proceedings (including, without limitation, the right to file
and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy
case or similar proceeding); and



     (r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground
lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an
estoppel certificate in relation to such ground lease or easement agreement in form and substance
acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the
name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or
easement agreement is in full force and effect and has not been modified except to the extent
Administrative Agent has received notice of such modification; (iii) that no rental and other
payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such
Person knows of any actual or alleged defaults or events of default under the applicable ground
lease or easement agreement;



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provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within
ten (10) days of any request therefor, such documents, instruments, agreements, assignments or
other conveyances reasonably requested by the Administrative Agent in connection with or in
furtherance of any of the provisions set forth above or the rights granted to the Administrative
Agent in connection therewith.




ARTICLE VIII

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall not be Fully Satisfied, or any Letter of Credit shall remain outstanding, no Loan
Party shall, nor shall it permit any Subsidiary to, directly or indirectly:


8.01 Liens.




     Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:




     (a) Liens pursuant to any Loan Document;




     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by Section
8.03(b);




     (c) Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;




     (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business and in an
aggregate amount not to exceed (in the aggregate), with respect to the Borrowing Base
Properties, (i) an amount equal to (A) ten percent (10.0%) of the construction budget of any
hotel then being constructed by the Loan Parties (including construction costs with respect
to any portion of an operating hotel then subject to an expansion, but in all cases
excluding pre-opening costs and capitalized interest related to any such property), plus (B)
$50,000,000 in the aggregate with respect to all other operating properties;
provided, further, that with respect to all Liens referenced in this
subclause (i), such Liens shall secure only amounts not yet due and payable or, if due and
payable, (A) are unfiled and no other action has been taken to enforce the same, or (B) with
respect to Liens related to the Gaylord National Property subject to the Laws of the State
of Maryland, such Liens (I) have not yet attached to the Gaylord National Property or
otherwise been established pursuant to any other judicial action (whether interim or
permanent), and (II) shall not secure or relate to asserted claim amounts in excess of
$25,000,000, and, in any case, for which adequate reserves determined in accordance with
GAAP have been established; plus (ii) $15,000,000 in the aggregate with respect to any Liens
which have been filed or subject to some enforcement action (or, with respect to Liens
related to the Gaylord National Property subject to the Laws of the State of Maryland, Liens
which have attached to the Gaylord National Property or otherwise been established pursuant
to any other judicial action (whether interim or permanent)) and, in each case, for which
adequate reserves determined in accordance with GAAP have been established;
provided, that Liens referenced in this subclause (ii) with respect to which the
Borrower (x) has procured bonding such that the applicable Lien does not, under the laws of
the applicable jurisdiction, attach to the subject Borrowing Base Property(ies) or (y) has
otherwise provided security reasonably satisfactory to the Administrative Agent, shall not
be considered “Liens” with respect to the Borrowing Base Properties for purposes of this
Section 8.01(d);



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     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;




     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred in the
ordinary course of business;




     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, which do not in any
case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person and which, with
respect to Borrowing Base Properties, have been reviewed and approved by the Administrative
Agent (such approval to be in the sole discretion of the Administrative Agent);




     (h) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 9.01(h) or securing appeal or other surety bonds related to
such judgments;




     (i) Liens securing Indebtedness permitted under Section 8.03;




     (j) Leases or subleases permitted under Section 8.17;




     (k) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




     (l) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;




     (m) normal and customary rights of setoff upon deposits of cash in favor of banks or
other depository institutions;




     (n) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;




     (o) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under
Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses; and




     (p) Liens pursuant to any Permitted PILOT Transaction.



8.02 Investments.




     Make any Investments, except:




     (a) Investments held by the Borrower or such Subsidiary in the form of Cash Equivalents;




     (b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




     (c) Investments consisting of advances or loans to directors, officers, employees,
agents, customers or suppliers in an aggregate principal amount (including Investments of
such type set forth in Schedule 8.02) not to exceed $10,000,000 at any time
outstanding; provided that all such advances must be in compliance with applicable Laws,
including, but not limited to, the Sarbanes-Oxley Act of 2002.



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     (d) Investments (whether constituting Acquisitions or otherwise) in Wholly Owned
Subsidiaries of the Borrower (or Persons that will, immediately upon the consummation of
such Investment, be Wholly Owned Subsidiaries of the Borrower) or in the assets of such
Persons, to the extent such Investments are made in Persons or Property relating to the
types of businesses which are not prohibited by Section 8.07 hereof;




     (e) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss; or




     (f) Investments (whether constituting Acquisitions or otherwise) in Persons that are
not Wholly Owned Subsidiaries of the Borrower (and that will not, immediately upon the
consummation of such Investment, be Wholly Owned Subsidiaries of the Borrower) or in the
assets of such Persons, to the extent such Investments are made in Persons or Property
relating to the types of businesses which are not prohibited by Section 8.07 hereof;
provided, however, that in the aggregate such Investments by the Borrower
and the other Loan Parties in Persons which are not Wholly Owned Subsidiaries of the
Borrower (whether made pursuant to this clause (f) or any other clause of this Section
8.02) shall not, at any time, exceed an amount equal to fifteen percent (15.0%) of
Consolidated Total Asset Value; provided, further, that, in each case,
Persons which are no longer Wholly Owned Subsidiaries by reason of the sale of an interest
in any assets existing as of the Closing Date shall be excluded from this calculation and
shall not be limited pursuant to this Section 8.02.



8.03 Indebtedness.




     Create, incur, assume or suffer to exist any Indebtedness, except:




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of the Borrower and its Subsidiaries outstanding on the Closing Date
and set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof on
terms and conditions no less favorable to such Person than such existing Indebtedness;
provided that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing commitments
unutilized thereunder);




     (c) intercompany Indebtedness and Guarantees with respect to Indebtedness, so long as
in each case the related Investment made by the holder of such Indebtedness or by the
provider of such Guarantee, as applicable, is permitted under Section 8.02 (other
than Section 8.02(f));




     (d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of securities issued
by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party;




     (e) [Intentionally omitted];




     (f) Guarantees with respect to any Indebtedness permitted under this Section
8.03;




     (g) Indebtedness in the form of Capital Lease obligations and purchase money
Indebtedness; provided that (i) the total of all such Indebtedness for all such
Persons taken together shall not exceed an aggregate principal amount of $25,000,000 at any
one time outstanding; (ii) such Indebtedness when incurred



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shall not exceed the purchase price of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;




     (h) Guarantees of Operating Lease obligations of Subsidiaries of the Borrower;




     (i) other Indebtedness hereafter incurred by the Borrower or any of its Subsidiaries in
an amount not to exceed an aggregate amount of $25,000,000 at any time outstanding;
provided, that the Borrower (i) shall provide the Administrative Agent with copies
of any certifications, computations or other information or materials required to be
provided by it under the Senior Note Indentures with respect to the incurrence of any such
Indebtedness (if any) and (ii) shall not incur any such Indebtedness if it has reason to
believe that the incurrence of such Indebtedness is likely to result in the occurrence of a
Default or Event of Default hereunder or under any Loan Document; and




     (j) other Indebtedness hereafter incurred by the Borrower or any of its Subsidiaries
provided that the Borrower shall have delivered to the Administrative Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to
the incurrence of such Indebtedness and to the concurrent retirement of any other
Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with the
financial covenants set forth in Sections 8.02(f) and 8.11 as of the most
recent calendar quarter end with respect to which the Administrative Agent has received the
Required Financial Information.



8.04 Fundamental Changes.




     Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding
the foregoing provisions of this Section 8.04 but subject to the terms of Sections
7.13 and 7.14, (a) the Borrower may merge or consolidate with any of its Subsidiaries
provided that the Borrower shall be the continuing or surviving corporation, (b) any Loan Party
other than the Borrower may merge or consolidate with any other Loan Party or the Borrower, (c) any
Consolidated Party which is not a Loan Party may be merged or consolidated with or into any Loan
Party provided that such Loan Party shall be the continuing or surviving corporation, (d) any
Consolidated Party which is not a Loan Party may be merged or consolidated with or into any other
Consolidated Party which is not a Loan Party, (e) any Subsidiary of the Borrower may merge with any
Person that is not a Loan Party in connection with a Disposition permitted under Section
8.05, and (f) any Wholly Owned Subsidiary of the Borrower that is not a Loan Party may Dispose
of all or substantially all of its assets (whether now owned or hereafter acquired), dissolve,
liquidate or wind up its affairs at any time provided that such Disposition, dissolution,
liquidation or winding up, as applicable, could not reasonably be expected to have a Material
Adverse Effect. Notwithstanding anything contained or implied herein to the contrary, this
provision shall not, in any case, be construed to limit (y) the transfer, sale or other disposition
by a non-Loan Party Subsidiary of the Borrower of any of its assets (whether a portion of or all or
substantially all of its assets) to the Borrower or any other Subsidiary of the Borrower or (z) the
transfer, sale or other disposition by a Loan Party Subsidiary of the Borrower of any of its assets
(whether a portion of or all or substantially all of its assets) to any other Loan Party.


8.05 Dispositions.




     Make any Disposition of any Borrowing Base Property (other than the Disposition of a Borrowing
Base Property pursuant to a Permitted PILOT Transaction) unless:




     (a) the consideration paid in connection therewith shall be in an amount not less than
the fair market value of the Property disposed of and in cash or Cash Equivalents with such
payment to be made contemporaneously with consummation of the applicable transaction;




     (b) no later than five (5) Business Days prior to any such Disposition, the Borrower
shall have delivered to the Administrative Agent (i) a Pro Forma Compliance Certificate
demonstrating that, upon giving effect on a Pro Forma Basis to such transaction and any
prepayments to be made in connection therewith pursuant to Section 2.05, the Loan
Parties would be in compliance with the provisions of Article II hereof concerning
the Total Revolving Outstandings, Total Term Loan Outstandings and Total Facility
Outstandings



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and the financial covenants set forth in Sections 8.02(f) and 8.11 as
of the most recent calendar quarter end with respect to which the Administrative Agent has
received the Required Financial Information and (ii) a certificate of a Responsible Officer
of the Borrower specifying the anticipated date of such Disposition, briefly describing the
asset(s) to be sold or otherwise disposed of and setting forth the value of such assets, the
aggregate consideration and the Net Cash Proceeds to be received for such assets in
connection with such Disposition;




     (c) the Loan Parties, to the extent required by Section 2.05(b), prepay the
Loans (and Cash Collateralize L/C Obligations) in the amount and as of the date required
pursuant to such section;




     (d) for all Dispositions of Borrowing Base Properties following (or occurring
concurrently with) the Disposition of any other Borrowing Base Property hereunder, such
Disposition has been approved in writing by the Supermajority Lenders;




     (e) the Net Cash Proceeds derived from any such Disposition are applied to Indebtedness
or otherwise reinvested in a manner not prohibited hereunder or a binding commitment to so
reinvest is entered into within 360 days following the receipt of such Net Cash Proceeds by
the Loan Parties; and




     (f) immediately following such Disposition, there shall exist at least two (2) hotel
Borrowing Base Properties that continue to fully qualify as such pursuant to the terms of
this Agreement.


8.06 Restricted Payments.




     Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that so long as no Default shall have occurred and be
continuing at the time of any action described below or would result therefrom:




     (a) each Subsidiary may make Restricted Payments (directly or indirectly) to any Loan
Party and any other Person that owns any Capital Stock in such Subsidiary, ratably according
to their respective holdings of the type of Capital Stock in respect of which such
Restricted Payment is being made;




     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the Capital Stock of such Person;




     (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Capital
Stock issued by it with the proceeds received from the substantially concurrent issue of new
shares of its common stock or other common Capital Stock;




     (d) the Borrower may make Restricted Payments to the holders of its Capital Stock to
the extent not prohibited by the Senior Note Indentures, as such documents may be from time
to time amended in accordance with its terms; provided, however, that to the extent each of
the Senior Note Indentures is, for any reason, terminated (whether in connection with the
full and final satisfaction of the obligations thereunder or otherwise), the Borrower shall,
for the remainder of the term hereof, be permitted to make Restricted Payments to the
holders of its Capital Stock to the extent permitted in the last Senior Note Indenture to be
terminated, as existing immediately prior to the termination thereof.


8.07 Change in Nature of Business.




     Engage in any material line of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto or any other line of business related to the entertainment or
hospitality industries.


8.08 Transactions with Affiliates and Insiders.




     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) advances of working capital to any Loan Party,
(b) transfers of cash and assets to any Loan



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Party, (c) intercompany transactions expressly permitted by Section 8.02, Section
8.03, Section 8.04, Section 8.05 or Section 8.06, (d) compensation and
reimbursement of expenses of officers and directors approved in accordance with company policies
and (e) except as otherwise specifically limited in this Agreement, other transactions which are
entered into in the ordinary course of such Person’s business on terms and conditions substantially
as favorable to such Person as would be obtainable by it in a comparable arms-length transaction
with a Person other than an officer, director or Affiliate.



8.09 Burdensome Agreements.




     (a) Enter into any Contractual Obligation that encumbers or restricts the ability of any such
Person to (i) pay dividends or make any other distributions to any Loan Party on its Capital Stock
or with respect to any other interest or participation in, or measured by, its profits, (ii) pay
any Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to any
Loan Party, (iv) sell, lease or transfer any of its Property to any Loan Party or (v) except in
respect of any Consolidated Party which is not a Loan Party, (A) pledge its Property pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (B)
act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters referred to in clauses
(i)-(v)(A) above) for (1) this Agreement and the other Loan Documents, (2) any Permitted Lien or
any document or instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted Lien or (3)
customary restrictions and conditions contained in any agreement relating to the sale of any
Property permitted under Section 8.05 pending the consummation of such sale.



     (b) Enter into any Contractual Obligation that prohibits or otherwise restricts the existence
of any Lien upon any of its Property in favor of the Administrative Agent (for the benefit of the
Lenders) for the purpose of securing the Obligations, whether now owned or hereafter acquired, or
requiring the grant of any security for any obligation if such Property is given as security for
the Obligations, except (i) in connection with any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien and (ii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.05, pending the consummation of such sale.


8.10 Use of Proceeds.




     Use the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying
margin stock or to refund indebtedness originally incurred for such purpose.


8.11 Financial Covenants.




     (a) Consolidated Funded Indebtedness to Total Asset Value Ratio. Permit the
Consolidated Funded Indebtedness to Total Asset Value Ratio as of the end of any calendar quarter
to be greater than 65.0%.



     (b) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth at any
time to be less than the sum of $600,000,000.00, increased on a cumulative basis as of the end of
each calendar quarter, commencing with the calendar quarter ending March 31, 2005 by an amount
equal to (i) 75% of Consolidated Net Income (to the extent positive) for the calendar quarter then
ended, plus (ii) 75% of the proceeds received by any Consolidated Party during the calendar
quarter then ended in connection with any Equity Issuance.



     (c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio as of the end of any calendar quarter to be less than 2.00x.



     (d) Implied Debt Service Coverage Ratio. Permit the Implied Debt Service Coverage
Ratio as of the end of any calendar quarter to be less than 1.60x.



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8.12 [Intentionally Omitted].



8.13 Prepayment of Other Indebtedness, Etc.




     Permit any Consolidated Party to, if any Default or Event of Default has occurred and is
continuing or would be directly or indirectly caused as a result thereof, (a) amend or modify any
of the terms of any Indebtedness of such Consolidated Party (other than Indebtedness under the Loan
Documents) if such amendment or modification would add or change any terms in a manner adverse to
such Consolidated Party, or shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest rate applicable
thereto, or (b) make (or give any notice with respect thereto) any voluntary, optional or other
non-scheduled payment, prepayment, redemption, acquisition for value (including without limitation,
by way of depositing money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any Indebtedness of such Consolidated
Party (other than Indebtedness under the Loan Documents) (in each case, whether or not mandatory).


8.14 Organization Documents; Fiscal Year.




     Permit any Consolidated Party to (a) amend, modify or change its Organization Documents in a
manner materially adverse to the Lenders or (b) change its fiscal year.


8.15 Ownership of Subsidiaries.




     Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person
(other than the Borrower or any Wholly Owned Subsidiary of the Borrower) to own any Capital Stock
of any Loan Party that owns a Borrowing Base Property, except (i) to qualify directors where
required by applicable law or (ii) as a result of or in connection with a dissolution, merger,
consolidation or disposition of a Subsidiary not prohibited by Section 8.04 or Section
8.05, (b) permit any Loan Party that owns a Borrowing Base Property to issue or have
outstanding any shares of preferred Capital Stock or (c) permit, create, incur, assume or suffer to
exist any Lien on any Capital Stock constituting Pledged Interests.


8.16 Sale Leasebacks.




     Permit any Consolidated Party to enter into any Sale and Leaseback Transaction with respect to
any Borrowing Base Property, other than a Permitted PILOT Transaction.


8.17 Leases.




     Permit any Consolidated Party to enter into, terminate, cancel, amend, restate, supplement or
otherwise modify any Lease relating to any Borrowing Base Property without the prior written
consent of the Administrative Agent (such consent to be granted or withheld in the reasonable
discretion of the Administrative Agent, subject to the applicable tenant’s entering into of a
subordination, non-disturbance and attornment agreement with respect to the applicable Lease in
form and substance acceptable to the Administrative Agent); provided, that this Section
8.17 shall not be deemed (a) to prohibit the applicable Loan Party’s continued performance
under any Lease existing as of the date hereof; (b) to require the Administrative Agent’s approval
for any Lease or any such termination, cancellation, amendment, restatement, supplement or
modification thereof (i) with respect to any parking, restaurant, retail, business, spa or laundry
service spaces or any other leases for uses that are customary or ancillary to the operation of the
applicable Borrowing Base Property; (ii) on market-rate terms and conditions and (iii) by its terms
is expressly subordinated to the Mortgage Instrument related to the applicable Borrowing Base
Property; (c) to prohibit the applicable Loan Party from terminating any Lease by reason of a
default by the tenant thereunder, provided that such termination is commercially reasonable; or (d)
to prohibit the entering into by a Loan Party of any ground lease with respect to outparcels held
in connection with the applicable Borrowing Base Property, to the extent (i) the value of such
ground leased outparcels are not material to the operation of the applicable hotel and (ii) the
applicable ground lessee has entered into a subordination, non-disturbance and attornment agreement
with respect to the applicable ground lease in form and substance acceptable to the Administrative
Agent.



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8.18 Foreign Subsidiaries.




     Permit the owner of any Borrowing Base Property to be a Foreign Subsidiary.



8.19 Borrowing Base Property Matters.




     Permit (a) any Borrowing Base Property to cease to be wholly owned by a Loan Party or ground
leased by a Loan Party pursuant to an acceptable ground lease, except in connection with a
Disposition completed in accordance with Section 8.05; (b) the existence of (i) any default
or event of default of a Loan Party under any ground lease underlying any Loan Party’s ownership of
any Borrowing Base Property or (ii) any default or event of default by a ground lessor under any
such ground lease which default or event of default has caused or otherwise resulted in or could
reasonably be expected to cause or otherwise result in any material interference with the
applicable Loan Party lessee’s occupancy or other rights under the applicable ground lease; (c) any
Borrowing Base Property to cease to be encumbered by a first priority perfected Lien (subject only
to Liens acceptable to the Administrative Agent, in its discretion) in favor of the Administrative
Agent (for the benefit of the Lenders, Administrative Agent and other secured parties referenced
herein), except in connection with a Disposition completed in accordance with Section 8.05;
or (d) any Borrowing Base Property to be subject to any Lien other than a Permitted Lien.


8.20 [Intentionally Omitted].




ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES



9.01 Events of Default.




     Any of the following shall constitute an Event of Default:




     (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within five (5) days after the same becomes due, any interest on any
Loan or on any L/C Obligation, any fee due hereunder or any other amount payable hereunder
or under any other Loan Document; or




     (b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02, 7.03,
7.05, 7.10, 7.11, 7.13, 7.14 or 7.15 or
Article VIII or any Guarantor fails to perform or observe any term, covenant or
agreement contained in Article IV hereof; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days
after the earlier of (i) the Borrower’s obtaining knowledge thereof or (ii) the delivery of
notice from the Administrative Agent; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or




     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to perform or
observe (beyond the applicable grace period with respect thereto, if any) any Contractual
Obligation if such failure could reasonably be expected to have a Material Adverse Effect,
(B) fails to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (including,
without limitation, any Senior Note Indenture, but other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount, or (C) fails
to



86









 







observe or perform any other agreement or condition relating to any such Indebtedness
or Guarantee or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically
or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be
made, prior to its stated maturity, or such Guarantee to become payable or cash collateral
in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party
(as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc.. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy; or




     (h) Judgments. There is entered against the Borrower or any Subsidiary (i) any
one or more final judgments or orders for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of ten (10) consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability
of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or




     (j) Invalidity of Loan Documents; Guarantees. (i) Any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or (ii) except as the result of or in connection with a dissolution,
merger or disposition of a Subsidiary not prohibited by Section 8.04 or Section
8.05, the Guaranty given by any Guarantor hereunder or any provision thereof shall cease
to be in full force and effect, or any Guarantor hereunder or any Person acting



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by or on behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations
under its Guaranty, or any Guarantor shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant to its
Guaranty; or




     (k) Change of Control. There occurs any Change of Control; or




     (l) Abandonment of Collateral/Construction. The Loan Parties abandon or
otherwise cease operations with respect to any Borrowing Base Property for a period in
excess of (A) seven (7) consecutive days or (B) twenty (20) days in the aggregate over the
term hereof (subject, in each case, to Designated Force Majeure Events or Other Covered
Events, but regardless of whether any other conditions typically described as “force
majeure” may exist with respect to any such property).


9.02 Remedies Upon Event of Default.




     If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;




     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents;




provided, however, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to
make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically become
due and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case without further
act of the Administrative Agent or any Lender.


9.03 Application of Funds.




     After the acceleration of the Obligations as provided for in Section 9.02(b) (or after
the Loans have automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the proviso to Section
9.02), any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts
payable under Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;



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     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Third payable to
them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Swap Contracts between any Loan Party and any Lender or Affiliate of
any Lender and to Cash Collateralize the undrawn amounts of Letters of Credit, ratably among the
Lenders and the L/C Issuer in proportion to the respective amounts described in this clause
Fourth held by them;



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



     Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE X

ADMINISTRATIVE AGENT



10.01 Appointment and Authority.




     (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the
Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such
provisions.


10.02 Rights as a Lender.




     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to account therefor to
the Lenders.


10.03 Exculpatory Provisions.




     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action



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that, in its opinion or the opinion of its counsel, may expose the Administrative Agent
to liability or that is contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.




The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence
or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until notice describing such Default is given to the Administrative
Agent by the Borrower, a Lender or the L/C Issuer.




The Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with
this Agreement or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any condition set
forth in Article V or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.


10.04 Reliance by Administrative Agent.




     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.


10.05 Delegation of Duties.




     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.


10.06 Resignation/Removal of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. In addition, the Administrative Agent may be removed at the written
direction of the Required



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Lenders to the extent the Administrative Agent is shown to be grossly negligent in the
performance of its material obligations and/or duties hereunder or to have engaged in willful
misconduct in the performance of such obligations and/or duties; provided that any such removal of
an Administrative Agent shall also constitute its removal as L/C Issuer. Upon receipt of any such
notice of resignation or upon any removal of the Administrative Agent by the Required Lenders, the
Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. In the case of a retiring Administrative Agent, if no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
In the case of the removal of an Administrative Agent by the Required Lenders, such removal shall
constitute the immediate termination of such Administrative Agent’s position hereunder and (1) the
removed Administrative Agent shall be immediately discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any collateral security
held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan
Documents, the removed Administrative Agent shall continue to hold such collateral security until
such time as a successor Administrative Agent is appointed) and (2) all payments, communications
and determinations provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) or removed Administrative Agent, and the retiring or removed Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such successor. After the
retiring or removed Administrative Agent’s resignation or removal hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect
for the benefit of such retiring or removed Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring or removed Administrative Agent was acting as Administrative Agent.



Any resignation by or removal of an Administrative Agent pursuant to this Section shall also
constitute its resignation or removal as L/C Issuer and Swing Line Lender. Upon the acceptance of
a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender, (b) the retiring or removed L/C Issuer and Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangement
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.



10.07 Non-Reliance on Administrative Agent and Other Lenders.




     Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and



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information as it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.



10.08 No Other Duties, Etc..




     Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers,
Syndication Agents or Co-Documentation Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.


10.09 Administrative Agent May File Proofs of Claim.




     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.08 and 11.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.08 and 11.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.


10.10 Collateral and Guaranty Matters.




     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Revolving Commitments and the
Aggregate TL Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters of Credit,
(ii) that is transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document (provided, that in the case
of any transfer of a Borrowing Base Property, such transfer shall be accompanied by the
prepayment (if any) of the Obligations required pursuant to Section 2.05(b)), or
(iii) subject to Section 11.01, if approved, authorized or ratified in writing by
the Required Lenders; and



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     (b) to release, upon the written request of Borrower, any Guarantor from its
obligations under the Guaranty if (i) such Person ceases to be a Subsidiary of the Borrower
as a result of a transaction permitted hereunder or (ii) such Person (or all of its assets)
are otherwise sold, transferred or disposed of by the Borrower or another applicable Loan
Party and, after giving effect to such sale, transfer or disposition, (A) Borrower, on a Pro
Forma Basis, is in compliance with all financial covenants contained herein (including,
without limitation, the covenants set forth in Sections 8.02(f) and 8.11),
(B) no Defaults or Events of Default exist as of the date of the requested release and (C)
Borrower certifies in writing to the satisfaction of the above-noted conditions.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of Property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 10.11.



ARTICLE XI

MISCELLANEOUS



11.01 Amendments, Etc.




     No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:




     (a) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such Lender (it
being understood and agreed that a waiver of any condition precedent set forth in
Section 5.02 or of any Default or Event of Default or mandatory reduction in the
Commitments shall not constitute a change in the terms of any Commitment of any Lender);
provided, however, that this clause shall not be deemed to prevent the
Required Lenders and Loan Parties from approving (i) any increase in the aggregate
Commitments of the Lenders hereunder (to the extent such increase does not increase the
Commitment of any individual Lender without such Lender’s written consent); and/or (ii) the
addition of one or more borrowing tranches to this Agreement and providing for the ratable
sharing of the benefits of this Agreement and the other Loan Documents with the other
then-outstanding Obligations in respect of the extensions of credit from time to time
outstanding under such additional borrowing tranche(s) and the accrued interest and fees in
respect thereof; and/or (iii) the inclusion of such lenders under any additional borrowing
tranches in the determination of the “Required Lenders” or “Lenders” hereunder and/or
consent rights in favor of such Persons under any or all of subsections (b) —
(j) of this Section 11.01 corresponding to the consent rights of the other
Lenders thereunder;




     (b) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;




     (c) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest or Letter of Credit Fees at the Default Rate;




     (d) change Section 2.12 or Section 9.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;



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     (e) change any provision of this Section or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;




     (f) (i) except as the result of or in connection with a Disposition not prohibited by
Section 8.05, release all or substantially all of the Collateral and (ii) except as
otherwise provided in Section 10.10, release any Guarantor, in each case, without
the written consent of each Lender;




     (g) except as the result of or in connection with a dissolution, merger or disposition
of a Loan Party not prohibited by Section 8.04 or Section 8.05, release the
Borrower or substantially all of the other Loan Parties from its or their obligations under
the Loan Documents without the written consent of each Lender;




     (h) without the consent of Lenders (other than Defaulting Lenders) holding in the
aggregate at least a majority of the Revolving Commitments (or if the Revolving Commitments
have been terminated, the outstanding Revolving Loans (and participations in any L/C
Obligations)), waive any Default or Event of Default for purposes of the funding of a
Revolving Loan under Section 5.02(b);




     (i) without the consent of Lenders (other than Defaulting Lenders) holding in the
aggregate at least a majority of the Aggregate TL Commitments, waive any Default or Event of
Default for purposes of the funding of a Term Loan under Section 5.02(b);




     (j) without the consent of each Agent Lender, modify the provisions of Section
8.11(d) or increase the percentage multiplier set forth in the definition of “Borrowing
Base”;




     (k) without the express written approval of each of the Lenders, permit the addition of
any Property to the list set forth on Schedule 1.01(b) or otherwise permit any
additional Property to be treated as a “Borrowing Base Property” for purposes of this
Agreement; provided, that this provision shall not be deemed to restrict the removal of
Properties from Schedule 1.01(b) to the extent otherwise permitted herein; or




     (l) without the written consent of (i) Lenders holding a majority of the Revolving
Commitments (or if the Revolving Commitments have been terminated, the outstanding Revolving
Loans and participations in any L/C Obligations) and (ii) Lenders holding a majority of the
outstanding Term Loan (and participations therein), impose any greater restriction on the
ability of any Lender to assign any of its rights or obligations hereunder. For purposes of
this clause, the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations shall be deemed to be held by such Lender.


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it (including, without limitation, the priority of any payments,
indemnities or reimbursements due to the L/C Issuer hereunder); (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document (including, without limitation, the priority of any payments, indemnities or
reimbursements due to the Administrative Agent); (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; and (iv) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing executed only by the
parties thereto.




     Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



     Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersedes the



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unanimous consent provisions set forth herein and (y) the Required Lenders shall determine
whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on all of the Lenders.



11.02 Notices. Effectiveness of Electronic Communications.




     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) Change of Address, Etc. Each of the Borrower, the Administrative Agent, Swing
Line Lender and the L/C Issuer may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, Swing Line Lender and the L/C Issuer. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available



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through the “Public Side Information” portion of the Platform and that may contain material
non-public information with respect to the Borrower or its securities for purposes of United States
Federal or state securities laws.




     (d) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer, the Swing Line Lender and the other Lenders shall be entitled to rely and
act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, the
Swing Line Lender, each other Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.



     (e) Delivery of Documents to Lenders. Promptly upon any Lender’s reasonable request,
the Administrative Agent shall deliver to such Lender any materials or information delivered by any
Loan Party to it in its capacity as Administrative Agent hereunder. In addition, the
Administrative Agent shall promptly deliver to the Lenders any notices or other materials received
by it indicating the occurrence or continuance of any Default or Event of Default hereunder, in
each case, to the extent such notices or materials are clearly marked as a “Notice of Default/Event
of Default” or Administrative Agent has actual knowledge that such notices or other materials
contain such information.


11.03 No Waiver; Cumulative Remedies.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.


11.04 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. The Borrower shall pay (without duplication of other amounts
required to be paid by Borrower hereunder): (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in connection with the syndication of the
credit facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the L/C Issuer or, during the continuance of an Event of Default, the Lenders
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, the L/C Issuer or, during the continuance of any Event of
Default, any Lender, in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Agent Lender (in their respective agent capacities), each
Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or
by the Borrower or



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any other Loan Party arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder
or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by
the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any
way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES,
WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR
SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.




     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Revolving Commitments and the repayment, satisfaction or discharge of
all the other Obligations.


11.05 Payments Set Aside.




     To the extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent,



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the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.



11.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Revolving Commitments are not then in effect, the
outstanding principal balance of the Loans of the assigning Lender subject to each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights
and obligations among the Revolving Loan Commitments and Term Loan Commitments on a non-pro
rata basis;



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     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment of a Revolving Commitment.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



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     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may, without the consent of, or notice to, the
Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Intentionally Omitted.



     (i) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, (i)
upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30
days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such resignation as
L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C
Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its resignation as
L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to



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Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain
all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation, including the right to
require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or
Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,
and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to Bank of America to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.



11.07 Treatment of Certain Information; Confidentiality.




     Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


11.08 Set-off.




     If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent (which consent shall only be
withheld for the purpose of preventing any triggering of any applicable “single action” laws), to
the fullest extent permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any
and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or
not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower or such Loan Party may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each
Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application




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11.09 Interest Rate Limitation.




     Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Borrower. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


11.10 Counterparts; Integration; Effectiveness.




     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.


11.11 Survival of Representations and Warranties.




     All representations and warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Credit Extension, and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.


11.12 Severability.




     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


11.13 Replacement of Lenders.




     If any Lender requests compensation under Section 3.04, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, if any Lender is a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 11.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:



102









 






     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Laws.




	 	 	A Lender shall not be required to make any such assignment or delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.




11.14 Governing Law; Jurisdiction; Etc.




     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NORTH CAROLINA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C
ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.



     (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.



103









 




11.15 Waiver of Jury Trial.




     EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


11.16 USA PATRIOT Act Notice.




     Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies such
Borrower, which information includes the name and address of such Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower
in accordance with the Act.


11.17 ENTIRE AGREEMENT.




     THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


11.18 Subordination of Intercompany Debt.




     Each Loan Party agrees that all intercompany Indebtedness among Loan Parties (the
“Intercompany Debt”) is subordinated in right of payment, to the prior payment in full of
all Obligations. Notwithstanding any provision of this Agreement to the contrary, provided that no
Event of Default has occurred and is continuing, Loan Parties may make and receive payments with
respect to the Intercompany Debt to the extent otherwise permitted by this Agreement; provided,
that in the event of and during the continuation of any Event of Default, no payment shall be made
by or on behalf of any Loan Party on account of any Intercompany Debt. In the event that any Loan
Party receives any payment of any Intercompany Debt at a time when such payment is prohibited by
this Section 11.18 hereof, such payment shall be held by such Loan Party, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written request, to, the
Administrative Agent.


11.19 No Advisory or Fiduciary Responsibility.




     In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by
the Administrative Agent, the Arranger, and the other Lead Arranger(s) are arm’s-length commercial
transactions between the Borrower, each other Loan Party and their respective Affiliates, on the
one hand, and the Administrative Agent, the Arranger, and the other Lead Arranger(s), on the other
hand, (B) each of the Borrower and the other Loan Parties has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower and each
other Loan Party
is capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent, the Arranger, and each other Lead Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by



104









 







the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any of
their respective Affiliates, or any other Person and (B) neither the Administrative Agent, the
Arranger nor any other Lead Arranger has any obligation to the Borrower, any other Loan Party or
any of their respective Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent, the Arranger and the other Lead Arranger(s) and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of
the Borrower, the other Loan Parties and their respective Affiliates, and neither the
Administrative Agent, the Arranger nor any other Lead Arranger has any obligation to disclose any
of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To
the fullest extent permitted by law, each of the Borrower and the other Loan Parties hereby waives
and releases any claims that it may have against the Administrative Agent, the Arranger and the
other Lead Arranger(s) with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


11.20 Replacement of Existing Credit Agreement.




     (a) Each of the parties hereto hereby agrees that (i) the outstanding balance of the
obligations under the Existing Credit Agreement remain outstanding and constitute Obligations
hereunder and (ii) this Agreement is an amendment and restatement of the Existing Credit Agreement,
all documents, instruments or agreements creating security interests or liens in favor of the
“Administrative Agent” or “Lenders” as defined in the Existing Credit Agreement and securing the
obligations thereunder continue to secure the Obligations under this Agreement and nothing
contained herein is intended to represent a novation of any type with respect to the “Obligations”
as defined in the Existing Credit Agreement or with respect to any other Indebtedness evidenced by
the Existing Credit Agreement or any documents, instruments or agreements executed in connection
therewith.



     (b) In connection with such amendment and restatement of the Existing Credit Agreement
contemplated hereunder, the parties hereto acknowledge and agree that, pursuant to that certain
Assignment and Assumption dated on or about the Closing Date (the “Bank of America
Assignment”) among MidFirst Bank, a Federally Chartered Savings Association, Emigrant Realty
Finance LLC, Bank Midwest, N.A., United Overseas Bank Limited Los Angeles Agency, HSH Nordbank AG,
New York Branch, and General Electric Capital Corporation, as assignors (collectively, the
“Assigning Lenders”), and Bank of America, N.A., as assignee, each of the Assigning Lenders
shall be deemed to have assigned to Bank of America , N.A. immediately prior to the effective date
of this Agreement all of (or in the case of MidFirst Bank, a Federally Chartered Savings
Association, a portion of) such Assigning Lender’s Commitments and then-outstanding Loans
(collectively, such Commitments and then-outstanding Loans may be referred to herein as the
“Assigned Interests”), which Assigned Interests are to be subsequently assigned (deemed to
be assigned) hereunder by Bank of America, N.A. to, and reallocated among, certain of the Lenders
in accordance with the provisions of this Section 11.20. The parties hereto further agree that (i)
as of the Closing Date, (x) the Assigned Interests are hereby assigned (or deemed to be assigned)
by Bank of America, N.A. to certain of the Lenders, and (y) the Commitments and then-outstanding
Loans of each Lender shall be adjusted and reallocated, in each case in a manner acceptable to the
Administrative Agent, in its sole discretion, such that the respective Commitments and
then-outstanding Loans of each Lender hereunder shall correspond to the Applicable Percentage of
such Lender, and (ii) any funds received by the Administrative Agent on or about the Closing Date
in connection with this amendment and restatement from the Lenders (including any new Lenders that
are not party to the Existing Credit Agreement) may be paid by the Administrative Agent (on behalf
of Bank of America, N.A. in consideration for the obligations of Bank of America, N.A. under the
Bank of America Assignment) to the Assigning Lenders (which payment shall include the payment in
full of the Loans of each such Assigning Lender that no longer maintains any Commitments or Loans
hereunder) in such amounts as are necessary to facilitate the assignment and assumption of the
Assigned Interests under the Bank of America Assignment and the subsequent assignment, adjustment
and reallocation of the Assigned Interests, the Commitments and the Loans as contemplated hereby.



[remainder of page left intentionally blank — signature page(s), schedule(s) and exhibit(s) to follow]






105









 







IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the
date first above written.




BORROWER:




	 	 	 	 	 
	 	GAYLORD ENTERTAINMENT COMPANY

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President; Chief Financial Officer 	 
	 



GUARANTORS:




	 	 	 	 	 
	 	OPRYLAND HOTEL NASHVILLE, LLC

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 
	 	OPRYLAND HOTEL-FLORIDA LIMITED PARTNERSHIP

By: Opryland Hospitality, LLC, its general partner

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 
	 	OPRYLAND HOTEL-TEXAS LIMITED PARTNERSHIP

By: Opryland Hospitality, LLC, its general partner

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 
	 	GAYLORD NATIONAL, LLC

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 



 









 






	 	 	 	 	 



ADMINISTRATIVE AGENT

AND LENDERS:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A., in its capacity as a Lender,

Swing Line Lender and L/C Issuer, and as Administrative Agent

 	 
	 	By:  	/s/ Roger C. Davis
 	 
	 	Name:  	Roger C. Davis 	 
	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, in

its capacity as a Lender

 	 
	 	By:  	/s/ George R. Reynolds
 	 
	 	Name:  	George R. Reynolds 	 
	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ James Rolison
 	 
	 	Name:  	James Rolison 	 
	 	Title:  	Managing Director 	 
	 




 









 





	 	 	 	 	 
	 	KEY BANK, NATIONAL ASSOCIATION, in its capacity

as a Lender

 	 
	 	By:  	/s/ Robert C. Avil
 	 
	 	Name:  	Robert C. Avil 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





	 	 	 	 	 
	 	WACHOVIA BANK, N.A., in its capacity as a Lender

 	 
	 	By:  	/s/ Matthew Ricketts
 	 
	 	Name:  	Matthew Ricketts 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, in

its capacity as a Lender

 	 
	 	By:  	/s/ Jennifer Groves
 	 
	 	Name:  	Jennifer Groves 	 
	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	CITICORP NORTH AMERICA INC., in its capacity as a

Lender

 	 
	 	By:  	/s/ Ricardo James
 	 
	 	Name:  	Ricardo James 	 
	 	Title:  	Director 	 
	 




 









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, in its capacity as

a Lender

 	 
	 	By:  	/s/ Lori Y. Jensen
 	 
	 	Name:  	Lori Y. Jensen 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CALYON NEW YORK BRANCH, in its capacity as a

Lender

 	 
	 	By:  	/s/ Steven Jonassen
 	 
	 	Name:  	Steven Jonassen 	 
	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Linda D. Tulloch
 	 
	 	Name:  	Linda D. Tulloch 	 
	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MIDFIRST BANK, Federally Chartered Savings

Association, in its capacity as a Lender

 	 
	 	By:  	/s/ Todd G. Wright
 	 
	 	Name:  	Todd G. Wright 	 
	 	Title:  	First Vice President 	 
	 




 









 





	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND GRAND

CAYMAN BRANCHES,
in its capacity as a Lender

 	 
	 	By:  	/s/ Gill Realon
 	 
	 	Name:  	Gill Realon 	 
	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Matthew Havens
 	 
	 	Name:  	Matthew Havens 	 
	 	Title:  	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB, in its capacity as a Lender

 	 
	 	By:  	/s/ William J. Hindman
 	 
	 	Name:  	William J. Hindman 	 
	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CHEVY CHASE BANK, F.S.B., in its capacity as a Lender

 	 
	 	By:  	/s/ Michael V. Antonelli
 	 
	 	Name:  	Michael V. Antonelli 	 
	 	Title:  	Real Estate Loan Officer 	 
	 




 









 





	 	 	 	 	 
	 	AAREAL CAPITAL CORPORATION, in its capacity as a

Lender

 	 
	 	By:  	/s/ Dagmar Knopek
 	 
	 	Name:  	Dagmar Knopek 	 
	 	Title:  	Senior Managing Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Michael Greve
 	 
	 	Name:  	Michael Greve 	 
	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ROYAL BANK OF SCOTLAND, in its capacity as a Lender

 	 
	 	By:  	/s/ Timothy McNaught
 	 
	 	Name:  	Timothy McNaught 	 
	 	Title:  	Managing Director 	 
	 




 









 





	 	 	 	 	 
	 	BANK OF NOVA SCOTIA, in its capacity as a Lender

 	 
	 	By:  	/s/ Michael W. McCarthy
 	 
	 	Name:  	Michael W. McCarthy 	 
	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SCOTIABANC INC., in its capacity as a Lender

 	 
	 	By:  	/s/ J.F. Todd
 	 
	 	Name:  	J.F. Todd 	 
	 	Title:  	Managing Director 	 
	 




 











 





Schedule 1.01(a)




GUARANTORS




	1.	 	Opryland Hotel Nashville, LLC, a Delaware limited liability company
	 
	2.	 	Opryland Hotel — Florida Limited Partnership, a Florida limited partnership
	 
	3.	 	Opryland Hotel — Texas Limited Partnership, a Delaware limited partnership
	 
	4.	 	Gaylord National, LLC, a Maryland limited liability company





1









 





Schedule 1.01(b)




BORROWING BASE PROPERTIES




	1.	 	Gaylord Opryland Resort & Convention Center, located in Nashville, Tennessee, consisting of
2,881 rooms and 600,000 square feet of meeting space (the “Gaylord Opryland”).
	 
	2.	 	Gaylord Palms Resort & Convention Center, located in Kissimmee, Florida, consisting of 1,406
rooms and 400,000 square feet of meeting space (the “Gaylord Palms”).
	 
	3.	 	Gaylord Texan Resort & Convention Center, located in Grapevine, Texas, consisting of 1,511
rooms and 400,000 square feet of meeting space (the “Gaylord Texan”).
	 
	4.	 	Gaylord National Resort & Convention Center, located in Prince George’s County, Maryland,
consisting of approximately 2,000 rooms and 470,000 square feet of meeting space (the “Gaylord
National”).





2









 





Schedule 1.01(c)




EXISTING LETTERS OF CREDIT



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Auto	 	 
	L/C No.	 	Beneficiary	 	Amount	 	 	Account Party	 	Maturity	 	Extension	 	Standby/Trade
	1462
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	2/1/2009	 	Yes	 	Standby
	3028402
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	2/1/2009	 	Yes	 	Standby
	3044998
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	1/1/2009	 	Yes	 	Standby
	3059939
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	5/13/2009	 	Yes	 	Standby
	3059940
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	12/15/2008	 	Yes	 	Standby
	3075504
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	7/3/2009	 	Yes	 	Standby
	3079306
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/5/2009	 	Yes	 	Standby
	3079307
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/5/2009	 	Yes	 	Standby
	3079308
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/5/2009	 	Yes	 	Standby
	3079309
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/5/2009	 	Yes	 	Standby
	3079310
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/5/2009	 	Yes	 	Standby
	3079311
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/5/2009	 	Yes	 	Standby
	3079720
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/13/2009	 	Yes	 	Standby
	3079721
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/13/2009	 	Yes	 	Standby
	3079722
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/13/2009	 	Yes	 	Standby
	3079780
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/20/2009	 	Yes	 	Standby
	3079781
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/20/2009	 	Yes	 	Standby
	3079782
	 	[***]	 	$	[***]	 	 	Gaylord National, LLC	 	1/20/2009	 	Yes	 	Standby
	3080505
	 	[***]	 	$	[***]	 	 	Gaylord Entertainment Company	 	2/20/2009	 	Yes	 	Standby
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	$	10,716,000.00	 	 	 	 	 	 	 	 	 






3









 





Schedule 1.01(d)




DESIGNATED OUTPARCELS


Parcel of land located in Grapevine, Tarrant County, Texas, and further described as Lot 2, Block
1, Opryland Second Addition Cabinet A, Slide 9044 P.R.T.C.T.




4









 





Schedule 2.01




COMMITMENTS AND APPLICABLE PERCENTAGES



GAYLORD ALLOCATION SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Total
	Lenders	 	Titles	 	Revolver	 	Term Loan	 	Allocation
	 
	Bank of America
	 	Administrative Agent	 	$	[***]	 	 	$	[***]	 	 	$	[***]	 
	Deutsche Bank
	 	Syndication Agent	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Wells Fargo Bank, N.A.
	 	Co-Documentation Agent	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	KeyBank, N.A.
	 	Co-Documentation Agent	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Calyon New York Branch
	 	Co-Documentation Agent	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Royal Bank of Scotland
	 	Co-Documentation Agent	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Bank of Nova Scotia
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Scotiabanc Inc
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Citicorp North America, Inc.
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Wachovia Bank, N.A.
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Commerzbank Aktiengesellschaft
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	US Bank National Association
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Aareal Bank
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Raymond James Bank
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	MidFirst Bank
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Chevy Chase
	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	Total
	 	 	 	$	300,000,000	 	 	$	700,000,000	 	 	$	1,000,000,000	 
	 





5









 





Schedule 6.03




REQUIRED CONSENTS, AUTHORIZATIONS, NOTICES AND FILINGS




	1.	 	The Company will need to file a current report on Form 8-K within four business days after
the Agreement is executed.
	 
	2.	 	The Company will need to deliver a copy of the Mortgage Instruments relating to the Gaylord
Palms to the lessor pursuant to the Opryland Hotel-Florida Ground Lease, dated as of March 3,
1999, by and between Xentury City Development Company, L.L.C. and Opryland Hotel-Florida
Limited Partnership.





6









 





Schedule 6.05




SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS




	(b)	 	Material Indebtedness
	 
	 	 	See attached.
	 
	(c)	 	Sale or Acquisition of Property
	 
	 	 	None.





7









 







Debt Summary

Gaylord Entertainment

March 31, 2008




Reconciliation to General Ledgers



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BALANCE @	 	 	 	 	 	 	 	 	 	 	BALANCE @	 	 	 	 	 	 	BALANCE @ 3/31/08	 
	 	 	DETAILS	 	12/31/07	 	 	DR	 	 	CR	 	 	3/31/08	 	 	 	 	 	 	DEBT	 	 	NOTES	 	 	LEASE	 
	Short-Term
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[***]
	 	 	 	 	185,119	 	 	 	136,355	 	 	 	1,428	 	 	 	50,192	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	50,192	 
	[***]
	 	 	 	 	456,337	 	 	 	112,670	 	 	 	116,466	 	 	 	460,133	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	460,133	 
	[***]
	 	 	 	 	—	 	 	 	17,323	 	 	 	140,684	 	 	 	123,361	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	123,361	 
	[***]
	 	 	 	 	—	 	 	 	—	 	 	 	57,059	 	 	 	57,059	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	57,059	 
	Nashville Predators Prom. Note
	 	 	 	 	1,000,000	 	 	 	—	 	 	 	—	 	 	 	1,000,000	 	 	 	 	 	 	 	 	 	 	 	1,000,000	 	 	 	 	 
	[***]
	 	 	 	 	48,923	 	 	 	1,725	 	 	 	946	 	 	 	48,144	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	48,144	 
	[***]
	 	 	 	 	368,235	 	 	 	18,853	 	 	 	5,909	 	 	 	355,291	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	355,291	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total ST “Current Portion of Long-Term Debt”
	 	 	 	$	2,058,614	 	 	$	286,926	 	 	$	322,492	 	 	$	2,094,180	 	 	 	 	 	 	$	 	 	 	$	1,000,000	 	 	$	1,094,180	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Long-Term
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$1B Revolver
	 	Interest payments are due at the end of	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	the Interest Period, designated at the 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	time of the draw on the facility (e.g., one,	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	two, three or six months)	 	$	398,000,000	 	 	 	 	 	 	 	182,000,000	 	 	$	580,000,000	 	 	 	 	 	 	$	580,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$350 MM Senior Notes due 2013
	 	Interest payments are due semi-annually	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	May 15th and Nov. 15th. 8% fixed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	with $125m under a derivative contract	 	 	350,000,000	 	 	 	 	 	 	 	 	 	 	 	350,000,000	 	 	 	 	 	 	$	350,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$225 MM Senior Notes due 2014
	 	Interest payments are due semi-annually	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	May 15th and Nov. 15th at a	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	fixed rate of 6.75%	 	 	225,000,000	 	 	 	 	 	 	 	 	 	 	 	225,000,000	 	 	 	 	 	 	$	225,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Derivative — “Fair Value” hedge $125 MM Swaps
	 	 	 	 	1,998,562	 	 	 	 	 	 	 	2,472,261	 	 	 	4,470,823	 	 	 	 	 	 	$	4,470,823	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Subtotal LT Debt
	 	 	 	 	974,998,562	 	 	 	 	 	 	 	 	 	 	 	1,159,470,823	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[***]
	 	 	 	 	1,778,562	 	 	 	833,563	 	 	 	717,098	 	 	 	1,662,097	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,662,097	 
	[***]
	 	 	 	 	105,694	 	 	 	946	 	 	 	1,724	 	 	 	106,472	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	106,472	 
	[***]
	 	 	 	 	—	 	 	 	159,076	 	 	 	263,430	 	 	 	104,355	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	104,355	 
	Nashville Predators Prom, Note
	 	 	 	 	2,000,000	 	 	 	—	 	 	 	—	 	 	 	2,000,000	 	 	 	 	 	 	 	 	 	 	 	2,000,000	 	 	 	 	 
	[***]
	 	 	 	 	158,345	 	 	 	121,417	 	 	 	44,453	 	 	 	81,381	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	81,381	 
	Subtotal LT Notes Payable & Capital Leases
	 	 	4,042,601	 	 	 	4,042,601	 	 	 	 	 	 	 	 	 	 	 	3,954,305	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total LT “Long-Term Debt, net of Current Portion”
	 	 	979,041,163	 	 	 	1,115,001	 	 	 	185,498,966	 	 	 	1,183,425,128	 	 	 	 	 	 	 	1,159,470,823	 	 	 	2,000,000	 	 	 	1,954,305	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL INDEBTEDNESS OUTSTANDING (ST & LT)
	 	$	981,099,777	 	 	 	 	 	 	 	 	 	 	$	1,185,519,308	 	 	 	 	 	 	 	1,159,470,823	 	 	$	2,000,000	 	 	$	3,048,485	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





















 





Schedule 6.06




LITIGATION



None.



8









 





Schedule 6.09




ENVIRONMENTAL MATTERS


All matters set forth in the following:




Phase I Environmental Assessments:




Phase I Environmental Site Assessment for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord Palms Hotel and Convention Center
	 

	 	6000 Osceola Parkway
	 

	 	Kissimmee, Florida 34746
	 

	 	Comm. No. 2008-00600-0010






Dated: June 9, 2008

Prepared by Eckland Consultants Inc.




Phase I Environmental Site Assessment for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord Texan Hotel and Convention Center 

1501 Gaylord Trail 

Grapevine, Tarrant County, Texas 76051

Comm. No. 2008-00600-0009






Dated: June 27, 2008

Prepared by Eckland Consultants Inc.




Phase I Environmental Site Assessment for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord Opryland Resort and Convention Center
	 

	 	2800 North Opryland Drive
	 

	 	Nashville, Davidson County, Tennessee 37214
	 

	 	Comm. No. 2008-00600-0008






Dated: June 9, 2008

Prepared by Eckland Consultants Inc.




Phase I Environmental Site Assessment for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord National
	 

	 	201 Waterfront Street
	 

	 	Oxon Hill (National Harbor), Prince George’s County, Maryland 20745
	 

	 	Comm No. 2008-00600-0011






Dated: June 9, 2008

Prepared by Eckland Consultants Inc.




Property Condition Reports:




Property Condition Report for Bank of America, NA




	 	 	 

	Property:

	 	Gaylord Palms Hotel and Convention Center
	 

	 	6000 West Osceola Parkway
	 

	 	Kissimmee, Florida 34746
	 

	 	Comm. No. 2008-00600-0010






Dated: June 9, 2008

Prepared by Eckland Consultants Inc.




Property Condition Report for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord Texan Hotel and Convention Center
	 

	 	1501 Gaylord Trail
	 

	 	Grapevine, Tarrant County, Texas 76051
	 

	 	Comm. No. 2008-00600-0009






Dated: June 27, 2008

Prepared by Eckland Consultants Inc.




9









 





Property Condition Report for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord Opryland Resort and Convention Center
	 

	 	2800 North Opryland Drive
	 

	 	Nashville, Davidson County, Tennessee 37214
	 

	 	Comm. No. 2008-00600-0008






Dated: June 9, 2008

Prepared by Eckland Consultants Inc.




Field Report:




Field Report No. 17 for Bank of America, N.A.




	 	 	 

	Property:

	 	Gaylord National Resort and Convention Center at National Harbor
	 

	 	Oxon Hill, Prince George’s County, Maryland
	 

	 	Comm. No. 2004-00600-0051






Dated: June 16, 2008

Prepared by Eckland Consultants Inc.




Environmental Impact Statement




Proposed National Harbor Environmental Impact Statement




Property: Gaylord National

Dated: April 1999



Prepared by National Capital Planning Commission








10









 








Schedule 6.10

INSURANCE




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Expiration	 	 	 	 
	Carrier	 	Policy Number	 	Date	 	Type	 	Amount
	1.

	 	[***]
	 	[***]
	 	4/1/09
	 	Property and business
interruption coverage
	 	[***]
	2.

	 	[***]
	 	[***]
	 	3/31/09
	 	Directors & officers
coverage —primary.
	 	[***]
	3.

	 	[***]
	 	[***]
	 	3/31/09
	 	Directors & officers
coverage — excess.
	 	[***]
	4.

	 	[***]
	 	[***]
	 	3/31/09
	 	Directors & officers
coverage — excess.
	 	[***]
	5.

	 	[***]
	 	[***]
	 	3/31/09
	 	Directors & officers
coverage — excess.
	 	[***]
	6.

	 	[***]
	 	[***]
	 	3/31/09
	 	Directors & officers
coverage — excess.
	 	[***]
	7.

	 	[***]
	 	[***]
	 	3/31/09
	 	Directors & officers
coverage — excess.
	 	[***]
	8.

	 	[***]
	 	[***]
	 	1/1/09
	 	Blanket crime policy.
	 	[***]
	9.

	 	[***]
	 	[***]
	 	1/1/09
	 	Fiduciary liability policy.
	 	[***]
	10.

	 	[***]
	 	[***]
	 	2/20/09
	 	Workers compensation and
employers liability —
primary (all states but
TN).
	 	[***]
	11.

	 	[***]
	 	[***]
	 	1/1/09
	 	Workers compensation and
employers liability (TN).
	 	[***]
	12.

	 	[***]
	 	[***]
	 	2/20/09
	 	Hull and machinery
coverage (General Jackson
and related vessels).
	 	[***]
	13.

	 	[***]
	 	[***]
	 	2/20/09
	 	Pilings coverage (General
Jackson and related
vessels).
	 	[***]
	14.

	 	[***]
	 	[***]
	 	2/20/09
	 	Commercial Marine
Liability coverage Gaylord
National docks & Piers
	 	[***]
	15.

	 	[***]
	 	[***]
	 	2/20/09
	 	Physical Damage coverage
docks & pier Gaylord
National
	 	[***]
	16.

	 	[***]
	 	[***]
	 	2/20/09
	 	Protection and Indemnity
coverage General Jackson,
related vessels & Gaylord
National pier).
	 	[***]
	17.

	 	[***]
	 	[***]
	 	2/20/09
	 	Protection and Indemnity
coverage (General Jackson,
related vessels & Gaylord
National pier).
	 	[***]
	18.

	 	[***]
	 	[***]
	 	2/20/09
	 	Third party pollution
liability related to
marine operations.
	 	[***]
	19.

	 	[***]
	 	[***]
	 	12/1/08
	 	Hull and liability
coverage on company plane.
	 	[***]






11









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Expiration	 	 	 	 
	Carrier	 	Policy Number	 	Date	 	Type	 	Amount
	20.

	 	[***]
	 	[***]
	 	2/20/09
	 	Automobile and garage
keepers liability
coverage.
	 	[***]
	21.

	 	[***]
	 	[***]
	 	2/20/09
	 	General liability coverage.
	 	[***]
	22.

	 	[***]
	 	[***]
	 	2/20/09
	 	Professional liability
coverage (incl. travel
agent services, event
planning services, spa
services and radio station
operations).
	 	[***]
	23.

	 	[***]
	 	[***]
	 	6/1/10
	 	Extended reported period
for disposed ResortQuest
operations — professional
liability coverage (incl.
real estate sales and
leasing, travel agent
related services, property
management and rental
management.
	 	[***]
	24.

	 	[***]
	 	[***]
	 	6/1/10
	 	Excess professional
liability for ResortQuest
coverage above.
	 	[***]
	25.

	 	[***]
	 	[***]
	 	2/20/09
	 	Exporters package
portfolio policy for
international territory.
	 	[***]
	26.

	 	Insurance companies
listed below:
	 	 	 	2/20/09
	 	Excess liability coverage
(providing for coverage in
excess of SIR and/or
insurance coverage).
	 	[***]
	 

	 	a. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	b. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	c. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	d. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	e. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	f. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	g. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	h. [***]
	 	[***]	 	 	 	 	 	 
	 

	 	i. [***]
	 	[***]	 	 	 	 	 	 






12









 






Schedule 6.12




UNFUNDED PENSION LIABILITIES


The Retirement Plan for Employees of Gaylord Entertainment Company



Note: As of 12/31/2007, the FAS 132 benefit obligation was $70,425,724; the fair market value of
the assets was $60,712,528; and the resulting unfunded benefit obligation was $9,713,196.






13









 








Schedule 6.13(a)




CORPORATE STRUCTURE



See attached.



14









 






Gaylord Entertainment Company Organization Chart

as of August 22, 2007









15











 





Schedule 6.13(b)




SUBSIDIARIES; CAPITAL STOCK OF BORROWER



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Number of
	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	 	 	Options,
	 	 	 	 	Percentage of	 	Number of	 	Number of	 	Warrants,
	 	 	 	 	Outstanding	 	Outstanding	 	Outstanding	 	Rights of
	 	 	 	 	Shares Owned	 	Shares of Non-	 	Shares of Loan	 	Conversion
	 	 	 	 	by the	 	wholly	 	Parties Owned by	 	or
	 	 	Jurisdiction of	 	Consolidated	 	Owned	 	The Consolidated	 	Purchase,
	Subsidiary Name*	 	Organization	 	Parties	 	Subsidiaries	 	Parties	 	etc.
	Gaylord Subsidiaries
	 	 	 	 	 	 	 	 	 	 
	1. CCK Holdings, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	2. Corporate Magic, Inc.
	 	Texas	 	100%	 	 	 	 	 	 
	3. Country Music Television International, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	4. Gaylord Chula Vista, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	5. Gaylord Creative Group, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	6. Gaylord Finance, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	7. Gaylord Hotels, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	8. Gaylord Investments, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	9. Gaylord National, LLC
	 	Maryland	 	100%	 	 	 	100% of the membership interest	 	 
	10. Gaylord Program Services, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	11. Grand Ole Opry Tours, Inc.
	 	Tennessee	 	100%	 	 	 	 	 	 
	12. Grand Ole Opry, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	13. OLH, G.P.
	 	Tennessee	 	100%	 	 	 	 	 	 
	14. OLH Holdings, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	15. Opryland Attractions, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	16. Opryland Hospitality, LLC
	 	Tennessee	 	100%	 	 	 	 	 	 
	17. Opryland Hotel Nashville, LLC
	 	Delaware	 	100%	 	 	 	100% of the membership Interest

100% of the partnership interest

100% of the partnership interest	 	 
	18. Opryland Hotel-Florida Limited Partnership
	 	Florida	 	100%	 	 	 	 	 	 
	19. Opryland Hotel-Texas Limited Partnership
	 	Delaware	 	100%	 	 	 	 	 	 
	20. Opryland Hotel-Texas, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	21. Opryland Productions, Inc.
	 	Tennessee	 	100%	 	 	 	 	 	 
	22. Opryland Theatricals, Inc.
	 	Delaware	 	100%	 	 	 	 	 	 
	23. Wildhorse Saloon Entertainment Ventures, Inc.
	 	Tennessee	 	100%	 	 	 	 	 	 
	24. Gaylord Digital, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	25. Gaylord Destin Resorts, LLC
	 	Delaware	 	100%	 	 	 	 	 	 
	26. Gaylord Services, LLC
	 	Florida	 	100%	 	 	 	 	 	 





The Borrower has issued options to purchase shares of common stock restricted stock and
restricted stock units to officers, employees, directors and consultants of the Borrower pursuant
to its employee stock incentive plans.




16









 





Schedule 6.13(c)




EQUITY INVESTMENTS




	1.	 	Gaylord Creative Group, Inc., a direct wholly-owned subsidiary of the Company, has a 11.1%
ownership interest in Flying Rhinoceros Holdings, Inc.
	 
	2.	 	Gaylord Investments, Inc., a direct wholly-owned subsidiary of the Company, has a 12%
ownership interest in Promotional Broadcast Network, Inc.
	 
	3.	 	County Music Television International has a 5% ownership interest in Sound Track Channel,
LLC.
	 
	4.	 	Gaylord Hotels, Inc., a wholly-owned subsidiary of the Company, has a 19.9% ownership
interest in RHAC Holdings, LLC (“RHAC Holdings”) and a 18.1% ownership interest in Waipouli
Holdings, LLC (“Waipouli Holdings”).










17









 











Schedule 6.17




INTELLECTUAL PROPERTY MATTERS


Copyrights and Copyright Registrations




	 	 	 

	 
	Registration Number:

	 	TX-5-700-184
	Title:

	 	A culinary collection.
	Claimant:

	 	Gaylord Entertainment Company
	 
	Registration Number:

	 	TX-4-466-307
	Title:

	 	A taste of tradition: a culinary collection.
	Claimant:

	 	Gaylord Entertainment Company
	 





18









 




Patents and Patent Registrations



U.S. Non-Provisional Patent Application 11/016,730 filed December 21, 2004 entitled “Systems
and Methods for Facilitating Communications and Collecting, Analyzing and Disseminating Information
Among Group Participants.”






19









 







Trademarks and Trademark Registrations




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registration	 	 	 	 	 	 
	Mark	 	Serial No.	 	No.	 	Classes	 	Owner	 	Status
	 

	 	 	74/047382	 	 	 	1647626	 	 	 	35	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	74/047472	 	 	 	1643954	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A COUNTRY CHRISTMAS

	 	 	74/034469	 	 	 	1631917	 	 	 	35	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A COUNTRY CHRISTMAS

	 	 	74/035012	 	 	 	1627724	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CHRISTMAS AT THE PALMS

	 	 	78/127798	 	 	 	2801412	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CONSIDER IT DONE

	 	 	75/667760	 	 	 	2307633	 	 	 	42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DELTA RIVERBOAT CO.

	 	 	75/271574	 	 	 	2468647	 	 	 	21, 25, 41, 42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	78/244355	 	 	 	2853711	 	 	 	35, 41, 43, 44	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD HOTELS
	 	 	761295961	 	 	 	2762447	 	 	 	35, 41, 42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	761358156	 	 	 	2765288	 	 	 	35, 41, 43, 44	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD ICONNECT
	 	 	78/371175	 	 	 	2941894	 	 	 	43	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD NATIONAL

	 	 	78/162352	 	 	 	2986094	 	 	 	35, 41, 43, 44	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD OPRYLAND

	 	 	78/225624	 	 	 	2846878	 	 	 	35, 41, 43, 44	 	 	Gaylord Entertainment
	 	Registered.






20









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registration	 	 	 	 	 	 
	Mark	 	Serial No.	 	No.	 	Classes	 	Owner	 	Status
	GAYLORD OPRYLAND RESORT & CONVENTION CENTER

	 	 	78/244382	 	 	 	2844869	 	 	 	35, 41, 43, 44	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD PALMS

	 	 	76/326948	 	 	 	2778373	 	 	 	35, 41, 42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD PALMS HOTEL

	 	 	76/326782	 	 	 	n/a	 	 	 	35, 41, 42	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD SPRINGS

	 	 	78/692287	 	 	 	3262740	 	 	 	35, 41, 43	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	78/688960	 	 	 	3357319	 	 	 	35	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	78/977587	 	 	 	3329588	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD TEXAN

	 	 	78/286257	 	 	 	2872866	 	 	 	35, 41, 43, 44	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GAYLORD TEXAN’S LONE STAR CHRISTMAS

	 	 	78/966312	 	 	 	n/a	 	 	 	35, 41	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GLASS CACTUS

	 	 	78/954750	 	 	 	3327952	 	 	 	41, 43	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	n/a	 	 	 	3120555	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ICE!

	 	 	n/a	 	 	 	3120766	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	KEYWESTMAST1

	 	 	78/205615	 	 	 	2788975	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NATIONAL PASTIME URBAN SPORTS BAR AND 

GRILL2

	 	 	78/581072	 	 	 	n/a	 	 	 	43	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OLD HICKORY STEAKHOUSE

	 	 	n/a	 	 	 	3100378	 	 	 	43	 	 	Gaylord Entertainment Company
	 	Registered.







 




			
	1	 	No longer used.
	 
	2	 	Will be abandoned.






21









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registration	 	 	 	 	 	 
	Mark	 	Serial No.	 	No.	 	Classes	 	Owner	 	Status
	3

	 	 	74/628621	 	 	 	1979404	 	 	 	41, 42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4

	 	 	73/760765	 	 	 	1566498	 	 	 	42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OPRYLAND HOTEL

	 	 	73/151237	 	 	 	1147384	 	 	 	42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OPRYLAND USA

	 	 	78/705404	 	 	 	n/a	 	 	 	21, 41	 	 	Gaylord Entertainment Company
	 	Pending
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PICKIN’ PARLOR5

	 	 	73/757235	 	 	 	1557338	 	 	 	42	 	 	Gaylord Entertainment Company
	 	Registered
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PICKIN’ PARLOR6

	 	 	73/432456	 	 	 	1289595	 	 	 	42	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	POSE

	 	 	78/581069	 	 	 	n/a	 	 	 	43	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RELACHE

	 	 	78/290406	 	 	 	1867250	 	 	 	41, 44	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WORLD SERIES OF HOUSEKEEPING7

	 	 	73/702423	 	 	 	1533664	 	 	 	41	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COWBOYS AND ANGELS (standard characters)

	 	 	77/369653	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	77/407602	 	 	 	n/a	 	 	 	35, 43	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FUSE (standard characters)

	 	 	771413347	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.








 




			
	3	 	No longer used.
	 
	4	 	No longer used.
	 
	5	 	No longer used.
	 
	6	 	No longer used.
	 
	7	 	No longer used.





22









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registration	 	 	 	 	 	 
	Mark	 	Serial No.	 	No.	 	Classes	 	Owner	 	Status
	 

	 	77/410300 (Mark is
jointly owned with
Dr. Seuss
Enterprises, L.P.
pursuant to a First
Amendment to
License Agreement)
	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JAMMIE PARTY (standard characters)

	 	 	77/285374	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JAMMIE PARTY (standard characters)

	 	 	77/285377	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PAJAMA PARTY(standard characters)

	 	 	77/285388	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PAJAMA PARTY (standard characters)

	 	 	77/285393	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PJ’S PARTY (standard characters)

	 	 	77/285381	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PJ’S PARTY (standard characters)

	 	 	77/285386	 	 	 	n/a	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Pending.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SPRINGHOUSE GOLF CLUB (standard characters)

	 	 	74/025858	 	 	 	1663796	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SPRINGHOUSE GOLF CLUB (standard characters)

	 	 	74/051900	 	 	 	1644014	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	74/025856	 	 	 	1663795	 	 	 	n/a	 	 	Gaylord Entertainment Company
	 	Registered.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






23









 










Schedule 6.20(a)




REAL PROPERTIES




	1.	 	Gaylord Opryland Resort & Convention Center, located in Nashville, Tennessee, consisting of
2,881 rooms and 600,000 square feet of meeting space (the “Gaylord Opryland”).
	 
	2.	 	Gaylord Palms Resort & Convention Center, located in Kissimmee, Florida, consisting of 1,406
rooms and 400,000 square feet of meeting space (the “Gaylord Palms”).
	 
	3.	 	Gaylord Texan Resort & Convention Center, located in Grapevine, Texas, consisting of 1,511
rooms and 400,000 square feet of meeting space (the “Gaylord Texan”) and the Designated
Outparcels.
	 
	4.	 	Gaylord National Resort & Convention Center, located in Prince George’s County, Maryland,
consisting of approximately 2,000 rooms and 470,000 square feet of meeting space (the “Gaylord
National”).
	 
	5.	 	In February 2006, Opryland Hotel — Texas Limited Partnership acquired approximately 29.896
acres of farm land in the vicinity of the Gaylord Texan.
	 
	6.	 	The Borrower owns the following real property in Nashville, Tennessee:






	 	A.	 	Parcel No. 06200002300 located at 2724 Pennington Bend Road_
	 
	 	B.	 	Parcel No. 06213013000 located at 2115 Riverview Drive.
	 
	 	C.	 	Parcel No. 06200024900, Lot 1 McGavock Pike.
	 
	 	D.	 	Parcel No. 06200003600, E/S Pennington Bend Road, North of McGavock Pike.
	 
	 	E.	 	Parcel No. 06200022700, S/S Music Valley Drive, East of Briley Parkway
	 
	 	F.	 	Parcel No. 07300002700, South Side Ridgeland Drive, East of Briley Parkway
	 
	 	G.	 	Parcel No. 06200011100 located at 2700 McGavock Pike.
	 
	 	H.	 	Parcel No. 06213012700 located at 2410 McGavock Pike.
	 
	 	I.	 	Parcel No. 06213012800 located at 2400 McGavock Pike.
	 
	 	J.	 	Parcel No. 06213012900 located at 2109 Riverview Drive.
	 
	 	K.	 	Parcel No. 06200003000 located at 2750 Pennington Bend Road.
	 
	 	L.	 	Parcel No. 06213013200 located at 2127 Riverview Drive.
	 
	 	M.	 	Parcel No. 06213013300 located at 2189 Riverview Drive.
	 
	 	N.	 	Parcel No. 06213013400, East Side Cumberland River, South of McGavock Pike & P/O
CL St.
	 
	 	O.	 	Parcel No. 07300003500, Lot 5 Gaylord Entertainment Co. Sub Rev 2.
	 
	 	P.	 	Parcel No. 07300003800, Lot 8 Gaylord Entertainment Co. Sub Rev 2.
	 
	 	Q.	 	Parcel No. 07300004000, Lot 10 Gaylord Entertainment Co. Sub Rev 2.
	 
	 	R.	 	Parcel No. 07300004100, Lot 11 Gaylord Entertainment Co. Sub Rev 2.







 




			
	*	 	Note: None of the real property listed in items nos. 5 and 6 is included in the Borrowing Base
Properties.




24









 










Schedule 6.20(b)




COLLATERAL LOCATIONS




	1.	 	Gaylord Opryland Resort & Convention Center, located in Nashville, Tennessee, consisting of
2,881 rooms and 600,000 square feet of meeting space (the “Gaylord Opryland”).
	 
	2.	 	Gaylord Palms Resort & Convention Center, located in Kissimmee, Florida, consisting of 1,406
rooms and 400,000 square feet of meeting space (the “Gaylord Palms”).
	 
	3.	 	Gaylord Texan Resort & Convention Center, located in Grapevine, Texas, consisting of 1,511
rooms and 400,000 square feet of meeting space (the “Gaylord Texan”).
	 
	4.	 	Gaylord National Resort & Convention Center, located in Prince George’s County, Maryland,
consisting of approximately 2,000 rooms and 470,000 square feet of meeting space (the “Gaylord
National”).










25









 











Schedule 6.20(c)




CHIEF EXECUTIVE OFFICE, JURISDICTION OF INCORPORATION, PRINCIPAL PLACE OF BUSINESS




	1.	 	Gaylord Entertainment Company


Chief executive office: One Gaylord Drive, Nashville, Tennessee 37214

Jurisdiction of incorporation/formation: Delaware

Principal place of business: Tennessee
	 
	2.	 	Opryland Hotel Nashville, LLC, a Delaware limited liability company


Chief executive office: 2800 Opryland Drive, Nashville, TN 37214

Jurisdiction of incorporation/formation: Delaware

Principal place of business: Tennessee
	 
	3.	 	Opryland Hotel — Florida Limited Partnership, a Florida limited partnership


Chief executive office: 6000 W. Osceola Parkway, Kissimmee, Florida 34746

Jurisdiction of incorporation/formation: Florida

Principal place of business: Florida
	 
	4.	 	Opryland Hotel — Texas Limited Partnership, a Delaware limited partnership


Chief executive office: 1501 Gaylord Trail, Grapevine, Texas 76051

Jurisdiction of incorporation/formation: Delaware

Principal place of business: Texas
	 
	5.	 	Gaylord National. LLC, a Maryland limited liability company


Chief executive office: 201 National Harbor Boulevard, National Harbor, MD 20745

Jurisdiction of incorporation/formation.: Maryland

Principal place of business: Maryland










26









 











Schedule 6.22




MULTIEMPLOYER PLANS/COLLECTIVE BARGAINING AGREEMENTS




	1.	 	Gaylord Entertainment Company is a party to a Memorandum of Agreement with a consortium of
labor organizations (including the Hotel Employees & Restaurant Employees Union, Locals 25 and
27, AFL, CIO) known as the National Harbor Council of Unions. Pursuant to the Memorandum of
Agreement, the parties agreed to establish a set of procedures with respect to collective
bargaining activities related to the proposed Gaylord National Resort & Convention Center in
Prince George’s County, Maryland.





27









 





Schedule 8.01




None



28









 





Schedule 8.02




EXISTING INVESTMENTS




	1.	 	See Schedule 6.13(c) for a list of the Company’s minority owned subsidiaries.
	 
	2.	 	See Schedules 6.13(a) and (b) for a list of the Company’s 100% owned
subsidiaries.
	 
	3.	 	Substantially all of the Company’s domestic subsidiaries guarantee the obligations of the
Company under its 8% Senior Notes due 2013 and 6.75% Senior Notes due 2014 (together, the
“Senior Notes”) as set forth in the Senior Note Indentures.
	 
	4.	 	The Company guaranties certain obligations of the Predators Hockey Club to the National
Hockey League pursuant that certain Guaranty dated as of June 25, 1997, by Craig Leipold, the
Company, CCK, Inc. and other guarantors listed therein (the “Predators Guaranty”), as modified
by the Consent Agreement dated February 22, 2005.
	 
	5.	 	The Company guaranties certain obligations pursuant to contribution agreements in connection
with the Company’s joint venture arrangements for its investments in RHAC Holdings and
Waipouli Holdings. As of March 31, 2008, the Company has not recorded any liability in the
consolidated balance sheet associated with these guaranties. See Note 12 of the Company’s
consolidated financial statements for further reference.





29









 





Schedule 8.03




EXISTING INDEBTEDNESS


Indebtedness of the Borrower and its Subsidiaries consists of the following:





	1.	 	See Schedule 1.01(c) for a list of outstanding letters of credit
	 
	2.	 	See the attached Debt Summary.






30











 






Debt Summary

Gaylord Entertainment

June 30, 2008



Reconciliation to General Ledgers


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BALANCE @	 	 	 	 	 	 	 	 	 	 	BALANCE @	 	 	BALANCE @ 6/30/08	 
	 	 	DETAILS	 	12/31/07	 	 	DR	 	 	CR	 	 	3/31/08	 	 	DEBT	 	 	NOTES	 	 	LEASE	 
	 	 	 	 	 
	Short-Term
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[***]
	 	 	 	 	185,119	 	 	 	186,547	 	 	 	1,428	 	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	[***]
	 	 	 	 	456,337	 	 	 	226,276	 	 	 	233,900	 	 	 	463,961	 	 	 	 	 	 	 	 	 	 	 	463,961	 
	[***]
	 	 	 	 	—	 	 	 	69,739	 	 	 	140,684	 	 	 	70,945	 	 	 	 	 	 	 	 	 	 	 	70,945	 
	[***]
	 	 	 	 	—	 	 	 	—	 	 	 	57,975	 	 	 	57,975	 	 	 	 	 	 	 	 	 	 	 	57,975	 
	Nashville Predators Prom. Note
	 	 	 	 	1,000,000	 	 	 	—	 	 	 	—	 	 	 	1,000,000	 	 	 	 	 	 	 	1,000,000	 	 	 	 	 
	[***]
	 	 	 	 	48,923	 	 	 	3,744	 	 	 	7,199	 	 	 	52,378	 	 	 	 	 	 	 	 	 	 	 	52,378	 
	[***]
	 	 	 	 	—	 	 	 	2,868	 	 	 	101,489	 	 	 	98,621	 	 	 	 	 	 	 	 	 	 	 	98,621	 
	[***]
	 	 	 	 	—	 	 	 	—	 	 	 	53,255	 	 	 	53,255	 	 	 	 	 	 	 	 	 	 	 	53,255	 
	[***]
	 	 	 	 	368,235	 	 	 	75,121	 	 	 	11,222	 	 	 	304,336	 	 	 	 	 	 	 	 	 	 	 	304,336	 
	 	 	 	 	 
	Total ST “Current Portion of Long-Term Debt”
	 	 	 	$	2,058,614	 	 	$	564,295	 	 	$	607,152	 	 	$	2,101,471	 	 	$	 	 	 	$	1,000,000	 	 	$	1,101,471	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Long-Term
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$1B Revolver
	 	Interest payments are due at the end of the Interest Period,

designated at the time of the draw on the facility

(e.g., one, two, three or six months)	 	$	398,000,000	 	 	 	 	 	 	 	267,000,000	 	 	$	665,000,000	 	 	$	665,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$350 MM Senior Notes due 2013
	 	Interest payments are due semi-annually May 15th

and Nov. 15th. 8% fixed with $125m under a 

derivative contract	 	 	350,000,000	 	 	 	 	 	 	 	 	 	 	 	350,000,000	 	 	$	350,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$225 MM Senior Notes due 2014
	 	Interest payments are due semi-annually May 15th and Nov. 15th at a fixed 
rate of 6.75%	 	 	225,000,000	 	 	 	 	 	 	 	 	 	 	 	225,000,000	 	 	$	225,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Derivative — “Fair Value” hedge $125 MM Swaps
	 	 	 	 	1,998,562	 	 	 	 	 	 	 	(1,548,606	)	 	 	449,956	 	 	$	449,956	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Subtotal LT Debt
	 	 	 	 	974,998,562	 	 	 	 	 	 	 	 	 	 	 	1,240,449,956	 	 	 	 	 	 	 	 	 	 	 	 	 
	[***]
	 	 	 	 	1,778,562	 	 	 	1,391,534	 	 	 	1,157,635	 	 	 	1,544,663	 	 	 	 	 	 	 	 	 	 	 	1,544,663	 
	[***]
	 	 	 	 	105,694	 	 	 	14,747	 	 	 	15,117	 	 	 	106,064	 	 	 	 	 	 	 	 	 	 	 	106,064	 
	[***]
	 	 	 	 	—	 	 	 	12,463	 	 	 	473,252	 	 	 	460,789	 	 	 	 	 	 	 	 	 	 	 	460,789	 
	[***]
	 	 	 	 	—	 	 	 	62,386	 	 	 	333,945	 	 	 	271,559	 	 	 	 	 	 	 	 	 	 	 	271,559	 
	[***]
	 	 	 	 	—	 	 	 	176,482	 	 	 	266,067	 	 	 	89,585	 	 	 	 	 	 	 	 	 	 	 	89,585	 
	Nashville Predators Prom. Note
	 	 	 	 	2,000,000	 	 	 	—	 	 	 	—	 	 	 	2,000,000	 	 	 	 	 	 	 	2,000,000	 	 	 	 	 
	[***]
	 	 	 	 	158,345	 	 	 	203,866	 	 	 	86,531	 	 	 	41,010	 	 	 	 	 	 	 	 	 	 	 	41,010	 
	Subtotal LT Notes Payable & Capital Leases
	 	 	 	 	4,042,601	 	 	 	4,042,601	 	 	 	 	 	 	 	 	 	 	 	4,513,670	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total LT “Long-Term Debt, net of Current Portion”
	 	 	 	 	979,041,163	 	 	 	1,861,478	 	 	 	267,783,941	 	 	 	1,244,963,626	 	 	 	1,240,449,956	 	 	 	2,000,000	 	 	 	2,513,670	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL INDEBTEDNESS OUTSTANDING (ST & LT)
	 	 	 	$	981,099,777	 	 	 	 	 	 	 	 	 	 	$	1,247,065,097	 	 	 	1,240,449,956	 	 	$	3,000,000	 	 	$	3,615,141	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	     










 









 








Schedule 11.02




ADMINISTRATIVE AGENT’S OFFICE, CERTAIN ADDRESSES FOR NOTICES



If to the Borrower:




Gaylord Entertainment Company One Gaylord Drive

Nashville, Tennessee 37212

Attn: Carter R. Todd, Esquire

Phone: 615-316-6186

Facsimile: 615-316-6544


Borrower’s website: http://www.gaylordentertainment.com




If to the Administrative Agent:




Bank of America, N.A.

901 Main Street, 14th Floor Dallas, TX 75202

Attn: Henry C. Pennell

Phone: 214-209-1226

Facsimile: 214-209-9448

E-Mail Address: henry.pennell@bankofamerica.com




If to the Lenders:




Bank of America, N.A.

901 Main Street, 64th Floor Dallas, TX 75202

Attn: Roger C. Davis

Phone: 214-209-9505

Facsimile: 214-209-0005

E-mail Address: roger.c.davis@bankofamerica.com




Deutsche Bank Trust Company Americas

60 Wall Street, 10th Floor

New York, NY 10005

Attn: George Reynolds, Director

Telephone: 212-250-2362

Facsimile: 212-797-4496

E-mail Address: george.r.reynolds@db.com




KeyBank National Association

225 Franklin Street, 18th Floor

Boston, MA 02110

Attn: Lisa Grammatikov

Telephone: 617-385-6252

Facsimile: 617-385-___

E-mail Address: Elizabeth_grammatikov@keybank.com




Wachovia Bank, National Association

301 South College Street, 16th Floor

NC0172

Charlotte, North Carolina 28288

Attn: Matt Ricketts

Telephone: 704-374-4248

Facsimile: 704-715-0065

E-mail Address: Matt.ricketts@wachovia.com




 









 





Wells Fargo Bank, NA.

Jennifer H Groves

Wells Fargo Bank, NA 5400 LBJ Freeway

Dallas, TX 75240-1000

Telephone: 972-364-1019

Facsimile: 972-386-4723

E-mail Address: jennifer.h.groves@wellsfargo.com




Citicorp North America Inc.

388 Greenwich Street, 17th Floor

New York, NY 10013

Attn: Chiara Weisbrod, Analyst

Telephone: 212-723-6559

Facsimile: 646-688-2077

E-mail Address: Chiara.weisbrod@citigroup.com




Calyon New York Branch

1301 Avenue of the Americas

New York, NY 10019

Attn: Caryl Bogardus

Telephone: 212-261-7828

Facsimile: 212-261-7532

E-mail Address: caryl.bogardus@us.calyon.com




The Bank of Nova Scotia (Revolving Credit Facility Only)

One Liberty Plaza, 22-26 Floor

165 Broadway

New York, NY 10006

Attn: George Sherman, Associate Director

Telephone: 212-225-5255

Facsimile: 212-225-5166

E-mail Address: George_sherman@scotiacapital.com




Scotiabanc Inc. (Term Loan Only)

720 Kint Street West, 2nd Floor

Toronto, ON M5V 2T3

Attn: Rayan Karim

Telephone: 212-225-5705

Facsimile: 212-225-5709

E-mail Address: rayankarim@scotiacapital.com




Commerzbank AG, New York Branch and Grand Cayman Branches

633 West Fifth Street, Suite 6600

Los Angeles, CA 90071

Attn: Christian Jagenberg

Telephone: 213-683-5410

Facsimile: 213-623-0039

E-mail Address: cjagenberg@cbkna.com




The Royal Bank of Scotland PLC

101 Park Avenue

New York, NY 10178

Attn: Tim McNaught

Telephone: 212-401-3624

Facsimile: 212-401-3456




32









 





E-mail Address: Tim.McNaught@rbs.com




Aareal Bank AG

250 Park Avenue, Suite 820

New York, NY 10177

Attn: Michael Greve

Telephone: 646-465-8615

Facsimile: 817-322-0285

E-mail Address: mgreve@Aareal-Capital.com




U.S. Bank National Association

1100 Abernathy Road, Suite 1250

Building 500

Atlanta, GA 30328

Attn: Lori Y. Jensen, Vice President

Telephone: 770-512-3118

Facsimile: 770-512-3130

E-mail Address: Lori.jensen@usbank.com




Raymond James Bank, FSB

710 Carillon Parkway

St. Petersburg, FL 33716

Attn: James M. Armstrong

Telephone: 727-567-7919

Facsimile: 727-567-8830

E-mail Address: james.armstrong@raymondjames.com




Midfirst Bank, a Federally Chartered Savings Association

MidFirst Plaza

501 NW Grand Boulevard

Oklahoma City, OK 73118

Attn: Todd Wright, Vice President

Telephone: 405-767-7108

Facsimile: 405-767-7119

E-mail Address: todd.wright@midfirst.com




Chevy Chase Bank, F.S.B.

7501 Wisconsin Avenue

12th Floor

Bethesda, MD 20817

Attn: Michael V. Antonelli

Telephone: 240-497-7601

Facsimile: 240-497-7714

E-mail Address: mvantonelli@chevychasebank.net









33









 








Exhibit A-1



FORM OF COMMITTED LOAN NOTICE



Date:                                         ,                     



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
[                    ] (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Gaylord Entertainment Company, a Delaware corporation (the “Borrower”), the
Guarantors from time to time party thereto, the Lenders from time to time party thereto, Bank of
America, N.A., as Administrative Agent, Swing Line Lender and IJC Issuer, Banc of America
Securities LLC and Deutsche Bank Securities Inc., collectively, as the Joint Lead Arranger and
Deutsche Bank Trust Company Americas, as Syndication Agent.



The undersigned hereby requests (select one):





	 	o	 	A Borrowing of [Revolving][Term] Loans
	 
	 	o	 	A conversion or continuation of Loans






	 	1.	 	On                                          (a Business Day).
	 
	 	2.	 	In the amount of $                                        .
	 
	 	3.	 	Comprised of                                         .

[Type of Committed Loan requested]
	 
	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of                      months.




[The Borrowing requested herein complies with Section 2.01 of the Agreement.]




	 	 	 	 	 	 	 

	 	 	GAYLORD ENTERTAINMENT COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 











 









 








Exhibit A-2



FORM OF SWING LINE LOAN NOTICE


Date:                                         ,                     





			
	To:	 	Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
[                    ] (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Gaylord Entertainment Company, a Delaware corporation (the “Borrower”), the
Guarantors from time to time party thereto, the Lenders from time to time party thereto, Bank of
America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Banc of America
Securities LLC and Deutsche Bank Securities Inc., collectively, as the Joint Lead Arranger and
Deutsche Bank Trust Company Americas, as Syndication Agent.



The undersigned hereby requests a Swing Line Loan:





	1.	 	On                                          (a Business Day).
	 
	2.	 	In the amount of $                                        .




The Swing Line Borrowing requested herein complies with the requirements of the provisos to the
first sentence of Section 2.04(a) of the Agreement.



The Borrower hereby represents and warrants that the conditions specified in Section 4.02
shall be satisfied on and as of the date of the Applicable Credit Extension.




	 	 	 	 	 	 	 

	 	 	GAYLORD ENTERTAINMENT COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 











35









 








Exhibit B



FORM OF SECURITY AGREEMENT



SECOND AMENDED AND RESTATED SECURITY AGREEMENT

[GEC — BORROWING BASE PROPERTY-RELATED PERSONAL PROPERTY]



     THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT (this “Security Agreement”) dated
as of                     , 2008 is by and among the parties identified as “Grantors” on the signature
pages hereto and such other parties as may become Grantors hereunder after the date hereof
(individually a “Grantor”, and collectively the “Grantors”) and BANK OF AMERICA,
N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the
holders of the Secured Obligations referenced below and is an amendment and restatement of that
certain Amended and Restated Security Agreement among the parties hereto and dated as of March 23,
2007 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the
“Replaced Security Agreement”).



WITNESSETH




     WHEREAS, pursuant to that certain Second Amended and Restated Credit Agreement dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to time, the “Credit
Agreement”) among Gaylord Entertainment Company, a Delaware corporation (the
“Borrower”), the Guarantors party thereto, the Lenders and the Administrative Agent, the
Lenders have agreed to make Loans upon the terms and subject to the conditions set forth therein;
and



     WHEREAS, this Security Agreement is required under the terms of the Credit Agreement.



     NOW, THEREFORE, in consideration of these premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Definitions.



     (a) Capitalized terms used and not otherwise defined herein shall have the meanings provided
in the Credit Agreement.



     (b) The following terms shall have the meanings assigned thereto in the Uniform Commercial
Code in effect in the State of New York on the date hereof: Accession, Account, As-Extracted
Collateral, Chattel Paper, Commercial Tort Claim, Commingled Goods, Consumer Goods, Deposit
Account, Document, Equipment, Farm Products, Fixtures, General Intangible, Goods, Instrument,
Inventory, Investment Property, Letter-of-Credit Right, Manufactured Home, Proceeds, Software,
timber to be cut, Supporting Obligation and Tangible Chattel Paper.



     (c) As used herein, the following terms shall have the meanings set forth below:




     “Collateral” has the meaning provided in Section 3 hereof.




     “Copyright License” means any written agreement, naming any Grantor as
licensor, granting any right under any Copyright.




     “Copyrights” means (a) all registered United States copyrights in all Works,
now existing or hereafter created or acquired, all registrations and recordings thereof, and
all applications in connection therewith, including, without limitation, registrations,
recordings and applications in the United States Copyright Office and (b) all renewals
thereof.




     “Patent License” means any agreement, whether written or oral, providing for
the grant by or to a Grantor of any right to manufacture, use or sell any invention covered
by a Patent.




     “Patents” means (a) all letters patent of the United States or any other
country and all reissues and extensions thereof, and (b) all applications for letters patent
of the United States or any other country and all divisions, continuations and
continuations-in-part thereof.




     “Secured Obligations” means, without duplication, (i) all of the Obligations
and (ii) all reasonable and documented costs and expenses actually incurred by the
Administrative Agent in connection with enforcement and collection of the Obligations,
including reasonable and documented attorneys’ fees.



36









 






     “Trademark License” means any agreement, written or oral, providing for the
grant by or to a Grantor of any right to use any Trademark.




     “Trademarks” means (a) all registered trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service marks, logos
and other registered source or business identifiers, and the goodwill associated therewith,
now existing or hereafter adopted or acquired, all registrations and recordings thereof, and
all applications in connection therewith and (b) all renewals thereof.




     “UCC” means the Uniform Commercial Code of the applicable jurisdiction(s).




     “Work” means any work that is subject to copyright protection pursuant to Title
17 of the United States Code.



     2. Effectiveness. This Security Agreement (including, without limitation, the grant of
security interest in Section 3, the representations and warranties in Section 5 and the covenants
in Section 6 shall become effective immediately upon the Closing Date without any further action on
the part of any of the parties hereto.



     3. Grant of Security Interest in the Collateral. To secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or
otherwise, of the Secured Obligations, each Grantor hereby grants to the Administrative Agent, for
the benefit of the holders of the Secured Obligations, a continuing security interest in, and a
right to set off against, any and all right, title and interest of such Grantor in and to all of
the following, whether now owned or existing or owned, acquired, or arising hereafter, in each case
to the extent the same is attached to, contained in, related to, arising from or used in connection
with the operation, ownership, maintenance, construction, development or marketing of or otherwise
in connection with any one or more of the Borrowing Base Properties (collectively, the
“Collateral”):



     (a) all Accounts;



     (b) all cash and currency;



     (c) all Chattel Paper;



     (d) those Commercial Tort Claims identified on Schedule 2 attached hereto;



     (e) all Copyrights;



     (f) all Copyright Licenses;



     (g) all Deposit Accounts;



     (h) all Documents;



     (i) all Equipment;



     (i) all Fixtures;



     (k) all General Intangibles;



     (1) all Instruments;



     (m) all Inventory;



     (n) all Investment Property;



     (o) all Letter-of-Credit Rights;



     (p) all Patents;



     (q) all Patent Licenses;



     (r) all Software;



     (s) all Supporting Obligations;



     (t) all Trademarks;



     (u) all Trademark Licenses;



37









 





     (v) all other personal property of such Grantor of whatever type or description; and



     (w) to the extent not otherwise included, all Accessions and all Proceeds of any and all of
the foregoing.



     Notwithstanding anything to the contrary contained herein, (i) the security interests granted
under this Security Agreement shall not (A) extend to any Property that is subject to a Lien
securing purchase money Indebtedness permitted under the Credit Agreement pursuant to documents
that prohibit such Grantor from granting any other Liens in such Property, (B) extend to any lease,
license or other contract if the grant of a security interest in such lease, license or contract in
the manner contemplated by this Security Agreement is prohibited by the terms of such lease,
license or contract or by law and would result in the termination of such lease, license or
contract, but only to the extent that (1) after reasonable efforts, consent from the relevant party
or parties has not been obtained and (2) any such prohibition could not be rendered ineffective
pursuant to the UCC or any other applicable law (including Debtor Relief Laws) or principles of
equity, and (C) extend to any vehicles owned by any Grantor that are subject to certificates of
title; and (ii) the Property of Gaylord Entertainment Company subject to the security interests
granted under this Security Agreement shall be limited to the types of Property listed in items
(e), (I), (p), (q), (r), (s), (t) and (u) and all Accessions and all Proceeds of any and all of
such Property.



     The Grantors and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest created hereby in the
Collateral (i) constitutes continuing collateral security for all of the Secured Obligations,
whether now existing or hereafter arising and (ii) is not to be construed as an assignment or
license of any Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks or Trademark
Licenses.



     4. Provisions Relating to Accounts.



     (a) Anything herein to the contrary notwithstanding, each of the Grantors shall remain liable
under each of the Accounts to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any agreement giving rise to
each such Account. Neither the Administrative Agent nor any holder of the Secured Obligations shall
have any obligation or liability under any Account (or any agreement giving rise thereto) by reason
of or arising out of this Security Agreement or the receipt by the Administrative Agent or any
holder of the Secured Obligations of any payment relating to such Account pursuant hereto, nor
shall the Administrative Agent or any holder of the Secured Obligations be obligated in any manner
to perform any of the obligations of a Grantor under or pursuant to any Account (or any agreement
giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency
of any payment received by it or as to the sufficiency of any performance by any party under any
Account (or any agreement giving rise thereto), to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts that may have been assigned to it
or to which it may be entitled at any time or times.



     (b) At any time after the occurrence and during the continuation of an Event of Default, (i)
the Administrative Agent shall have the right, but not the obligation, to make test verifications
of the Accounts in any manner and through any medium that it reasonably considers advisable, and
the Grantors shall furnish all such assistance and information as the Administrative Agent may
reasonably require in connection with such test verifications, (ii) upon the Administrative Agent’s
request and at the expense of the Grantors, the Grantors shall cause independent public accountants
or others reasonably satisfactory to the Administrative Agent to furnish to the Administrative
Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the
Accounts and (iii) the Administrative Agent in its own name or in the name of others may
communicate with account debtors on the Accounts to verify with them to the Administrative Agent’s
satisfaction the existence, amount and terms of any Accounts.



     5. Representations and Warranties. Each Grantor hereby represents and warrants to the
Administrative Agent, for the ratable benefit of the holders of the Secured Obligations, that:



     (a) Ownership. Each Grantor is the legal and beneficial owner of its Collateral and
has the right to pledge, sell, assign or transfer the same.



     (b) Security Interest/Priority. This Security Agreement creates a valid security
interest in favor of the Administrative Agent, for the benefit of the holders of the Secured
Obligations, in the Collateral of such Grantor, except as enforceability may be limited by
applicable Debtor Relief Laws or by equitable principles relating to enforceability. When properly
perfected by filing of financing statements, such security interest shall constitute a



38









 




perfected security interest in such Collateral, to the extent such security interest can be
perfected by filing of financing statements under the UCC, free and clear of all Liens except for
Permitted Liens.




     (c) Types of Collateral. None of the Collateral consists of, or is the Accessions or
the Proceeds of, As-Extracted Collateral, Consumer Goods, Farm Products, Manufactured Homes, or
timber to be cut.



     (d) Accounts. (i) To such Grantor’s knowledge, each Account of such Grantor and the
papers and documents relating thereto are genuine and in all material respects what they purport to
be, (ii) each Account of such Grantor arises out of (A) a bona fide sale of goods sold and
delivered by such Grantor (or is in the process of being delivered) or (B) services theretofore
actually rendered by such Grantor to, the account debtor named therein and (iii) no surety bond was
required or given in connection with any Account of such Grantor or the contracts or purchase
orders out of which they arose.



     (e) Inventory. No Inventory of such Grantor is held by any Person other than such
Grantor pursuant to consignment, sale or return, sale on approval or similar arrangement.



     (f) Copyrights, Patents and Trademarks. As of the date hereof, Grantor owns no
interest in any Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark
Licenses with respect to the operation, ownership, maintenance, construction, development or
marketing of or otherwise in connection with any one or more of the Borrowing Base Properties other
than those set forth on Schedule 6.17 of the Credit Agreement and made subject to the security
interests arising hereunder.



     (g) Commercial Tort Claims. Schedule 2 hereto sets forth each Commercial Tort
Claim seeking damages in excess of $1,000,000 before any Governmental Authority by or in favor of
such Grantor.



     6. Covenants. Each Grantor covenants that, so long as any of the Secured Obligations
remains outstanding and until all of the commitments relating thereto have been terminated, such
Grantor shall:



     (a) Other Liens. Defend the Collateral against the claims and demands of all other
parties claiming an interest therein other than Permitted Liens.



     (b) Instruments/Tangible Chattel Paper/Documents. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any Instrument or Tangible
Chattel Paper, or if any property constituting Collateral shall be stored or shipped subject to a
Document in each case having a value in excess of $250,000, (i) ensure that such Instrument,
Tangible Chattel Paper or Document is either in the possession of such Grantor at all times or, if
requested by the Administrative Agent, is immediately delivered to the Administrative Agent, duly
endorsed in a manner satisfactory to the Administrative Agent and (ii) ensure that any Collateral
consisting of Tangible Chattel Paper is marked with a legend acceptable to the Administrative Agent
indicating the Administrative Agent’s security interest in such Tangible Chattel Paper.



     (c) Perfection of Security Interest. Execute and deliver to the Administrative Agent
such agreements, assignments or instruments (including affidavits, notices, reaffirmations and
amendments and restatements of existing documents, as the Administrative Agent may reasonably
request) and do all such other things as the Administrative Agent may reasonably deem necessary,
appropriate or convenient (i) to assure to the Administrative Agent the effectiveness and priority
of its security interests hereunder, including (A) such instruments as the Administrative Agent may
from time to time reasonably request in order to perfect and maintain the security interests
granted hereunder in accordance with the UCC, (B) with regard to Copyrights, a Notice of Grant of
Security Interest in Copyrights for filing with the United States Copyright Office in the form of
Schedule 5(f)(i) attached hereto or other form reasonably acceptable to the Administrative
Agent, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing
with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii)
attached hereto or other form reasonably acceptable to the Administrative Agent and (D) with regard
to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United
States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto or
other form reasonably acceptable to the Administrative Agent, (ii) to consummate the transactions
contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its
rights and interests hereunder. To that end, each Grantor authorizes the Administrative Agent to
file one or more financing statements (which may describe the collateral as “all assets” or “all
personal property”) disclosing the Administrative Agent’s security interest in any or all of the
Collateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also
hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any
other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with
full power and for the limited purpose to sign in the name of



39









 




such Grantor any such financing statements (including renewal statements), amendments and
supplements, notices or any similar documents that in the Administrative Agent’s reasonable
discretion would be necessary, appropriate or convenient in order to perfect and maintain
perfection of the security interests granted hereunder, such power, being coupled with an interest,
being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the
commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon,
photographic or other reproduction of this Security Agreement or any such financing statement is
sufficient for filing as a financing statement by the Administrative Agent without notice thereof
to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the
same. In the event for any reason the law of any jurisdiction other than New York becomes or is
applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured
Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such
other things as the Administrative Agent in its sole discretion reasonably deems necessary,
appropriate or convenient to preserve, protect and enforce the security interests of the
Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to do
so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute
any and all such requested documents on behalf of such Grantor pursuant to the power of attorney
granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and
the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the
Administrative Agent’s security interest therein and, upon the Administrative Agent’s request,
instruct them to hold all such Collateral for the account of the holders of the Secured Obligations
and subject to the Administrative Agent’s instructions. Each Grantor agrees to mark its books and
records to reflect the security interest of the Administrative Agent in the Collateral.




     (d) Control. Execute and deliver all agreements, assignments, instruments or other
documents as the Administrative Agent shall reasonably request for the purpose of obtaining and
maintaining control within the meaning of the UCC with respect to any Collateral consisting of
Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper.



     (e) Collateral held by Warehouseman, Bailee, etc. If any Collateral is at any time in
the possession or control of a warehouseman, bailee, agent or processor of such Grantor, (i) notify
the Administrative Agent of such possession or control, (ii) notify such Person of the
Administrative Agent’s security interest in such Collateral, (iii) instruct such Person to hold all
such Collateral for the Administrative Agent’s account and subject to the Administrative Agent’s
instructions and (iv) use commercially reasonable efforts to obtain an acknowledgment from such
Person that it is holding such Collateral for the benefit of the Administrative Agent.



     (f) Treatment of Accounts. Not grant or extend the time for payment of any Account, or
compromise or settle any Account for less than the full amount thereof, or release any Person or
property, in whole or in part, from payment thereof, or allow any credit or discount thereon, other
than as normal and customary in the ordinary course of a Grantor’s business or as required by law.



     (g) Covenants Relating to Copyrights. Not do any act or knowingly omit to do any act
whereby any material Copyright may become invalidated and (A) take all necessary steps as it shall
deem appropriate under the circumstances, to maintain and pursue each application (and to obtain
the relevant registration) and to maintain each registration of each material Copyright owned by a
Grantor including, without limitation, filing of applications for renewal where necessary; and (B)
promptly notify the Administrative Agent of any material infringement of any material Copyright of
a Grantor of which it becomes aware and take such actions as it shall reasonably deem appropriate
under the circumstances to protect such Copyright, including, where appropriate in the reasonable
discretion of Grantor, the bringing of suit for infringement, seeking injunctive relief and seeking
to recover any and all damages for such infringement.



     (h) Covenants Relating to Patents and Trademarks.




     (i) With respect to each material Trademark of such Grantor, (A) continue to use such
Trademark on each and every trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any valid claim of abandonment for non-use unless such
Grantor determines to abandon any Trademark in is reasonable business judgment, (B) maintain
as in the past the quality of products and services offered under any Trademark in use, (C)
employ such Trademark with the appropriate notice of registration, except to the



40









 







extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect, and (D) not (and not permit any licensee or sublicensee thereof to) do any
act or knowingly omit to do any act whereby any Trademark may become invalidated.




     (ii) Not do any act, or omit to do any act, whereby any material Patent may become
abandoned or dedicated.




     (iii) Notify the Administrative Agent immediately if it knows that any application or
registration relating to any material Patent or Trademark may become abandoned or dedicated,
or of any adverse determination or development (including, without limitation, the
institution of, or any such determination or development in, any proceeding in the United
States Patent and Trademark Office or any court or tribunal in any country) regarding a
Grantor’s ownership of any material Patent or Trademark or its right to register the same or
to keep and maintain the same.




     (iv) Take all commercially reasonable steps, including, without limitation, in any
proceeding before the United States Patent and Trademark Office, or any similar office or
agency in any other country or any political subdivision thereof, to maintain and pursue
each application (and to obtain the relevant registration) and to maintain each registration
of its material Patents and Trademarks, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of incontestability.




     (v) Promptly notify the Administrative Agent after it learns that any material Patent
or Trademark included in the Collateral is infringed, misappropriated or diluted by a third
party and, to the extent such infringement could have a material adverse effect on any
business of Grantor or its Subsidiaries or otherwise have a material adverse effect on the
value of such Patent or Trademark, promptly sue for infringement, misappropriation or
dilution, to seek injunctive relief where appropriate and to recover any and all damages for
such infringement, misappropriation or dilution, or to take such other actions as it shall
reasonably deem appropriate under the circumstances to protect such Patent or Trademark.




     (i) Commercial Tort Claims.




     (i) Promptly notify the Administrative Agent in writing of the initiation of any
Commercial Tort Claim seeking damages in excess of $1,000,000 before any Governmental
Authority by or in favor of such Grantor.




     (ii) Execute and deliver such statements, documents and notices and do and cause to be
done all such things as the Administrative Agent may reasonably deem necessary, appropriate
or convenient, or as are required by law, to create, perfect and maintain the Administrative
Agent’s security interest in any Commercial Tort Claim.



     7. Advances by Holders of the Secured Obligations. On failure of any Grantor to
perform any of the covenants and agreements contained herein, the Administrative Agent may, at its
sole option and in its sole discretion, perform the same and in so doing may expend such sums as
the Administrative Agent may reasonably deem advisable in the performance thereof including,
without limitation, the payment of any insurance premiums, the payment of any taxes, a payment to
obtain a release of a Lien or potential Lien, expenditures made in defending against any adverse
claim and all other expenditures that the Administrative Agent may make for the protection of the
security hereof or that may be compelled to make by operation of law. All such sums and amounts so
expended shall be repayable by the Grantors on a joint and several basis (subject to Section 24
hereof) promptly upon timely notice thereof and demand therefor, shall constitute additional
Secured Obligations and shall bear interest from the date said amounts are expended at the Default
Rate. No such performance of any covenant or agreement by the Administrative Agent on behalf of any
Grantor, and no such advance or expenditure therefor, shall relieve the Grantors of any default
under the terms of this Security Agreement, the other Loan Documents or any other documents
relating to the Secured Obligations. The Administrative Agent may make any payment hereby
authorized in accordance with any bill, statement or estimate procured from the appropriate public
office or holder of the claim to be discharged without inquiry into the accuracy of such bill,
statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title
or claim except to the extent such payment is being contested in good faith



41









 




by a Grantor in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.




     8. Remedies.



     (a) General Remedies. Upon the occurrence of an Event of Default and during the
continuation thereof, the Administrative Agent and the holders of the Secured Obligations shall
have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other
documents relating to the Secured Obligations, or by law (including, without limitation, levy of
attachment and garnishment), the rights and remedies of a secured party under the UCC of the
jurisdiction applicable to the affected Collateral and, further, the Administrative Agent may, with
or without judicial process or the aid and assistance of others (to the extent permitted under
applicable law), (i) subject to the rights of tenants in possession, enter on any premises on which
any of the Collateral may be located and, without resistance or interference by the Grantors, take
possession of the Collateral, (ii) dispose of any Collateral on any such premises, (iii) require
the Grantors to assemble and make available to the Administrative Agent at the expense of the
Grantors any Collateral at any place and time designated by the Administrative Agent that is
reasonably convenient to both parties, (iv) remove any Collateral from any such premises for the
purpose of effecting sale or other disposition thereof, and/or (v) except as provided below in the
case of notice required by law, without demand and without advertisement, notice or hearing, all of
which each of the Grantors hereby waives to the fullest extent permitted by law, at any place and
time or times, sell and deliver any or all Collateral held by or for it at public or private sale,
by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such
prices and upon such terms as the Administrative Agent deems advisable, in its sole discretion
(subject to any and all mandatory legal requirements). Each of the Grantors acknowledges that any
private sale referenced above may be at prices and on terms less favorable to the seller than the
prices and terms that might have been obtained at a public sale and agrees (to the extent permitted
by applicable law) that such private sale shall be deemed to have been made in a commercially
reasonable manner. Neither the Administrative Agent’s compliance with applicable law nor its
disclaimer of warranties relating to the Collateral shall be considered to adversely affect the
commercial reasonableness of any sale. In addition to all other sums due the Administrative Agent
and the holders of the Secured Obligations with respect to the Secured Obligations, the Grantors
shall pay the Administrative Agent and each of the holders of the Secured Obligations all
reasonable documented costs and expenses actually incurred by the Administrative Agent or any such
holder of the Secured Obligations, including, but not limited to, reasonable attorneys’ fees and
court costs, in obtaining or liquidating the Collateral, in enforcing payment of the Secured
Obligations, or in the prosecution or defense of any action or proceeding by or against the
Administrative Agent or the holders of the Secured Obligations or the Grantors concerning any
matter arising out of or connected with this Security Agreement, any Collateral or the Secured
Obligations, including, without limitation, any of the foregoing arising in, arising under or
related to a case under the Bankruptcy Code. To the extent the rights of notice cannot be legally
waived hereunder, each Grantor agrees that any requirement of reasonable notice shall be met if
such notice is personally served on or mailed, postage prepaid, to the Borrower in accordance with
the notice provisions of Section 11.02 of the Credit Agreement at least ten Business Days before
the time of sale or other event giving rise to the requirement of such notice. The Administrative
Agent and the holders of the Secured Obligations shall not be obligated to make any sale or other
disposition of the Collateral regardless of notice having been given. To the extent permitted by
applicable law, any holder of the Secured Obligations may be a purchaser at any such sale. To the
extent permitted by applicable law, each of the Grantors hereby waives all of its rights of
redemption with respect to any such sale. Subject to the provisions of applicable law, the
Administrative Agent and the holders of the Secured Obligations may postpone or cause the
postponement of the sale of all or any portion of the Collateral by announcement at the time and
place of such sale, and such sale may, without further notice, to the extent permitted by
applicable law, be made at the time and place to which the sale was postponed, or the
Administrative Agent and the holders of the Secured Obligations may further postpone such sale by
announcement made at such time and place.



     (b) Remedies Relating to Accounts. Upon the occurrence of an Event of Default and
during the continuation thereof, whether or not the Administrative Agent has exercised any or all
of its rights and remedies hereunder, (i) each Grantor will promptly upon request of the
Administrative Agent instruct all account debtors to remit all payments in respect of Accounts to a
mailing location selected by the Administrative Agent and (ii) the Administrative Agent shall have
the right to enforce any Grantor’s rights against its customers and account debtors, and the
Administrative Agent or its designee may notify any Grantor’s customers and account debtors that
the Accounts of such Grantor have been assigned to the Administrative Agent or of the
Administrative Agent’s security



42









 




interest therein, and may (either in its own name or in the name of a Grantor or both) demand,
collect (including without limitation by way of a lockbox arrangement), receive, take receipt for,
sell, sue for, compound, settle, compromise and give acquittance for any and all amounts due or to
become due on any Account, and, in the Administrative Agent’s discretion, file any claim or take
any other action or proceeding to protect and realize upon the security interest of the holders of
the Secured Obligations in the Accounts. Each Grantor acknowledges and agrees that the Proceeds of
its Accounts remitted to or on behalf of the Administrative Agent in accordance with the provisions
hereof shall be solely for the Administrative Agent’s own convenience and that such Grantor shall
not have any right, title or interest in such Accounts or in any such other amounts except as
expressly provided herein. The Administrative Agent and the holders of the Secured Obligations
shall have no liability or responsibility to any Grantor for acceptance of a check, draft or other
order for payment of money bearing the legend “payment in full” or words of similar import or any
other restrictive legend or endorsement or be responsible for determining the correctness of any
remittance. Each Grantor hereby agrees to indemnify the Administrative Agent and the holders of the
Secured Obligations from and against all liabilities, damages, losses, actions, claims, judgments,
costs, expenses, charges and reasonable attorneys’ fees suffered or incurred by the Administrative
Agent or the holders of the Secured Obligations (each, an “Indemnified Party”) because of
the maintenance of the foregoing arrangements except as relating to or arising out of the gross
negligence or willful misconduct of an Indemnified Party or its officers, employees or agents. In
the case of any investigation, litigation or other proceeding, the foregoing indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought by a Grantor, its
directors, shareholders or creditors or an Indemnified Party or any other Person or any other
Indemnified Party is otherwise a party thereto.




     (c) Access. In addition to the rights and remedies hereunder, upon the occurrence of
an Event of Default and during the continuation thereof, the Administrative Agent shall have the
right, subject to the rights of tenants in possession, to enter and remain upon the various
premises of the Grantors without cost or charge to the Administrative Agent, and use the same,
together with materials, supplies, books and records of the Grantors for the purpose of collecting
and liquidating the Collateral, or for preparing for sale and conducting the sale of the
Collateral, whether by foreclosure, auction or otherwise. In addition, the Administrative Agent may
remove Collateral, or any part thereof, from such premises and/or any records with respect thereto,
in order to effectively collect or liquidate such Collateral.



     (d) Nonexclusive Nature of Remedies. Failure by the Administrative Agent or the
holders of the Secured Obligations to exercise any right, remedy or option under this Security
Agreement, any other Loan Document, any other documents relating to the Secured Obligations, or as
provided by law, or any delay by the Administrative Agent or the holders of the Secured Obligations
in exercising the same, shall not operate as a waiver of any such right, remedy or option. No
waiver hereunder shall be effective unless it is in writing, signed by the party against whom such
waiver is sought to be enforced and then only to the extent specifically stated, which in the case
of the Administrative Agent or the holders of the Secured Obligations shall only be granted as
provided herein. To the extent permitted by applicable law, neither the Administrative Agent, the
holders of the Secured Obligations, nor any party acting as attorney for the Administrative Agent
or the holders of the Secured Obligations, shall be liable hereunder for any acts or omissions or
for any error of judgment or mistake of fact or law other than their gross negligence or willful
misconduct hereunder. The rights and remedies of the Administrative Agents and the holders of the
Secured Obligations under this Security Agreement shall be cumulative and not exclusive of any
other right or remedy that the Administrative Agent or the holders of the Secured Obligations may
have.



     (e) Retention of Collateral. To the extent permitted under applicable law, in addition
to the rights and remedies hereunder, upon the occurrence and during the continuation of an Event
of Default, the Administrative Agent may, after providing the notices required by Sections 9-620
and 9-621 of the UCC or otherwise complying with the requirements of applicable law of the relevant
jurisdiction, accept or retain all or any portion of the Collateral in satisfaction of the Secured
Obligations. Unless and until the Administrative Agent shall have provided such notices, however,
the Administrative Agent shall not be deemed to have accepted or retained any Collateral in
satisfaction of any Secured Obligations for any reason.



     (f) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the holders of the Secured
Obligations are legally entitled, the Grantors shall be jointly and severally liable for the
deficiency (subject to Section 24 hereof), together with interest thereon at the Default Rate for
Base Rate Revolving Loans, together with the costs of collection and reasonable



43









 




attorneys’ fees. Any surplus remaining after the full payment and satisfaction of the Secured
Obligations shall be returned to the Grantors or to whomsoever a court of competent jurisdiction
shall determine to be entitled thereto.




     9. Rights of the Administrative Agent.



     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
Grantor hereby designates and appoints the Administrative Agent, on behalf of the holders of the
Secured Obligations, and each of its designees or agents, as attorney-in-fact of such Grantor,
irrevocably and with power of substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuation of an Event of Default:




     (i) to demand, collect, settle, compromise and adjust, and give discharges and releases
concerning the Collateral, all as the Administrative Agent may reasonably deem appropriate;




     (ii) to commence and prosecute any actions at any court for the purposes of collecting
any of the Collateral and enforcing any other right in respect thereof,




     (iii) to defend, settle or compromise any action brought and, in connection therewith,
give such discharge or release as the Administrative Agent may reasonably deem appropriate;




     (iv) to receive, open and dispose of mail addressed to a Grantor and endorse checks,
notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or storage of the goods giving rise to
the Collateral on behalf of and in the name of such Grantor, or securing, or relating to
such Collateral;




     (v) to pay or discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against the Collateral;




     (vi) to direct any parties liable for any payment in connection with any of the
Collateral to make payment of any and all monies due and to become due thereunder directly
to the Administrative Agent or as the Administrative Agent shall direct;




     (vii) to receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of any Collateral;




     (viii) to sell, assign, transfer, make any agreement in respect of, or otherwise deal
with or exercise rights in respect of, any Collateral or the goods or services that have
given rise thereto, as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes;




     (ix) to adjust and settle claims under any insurance policy relating thereto;




     (x) to execute and deliver all assignments, conveyances, statements, financing
statements, renewal financing statements, security and pledge agreements, affidavits,
notices and other agreements, instruments and documents that the Administrative Agent may
reasonably deem appropriate in order to perfect and maintain the security interests and
liens granted in this Security Agreement and in order to fully consummate all of the
transactions contemplated herein;




     (xi) to institute any foreclosure proceedings that the Administrative Agent may
reasonably deem appropriate; and




     (xii) to do and perform all such other acts and things as the Administrative Agent may
reasonably deem appropriate or convenient in connection with the Collateral.



     This power of attorney is a power coupled with an interest and shall be irrevocable for so
long as any of the Secured Obligations shall remain outstanding and until all of the commitments
relating thereto shall have been



44









 




terminated. The Administrative Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or implicitly granted to
the Administrative Agent in this Security Agreement, and shall not be liable for any failure to do
so or any delay in doing so. The Administrative Agent shall not be liable for any act or omission
or for any error of judgment or any mistake of fact or law in its individual capacity or its
capacity as attorney-in-fact except acts or omissions resulting from its gross negligence or
willful misconduct. This power of attorney is conferred on the Administrative Agent solely to
protect, preserve and realize upon its security interest in the Collateral.




     (b) The Administrative Agent’s Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Collateral while being held by the Administrative Agent
hereunder, the Administrative Agent shall have no duty or liability to preserve rights pertaining
thereto, it being understood and agreed that the Grantors shall be responsible for preservation of
all rights in the Collateral, and the Administrative Agent shall be relieved of all responsibility
for the Collateral upon surrendering it or tendering the surrender of it to the Grantors. The
Administrative Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Administrative Agent accords its own property, which shall be
no less than the treatment employed by a reasonable and prudent agent in the industry, it being
understood that the Administrative Agent shall not have responsibility for taking any necessary
steps to preserve rights against any parties with respect to any of the Collateral. In the event of
a public or private sale of Collateral pursuant to Section 8 hereof, the Administrative Agent shall
have no obligation to clean, repair or otherwise prepare the Collateral for sale.



     10. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



     11. Application of Proceeds. Upon the occurrence and during the continuation of an
Event of Default, any payments in respect of the Secured Obligations and any proceeds of the
Collateral, when received by the Administrative Agent or any of the holders of the Secured
Obligations in cash or its equivalent, will be applied in reduction of the Secured Obligations in
the order set forth in the Credit Agreement or other document relating to the Secured Obligations,
and each Grantor irrevocably waives the right to direct the application of such payments and
proceeds and acknowledges and agrees that the Administrative Agent shall have the continuing and
exclusive right to apply and reapply any and all such payments and proceeds in the Administrative
Agent’s sole discretion, notwithstanding any entry to the contrary upon any of its books and
records.



     12. Continuing Agreement



     (a) This Security Agreement shall be a continuing agreement in every respect and shall remain
in fill force and effect so long as any of the Secured Obligations remains outstanding (other than
contingent indemnity obligations that are not yet due and payable) and until all of the commitments
relating thereto have been terminated. Upon such payment and termination, this Security Agreement
and the liens and security interests of the Administrative Agent hereunder shall be automatically
terminated and the Administrative Agent shall, upon the request and at the expense of the Grantors,
execute and deliver all UCC termination statements and/or other documents reasonably requested by
the Grantors evidencing such termination. Notwithstanding the foregoing, all releases and
indemnities provided hereunder shall survive termination of this Security Agreement



     (b) This Security Agreement shall continue to be effective or be automatically reinstated, as
the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent or any holder of
the Secured Obligations as a preference, fraudulent conveyance or otherwise under any bankruptcy,
insolvency or similar law, all as though such payment had not been made; provided that in the event
payment of all or any part of the Secured Obligations is rescinded or must be restored or returned,
all reasonable costs and expenses (including, without limitation, attorneys’ fees and
disbursements) actually incurred by the Administrative Agent or any holder of the Secured
Obligations in defending and enforcing such reinstatement shall be deemed to be included as a part
of the Secured Obligations.



     13. Amendments and Waivers. This Security Agreement and the provisions hereof may not
be amended, waived, modified, changed, discharged or terminated except as set forth in Section
12(a) above or Section 11.01 of the Credit Agreement



45









 





     14. Successors in Interest. This Security Agreement shall create a continuing security
interest in the Collateral and shall be binding upon each Grantor, its successors and assigns, and
shall inure, together with the rights and remedies of the Administrative Agent and the holders of
the Secured Obligations hereunder, to the benefit of the Administrative Agent and the holders of
the Secured Obligations and their successors and permitted assigns; provided, however, that none of
the Grantors may assign its rights or delegate its duties hereunder without the prior written
consent of the requisite Lenders under the Credit Agreement; provided, further, however, that
Grantor shall have the right to transfer the Patents, Trademarks and Copyrights subject to the
security interests created hereby to an intellectual property holding company upon (a) prior
written notice to the Administrative Agent and (b) the execution and delivery by such holding
company of any documents, instruments, agreements or other materials necessary or reasonably
requested by the Administrative Agent to evidence or cause the uninterrupted continuation of a
first priority perfected security interest in favor of the Administrative Agent for the benefit of
the Secured Parties with respect to such Patents, Trademarks and Copyrights. To the fullest extent
permitted by law, each Grantor hereby releases the Administrative Agent and each holder of the
Secured Obligations, their respective successors and assigns and their respective officers,
attorneys, employees and agents, from any liability for any act or omission or any error of
judgment or mistake of fact or of law relating to this Security Agreement or the Collateral, except
for any liability arising from the gross negligence or willful misconduct of the Administrative
Agent or such holder, or their respective officers, attorneys, employees or agents.



     15. Notices. All notices required or permitted to be given under this Security
Agreement shall be given as provided in Section 11.02 of the Credit Agreement.



     16. Counterparts. This Security Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in making proof of this
Security Agreement to produce or account for more than one such counterpart.



     17. Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Security Agreement.



     18. Governing Law; Submission to Jurisdiction; Venue.



     (a) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA AND ANY APPELLATE
COURT FROM ANY THEREOF, AND BY EXECUTION AND DELIVERY OF THIS SECURITY AGREEMENT, EACH PARTY HERETO
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON—EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS SECURITY AGREEMENT OR
ANY OTHER LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED
BY THE LAW OF SUCH STATE.



     19. Waiver of Right to Trial by Jury.



     TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS SECURITY AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,



46









 




DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS SECURITY AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.




     20. Severability. If any provision of this Security Agreement is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without giving effect to
the illegal, invalid or unenforceable provisions.



     21. Entirety. This Security Agreement, the other Loan Documents and the other
documents relating to the Secured Obligations represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Loan Documents, any other
documents relating to the Secured Obligations, or the transactions contemplated herein and therein.



     22. Survival. All representations and warranties of the Grantors hereunder shall
survive the execution and delivery of this Security Agreement, the other Loan Documents and the
other documents relating to the Secured Obligations, the delivery of the Notes and the extension of
credit thereunder or in connection therewith.



     23. Other Security. To the extent that any of the Secured Obligations are now or
hereafter secured by property other than the Collateral (including, without limitation, real
property and securities owned by a Grantor), or by a guarantee, endorsement or property of any
other Person, then the Administrative Agent shall have the right to proceed against such other
property, guarantee or endorsement upon the occurrence and during the continuation of any Event of
Default, and the Administrative Agent shall have the right, in its sole discretion, to determine
which rights, security, liens, security interests or remedies the Administrative Agent shall at any
time pursue, relinquish, subordinate, modify or take with respect thereto, without in any way
modifying or affecting any of them or the Secured Obligations or any of the rights of the
Administrative Agent or the holders of the Secured Obligations under this Security Agreement, under
any of the other Loan Documents or under any other document relating to the Secured Obligations.



     24. Joint and Several Obligations of Grantors.



     (a) Subject to subsection (c) of this Section 24, each of the Grantors (to the extent such
Grantor is a Loan Party under the Credit Agreement) is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by the holders of the
Secured Obligations, for the mutual benefit, directly and indirectly, of each of the Grantors and
in consideration of the undertakings of each of the Grantors to accept joint and several liability
for the obligations of each of them.



     (b) Subject to subsection (c) of this Section 24, each of the Grantors (to the extent such
Grantor is a Loan Party under the Credit Agreement) jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Grantors with respect to the payment and performance of all of the Secured
Obligations arising under this Security Agreement, the other Loan Documents and any other documents
relating to the Secured Obligations, it being the intention of the parties hereto that all the
Secured Obligations shall be the joint and several obligations of each of the Grantors without
preferences or distinction among them.



     (c) Notwithstanding any provision to the contrary contained herein, in any other of the Loan
Documents or in any other documents relating to the Secured Obligations, the obligations of each
Guarantor under the Credit Agreement and the other Loan Documents shall be limited to an aggregate
amount equal to the largest



47









 




amount that would not render such obligations subject to avoidance under Section 548 of the
Bankruptcy Code, any comparable provisions of any applicable state law or any applicable corporate
or other organizational Laws relating to the ability of an entity to approve and authorize
Guarantees. or Indebtedness (or the effectiveness of any such approval or authorization) in excess
of an amount that would render such entity insolvent or such other amount as may be established by
such Law.




     25. Amendment and Restatement. The parties hereto hereby acknowledge and agree that
(a) this Security Agreement represents an amendment and restatement of the Replaced Security
Agreement, (b) the liens and security interests in favor of the Administrative Agent and Lenders
and created by the Replaced Security Agreement shall continue uninterrupted upon the effectiveness
hereof and (c) nothing contained herein is intended to represent a novation of any type with
respect to the “Secured Obligations” as defined in the Replaced Security Agreement.



[Remainder of Page Left Intentionally Blank — Signature Page(s) and Exhibits to Follow]







48









 








     Each of the parties hereto has caused a counterpart of this Security Agreement to be duly
executed and delivered as of the date first above written.



GRANTORS:




	 	 	 	 	 
	 	GAYLORD ENTERTAINMENT COMPANY

 	 
	 	By:  	 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President; Chief Financial Officer 	 
	 
	 	OPRYLAND HOTEL NASHVILLE, LLC

 	 
	 	By:  	 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 
	 	OPRYLAND HOTEL-FLORIDA LIMITED PARTNERSHIP

By: Opryland Hospitality, LLC, its general partner

 	 
	 	By:  	 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 
	 	OPRYLAND HOTEL-TEXAS LIMITED PARTNERSHIP

By: Opryland Hospitality, LLC, its general partner

 	 
	 	By:  	 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 
	 	GAYLORD NATIONAL, LLC

 	 
	 	By:  	 	 
	 	 	David C. Kloeppel 	 
	 	 	Executive Vice President 	 
	 


Accepted and agreed to as of the date first above written.



BANK OF AMERICA, N.A., as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






49









 






SCHEDULE 2




COMMERCIAL TORT CLAIMS



None.



50









 





SCHEDULE 5(f)(i)



NOTICE



OF



GRANT OF SECURITY INTEREST



IN



COPYRIGHTS


United States Copyright Office



Ladies and Gentlemen:




     Please be advised that pursuant to the Second Amended and Restated Security Agreement dated as
of                     , 2008 (as the same may be amended, modified, extended or restated from time to
time, the “Security Agreement”) by and among the Grantors party thereto (each a
“Grantor” and collectively, the “Grantors”) and Bank of America, N.A., as
Administrative Agent (the “Administrative Agent”) for the holders of the Secured
Obligations referenced therein, the undersigned Grantor has granted a continuing security interest
in and continuing lien upon, the copyrights and copyright applications shown on Schedule 1
attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured
Obligations.



     The undersigned Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the copyrights and
copyright applications set forth on Schedule 1 attached hereto (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be construed as an
assignment of any copyright or copyright application.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Grantor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Acknowledged and Accepted:

BANK OF AMERICA, N.A., as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 












51









 








SCHEDULE 5(f)(ii)



NOTICE



OF



GRANT OF SECURITY INTEREST



IN



PATENTS


United States Patent and Trademark Office



Ladies and Gentlemen:




     Please be advised that pursuant to the Second Amended and Restated Security Agreement dated as
of                                         , 2008 (the “Security Agreement”) by and among the Grantors party
thereto (each a “Grantor” and collectively, the “Grantors”) and Bank of America,
N.A., as Administrative Agent (the “Administrative Agent”) for the holders of the Secured
Obligations referenced therein, the undersigned Grantor has granted a continuing security interest
in and continuing lien upon, the patents and patent applications set forth on Schedule 1
attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured
Obligations.



     The undersigned Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the patents and patent
applications set forth on Schedule 1 attached hereto (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be construed as an
assignment of any patent or patent application.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Grantor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Acknowledged and Accepted:

BANK OF AMERICA, N.A., as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






52









 






SCHEDULE 5(f)(iii)



NOTICE



OF



GRANT OF SECURITY INTEREST



IN



TRADEMARKS


United States Patent and Trademark Office



Ladies and Gentlemen:




     Please be advised that pursuant to the Second Amended and Restated Security Agreement dated as
of                     , 2008 (the “Security Agreement”) by and among the Grantors party
thereto (each a “Grantor” and collectively, the “Grantors”) and Bank of America,
N.A., as Administrative Agent (the “Administrative Agent”) for the holders of the Secured
Obligations referenced therein, the undersigned Grantor has granted a continuing security interest
in and continuing lien upon, the trademarks and trademark applications set forth on Schedule I
attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured
Obligations.



     The undersigned Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the trademarks and
trademark applications set forth on Schedule 1 attached hereto (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be construed as an
assignment of any trademark or trademark application.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Grantor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Acknowledged and Accepted:

BANK OF AMERICA, N.A., as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






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Exhibit C




FORM OF PLEDGE AGREEMENT



SECOND AMENDED AND RESTATED PLEDGE AGREEMENT

[Related to Gaylord Entertainment Company Second Amended and Restated Credit Agreement dated

                    , 2008]



     THIS SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of                                         , 2008
(this “Pledge Agreement”) is made by the parties listed on the signature pages hereto (each
individually a “Pledgor” and collectively, the “Pledgors”) in favor of Bank of America, NA, in its
capacity as Administrative Agent (in such capacity, the “Administrative Agent’) for the Lenders (as
defined in the Credit Agreement described below) and is an amendment and restatement of that
certain Amended and Restated Pledge Agreement dated as of March 23, 2007 among the parties hereto
(as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Replaced
Pledge Agreement”).



RECITALS




     WHEREAS, pursuant to that certain Second Amended and Restated Credit Agreement dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to time, the “Credit
Agreement”) among Gaylord Entertainment Company, a Delaware corporation (the “Borrower”), the
Guarantors party thereto, the Lenders and the Administrative Agent, the Lenders have agreed to make
Loans upon the terms and subject to the conditions set forth therein; and



     WHEREAS, it is a condition precedent to the effectiveness of the Credit Agreement and the
obligations of the Lenders to make their respective Loans under the Credit Agreement that the
Pledgors shall have executed and delivered this Pledge Agreement to the Administrative Agent for
the ratable benefit of the Lenders.



     NOW, THEREFORE, in consideration of these premises and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:



     1. Definitions. Capitalized terms used herein but not otherwise defined shall have the
meanings ascribed to such terms in the Credit Agreement and the following terms which are defined
in the Uniform Commercial Code (the “UCC”) in effect in the State of New York on the date hereof
are used herein as so defined: Control, Entitlement Order, Securities Account, Security
Entitlement, and Securities Intermediary. For purposes of this Pledge Agreement, the term “Lender”
shall include any Affiliate of any Lender which has entered into a Swap Contract with any Loan
Party (to the extent the obligations of such Loan Party thereunder constitute Obligations).



     2 Pledge and Grant of Security Interest. To secure the prompt payment and performance
in full when due, whether by lapse of time or otherwise, of the Pledgor Obligations (as defined in
Section 3 hereof), each Pledgor hereby pledges and assigns to the Administrative Agent, for the
benefit of the Lenders, and grants to the Administrative Agent, for the benefit of the Lenders, a
continuing security interest in, and a right to set off against, any and all right, title and
interest of such Pledgor in and to the following, whether now owned or existing or owned, acquired,
or arising hereafter (collectively, the “Pledged Collateral”):



     (a) Pledged Capital Stock. 100% of the issued and outstanding Capital Stock owned by
such Pledgor of each Person owning one or more Borrowing Base Properties (a list of such Persons
and the Capital Stock owned by the respective Pledgors therein is set forth on Schedule 2(a)
attached hereto) together with the certificates (or other agreements or instruments), if any,
representing such Capital Stock and all options and other rights, contractual or otherwise, with
respect thereto (collectively, together with the Capital Stock described in Sections 2(b) and 2(c)
below, the “Pledged Capital Stock”), including, but not limited to, the following:




     (A) all shares, securities, partnership interests, membership interests or other equity
interests representing a dividend on any of the Pledged Capital Stock, or representing a
distribution or return of capital upon or in respect of the Pledged Capital Stock, or
resulting from a stock split, revision,



54









 







reclassification or other exchange therefor, and any subscriptions, warrants, rights or
options issued to the holder of, or otherwise in respect of, the Pledged Capital Stock; and




     (B) without affecting the obligations of the Pledgors under any provision prohibiting
such action hereunder or under the Credit Agreement, in the event of any consolidation or
merger involving the issuer of any Pledged Capital Stock and in which such issuer is not the
surviving entity, the Capital Stock (in the applicable percentage specified in Section 2(a)
above) of the successor entity formed by or resulting from such consolidation or merger.



     (b) Additional Shares. 100% (or, if less, the full amount owned by such Pledgor) of
the issued and outstanding Capital Stock of any Person which hereafter directly or indirectly owns
a Borrowing Base Property together with the certificates (or other agreements or instruments), if
any, representing such Capital Stock.



     (c) Proceeds. All proceeds and products of the foregoing, however and whenever
acquired and in whatever form.



     Without limiting the generality of the foregoing, it is hereby specifically understood and
agreed that each Pledgor may from time to time hereafter deliver additional shares of Capital Stock
to the Administrative Agent as collateral security for the Pledgor Obligations. Upon delivery to
the Administrative Agent, such additional Capital Stock shall be deemed to be part of the Pledged
Collateral and shall be subject to the terms of this Pledge Agreement whether or not Schedule 2(a)
is amended to refer to such additional Capital Stock.



     3. Security for Pledgor Obligations. The security interest created hereby in the
Pledged Collateral constitutes continuing collateral security for all of the following, whether now
existing or hereafter incurred (the “Pledgor Obligations”):



     (a) In the case of the Borrower, the prompt performance and observance by the Borrower of all
obligations of the Borrower under the Credit Agreement, the Notes, this Pledge Agreement and the
other Loan Documents to which the Borrower is a party;



     (b) Subject to clause (c) of Section 26 hereof, in the case of any Guarantor which may be a
party hereto, the prompt performance and observance by such Guarantor of all of its obligations
under the Credit Agreement, this Pledge Agreement and the other Loan Documents to which such
Guarantor is a party, including, without limitation, its guaranty obligations arising under Article
IV of the Credit Agreement; and



     (c) All other indebtedness, liabilities, obligations and expenses of any kind or nature owing
from any Loan Party to any Lender or the Administrative Agent in connection with (i) this Pledge
Agreement or any other Loan Document, whether now existing or hereafter arising, due or to become
due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired,
together with any and all modifications, extensions, renewals and/or substitutions of any of the
foregoing, (ii) collecting and enforcing the Obligations and (iii) if and to the extent agreed to
by such Loan Party in the documentation evidencing the same, all liabilities and obligations owing
from such Loan Party to any Lender or any Affiliate of any Lender arising under any Swap Contracts.



     4. Delivery of the Pledged Collateral; Perfection of Security Interest. Each Pledgor
hereby agrees that:



     (a) Delivery of Certificates. Each Pledgor shall deliver to the Administrative Agent
(i) simultaneously with or prior to the execution and delivery of this Pledge Agreement, all
certificates representing the Pledged Capital Stock of such Pledgor and (ii) promptly upon the
receipt thereof by or on behalf of a Pledgor, all other certificates and instruments constituting
Pledged Collateral of a Pledgor. Prior to delivery to the Administrative Agent, all such
certificates and instruments constituting Pledged Collateral of a Pledgor shall be held in trust by
such Pledgor for the benefit of the Administrative Agent pursuant hereto. All such certificates
shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly
executed instruments of transfer or assignment in blank, substantially in the form provided in
Exhibit 4(a) attached hereto.



55









 





     (b) Additional Securities. If such Pledgor shall receive by virtue of its being,
becoming or having been the owner of any Pledged Collateral, any (i) certificate, including without
limitation, any certificate representing a dividend or distribution in connection with any increase
or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of
shares or membership or equity interests, stock splits, spin-off or split-off, promissory notes or
other instrument; (ii) option or right, whether as an addition to, substitution for, or an exchange
for, any Pledged Collateral or otherwise; (iii) dividends payable in securities; or (iv)
distributions of securities or other equity interests in connection with a partial or total
liquidation, dissolution or reduction of capital, capital surplus or paid-in surplus, such Pledgor
shall receive such certificate, instrument, option, right or distribution in trust for the benefit
of the Administrative Agent, shall segregate it from such Pledgor’s other property and shall
deliver it forthwith to the Administrative Agent in the exact form received together with any
necessary endorsement and/or appropriate stock power duly executed in blank, substantially in the
form provided in Exhibit 4(a), to be held by the Administrative Agent as Pledged Collateral and as
further collateral security for the Pledgor Obligations.



     (c) Financing Statements. Each Pledgor shall deliver to the Administrative Agent such
UCC or other applicable financing statements as may be reasonably requested by the Administrative
Agent in order to perfect and protect the security interest created hereby in the Pledged
Collateral of such Pledgor.



     (d) Provisions Relating to Security Entitlements and Securities Accounts. With respect
to any Pledged Collateral consisting of a Security Entitlement or held in a Securities Account, (a)
the applicable Pledgor and the applicable Securities Intermediary shall enter into an agreement
with the Administrative Agent granting Control to the Administrative Agent over such Pledged
Collateral, such agreement to be in form and substance satisfactory to the Administrative Agent and
(b) the Administrative Agent shall be entitled, upon the occurrence and during the continuance of a
Default or an Event of Default, to notify the applicable Securities Intermediary that it should
follow the Entitlement Orders of the Administrative Agent and no longer follow the Entitlement
Orders of the applicable Pledgor. Upon receipt by a Pledgor of notice from a Securities
Intermediary of its intent to terminate the Securities Account of such Pledgor held by such
Securities Intermediary, prior to the termination of such Securities Account the Pledged Collateral
in such Securities Account shall be (i) transferred to a new Securities Account which is subject to
a control agreement as provided above or (ii) transferred to an account held by the Administrative
Agent (in which it will be held until a new Securities Account is established).



     5. Representations and Warranties. Each Pledgor hereby represents and warrants to the
Administrative Agent, for the benefit of the Lenders, that so long as any of the Pledgor
Obligations remain outstanding (other than any such obligations which by the terms thereof are
stated to survive termination of the Loan Documents) or any Loan Document or Swap Contract between
any Loan Party and any Lender (to the extent the obligations of such Loan Party thereunder
constitute Obligations) is in effect:



     (a) Authorization of Pledged Capital Stock. The Pledged Capital Stock is duly
authorized and validly issued, is fully paid and, with respect to any Pledged Capital Stock
consisting of stock of a corporation, nonassessable and is not subject to the preemptive rights of
any Person. All other shares of Capital Stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and, with respect to any Pledged Capital Stock consisting
of stock of a corporation, nonassessable and not subject to the preemptive rights of any Person.



     (b) Title. Each Pledgor has good and indefeasible title to the Pledged Collateral of
such Pledgor and will at all times be the legal and beneficial owner of such Pledged Collateral
free and clear of any Lien, other than Permitted Liens. There exists no “adverse claim” within the
meaning of Section 8-102 of the Uniform Commercial Code as in effect in the State of New York (the
“UCC”) with respect to the Pledged Capital Stock of such Pledgor.



     (c) Exercising of Rights. The exercise by the Administrative Agent of its rights and
remedies hereunder will not violate any law or governmental regulation or any material contractual
restriction binding on or affecting a Pledgor or any of its property.



     (d) Pledgor’s Authority. No authorization, approval or action by, and no notice or
filing with any Governmental Authority or with the issuer of any Pledged Capital Stock is required
either (i) for the pledge made by a Pledgor or for the granting of the security interest by a
Pledgor pursuant to this Pledge Agreement or (ii) for the



56









 




exercise by the Administrative Agent or the Lenders of their rights and remedies hereunder
(except as may be required by Laws affecting the offering and sale of securities).




     (e) Security Interest/Priority. This Pledge Agreement creates a valid security
interest in favor of the Administrative Agent, for the benefit of the Lenders, in the Pledged
Collateral. The taking possession by the Administrative Agent of the certificates, if any,
representing the Pledged Capital Stock and all other certificates and instruments constituting
Pledged Collateral will perfect and establish the first priority of the Administrative Agent’s
security interest in all certificated Pledged Capital Stock and such certificates and instruments
and, upon the filing of UCC financing statements in the appropriate filing office in the location
of each Pledgor’s state of formation, the Administrative Agent shall have a first priority
perfected security interest in all uncertificated Pledged Capital Stock consisting of partnership
or limited liability company interests that do not constitute a security pursuant to Section
8-103(c) of the UCC. With respect to any Pledged Collateral consisting of a Security Entitlement or
held in a Securities Account, upon execution and delivery by the applicable Pledgor, the applicable
Securities Intermediary and the Administrative Agent of an agreement granting Control to the
Administrative Agent over such Pledged Collateral, the Administrative Agent shall have a first
priority perfected security interest in such Pledged Collateral. Except as set forth in this
Section 5(e), no action is necessary to perfect or otherwise protect such security interest.



     (f) No Other Capital Stock. No Pledgor owns any Capital Stock of any Person which
directly or indirectly owns a Borrowing Base Property other than as set forth on Schedule 2(a)
attached hereto.



     (g) Partnership and Limited Liability Company Interests. Except as previously
disclosed to the Administrative Agent, none of the Pledged Capital Stock consisting of partnership
or limited liability company interests (i) is dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provides that it is a security governed by Article 8
of the UCC, (iii) is an investment company security, (iv) is held in a securities account or (v)
constitutes a “security” or a “financial asset” as such terms are defined in Article 8 of the UCC.



     6. Covenants. Each Pledgor hereby covenants, that so long as any of the Pledgor
Obligations remain outstanding (other than any such obligations which by the terms thereof are
stated to survive termination of the Loan Documents) or any Loan Document or Swap Contract between
any Loan Party and any Lender (to the extent the obligations of such Loan Party thereunder
constitute Obligations) is in effect, such Pledgor shall:



     (a) Books and Records. Mark its books and records (and shall cause the issuer of the
Pledged Capital Stock of such Pledgor to mark its books and records) to reflect the security
interest granted to the Administrative Agent, for the benefit of the Lenders, pursuant to this
Pledge Agreement.



     (b) Defense of Title. Warrant and defend title to and ownership of the Pledged
Collateral of such Pledgor at its own expense against the claims and demands of all other parties
claiming an interest therein, keep the Pledged Collateral free from all Liens, except for Permitted
Liens, and not sell, exchange, transfer, assign, lease or otherwise dispose of Pledged Collateral
of such Pledgor or any interest therein, except as permitted under the Credit Agreement and the
other Loan Documents.



     (c) Further Assurances. Promptly execute and deliver at its expense all further
instruments and documents and take all further action that the Administrative Agent may reasonably
request in order to (i) perfect and protect the security interest created hereby in the Pledged
Collateral of such Pledgor (including, without limitation, the execution and filing of UCC
financing statements and any and all action necessary to satisfy the Administrative Agent that the
Administrative Agent has obtained a first priority perfected security interest in all Pledged
Capital Stock); (ii) enable the Administrative Agent to exercise and enforce its rights and
remedies hereunder in respect of the Pledged Collateral of such Pledgor; and otherwise effect the
purposes of this Pledge Agreement, including, without limitation and if requested by the
Administrative Agent, delivering to the Administrative Agent irrevocable proxies in respect of the
Pledged Collateral of such Pledgor.



     (d) Amendments; Modifications; Changes in Corporate Status. Not make or consent to any
amendment or other modification or waiver with respect to any of the Pledged Collateral of such
Pledgor or enter into any agreement or allow to exist any restriction with respect to any of the
Pledged Collateral of such Pledgor other than pursuant hereto or as may be permitted under the
Credit Agreement and not cause or permit without the



57









 




prior written consent of the Administrative Agent any change in the organizational documents,
name or corporate status or jurisdiction of organization of such Pledgor that could reasonably be
expected to, in any manner, cause any security interest granted herein or any filing made in
connection herewith to lapse, terminate or otherwise become ineffective (whether immediately or as
a result of the passage of time) with respect to any of the Pledged Collateral.




     (e) Compliance with Securities Laws. File all reports and other information now or
hereafter required to be filed by such Pledgor with the United States Securities and Exchange
Commission and any other state, federal or foreign agency in connection with the ownership of the
Pledged Collateral of such Pledgor.



     7. Performance of Obligations and Advances by Administrative Agent or Lenders. On
failure of any Pledgor to perform any of the covenants and agreements contained herein, the
Administrative Agent or any of the Lenders may, at its sole option and in its reasonable
discretion, perform or cause to be performed the same and in so doing may expend such sums as the
Administrative Agent or such Lender may reasonably deem advisable in the performance thereof,
including, without limitation, the payment of any insurance premiums, the payment of any taxes, a
payment to obtain a release of a Lien or potential Lien, expenditures made in defending against any
adverse claim and all other expenditures which the Administrative Agent or such Lender may make for
the protection of the security hereof or which may be compelled to make by operation of law. All
such sums and amounts so expended shall be repayable by the Pledgors on a joint and several basis
promptly upon timely notice thereof and demand therefor, shall constitute additional Pledgor
Obligations and shall bear interest from the date said amounts are expended at the default rate
specified in the Credit Agreement for Loans that are Base Rate Revolving Loans. No such performance
of any covenant or agreement by the Administrative Agent or the Lenders on behalf of any Pledgor,
and no such advance or expenditure therefor, shall relieve the Pledgors of any default under the
terms of this Pledge Agreement, the other Loan Documents or any Swap Contract between any Loan
Party and any Lender (to the extent the obligations of such Loan Party thereunder constitute
Obligations). The Administrative Agent or any Lender may make any payment hereby authorized in
accordance with any bill, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or
estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by a Pledgor in appropriate
proceedings and against which adequate reserves are being maintained in accordance with GAAP.



     8. Events of Default. The occurrence of an event which under the Credit Agreement or
any other Loan Document would constitute an Event of Default shall be an event of default hereunder
(an “Event of Default”).



     9. Remedies.



     (a) General Remedies. Upon the occurrence of an Event of Default and during the
continuation thereof, the Administrative Agent and the Lenders shall have, in respect of the
Pledged Collateral of any Pledgor, in addition to the rights and remedies provided herein, in the
Loan Documents, in any Swap Contract between any Loan Party and any Lender (to the extent the
obligations of such Loan Party thereunder constitute Obligations) or by law, the rights and
remedies of a secured party under the UCC or any other applicable law.



     (b) Sale of Pledged Collateral. Upon the occurrence of an Event of Default and during
the continuation thereof, without limiting the generality of this Section and without notice, the
Administrative Agent may, in its sole discretion, sell or otherwise dispose of or realize upon the
Pledged Collateral, or any part thereof, in one or more parcels, at public or private sale, at any
exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the
Administrative Agent may deem commercially reasonable, for cash, credit or for future delivery or
otherwise in accordance with applicable law. To the extent permitted by law, any Lender may in such
event bid for the purchase of such securities. Each Pledgor agrees that, to the extent notice of
sale shall be required by law and has not been waived by such Pledgor, any requirement of
reasonable notice shall be met if notice, specifying the place of any public sale or the time after
which any private sale is to be made, is personally served on or mailed postage prepaid to such
Pledgor in accordance with the notice provisions of Section 11.02 of the Credit Agreement at least
ten (10) days before the time of such sale. The Administrative Agent shall not be obligated to make
any sale of Pledged Collateral of such Pledgor 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.



58









 





     (c) Private Sale. Upon the occurrence of an Event of Default and during the
continuation thereof, the Pledgors recognize that the Administrative Agent may deem it
impracticable to effect a public sale of all or any part of the Pledged Collateral and that the
Administrative Agent may, therefore, determine to make one or more private sales of any such
Pledged Collateral to a restricted group of purchasers who will be obligated to agree, among other
things, to acquire such Pledged Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sale
may be at prices and on terms less favorable to the seller than the prices and other terms which
might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such
private sale shall be deemed to have been made in a commercially reasonable manner and that the
Administrative Agent shall have no obligation to delay sale of any such Pledged Collateral for the
period of time necessary to permit the issuer of such Pledged Collateral to register such Pledged
Collateral for public sale under the Securities Act of 1933. Each Pledgor further acknowledges and
agrees that any offer to sell such Pledged Collateral which has been (i) publicly advertised on a
bona fide basis in a newspaper or other publication of general circulation in the financial
community of New York, New York (to the extent that such offer may be advertised without prior
registration under the Securities Act of 1933), or (ii) made privately in the manner described
above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may
not constitute a “public offering” under the Securities Act of 1933, and the Administrative Agent
may, in such event, bid for the purchase of such Pledged Collateral.



     (d) Retention of Pledged Collateral. In addition to the rights and remedies hereunder,
upon the occurrence of an Event of Default, the Administrative Agent may, after providing the
notices required by Sections 9-620 and 9-621 of the UCC (or any successor sections of the UCC) or
otherwise complying with the requirements of applicable law of the relevant jurisdiction, retain
all or any portion of the Pledged Collateral in satisfaction of the Pledgor Obligations. Unless and
until the Administrative Agent shall have provided such notices, however, the Administrative Agent
shall not be deemed to have retained any Pledged Collateral in satisfaction of any Pledgor
Obligations for any reason.



     (e) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the Lenders are legally
entitled, the Pledgors shall be jointly and severally liable for the deficiency, together with
interest thereon at the default rate specified in the Credit Agreement for Loans that are Base Rate
Revolving Loans and together with the costs of collection and the reasonable fees of any attorneys
employed by the Administrative Agent to collect such deficiency. Any surplus remaining after the
full payment and satisfaction of the Pledgor Obligations shall be returned to the Pledgors or to
whomsoever a court of competent jurisdiction shall determine to be entitled thereto.



     10. Rights of the Administrative Agent.



     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
pledgor hereby designates and appoints the Administrative Agent, on behalf of the Lenders, and each
of its designees or agents as attorney-in-fact of such Pledgor, irrevocably and with power of
substitution, with authority to take any or all of the following actions upon the occurrence and
during the continuance of an Event of Default:




     (i) to demand, collect, settle, compromise, adjust and give discharges and releases
concerning the Pledged Collateral of such Pledgor, all as the Administrative Agent may
reasonably determine;




     (ii) to commence and prosecute any actions at any court for the purposes of collecting
any of the Pledged Collateral of such Pledgor and enforcing any other right in respect
thereof;




     (iii) to defend, settle, adjust or compromise any action, suit or proceeding brought
and, in connection therewith, give such discharge or release as the Administrative Agent may
deem reasonably appropriate;




     (iv) to pay or discharge taxes, liens, security interests, or other encumbrances levied
or placed on or threatened against the Pledged Collateral of such Pledgor;



59









 






     (v) to direct any parties liable for any payment under any of the Pledged Collateral to
make payment of any and all monies due and to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall direct;




     (vi) to receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of any Pledged
Collateral of such Pledgor;




     (vii) to sign and endorse any drafts, assignments, proxies, stock powers,
verifications, notices and other documents relating to the Pledged Collateral of such
Pledgor;




     (viii) to execute and deliver all assignments, conveyances, statements, financing
statements, renewal financing statements, pledge agreements, affidavits, notices and other
agreements, instruments and documents that the Administrative Agent may determine necessary
in order to perfect and maintain the security interests and liens granted in this Pledge
Agreement and in order to fully consummate all of the transactions contemplated herein;




     (ix) to exchange any of the Pledged Collateral of such Pledgor or other property upon
any merger, consolidation, reorganization, recapitalization or other readjustment of the
issuer thereof and, in connection therewith, deposit any of the Pledged Collateral of such
Pledgor with any committee, depository, transfer agent, registrar or other designated agency
upon such terms as the Administrative Agent may determine;




     (x) to vote for a shareholder or member resolution, or to sign an instrument in
writing, sanctioning the transfer of any or all of the Pledged Capital Stock of such Pledgor
into the name of the Administrative Agent or one or more of the Lenders or into the name of
any transferee to whom the Pledged Capital Stock of such Pledgor or any part thereof may be
sold pursuant to Section 9 hereof; and




     (xi) to do and perform all such other acts and things as the Administrative Agent may
reasonably deem to be necessary, proper or convenient in connection with the Pledged
Collateral of such Pledgor.



     This power of attorney is a power coupled with an interest and shall be irrevocable for so
long as any of the Pledgor Obligations remain outstanding (other than any such obligations which by
the terms thereof are stated to survive termination of the Loan Documents) or any Loan Document or
any Swap Contract between any Loan Party and any Lender (to the extent the obligations of such Loan
Party thereunder constitute Obligations) is in effect. The Administrative Agent shall be under no
duty to exercise or withhold the exercise of any of the rights, powers, privileges and options
expressly or implicitly granted to the Administrative Agent in this Pledge Agreement and shall not
be liable for any failure to do so or any delay in doing so. The Administrative Agent shall not be
liable for any act or omission or for any error of judgment or any mistake of fact or law in its
individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its
gross negligence or willful misconduct. This power of attorney is conferred on the Administrative
Agent solely to protect, preserve and realize upon its security interest in the Pledged Collateral.



     (b) Assignment by the Administrative Agent. The Administrative Agent may from time to
time assign the Pledgor Obligations and any portion thereof and/or the Pledged Collateral and any
portion thereof, and the assignee shall be entitled to all of the rights and remedies of the
Administrative Agent under this Pledge Agreement in relation thereto.



     (c) The Administrative Agent’s Duty of Care. Other than the exercise of reasonable
care to ensure the safe custody of the Pledged Collateral while being held by the Administrative
Agent hereunder, the Administrative Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that each of the Pledgors shall be responsible
for preservation of all rights in the Pledged Collateral of such Pledgor, and the Administrative
Agent shall be relieved of all responsibility for such Pledged Collateral upon surrendering it or
tendering the surrender of it to such Pledgor. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged Collateral in its
possession if such Pledged Collateral



60









 




is accorded treatment substantially equal to that which the Administrative Agent accords its
own property, which shall be no less than the treatment employed by a reasonable and prudent agent
in the industry, it being understood that the Administrative Agent shall not have responsibility
for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relating to any Pledged Collateral, whether or not the Administrative
Agent has or is deemed to have knowledge of such matters; or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Pledged Collateral.




     (d) Voting Rights in Respect of the Pledged Collateral.




     (i) So long as no Event of Default shall have occurred and be continuing, to the extent
permitted by law, each Pledgor may exercise any and all voting and other consensual rights
pertaining to the Pledged Collateral of such Pledgor or any part thereof for any purpose not
inconsistent with the terms of this Pledge Agreement or the Credit Agreement; and




     (ii) Upon the occurrence and during the continuance of an Event of Default, all rights
of a Pledgor to exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to paragraph (i) of this subsection (d) shall cease and all
such rights shall thereupon become vested in the Administrative Agent which shall then have
the sole right to exercise such voting and other consensual rights.



     (e) Dividend and Distribution Rights in Respect of the Pledged Collateral.




     (i) So long as no Event of Default shall have occurred and be continuing and subject to
Section 4(b) hereof, each Pledgor may receive and retain any and all dividends (other than
stock dividends and other dividends constituting Pledged Collateral which are addressed
hereinabove), distributions or interest paid in respect of the Pledged Collateral to the
extent they are allowed under the Credit Agreement.




     (ii) Upon the occurrence and during the continuance of an Event of Default:




     (A) all rights of a Pledgor to receive the dividends, distributions and
interest payments which it would otherwise be authorized to receive and retain
pursuant to paragraph (i) of this subsection (e) shall cease and all such rights
shall thereupon be vested in the Administrative Agent which shall then have the sole
right to receive and hold as Pledged Collateral such dividends, distributions and
interest payments; and




     (B) all dividends, distributions and interest payments which are received by a
Pledgor contrary to the provisions of subsection (A) of this Section shall be
received in trust for the benefit of the Administrative Agent, shall be segregated
from other property or funds of such Pledgor, and shall be forthwith paid over to
the Administrative Agent as Pledged Collateral in the exact form received, to be
held by the Administrative Agent as Pledged Collateral and as further collateral
security for the Pledgor Obligations.



     (f) Release of Pledged Collateral. The Administrative Agent may release any of the
Pledged Collateral from this Pledge Agreement or may substitute any of the Pledged Collateral for
other Pledged Collateral without altering, varying or diminishing in any way the force, effect,
lien, pledge or security interest of this Pledge Agreement as to any Pledged Collateral not
expressly released or substituted, and this Pledge Agreement shall continue as a first priority
lien on all Pledged Collateral not expressly released or substituted.



     11. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



     12. Application of Proceeds. Upon the occurrence and during the continuance of an
Event of Default, any payments in respect of the Pledgor Obligations and any proceeds of any
Pledged Collateral, when received by the Administrative Agent or any of the Lenders in cash or its
equivalent, will be applied in reduction of the Pledgor Obligations in the order set forth in
Section 9.03 of the Credit Agreement, and each Pledgor irrevocably waives the



61









 




right to direct the application of such payments and proceeds and acknowledges and agrees that
the Administrative Agent shall have the continuing and exclusive right to apply and reapply any and
all such payments and proceeds in the Administrative Agent’s sole discretion, notwithstanding any
entry to the contrary upon any of its books and records.




     13. Costs and Expenses. At all times hereafter, the Pledgors agree to promptly pay
upon demand any and all reasonable costs and expenses of the Administrative Agent or the Lenders,
(a) as required under Section 11.04 of the Credit Agreement and (b) as necessary to protect the
Pledged Collateral or to exercise any rights or remedies under this Pledge Agreement or with
respect to any Pledged Collateral. All of the foregoing costs and expenses shall constitute Pledgor
Obligations hereunder.



     14. Continuing Agreement.



     (a) This Pledge Agreement shall be a continuing agreement in every respect and shall remain in
full force and effect so long as any of the Pledgor Obligations remain outstanding (other than any
such obligations which by the terms thereof are stated to survive termination of the Loan
Documents) or any Loan Document or Swap Contract between any Loan Party and any Lender (to the
extent the obligations of such Loan Party thereunder constitute Obligations) is in effect. Upon
such payment and termination, this Pledge Agreement shall be automatically terminated and the
Administrative Agent and the Lenders shall, upon the request and at the expense of the Pledgors,
(i) return all certificates representing the Pledged Capital Stock, all other certificates and
instruments constituting Pledged Collateral and all instruments of transfer or assignment which
have been delivered to the Administrative Agent pursuant to this Pledge Agreement and (ii)
forthwith release all of its liens and security interests hereunder and shall execute and deliver
all UCC termination statements and/or other documents reasonably requested by the Pledgors
evidencing such termination. Notwithstanding the foregoing, all releases and indemnities provided
hereunder shall survive termination of this Pledge Agreement.



     (b) This Pledge Agreement shall continue to be effective or be automatically reinstated, as
the case may be, if at any time payment, in whole or in part, of any of the Pledgor Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender as a
preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, all
as though such payment had not been made; provided that in the event payment of all or any part of
the Pledgor Obligations is rescinded or must be restored or returned, all reasonable costs and
expenses (including without limitation any reasonable legal fees and disbursements) incurred by the
Administrative Agent or any Lender in defending and enforcing such reinstatement shall be deemed to
be included as a part of the Pledgor Obligations.



     15. Amendments; Waivers; Modifications. This Pledge Agreement and the provisions
hereof may not be amended, waived, modified, changed, discharged or terminated except as set forth
in Section 11.01 of the Credit Agreement.



     16. Successors in Interest. This Pledge Agreement shall create a continuing security
interest in the Pledged Collateral and shall be binding upon each Pledgor, its successors and
assigns and shall inure, together with the rights and remedies of the Administrative Agent and the
Lenders hereunder, to the benefit of the Administrative Agent and the Lenders and their successors
and permitted assigns; provided, however, that none of the Pledgors may assign its rights or
delegate its duties hereunder without the prior written consent of each Lender or the Required
Lenders, as required by the Credit Agreement. To the fullest extent permitted by law, each Pledgor
hereby releases the Administrative Agent and each Lender, and its successors and assigns, from any
liability for any act or omission relating to this Pledge Agreement or the Pledged Collateral,
except for any liability arising from the gross negligence or willful misconduct of the
Administrative Agent, or such Lender, or its officers, employees or agents.



     17. Notices. All notices required or permitted to be given under this Pledge Agreement
shall be in conformance with Section 11.02 of the Credit Agreement.



     18. Counterparts. This Pledge Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making proof of this Pledge
Agreement to produce or account for more than one such counterpart.



62









 





     19. Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning, construction or interpretation of any
provision of this Pledge Agreement.



     20. Governing Law; Submission to Jurisdiction; Venue.



     (a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Pledge Agreement may be brought in the courts of
the State of North Carolina or of the United States for either the Western District of North
Carolina and, by execution and delivery of this Pledge Agreement, each Pledgor hereby irrevocably
accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction
of such courts. Each Pledgor further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at the address for notices pursuant to Section
11.02 of the Credit Agreement, such service to become effective thirty (30) days after such
mailing. Nothing herein shall affect the right of the Administrative Agent to serve process in any
other manner permitted by law or to commence legal proceedings or to otherwise proceed against any
Pledgor in any other jurisdiction.



     (b) Each Pledgor hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection
with this Pledge Agreement brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient forum.



     21. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE
PARTIES TO THIS PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.



     22. Severability. If any provision of this Pledge Agreement is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without giving effect to
the illegal, invalid or unenforceable provisions.



     23. Entirety. This Pledge Agreement, the other Loan Documents and the Swap Contracts
between any Loan Party and any Lender (to the extent the obligations of such Loan Party thereunder
constitute Obligations) represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Loan Documents, such Swap Contracts or the
transactions contemplated herein and therein.



     24. Survival. All representations and warranties of the Pledgors hereunder shall
survive the execution and delivery of this Pledge Agreement, the other Loan Documents and the Swap
Contracts between any Loan Party and any Lender (to the extent the obligations of such Loan Party
thereunder constitute Obligations), the delivery of the Notes, the making of the Loans.



     25. Other Security. To the extent that any of the Pledgor Obligations are now or
hereafter secured by property other than the Pledged Collateral (including, without limitation,
real and other personal property owned by a Pledgor), or by a guarantee, endorsement or property of
any other Person, then the Administrative Agent and the Lenders shall have the right to proceed
against such other property, guarantee or endorsement upon the occurrence of any Event of Default,
and the Administrative Agent and the Lenders have the right, in their sole discretion, to determine
which rights, security, liens, security interests or remedies the Administrative Agent and the
Lenders shall at any time pursue, relinquish, subordinate, modify or take with respect thereto,
without in any way modifying or affecting any of them or any of the Administrative Agent’s and the
Lenders’ rights or the Pledgor Obligations under this Pledge Agreement, under any other of the Loan
Documents or under any Swap Contract between any Loan Party and any Lender (to the extent the
obligations of such Loan Party thereunder constitute Obligations).




63











 





     26. Joint and Several Obligations of Pledgors.



     (a) Each of the Pledgors is accepting joint and several liability hereunder in consideration
of the financial accommodation to be provided by the Lenders under the Credit Agreement, for the
mutual benefit, directly and indirectly, of each of the Pledgors and in consideration of the
undertakings of each of the Pledgors to accept joint and several liability for the obligations of
each of them.



     (b) Each of the Pledgors jointly and severally hereby irrevocably and unconditionally accepts,
not merely as a surety but also as a co-debtor, joint and several liability with the other Pledgors
with respect to the obligations arising under this Pledge Agreement, it being the intention of the
parties hereto that all the obligations hereunder shall be the joint and several obligations of
each of the Pledgors without preferences or distinction among them.



     (c) Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, or in any Swap Contract between any Loan Party and any Lender (to the extent the
obligations of such Loan Party thereunder constitute Obligations), the obligations of each Pledgor
hereunder shall be limited to an aggregate amount equal to the largest amount that would render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code or any comparable
provisions of any applicable state law.



     27. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



     28. Amendment and Restatement. The parties hereto hereby acknowledge and agree that (a)
this Pledge Agreement represents an amendment and restatement of the Replaced Pledge Agreement, (b)
the liens and security interests in favor of the Administrative Agent and Lenders and created by
the Replaced Pledge Agreement shall continue uninterrupted upon the effectiveness hereof and (c)
nothing contained herein is intended to represent a novation of any type with respect to the
“Pledgor Obligations” as defined in the Replaced Pledge Agreement.



64









 




     
Each of the parties hereto has caused a counterpart of this Pledge Agreement to be duly
executed and delivered as of the date first above written.




	 	 	 	 	 

	PLEDGORS:	 	GAYLORD HOTELS, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	David C. Kloeppel
	 
	 	 	 	 
	 

	 	 	 	Executive Vice President
	 
	 	 	 	 
	 	 	OPRYLAND HOSPITALITY, LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	David C. Kloeppel
	 
	 	 	 	 
	 

	 	 	 	Executive Vice President
	 
	 	 	 	 
	 	 	OPRYLAND HOTEL — TEXAS, LLC
	 	 	By: Gaylord Hotels, LLC, its sole member
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	David C. Kloeppel
	 
	 	 	 	 
	 

	 	 	 	Executive Vice President






 









 





Accepted and agreed as of the date first above written.




BANK OF AMERICA, N.A.,

as Administrative Agent




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	Name
	 	 	 	 
	 	 	 	 	 
	Title:
	 	 	 	 
	 	 	 	 	 





66









 






Schedule 2(a)




to



Second Amended and Restated Pledge Agreement



dated as of ____________, 2008 in favor of



Bank of America, N.A.,



as Administrative Agent



PLEDGED CAPITAL STOCK



“GP” refers to a general partnership interest.

“LP” refers to a limited partnership interest.

“Member” refers to a membership interest.

“Shareholder” refers to a shareholder or corporate stock interest.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Percentage	 	 
	 	 	Subsidiary	 	Number of	 	Certificate	 	Ownership and	 	Percentage
	Pledgor	 	Pledged	 	Shares	 	Number	 	Type	 	Pledged
	Gaylord Hotels, Inc.

	 	Opryland Hotel

Nashville, LLC
	 	N/A
	 	N/A
	 	100% Member
	 	 	100	%
	Gaylord Hotels, Inc.

	 	Opryland

Hotel–Florida

Limited Partnership
	 	N/A
	 	N/A
	 	99% LP
	 	 	100	%
	Opryland 

Hospitality, LLC

	 	Opryland

Hotel–Florida

Limited Partnership
	 	N/A
	 	N/A
	 	1% GP
	 	 	100	%
	Opryland 

Hotel–Texas, LLC

	 	Opryland

Hotel–Texas Limited

Partnership
	 	N/A
	 	N/A
	 	99% LP
	 	 	100	%
	Opryland 

Hospitality, LLC

	 	Opryland

Hotel–Texas Limited

Partnership
	 	N/A
	 	N/A
	 	1% GP
	 	 	100	%
	Gaylord Hotels, Inc.

	 	Gaylord National,

LLC
	 	N/A
	 	N/A
	 	100% Member
	 	 	100	%






67









 






Exhibit 4(a)




to



Second Amended and Restated Pledge Agreement



dated as of ____________, 20___, in favor of



Bank of America, N.A.,



as Administrative Agent



Irrevocable Stock Power




FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to



the following shares of capital stock of                                                          
    , a                                                              corporation:




	 	 	 

	No. of Shares
	 	Certificate No.
	 
	 	 




and irrevocably appoints       
                                                       its agent and attorney-in-fact to transfer all
or any part of such capital
stock and to take all necessary and appropriate action to effect any such transfer. The agent and
attorney-in-fact may substitute and appoint one or more persons to act for him.




	 	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	,	 
	 	 	 
	 

	 	a
	 	 	corporation

	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 
	 

	 	 	 	 	 	 





68









 






Exhibit D-1




FORM OF REVOLVING NOTE



____________, 20___




     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Loan
from time to time made by the Lender to the Borrower under that certain Second Amended and Restated
Credit Agreement, dated as of [____________, ______] (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Agreement;” the terms defined
therein being used herein as therein defined), among the Borrower, the Guarantors from time to time
party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, Banc of America Securities LLC and Deutsche
Bank Securities Inc., collectively, as the Arranger and Deutsche Bank Trust Company Americas, as
Syndication Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan
from the date of such Revolving Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Agreement. All payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable all as provided in the Agreement. Revolving Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the
ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Revolving Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 

	 	 	GAYLORD ENTERTAINMENT COMPANY
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





69









 





Exhibit D-2




FORM OF TERM NOTE



____________, 20___




     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Term Loan from
time to time made by the Lender to the Borrower under that certain Second Amended and Restated
Credit Agreement, dated as of [____________________, ______] (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among the Borrower, the Guarantors from time
to time party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, Banc of America Securities LLC and Deutsche
Bank Securities Inc., collectively, as the Arranger and Deutsche Bank Trust Company Americas, as
Syndication Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Term Loan from
the date of such Term Loan until such principal amount is paid in full, at such interest rates and
at such times as provided in the Agreement. All payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in frill when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable all as provided in the Agreement. Term Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Term Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
____________________.



	 	 	 	 	 

	 	 	«BORROWER»
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





70









 






Exhibit E




FORM OF COMPLIANCE CERTIFICATE



For the calendar quarter ended ____________________, 20___.



     I, ____________________, [Title] of GAYLORD ENTERTAINMENT COMPANY (the “Borrower”) hereby
certify that, to the best of my knowledge and belief, with respect to that certain Second Amended
and Restated Credit Agreement dated as of ____________________, 2008 (as amended, modified,
restated or supplemented from time to time, the “Credit Agreement”; all of the defined terms in the
Credit Agreement are incorporated herein by reference), among the Borrower, the Guarantors, the
Lenders, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Banc of
America Securities LLC and Deutsche Bank Securities Inc., collectively, as the Arranger and
Deutsche Bank Trust Company Americas, as Syndication Agent.




	 	a.	 	The company-prepared financial statements which accompany this certificate are
true and correct in all material respects and have been prepared in accordance with
GAAP applied on a consistent basis, subject to changes resulting from normal year-end
audit adjustments.
	 
	 	b.	 	Since ____________________ (the date of the last similar certification, or, if
none, the Closing Date) no Default or Event of Default has occurred under the Credit
Agreement.





     Delivered herewith are detailed calculations demonstrating compliance by the Loan Parties with
the Borrowing Base provisions of the Credit Agreement and the financial covenants contained in
Section 8.11, 8.02(f) and 8.01(d) of the Credit Agreement as of the end of the calendar period
referred to above. [Attached hereto as Annex 1 is the schedule of Liens required to be
included in connection with this Compliance Certificate pursuant to the proviso to Section
7.02(b)(i).] [Include only to the extent there exists any Lien(s) of the type referenced in
Section 8.01(d) of the Credit Agreement respecting or relating to any hotel under
construction or expansion by the Loan Parties (including any Gaylord National Contractor Liens, to
the extent such Liens relate to the construction or expansion respecting the Gaylord National
Property) which has/have been filed, subject to notice, or subject to some other enforcement
action, each such Lien to be included on Annex 1 only to the extent such Lien secures an
asserted claim that exceeds $1,000,000]



     This _____ day of ____________________, 20_____.



	 	 	 	 	 

	 	 	GAYLORD ENTERTAINMENT COMPANY
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





71









 






[Annex 1]




[Schedule of Certain Lien Claims in excess of $1,000,000]





[Include only to the extent there exists any Lien(s) of the type referenced in
Section 8.01(d) of the Credit Agreement respecting or relating to any hotel
under construction or expansion by the Loan Parties (including any Gaylord National
Contractor Liens, to the extent such Liens relate to the construction or
expansion respecting the Gaylord National Property) which has/have been filed, subject
to notice, or subject to some other enforcement action, each such Lien to be included
on Annex 1 only to the extent such Lien secures an asserted claim that exceeds $1,000,000]



	 	 	 	 	 	 	 	 	 
	 	 	Date Lien	 	 	 	 	 	 
	 	 	Filed/Attached and	 	 	 	Description of	 	 
	 	 	Identity of	 	 	 	Claimant’s	 	 
	 	 	Borrowing Base	 	Stated Amount of	 	Business/Nature of	 	 
	Name of Claimant	 	Property Affected	 	Claim	 	Work Performed	 	Status of Lien
	 

	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





72









 






Attachment to Officer’s Certificate




Computation of Financial Covenants




73











 





Exhibit F




FORM OF JOINDER AGREEMENT



     THIS JOINDER AGREEMENT (the “Agreement”), dated as of ____________________, 20_____, is by and
between ____________________, a ____________________ (the “Subsidiary”), and BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent under that certain Second Amended and Restated Credit
Agreement (as it may be amended, modified, restated or supplemented from time to time, the “Credit
Agreement”), dated as of ____________________, 20_____, by and among GAYLORD ENTERTAINMENT COMPANY,
a Delaware corporation (the “Borrower”), the Guarantors, the Lenders, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, Banc of America Securities LLC and Deutsche
Bank Securities Inc., collectively, as the Arranger and Deutsche Bank Trust Company Americas, as
Syndication Agent.


All of the defined terms in the Credit Agreement are incorporated herein by reference.




          The Loan Parties are required by Section 7.04 of the Credit Agreement to cause the
Subsidiary to become a “Guarantor”.




          Accordingly, the Subsidiary hereby agrees as follows with the Administrative Agent, for the
benefit of the Lenders:




          1. The Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the Subsidiary will be (a) deemed to be a party to the Credit Agreement, [the Pledge
Agreement] and the Security Agreement, (b) a “Guarantor” for all purposes of the Credit Agreement,
and shall have all of the obligations of a Guarantor thereunder as if it had executed the Credit
Agreement, [and] (c) a “Grantor” for all purposes of the Security Agreement, and shall have all of
the obligations of a Grantor thereunder [and (d) a “Pledgor” for all purposes of the Pledge
Agreement and shall have all of the obligations of a Grantor thereunder]. The Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the Subsidiary hereby jointly and severally
together with the other Guarantors, guarantees to each Lender and the Administrative Agent, as
provided in Article IV of the Credit Agreement, the prompt payment and performance of the
Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof.




          2. The address of the Subsidiary for purposes of all notices and other communications is
____________________, ____________________, Attention of ____________________ (Facsimile No.
____________________).




          3. The Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of the
guaranty by the Subsidiary under Section 4 of the Credit Agreement upon the execution of this
Agreement by the Subsidiary.




          4. This Agreement may be executed in two or more counterparts, each of which shall constitute
an original but all of which when taken together shall constitute one contract.




          5. This Agreement shall be governed by and construed and interpreted in accordance with the
laws of the State of New York.




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          IN WITNESS WHEREOF, the Subsidiary has caused this Agreement to be duly executed by its
authorized officers, and the Administrative Agent, for the benefit of the Lenders, has caused the
same to be accepted by its authorized officer and the Administrative Agent, as of the day and year
first above written.




	 	 	 	 	 	 	 

	 	 	[SUBSIDIARY]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Acknowledged and accepted:
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
	 	 	as Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





75









 





Schedule 1

TO FORM OF JOINDER AGREEMENT




[Chief Executive Office and

Chief Place of Business of Subsidiary]



Schedule 2

TO FORM OF JOINDER AGREEMENT




[Types and Locations of Collateral]



Schedule 3

TO FORM OF JOINDER AGREEMENT




[Tradenames]



Schedule 4

TO FORM OF JOINDER AGREEMENT




[Patents and Trademarks]



Schedule 5

TO FORM OF JOINDER AGREEMENT




[Subsidiary Equity]








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Exhibit G




ASSIGNMENT AND ASSUMPTION



     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]
1
Assignor identified in item 1 below ([the][each, an] “Assignor”) and
[the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”).
[It is understood and agreed that the rights and obligations of [the Assignors][the
Assignees]3 hereunder are several and not joint.]4 Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities5) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)] [the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an]
“Assigned Interest”). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor.




	1.	 	Assignor[s]:
	 
	2.	 	Assignee[s]:
	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]







 




			
	1	 	For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to multiple
Assignees, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.
	 
	5	 	Include all applicable subfacilities.





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	3.	 	Borrower(s):                                 
                  

	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement




5. Credit Agreement: The Second Amended and Restated Credit Agreement dated as of
____________________, 2008. among Gaylord Entertainment Company, a Delaware corporation, the
Guarantors party thereto, the Lenders parties thereto, Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, Banc of America Securities LLC and Deutsche Bank
Securities Inc., collectively, as the Arranger and Deutsche Bank Trust Company Americas, as
Syndication Agent.





	6.	 	Assigned Interest[s]:6





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	Amount of	 	Percentage	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	Commitment/	 	Assigned of	 	 
	 	 	 	 	 	 	Facility	 	Commitment/Loans	 	Loans	 	Commitment/	 	CUSIP
	Assignor[s]7	 	Assignee[s]8	 	Assigned9	 	for all Lenders10	 	Assigned	 	Loans11	 	Number
	 
	 	 	 	 	 	 	                    	 	 	$	                    	 	 	$	                    	 	 	 	                     	%	 	 	 	 
	 
	 	 	 	 	 	 	                    	 	 	$	                    	 	 	$	                    	 	 	 	                     	%	 	 	 	 
	 
	 	 	 	 	 	 	                    	 	 	$	                    	 	 	$	                    	 	 	 	                     	%	 	 	 	 







	 	 	[7. Trade Date: ]12




Effective Date: ____________________, 20_____ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR:

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title 	 
	 	 	 	 
	 





 




			
	6	 	The reference to “Loans” in the table should
be used only if the credit Agreement provides for Term Loans.
	 
	7	 	List each Assignor as appropriate.
	 
	8	 	List each Assignee as appropriate.
	 
	9	 	Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment (e.g., “Revolving Commitment”, “Term Loan Commitment”, etc.).
	 
	10	 	Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	11	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	12	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.






78









 





	 	 	 	 	 
	 	ASSIGNEE:

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title 	 
	 	 	 	 
	 



[Consented to and]13 Accepted:




BANK OF AMERICA, N.A.,

as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	[Consented to:]14
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 








 




			
	13	 	To be added only if the consent of the
Administrative Agent is required by the terms of the credit Agreement.
	 
	14	 	To be added only if the consent of the
Borrower and/or other parties (e.g., Swing Line Lender, L/C Issuer) is required
by the terms of the Credit Agreement.




79









 










ANNEX I TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION



          1. Representations and Warranties.




          1.1 Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by [the][such] Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section thereof, as applicable, and such other documents
and information as it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.






80









 







3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.





81