Ex-4.10 Fifth Supplemental Indenture



 





Exhibit 4.10




FIFTH SUPPLEMENTAL INDENTURE




          Fifth
Supplemental Indenture (this “Fifth Supplemental
Indenture”), dated as of January 12,
2007, among the subsidiaries listed on Schedule I attached hereto (each a “Guaranteeing
Subsidiary”), all subsidiaries of Gaylord Entertainment Company (or its permitted successor), a
Delaware corporation (the “Company”), and U.S. Bank National Association, a national banking
corporation (or its permitted successor), as trustee under the Indenture referred to below (the
“Trustee”).




WITNESSETH




          WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of November 12, 2003 providing
for the issuance of 8% Senior Notes due 2013 (the “Notes”), a First Supplemental Indenture (the
“First Supplemental Indenture”), dated as of November 20, 2003, a Second Supplemental Indenture
(the “Second Supplemental Indenture”), dated as of November 29, 2004, a Third Supplemental
Indenture (the “Third Supplemental Indenture”) dated as of December 30, 2004, and a Fourth
Supplemental Indenture (the “Fourth Supplemental Indenture”) dated as of June 16, 2005 (the
Indenture and the First, Second, Third and Fourth Supplemental Indentures collectively referred to
herein as the “Indenture”);




          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture and a note guarantee pursuant to
which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations
under the Notes and the Indenture on the terms and conditions set forth herein (the “Note
Guarantee”); and




          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Fifth Supplemental Indenture.




          NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:




          1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.




          2. Agreement to Guarantee.




     (a) The Guaranteeing Subsidiary, along with all other Guarantors, jointly and severally, and
fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:



               (i) the principal of, premium, if any, and interest and Liquidated Damages, if any, on the Notes will be promptly paid in full when due, whether at maturity, by



 









 







acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any,
and interest and Liquidated Damages, if any, on the Notes, if lawful (subject in all cases to any
applicable grace period provided herein), and all other obligations of the Company to the Holders
or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and the principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Notes, if lawful (subject in
all cases to any applicable grace period provided herein)



               (ii) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The
Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance that might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.



     (c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and the Indenture.



     (d) The Guaranteeing Subsidiary agrees that if any Holder or the Trustee is required by any
court or otherwise to return to the Company, the Guarantors, or any custodian, trustee, liquidator
or other similar official acting in relation to any of the Company or the Guarantors, any amount
paid by any of them to the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.



     (e) The Guaranteeing Subsidiary agrees that the Guaranteeing Subsidiary shall not be entitled
to any right of subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.



     (f) The Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six of the Indenture for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition



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preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such obligations as provided in Article Six of the Indenture,
such obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.



     (g) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of Holders under the
Note Guarantee.



     (h) The Guaranteeing Subsidiary confirms, pursuant to Section 10.02 of the Indenture, that it
is the intention of such Guaranteeing Subsidiary that its Note Guarantee not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to its
Note Guarantee, and, to effectuate the foregoing intention, agrees hereby irrevocably that the
obligations of such Guaranteeing Subsidiary will be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Guaranteeing Subsidiary that
are relevant under such laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article Ten of the Indenture, result in the obligations
of such Guaranteeing Subsidiary under its Note Guarantee not constituting a fraudulent transfer or
conveyance or such an unlawful shareholder distribution.



          3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note
Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.




          4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.




     (a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets,
or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person)
another Person, other than the Company or another Guarantor, unless:



               (i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and



               (ii) either:




     (A) the Person acquiring the property in any such sale or disposition
or the Person formed by or surviving any such consolidation or merger (if
other than the Guarantor) is a corporation or limited liability company
organized or existing under the laws of the United States, any state thereof
or the District of Columbia and assumes all the obligations of that
Guarantor under the Indenture, its Note Guarantee and the Registration
Rights Agreement pursuant to a supplemental indenture reasonably
satisfactory to the Trustee; or



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     (B) such sale or other disposition or consolidation or merger complies
with Section 4.10 of the Indenture.



     (b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of the Indenture to be performed by a
Guarantor, such successor Person shall succeed to and be substituted for a Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to
be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee. All the
Note Guarantees so issued shall in all respects have the same legal rank and benefit under the
Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of
the Indenture as though all of such Note Guarantees had been issued at the date of the execution
hereof.



     (c) Except as set forth in Articles 4 and 5 of the Indenture, and notwithstanding clauses (i)
and (ii) of Section 4(a) above, nothing contained in the Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor,
or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.



          5. Release.




     (a) Any Guarantor will be released and relieved of any obligations under its Note Guarantee,
(i) in connection with any sale or other disposition of all of the Capital Stock of that Guarantor
to a Person that is not (either before or after giving effect to such transaction) an Affiliate of
the Company, if the sale of all such Capital Stock of that Guarantor complies with Section 4.10 of
the Indenture; (ii) if the Company properly designates that Guarantor as an Unrestricted Subsidiary
under the Indenture or (iii) solely in the case of a Note Guarantee created pursuant to the second
sentence of Section 4.18(a) of the Indenture, upon the release or discharge of the Guarantee which
resulted in the creation of such Note Guarantee pursuant to Section 4.18(b) of the Indenture,
except a discharge or release by or as a result of payment under such Guarantee. Upon delivery by
the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that
one of the foregoing requirements has been satisfied and the conditions to the release of a
Guarantor under this Section 5 have been satisfied, the Trustee shall execute any documents
reasonably required in order to evidence the release of such Guarantor from its obligations under
its Note Guarantee.



     (b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest and Liquidated Damages, if any, on the
Notes and for the other obligations of any Guarantor under the Indenture as provided in Article Ten
of the Indenture.



          6. No Recourse Against Others. Pursuant to Section 12.07 of the Indenture, no
director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have
any liability for any obligations of such Guaranteeing Subsidiary under the Notes, the


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Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation.




          7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS FIFTH SUPPLEMENTAL INDENTURE.




          8. Counterparts. The parties may sign any number of copies of this Fifth Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.




          9. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.




          10. Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Fifth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.




[SIGNATURE PAGE FOLLOWS]




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          IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be
duly executed and attested, all as of the date first above written.




Dated:
January  12, 2007




	 	 	 	 	 
	 	GAYLORD FINANCE, INC.

GAYLORD DESTIN RESORTS, LLC

GRAND OLE OPRY, LLC

GAYLORD HOTELS, INC. (as successor by

     statutory conversion to Gaylord Hotels, LLC)

OPRYLAND ATTRACTIONS, LLC (as

     successor by statutory conversion to

     Opryland Attractions, Inc.)

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	Name:  	David C. Kloeppel 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GAYLORD ENTERTAINMENT COMPANY

 	 
	 	By:  	/s/ David C. Kloeppel
 	 
	 	 	Name:  	David C. Kloeppel 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE

 	 
	 	By:  	/s/ Raymond S. Haverstock
 	 
	 	 	Name:  	Raymond S. Haverstock 	 
	 	 	Title:  	Vice President 	 



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Schedule I





	1.	 	Gaylord Finance, Inc. (Delaware)
	 
	2.	 	Gaylord Destin Resorts, LLC (Delaware)
	 
	3.	 	Grand Ole Opry, LLC (Delaware)
	 
	4.	 	Gaylord Hotels, Inc.* (Delaware)







	*	 	Successor by statutory conversion to Gaylord Hotels, LLC (Delaware)







	5.	 	Opryland Attractions, LLC* (Delaware)








	*	 	Successor by statutory conversion to Opryland Attractions, Inc. (Delaware)