DESCRIPTION OF NOTES
The following is a summary of the material provisions of the notes and the indenture (as defined herein). This summary does not restate
the indenture, and we urge you to read the indenture in its entirety, which is available upon request at the address indicated under the Where You Can Find Additional Information section of this prospectus, because it, and not this
description, defines your rights as a noteholder.
You can find the definitions of certain capitalized terms used in this
section under the subheading Certain Definitions. The term Issuers as used in this section refers only to RHP Hotel Properties, LP (Opco) and RHP Finance Corporation (Finco) and not to any of
their subsidiaries, and the term Parent as used in this section refers only to Ryman Hospitality Properties, Inc. and not to any of its subsidiaries. The term Notes as used in this section refers to the outstanding private
notes and the exchange notes to be issued in the exchange offer.
General
The Issuers issued $350 million aggregate principal amount of the private notes pursuant to an indenture, dated April 3, 2013 (the
indenture), among Opco, Finco, Parent, the subsidiary guarantors and U.S. Bank, National Association, as trustee. The exchange notes also will be issued pursuant to the indenture. Any private notes that remain outstanding after
completion of the exchange offer, together with the exchange notes issued in connection with the exchange offer, will be treated as a single class of securities under the indenture.
The Notes are unsecured senior obligations of the Issuers and will mature on April 15, 2021. The Notes will initially bear interest
at a rate of 5.00% per annum, payable semiannually in arrears to holders of record at the close of business on April 1 and October 1 immediately preceding the interest payment date on April 15 and October 15 of each year,
commencing October 15, 2013.
Principal of, premium, if any, and interest on the Notes will be payable, and the Notes may
be exchanged or transferred, in accordance with the terms of the indenture.
Interest on the Notes will accrue from the Issue
Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Notes will be issued
only in fully registered form, without coupons, in denominations of $2,000 of principal amount and any integral multiple of $1,000 in excess thereof. No service charge will be made for any registration of transfer or exchange of Notes, but the
Issuers are entitled to require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection with a registration of transfer.
Subject to the covenants described below under Certain Covenants and applicable law, the Issuers are entitled to issue
additional notes under the indenture. The Notes and any additional notes subsequently issued under the indenture will be treated as a single class for all purposes under the indenture, including waivers, amendments, redemptions and offers to
purchase. Additional notes will not necessarily be fungible with the Notes for U.S. federal income tax purposes.
Optional Redemption
Prior to April 15, 2016, the Issuers will be entitled at their option to redeem all or any portion of the Notes at a
redemption price equal to 100% of the principal amount of such Notes plus the Applicable Premium as of, and any accrued and unpaid interest to, but not including, the redemption date (subject to the right of each holder on the relevant record date
to receive interest due on the relevant interest payment date).
On or after April 15, 2016, the Issuers may redeem the
Notes in whole or from time to time in part, at the redemption prices (expressed as percentages of the principal amount thereof) set forth below, plus accrued and
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unpaid interest thereon to, but not including, the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period beginning on April 15 of each of the years indicated below:
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Year
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Percentage
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2016
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103.75
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%
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2017
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102.50
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%
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2018
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101.25
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%
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2019 and thereafter
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100.00
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%
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In addition, at any time prior to April 15, 2016, the Issuers may redeem, on any one or more
occasions, with all or a portion of the net cash proceeds of one or more Equity Offerings (within 60 days of the consummation of any such Equity Offering), up to 35% of the aggregate principal amount of the Notes (including any additional Notes) at
a redemption price (expressed as a percentage of the aggregate principal amount of the Notes so redeemed) equal to 105.00% plus accrued and unpaid interest to but not including, the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment date); provided, however, that at least 65% of the original aggregate principal amount of the Notes must remain outstanding immediately after each such redemption.
After notice of optional redemption has been given as provided in the indenture, if funds for the redemption of any Notes
called for redemption have been made available on the redemption date, such Notes called for redemption will cease to bear interest on the date fixed for the redemption specified in the redemption notice and the only right of the holders of such
Notes will be to receive payment of the redemption price.
Notice of any optional redemption of any Notes will be given to
holders (with a copy to the trustee) at their addresses, as shown in the Notes register, not more than 60 nor less than 30 days prior to the date fixed for redemption. The notice of redemption will specify, among other items, the redemption price
and the principal amount of the Notes held by the holder to be redeemed.
The Issuers will notify the trustee at least 45 days
prior to the redemption date (or such shorter period as is satisfactory to the trustee) of the aggregate principal amount of the Notes to be redeemed and the redemption date. If less than all the Notes are to be redeemed, the trustee shall select,
pro rata or by lot or by any such similar method in accordance with the procedures of DTC, the Notes to be redeemed. Notes may be redeemed in part in the minimum authorized denomination for the Notes or in any integral multiple thereof.
The Issuers or their Affiliates are entitled to acquire Notes by means other than a redemption from time to time, including through open
market purchases, privately negotiated transactions, tender offers, exchange offers or otherwise, so long as such acquisition does not otherwise violate the terms of the indenture, upon such terms and at such prices as the Issuers or their
Affiliates may determine, which may be more or less than the consideration for which the Notes offered hereby are being sold and may be less than any redemption price then in effect and could be for cash or other consideration.
Sinking Fund
There will
be no sinking fund payments for the Notes.
Ranking the Notes
The Notes will be:
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general unsecured obligations of the Issuers;
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equal in right of payment with all other existing and future senior Indebtedness of the Issuers, including Indebtedness under the Credit Agreement and
the 3.75% Convertible Senior Notes due 2014;
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senior in right of payment to any existing and future Subordinated Indebtedness of the Issuers;
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effectively subordinated to any existing and future Secured Indebtedness of the Issuers, including Indebtedness under our $1 billion credit facility
entered into on April 18, 2013, to the extent of the value of the collateral securing such Indebtedness;
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structurally subordinated to the liabilities and preferred stock of our Subsidiaries that are not Subsidiary Guarantors; and
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guaranteed by the Guarantors.
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As of June 30, 2013, the Issuers and the Guarantors had $1.2 billion of indebtedness ($463.0 million of which was secured indebtedness). As of June 30, 2013, $530.1 million was available for Opco to
borrow under the $1 billion credit facility (net of approximately $6.9 million of letters of credit outstanding), subject to the satisfaction of debt incurrence tests under the indenture.
The Guarantees
The Notes will be guaranteed by Parent and each of
Opcos current and future Subsidiaries that guarantee the Credit Agreement until certain conditions are met.
Each
Guaranty will be:
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a general unsecured obligation of the Guarantor;
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equal in right of payment with all other existing and future senior Indebtedness of that Guarantor, including its Guarantee of the Credit Agreement
and, as to Parent, the 3.75% Convertible Senior Notes due 2014;
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senior in right of payment to any existing and future Subordinated Indebtedness of the Guarantor;
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effectively subordinated to any existing and future Secured Indebtedness of the Guarantor to the extent of the value of the collateral securing such
Indebtedness; and
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structurally subordinated to the liabilities and preferred stock of our non-Guarantor Subsidiaries.
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The obligations of each Guarantor under its Guaranty will be limited as necessary to prevent that Guaranty from constituting a fraudulent
conveyance under applicable law or a violation of state law prohibiting distribution from an insolvent subsidiary. See Risk FactorsRisks Relating to the Exchange NotesFederal and state fraudulent transfer laws and laws restricting
distributions by insolvent subsidiaries may permit a court to void the notes and/or the guarantees and, if that occurs, you may not receive any payments on the notes.
During the six months ended June 30, 2013, the Subsidiaries of Opco that are not Subsidiary Guarantors generated all of Parents consolidated total revenues. In addition, as of June 30, 2013, the
Subsidiaries of Opco that are not Subsidiary Guarantors held approximately 27.4% of Parents consolidated total assets. See Risk FactorsRisks Relating to the Exchange NotesThe notes and the guarantees are unsecured and,
therefore, are effectively subordinated to any existing or future secured indebtedness of the Issuers, Parent, and the subsidiary guarantors to the extent of the value of the assets securing such existing or future secured indebtedness and
Risk FactorsRisks Relating to the Exchange NotesClaims of holders of notes will be structurally subordinated to all liabilities and preferred stock of our non-guarantor subsidiaries.
Certain Covenants
Suspension of
Covenants
During a Suspension Period, Parent and the Restricted Subsidiaries will not be subject to the following
corresponding provisions of the indenture (each a Suspended Covenant):
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CovenantsLimitation on Indebtedness;
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CovenantsLimitation on Restricted Payments;
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CovenantsLimitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries;
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CovenantsFuture Guarantees by Restricted Subsidiaries;
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CovenantsLimitation on Transactions with Affiliates;
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CovenantsLimitation on Asset Sales; and
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Clause (3) of CovenantsConsolidation, Merger and Sale of Assets.
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All other provisions of the indenture will apply at all times during any Suspension Period so long as any Notes remain outstanding
thereunder.
Suspension Period means any period:
(1) beginning on the date that:
(A) the Notes have Investment Grade Status;
(B) no Default or Event of Default
has occurred and is continuing; and
(C) the Issuers have delivered an officers certificate to the trustee certifying
that the conditions set forth in clauses (A) and (B) above are satisfied; and
(2) ending on the date (the
Reversion Date) that the Notes cease to have Investment Grade Status.
On each Reversion Date, all dividend
blockages incurred during the Suspension Period prior to such Reversion Date will be deemed to have been outstanding on the Issue Date.
For purposes of calculating the amount available to be made as Restricted Payments under clause (C) of the first paragraph of the Limitation on Restricted Payments covenant,
calculations under that clause will be made with reference to the Transaction Date, as set forth in that clause. Accordingly, (x) Restricted Payments made during the Suspension Period not otherwise permitted pursuant to any of clauses
(1) through (16) under the second paragraph under the Limitation on Restricted Payments covenant will reduce the amount available to be made as Restricted Payments under clause (C) of the first paragraph of such
covenant; provided, however, that the amount available to be made as a Restricted Payment on the Transaction Date shall not be reduced to below zero solely as a result of such Restricted Payments, but may be reduced to below zero as a result of
negative cumulative Funds from Operations during the Suspension Period for the purpose of clause (C)(i) of the first paragraph of such covenant, and (y) the items specified in clauses (C)(i)-(vi) of the first paragraph of such covenant
that occur during the Suspension Period will increase the amount available to be made as Restricted Payment under clause (C) of the first paragraph of such covenant. Any Restricted Payment made during the Suspension Period that is of the type
described in the second paragraph of the Limitation on Restricted Payments covenant (other than the Restricted Payment referred to in clauses (1) or (2) of such second paragraph or any exchange for, or out of the proceeds
of Capital Stock for Capital Stock or Indebtedness referred to in clause (4) or (5) of such second paragraph), and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (4) and (5) of the second
paragraph of the Limitation on Restricted Payments covenant (adjusted to avoid double counting) shall not be included in calculating the amounts permitted to be incurred under such clause (C) on each Reversion Date. For
purposes of the Limitation on Asset Sales covenant, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. Subject to the foregoing, no Default or Event of Default will be deemed to have occurred on the
Reversion Date (or thereafter) under any Suspended Covenant solely as a result of any actions taken by Parent or any Restricted Subsidiaries thereof, or events occurring, during the Suspension Period.
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Limitation on Indebtedness
(1) Parent will not and will not permit any of the Restricted Subsidiaries to Incur any Indebtedness (including Acquired Indebtedness and Construction Indebtedness) if, immediately after giving effect to
the Incurrence of such additional Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness and the Restricted Subsidiaries on a consolidated basis would be greater than
65.0% of their Adjusted Total Assets.
(2) Parent will not, and will not permit any of the Restricted Subsidiaries to, Incur
any Secured Indebtedness (including Acquired Indebtedness and Construction Indebtedness) if, immediately after giving effect to the Incurrence of such additional Secured Indebtedness and the receipt and application of the proceeds therefrom, the
aggregate principal amount of all outstanding Secured Indebtedness of the Restricted Subsidiaries on a consolidated basis would be greater than 45.0% of their Adjusted Total Assets.
(3) Parent will not, and will not permit any of the Restricted Subsidiaries to Incur any Indebtedness (including Acquired Indebtedness);
provided, however, that any of the Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness and Construction Indebtedness) if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Interest Coverage Ratio of the Restricted Subsidiaries on a consolidated basis would be at least 2.0 to 1.0; provided that the amount of Indebtedness (including Acquired Indebtedness) that may be Incurred by Restricted
Subsidiaries that are not Subsidiary Guarantors shall not exceed in the aggregate 2.0% of Adjusted Total Assets of the Restricted Subsidiaries.
(4) Notwithstanding paragraph (1), (2) or (3) above, Parent or any of the Restricted Subsidiaries (except as specified below) may Incur each and all of the following:
(A) Indebtedness of Parent or any of the Restricted Subsidiaries outstanding under any Credit Facility at any time in an aggregate
principal amount not to exceed the greater of (x) $1.0 billion and (y) 40.0% of Adjusted Total Assets of Parent and the Restricted Subsidiaries;
(B) Indebtedness of Parent or any of the Restricted Subsidiaries owed to:
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(i)
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the Issuers evidenced by an unsubordinated promissory note, or
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(ii)
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Parent or any Restricted Subsidiary;
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provided,
however, that any event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary of Parent or any subsequent transfer of such Indebtedness (other than to Parent or any other Restricted Subsidiary) shall be deemed, in each
case, to constitute an Incurrence of such Indebtedness not permitted by this clause (B);
(C) Indebtedness of Parent or any of
the Restricted Subsidiaries under Interest Rate Agreements; provided that such agreements (i) are designed primarily to protect Parent or any of the Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest
rates (whether fluctuations of fixed to floating rate interest or floating to fixed rate interest) and (ii) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(D) Indebtedness of
Parent or any of the Restricted Subsidiaries, to the extent the net proceeds thereof are promptly:
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(i)
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used to purchase Notes tendered in a Change of Control Offer made as a result of a Change in Control,
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(ii)
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used to redeem all of the Notes as described under Optional Redemption,
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(iii)
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deposited to defease the Notes as described below under Defeasance, or
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(iv)
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deposited to discharge the obligations under the Notes and the indenture as described below under Satisfaction and Discharge;
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(E) Permitted Government Revenue Bond Indebtedness;
(F) (i) Guarantees by Parent of Indebtedness of an Issuer or any of the Subsidiary Guarantors; (ii) Guarantees of Indebtedness of Parent or an Issuer by any of the Subsidiary Guarantors;
provided the guarantee of such Indebtedness is permitted by and made in accordance with the Future Guarantees by Restricted Subsidiaries covenant described below, and (iii) Guarantees by a Subsidiary Guarantor of any
Indebtedness of any other Subsidiary Guarantor;
(G) Indebtedness outstanding on the Issue Date (other than pursuant to clause
(A) or (H));
(H) Indebtedness represented by the Notes and the Guaranties;
(I) Indebtedness consisting of obligations to pay insurance premiums incurred in the ordinary course of business;
(J) Indebtedness in respect of any bankers acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities,
and reinvestment obligations related thereto, entered into in the ordinary course of business;
(K) Indebtedness in respect of
workers compensation claims, self-insurance obligations, indemnities, bankers acceptances, performance, completion and surety bonds or guarantees and similar types of obligations in the ordinary course of business;
(L) Indebtedness represented by cash management obligations and other obligations in respect of netting services, automatic clearinghouse
arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(M)
Indebtedness supported by a letter of credit procured by Parent or any of the Restricted Subsidiaries in a principal amount not in excess of the stated amount of such letter of credit and where the underlying Indebtedness would otherwise be
permitted;
(N) Permitted Refinancing Indebtedness incurred in exchange for, or the net proceeds of which are used to refund,
refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by the indenture to be incurred under the provisions of paragraph (1), (2) or (3) of this covenant or clause (G), (H), (N), (O) or
(P) of this paragraph (4);
(O) Indebtedness (including Capitalized Lease Obligations) Incurred by Parent or any
Restricted Subsidiary within 270 days of the related purchase, lease or improvement, to finance the purchase, lease or improvement of property (real or personal) or equipment used in the business of Parent or any Restricted Subsidiary, whether
through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount not to exceed at any one time outstanding the greater of (x) $50.0 million and (y) 2.0% of Adjusted Total Assets
at any time outstanding; and
(P) additional Indebtedness of Parent and the Restricted Subsidiaries in aggregate principal
amount at any time outstanding not to exceed the greater of (x) $100 million and (y) 4.0% of Adjusted Total Assets; provided, however, that any Permitted Refinancing Indebtedness incurred under clause (N) above in respect of such
Indebtedness shall be deemed to have been incurred under this clause (P) for purposes of determining the amount of Indebtedness that may at any time be incurred under this clause (P).
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(5) Notwithstanding any other provision of this Limitation on Indebtedness
covenant, the maximum amount of Indebtedness that Parent or any of the Restricted Subsidiaries may Incur pursuant to this Limitation on Indebtedness covenant shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies.
For purposes of determining
compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories of permitted Indebtedness described in clauses (A) through (P) of paragraph (4) above or is entitled to be
incurred pursuant to paragraphs (1), (2) and (3) above, the Issuers shall, in their sole discretion, be entitled to classify all or a portion of such item of Indebtedness on the date of its incurrence or issuance and determine the order of
such incurrence or issuance (and may later reclassify such item of Indebtedness) and may divide and classify such Indebtedness in more than one of the types of Indebtedness described. At any time that Parent or the Restricted Subsidiaries would be
entitled to have incurred any then outstanding Indebtedness under clause (1), (2) and (3) of this covenant, such Indebtedness shall be automatically reclassified into Indebtedness incurred pursuant to those paragraphs. Notwithstanding the
foregoing, any Indebtedness Incurred on or prior to the Issue Date and outstanding under the Credit Agreement on the Issue Date shall be deemed to have been incurred under clause (A) of paragraph (4) above and may not be reclassified. For
the avoidance of doubt, the outstanding principal amount of any particular Indebtedness shall be counted only once and any obligations arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall not
be double counted.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of
Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term
debt, or first committed, in the case of revolving credit debt; provided, however, that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar
denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount
of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the amount of any reasonable premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses
incurred in connection with the issuance of such new Indebtedness. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
Liens
Parent will not, and will not permit any of the Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) upon any of their property or assets, now owned or hereafter acquired, unless all payments due under
the indenture and the Notes are secured on an equal and ratable or prior basis with the Obligations so secured until such time as such Obligations are no longer secured by a Lien.
Limitation on Restricted Payments
Parent will not, and will not permit any
of the Restricted Subsidiaries, to, directly or indirectly:
(1) declare or pay any dividend or make any distribution on or
with respect to Capital Stock of Parent or any Restricted Subsidiary held by Persons other than Parent or any of the Restricted Subsidiaries other than (A) dividends or distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (B) pro rata dividends or other distributions made by a Restricted Subsidiary of Opco that is not Wholly Owned to minority stockholders (or
owners of equivalent interests in the event such Subsidiary is not a corporation);
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(2) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock
(including options, warrants or other rights to acquire such shares of Capital Stock) of Opco or any of its direct or indirect parent entities held by any Person (other than a Restricted Subsidiary);
(3) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition
or retirement for value, or give any irrevocable notice of redemption of Subordinated Indebtedness of the Issuers or any Guarantor, in each case excluding (i) any intercompany Indebtedness between or among Parent, the Issuers or any of the
Subsidiary Guarantors; (ii) the payment, purchase, redemption, defeasance, acquisition or retirement (collectively, a purchase) of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the date of such payment, purchase, redemption, defeasance, acquisition or retirement and (iii) the giving of an irrevocable notice of redemption with respect to a
transaction described in clauses (3) or (5) of the second paragraph of this covenant; or
(4) make an Investment,
other than a Permitted Investment, in any Person
(such payments or any other actions described in clauses (1) through
(4) above being collectively Restricted Payments) if, at the time of, and after giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be continuing,
(B) the
Issuers could not Incur at least $1.00 of Indebtedness under each of paragraphs (1) and (3) of the Limitation on Indebtedness covenant, or
(C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive and
evidenced by a Board Resolution) made after the Issue Date shall exceed the sum of, without duplication:
(i) 95% of the
aggregate amount of the Funds From Operations (or, if the Funds From Operations is a loss, minus 100% of the amount of such loss) accrued on a cumulative basis during the period (taken as one accounting period) beginning on April 1, 2013 and
ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the SEC or provided to the trustee pursuant to the SEC Reports and Reports to Holders covenant,
plus
(ii) 100% of the aggregate Net Cash Proceeds received by the Issuers after the Issue Date from (x) the issuance and
sale of Opcos Capital Stock (other than Disqualified Stock) or (y) the issuance and sale of Parents Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of Parent, including from an issuance or sale
permitted by the indenture of Indebtedness of Parent or any of the Restricted Subsidiaries for cash subsequent to January 1, 2013 upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of Opco or Parent, or
from the issuance to a Person who is not a Subsidiary of Parent of any options, warrants or other rights to acquire Capital Stock of Opco or Parent (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are
redeemable at the option of the holder for cash or Indebtedness, or are required to be redeemed, prior to the Stated Maturity of the Notes),
plus
(iii) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person after the Issue Date resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of assets, in each case to Parent or any of the Restricted Subsidiaries or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such
payment or proceeds are included in the calculation of Adjusted Funds From Operations) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of Investments) not
to exceed, in each case, the amount of Investments previously made by Parent and the Restricted Subsidiaries in such Person or Unrestricted Subsidiary and treated as a Restricted Payment,
plus
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(iv) the fair market value of non-cash tangible assets or Capital Stock acquired in
exchange for an issuance of Capital Stock (other than Disqualified Stock or Capital Stock issued in exchange for Capital Stock of the Issuers or Parent utilized pursuant to clauses (3) or (4) of the succeeding paragraph) of Opco or Parent,
in each case, subsequent to January 1, 2013 (including upon conversion or exchange of the Common Units for Capital Stock of Parent, in which case the fair market value shall equal the fair market value received upon issuance of such Common
Units),
plus
(v) without duplication, in the event Parent or any Restricted Subsidiary makes any Investment in a
Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, an amount not to exceed the amount of Investments previously made by Parent and the Restricted Subsidiaries in such Person that was treated as a
Restricted Payment.
Notwithstanding the foregoing, the limitations on Restricted Payments described above shall not apply to
the following:
(1) the payment of any distribution or other action which the Board of Directors of Parent believes in good
faith is necessary to maintain Parents status as a real estate investment trust under the Code, including, but not limited to, pro rata dividends or other distributions by Opco to minority unitholders as a result of a distribution from Opco to
Parent for the purpose of funding of any such payment;
(2) the payment of any dividend or distribution or the consummation of
any irrevocable redemption within 60 days after the date of declaration thereof or the giving of a redemption notice related thereto, as the case may be, if, at the date of such declaration or notice, such payment would comply with the provisions of
the indenture;
(3) the payment, redemption, repurchase, defeasance or other acquisition or retirement for value of
Subordinated Indebtedness, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under paragraph (1), (2) or (3) or clause (N) of paragraph (4) of the
Limitation on Indebtedness covenant;
(4)(A) the making of any Restricted Payment in exchange for, or out of
the proceeds of the substantially concurrent sale of, Capital Stock of Opco or Parent (other than any Disqualified Stock or any Capital Stock sold to Parent or a Restricted Subsidiary or to an employee stock ownership plan or any trust established
by Parent or any of its Subsidiaries) or from substantially concurrent contributions to the equity capital of Opco (collectively, including any such contributions, Refunding Capital Stock) (with any offering within 90 days deemed as
substantially concurrent); and (B) the declaration and payment of accrued dividends on any Capital Stock redeemed, repurchased, retired, defeased or acquired out of the proceeds of the sale of Refunding Capital Stock within 90 days of such
sale; provided, that the amount of any such proceeds or contributions that are utilized for any Restricted Payment pursuant to this clause (4) shall be excluded from the amount described in the above clause (4)(C)(ii) of this covenant;
(5) the payment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated
Indebtedness, including premium, if any, and accrued and unpaid interest with the proceeds of, or in exchange for, an issuance of, shares of Capital Stock of Parent or Opco (or options, warrants or other rights to acquire such Capital Stock) that
occurs within 90 days of such payment, redemption, repurchase, defeasance or other acquisition or retirement for value; provided, that the amount of any such proceeds or contributions that are utilized for any Restricted Payments pursuant to this
clause (5) shall be excluded from the amount described in clause (4)(C)(ii) of this covenant;
(6) the repurchase,
redemption or other acquisition or retirement for value of any shares of Capital Stock of Parent or any Restricted Subsidiary in each case held by any of Parents or any Restricted Subsidiaries current or former officers, directors,
consultants or employees (or any permitted transferees, assigns, estates or heirs of any of the foregoing); provided, however, the aggregate amount paid by Parent and the Restricted Subsidiaries pursuant to this clause shall not exceed $5.0 million
in any calendar year (excluding for purposes of calculating
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such amount the amount paid for Capital Stock repurchased, redeemed, acquired or retired with the cash proceeds from the repayment of outstanding loans previously made by Parent or a Restricted
Subsidiary for the purpose of financing the acquisition of such Capital Stock), with unused amounts in any calendar year being carried over to the next succeeding calendar year; provided further, that such amount in any calendar year may be
increased by an amount not to exceed (A) the Net Cash Proceeds from the sale of Capital Stock (other than Disqualified Stock) of Opco or Parent to members of management, directors or consultants of Parent or any of the Restricted Subsidiaries
that occurs after the Issue Date, to the extent such proceeds (i) have not otherwise been and are not thereafter applied to the payment of any other Restricted Payment or (ii) are not attributable to loans made by Parent or a Restricted
Subsidiary for the purpose of financing the acquisition of such Capital Stock, plus (B) the cash proceeds of key man life insurance policies received by Parent and the Restricted Subsidiaries after the Issue Date, less (C) the amount of
any Restricted Payments previously made pursuant to clauses (A) and (B) of this clause (6);
(7) payments made or
expected to be made by Parent or any Restricted Subsidiary, in each case, in respect of withholding or similar taxes payable upon exercise of options to purchase Capital Stock by any future, present or former employee, director, officer, manager or
consultant (or any permitted transferees, assigns, estates or heirs of any of the foregoing) and any repurchases of Capital Stock deemed to occur upon exercise of stock options or warrants if such Capital Stock represents a portion of the exercise
price of such options or warrants or required withholding or similar taxes and cashless repurchases of Capital Stock deemed to occur upon exercise of stock options or warrants if such Capital Stock represent a portion of the exercise price of such
options or warrants;
(8) the repurchase, redemption or other acquisition or retirement for value of any Subordinated
Indebtedness pursuant to the provisions similar to those described under Repurchase of Notes Upon a Change of Control and Limitation on Asset Sales; provided that all Notes validly tendered by holders of Notes in
connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed, acquired or retired for value;
(9) the making of any Restricted Payment in the form of a dividend or any other distribution to the Issuers or any Guarantor on the Capital Stock of such Person or with respect to any other interest or
participation in, or measured by, its profits;
(10) the declaration and payment of dividends on Disqualified Stock the
issuance of which was permitted under the covenant described under Limitation on Indebtedness;
(11) the
spin-off of the Opry Assets to the shareholders of Parent on a pro rata basis;
(12) the declaration and payment of the $0.50
per share of common stock of Parent dividend declared by Parent on February 14, 2013;
(13) the declaration prior to
June 30, 2013 and the payment by August 30, 2013 of a dividend on shares of the common stock of Parent not in excess of $0.50 per share;
(14) payments made for the settlement in cash, in whole or in part, of the convertible note hedge and warrant transactions entered into as of September 24, 2009 (and, as amended, as of
September 25, 2009) in connection with the issuance of the 3.75% Convertible Senior Notes due 2014;
(15) the payment of
cash in lieu of the issuance of fractional shares of Capital Stock upon exercise or conversion of securities exercisable or convertible into Capital Stock of Parent or Opco; or
(16) additional Restricted Payments in an aggregate amount not to exceed the greater of (x) $125.0 million and (y) 5.0% of
Adjusted Total Assets;
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provided, however, that, except in the case of clauses (2) and (3), no Default or Event
of Default shall have occurred and be continuing or occur as a direct consequence of the actions or payments set forth therein.
The net amount of any Restricted Payment permitted pursuant to clauses (1) and (2) of the immediately preceding paragraph,
other than the payment of dividends permitted under clauses (12) and (13) of such paragraph (adjusted to avoid double counting), shall be included in calculating whether the conditions of clause (C) of the first paragraph of this
Limitation on Restricted Payments covenant have been met with respect to any subsequent Restricted Payments. The net amount of any Restricted Payment permitted pursuant to clauses (3) through (16) of the immediately preceding
paragraph shall be excluded in calculating whether the conditions of clause (C) of the first paragraph of this Limitation on Restricted Payments covenant have been met with respect to any subsequent Restricted Payments. The
amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by Parent or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. In determining whether any Restricted Payment is permitted by this covenant, Parent and its Restricted Subsidiaries may allocate all or any portion of such Restricted Payment among the categories described
in clauses (1) through (16) of the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph of this covenant (including categorization in whole or in part as a Permitted
Investment); provided that, at the time of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of this covenant.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
The Issuers will not, and will not permit any of their Restricted Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on
the ability of any such Restricted Subsidiary to:
(A) pay dividends or make any other distributions permitted by applicable
law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Restricted Subsidiaries,
(B) pay any
Indebtedness owed to an Issuer or any of its Restricted Subsidiaries,
(C) make loans or advances to an Issuer or any of its
Restricted Subsidiaries, or
(D) transfer its property or assets to an Issuer or any of its Restricted Subsidiaries. The
foregoing provisions shall not restrict any encumbrances or restrictions:
(1) existing under, by reason of or with respect to,
the indenture, the Credit Agreement and any other agreement in effect on the Issue Date as in effect on the Issue Date, and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or
replacements of such agreements; provided, however, that in the determination of the Board of Directors of Parent made in good faith (which determination will be conclusive and binding absent manifest error) the encumbrances and restrictions in any
such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those contained in the Credit Agreement or such other
agreements as in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the
Restricted Subsidiaries permitted under the indenture; provided, however, that the Board of Directors of Parent have determined in good faith (which determination will be conclusive and binding absent manifest error) that the encumbrances and
restrictions contained in the agreement or agreements governing the other Indebtedness are not materially more restrictive, taken as a whole, than those contained in customary comparable financings and will not impair in any material respect the
Issuers and the Guarantors ability to make payments on the Notes when due;
(3) existing with respect to any
Person or the property or assets of such Person acquired by an Issuer or any of its Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to
any Person or the property or assets of any
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Person other than such Person or the property or assets of such Person so acquired and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing,
renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into
in the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the instruments or agreements with respect to such Person or its property or assets as in effect on the date of such acquisition as
determined by such Person in good faith (which determination will be conclusive and binding absent manifest error);
(4)
existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) existing
under, by reason of or with respect to, the indenture, the Notes or the Guaranties;
(6) existing under, by reason of or with
respect to applicable law, rule, regulation or administrative or court order;
(7) Permitted Liens that limit the right of the
debtor to dispose of the assets subject to such Liens;
(8) in the case of clause (D) in the first paragraph of this
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries covenant:
(a) that
restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(b) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any of its Restricted Subsidiary not otherwise
prohibited by the indenture,
(c) existing under, by reason of or with respect to (i) purchase money obligations for
property acquired in the ordinary course of business or (ii) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(d) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the
aggregate, detract from the value of property or assets of Parent or any of its Restricted Subsidiaries in any manner material to Parent and its Restricted Subsidiaries taken as a whole;
(9) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Subsidiary Guarantor which was previously an
Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in
anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Issuers or any other Restricted Subsidiary other than the assets and property of
such Subsidiary; and
(10) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered
into for the sale or disposition of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition.
Nothing contained in this Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
covenant shall prevent Parent or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of Parent or any of its Restricted Subsidiaries that secure Indebtedness of the
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Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this covenant, (1) the priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other
Indebtedness incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Future
Guarantees by Restricted Subsidiaries
Parent and the Issuers will cause each Restricted Subsidiary that is not a Guarantor
that borrows under or Guarantees the Credit Agreement on the Issue Date, and any domestic Restricted Subsidiary that is not a Guarantor that borrows under or Guarantees the Credit Agreement or any other capital markets Indebtedness thereafter, to,
within 30 days thereof, execute and deliver to the trustee a supplemental indenture pursuant to which such Restricted Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium,
if any, and interest in respect of the Notes on a senior basis and all other obligations under the indenture.
Any Subsidiary
Guaranty shall provide by its terms that it shall be automatically and unconditionally released and discharged upon:
(1) any
sale, exchange or transfer, to any Person that is not a Subsidiary of Parent or an Issuer of Capital Stock held by Parent or the Restricted Subsidiaries in, or all or substantially all the assets of, such Subsidiary Guarantor (which sale, exchange
or transfer is not prohibited by the indenture) such that, immediately after giving effect to such transaction, such Subsidiary Guarantor would no longer constitute a Subsidiary of Parent or an Issuer,
(2) in connection with the merger or consolidation of a Subsidiary Guarantor with (a) Parent, (b) an Issuer or (c) any
other Subsidiary Guarantor (provided that the surviving entity remains or becomes a Subsidiary Guarantor),
(3) if the Issuers
properly designate any Subsidiary Guarantor as an Unrestricted Subsidiary under the indenture,
(4) upon the Legal Defeasance
(as defined below) or Covenant Defeasance (as defined below) or satisfaction and discharge of the indenture,
(5) upon a
liquidation or dissolution of a Subsidiary Guarantor permitted under the indenture, or
(6) the release or discharge of the
Guarantee or Indebtedness that resulted in the creation of such Subsidiary Guaranty and any other Guarantee by such Subsidiary of the Credit Agreement and any other capital markets Indebtedness, except a discharge or release by or as a result of
payment under such Guarantee.
In addition, any Subsidiary Guaranty shall be automatically and unconditionally released and
discharged if such Subsidiary ceases to guarantee obligations under the Credit Agreement or ceases to constitute a co-borrower with respect to the Credit Agreement and all other capital market Indebtedness is released.
Limitation on Transactions with Affiliates
Parent and the Issuers will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, enter into, renew or extend any transaction (including the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any holder (or any Affiliate of such holder) of 10% or more of any class of Capital Stock of Parent or with any Affiliate of Parent or any Restricted Subsidiary, in each case
involving consideration in excess of $5 million, except upon terms that are not materially less favorable to Parent or such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a
written agreement, at the time of the execution of the agreement providing therefor, in a comparable arms length transaction with a Person that is not such a holder or an Affiliate.
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The foregoing limitation does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the disinterested directors of the Board of Directors of Parent or (B) for which
Parent or any Restricted Subsidiary delivers to the trustee a written opinion of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to Parent or such Restricted Subsidiary from a financial
point of view;
(2) any transaction solely between Parent and an Issuer, solely between Parent or an Issuer and any of its
Restricted Subsidiaries or solely between Restricted Subsidiaries;
(3) the payment of reasonable fees and compensation
(including through the issuance of Capital Stock) to, and indemnification and similar arrangements on behalf of, current, former or future directors, officers, employees or consultants of Parent or any Restricted Subsidiary;
(4) any Restricted Payment not prohibited by the Limitation on Restricted Payments covenant and Investments
constituting Permitted Investments;
(5) any contracts, instruments or other agreements or arrangements in each case as in
effect on the Issue Date, and any transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so
amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to Parent and the Restricted Subsidiaries at the time executed than the original agreement or arrangements as in effect on the Issue Date;
(6) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by
Parent or any Restricted Subsidiary with current, former or future officers and employees of Parent or such Restricted Subsidiary and the payment of compensation to officers and employees of Parent or any Restricted Subsidiary (including amounts
paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the ordinary course of business;
(7) loans and advances to officers and employees of Parent or any Restricted Subsidiary or Guarantees in respect thereof (or cancellation of such loans, advances or Guarantees), for bona fide business
purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business;
(8) transactions with a Person that is an Affiliate of Parent or an Issuer solely because Parent or a Restricted Subsidiary, directly or indirectly, owns Capital Stock of, or controls, such Person;
(9) any transaction with a Person who is not an Affiliate immediately before the consummation of such transaction that
becomes an Affiliate as a result of such transaction;
(10) the entering into or amending of any tax sharing, allocation or
similar agreement and any payments thereunder;
(11) any transaction described in clause (R) of the definition of Asset
Sale; or
(12) the issuance and sale of Capital Stock (other than Disqualified Stock) of Parent.
Notwithstanding the foregoing, any transaction or series of related transactions covered by the first paragraph of this
Limitation on Transactions with Affiliates covenant and not covered by (2) through (12) of the immediately foregoing paragraph:
(1) the aggregate amount of which exceeds $10 million in value must be approved or determined to be fair in the manner provided for in clause (1)(A) or (B) above; and
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(2) the aggregate amount of which exceeds $25 million in value, must be determined to be
fair in the manner provided for in clause (1)(B) above.
SEC Reports and Reports to Holders
Whether or not Opco is then required to file reports with the SEC, Opco shall file with the SEC all such reports and other information as
it would be required to file with the SEC by Sections 13(a) or 15(d) under the Exchange Act if it was subject thereto; provided, however, that, if filing such documents by Opco with the SEC is not permitted under the Exchange Act, Opco shall, within
15 days after the time Opco would be required to file such information with the SEC if it were subject to Section 13 or 15(d) under the Exchange Act, provide such documents and reports to the trustee and upon written request supply copies of
such documents and reports to any holder and shall post such documents and reports on Opcos or Parents public website. Opco shall supply the trustee and each holder or shall supply to the trustee for forwarding to each such holder upon
such holders written request, without cost to such holder, copies of such reports and other information; provided, that the filing of such reports and other information with the SEC through EDGAR (or any successor electronic reporting system
of the SEC accessible to the public without charge) constitutes delivery to the trustee for purposes of this sentence. Delivery of such information, documents and reports to the trustee is for informational purposes only and the trustees
receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of its covenants hereunder (as to which the trustee is
entitled to rely exclusively on officers certificates).
So long as Parent is a Guarantor of the Notes, the indenture
will permit Opco to satisfy its obligations in this covenant with respect to filing, furnishing, providing or posting documents, reports and other information relating to Opco by Parents filing, furnishing, providing or posting, as the case
may be, of such documents, reports and other information relating to Parent; provided that, if then required in Parents reports, the same is accompanied by consolidating information that explains in reasonable detail the differences between
the information relating to Parent and its consolidated Subsidiaries on the one hand, and the information relating to Parent, the Issuers and the Subsidiary Guarantors on a standalone basis, on the other hand, as of the ending date of the period
covered by such report, which consolidating information shall be presented in accordance with Rule 3-10 of Regulation S-X under the Securities Act, or any successor provision.
Limitation on Asset Sales
Parent will not, and will not permit any of the
Restricted Subsidiaries to, consummate any Asset Sale, unless:
(1) the consideration received by Parent or such Restricted
Subsidiary is at least equal to the fair market value of the assets sold or disposed of; and
(2) at least 75% of the
consideration received consists of cash, Temporary Cash Investments or Replacement Assets, or a combination of cash, Temporary Cash Investments or Replacement Assets; provided, however, with respect to the sale of one or more properties that up to
75% of the consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the property or properties sold.
For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities of Parent or the Restricted Subsidiaries (as shown on the most recent consolidated balance sheet of Parent and the
Restricted Subsidiaries other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guaranty) that are assumed by the transferee of any such assets pursuant to an agreement that releases Parent or any
such Restricted Subsidiary from further liability with respect to such liabilities or that are assumed by contract or operation of law;
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(B) any securities, notes or other obligations received by Parent or any such Restricted
Subsidiary from such transferee that are converted by Parent or such Restricted Subsidiary into cash or Temporary Cash Investments within 180 days (to the extent of the cash or Temporary Cash Investments received in that conversion); and
(C) any Designated Non-Cash Consideration received by Parent or any such Restricted Subsidiary in such Asset Sale having an aggregate
fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at the time outstanding, not to exceed the greater of (x) $50.0 million and (y) 2.0% of the Issuers
Adjusted Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent
changes in value.
Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, Parent or any such
Restricted Subsidiary may apply such Net Cash Proceeds:
(1) to prepay, repay, redeem or purchase Pari passu Indebtedness of
the Issuers or a Subsidiary Guarantor that is Secured Indebtedness (in each case other than Indebtedness owed to the Issuers or an Affiliate of the Issuers);
(2) to make an Investment in (provided such Investment is in the form of Capital Stock), or to acquire all or substantially all of the assets of, a Person engaged in a Permitted Business if such Person
is, or will become as a result thereof, a Restricted Subsidiary;
(3) to prepay, repay, redeem or purchase Pari passu
Indebtedness of Parent, an Issuer or of any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor; provided, however, that if Parent, the Issuers or a Subsidiary Guarantor shall so prepay, repay,
redeem or purchase any such Pari passu Indebtedness, the Issuers will equally and ratably reduce obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, the Issuers shall make an offer (in accordance
with the procedures set forth below) with the ratable proceeds to all holders to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, thereon, up to the principal amount of Notes that would
otherwise be prepaid;
(4) to fund all or a portion of an optional redemption of the Notes as described under
Optional Redemption;
(5) to make a capital expenditure;
(6) to acquire Replacement Assets to be used or that are useful in a Permitted Business; or
(7) any combination of the foregoing;
provided, that the Issuers will be deemed to have complied with the provisions described in clauses (2), (5) and (6) of this paragraph if and to the extent that, within 365 days after the
Asset Sale that generated the Net Cash Proceeds, Parent or any of the Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, acquire Replacement
Assets or make a capital expenditure in compliance with the provisions described in clauses (2), (5) and (6) of this paragraph (each an Acceptable Commitment), and that Acceptable Commitment (or a replacement commitment should
the Acceptable Commitment be subsequently cancelled or terminated for any reason) is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any such Net Cash Proceeds, the Issuers may temporarily
reduce the revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by the indenture. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to
be applied) during such 365-day period as set forth in the third paragraph above and not so applied by the end of such period shall constitute Excess Proceeds.
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When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuers shall make
an offer to all holders of the Notes and, if required by the terms of any Indebtedness that is Pari passu Indebtedness, to the holders of such Pari passu Indebtedness on a pro rata basis (an Asset Sale Offer), to purchase the maximum
aggregate principal amount of the Notes and such Pari passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount
thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in the indenture. The Issuers will commence an Asset Sale Offer with
respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed $25.0 million by delivering the notice required pursuant to the terms of the indenture, with a copy to the trustee. The Issuers may satisfy the foregoing
obligations with respect to any Excess Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Excess Proceeds prior to the expiration of the relevant 365 days or with respect to Excess Proceeds of $25.0 million or less.
To the extent that the aggregate amount of Notes and such Pari passu Indebtedness tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, Parent and the Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not prohibited by the indenture. If the aggregate principal amount of Notes or the Pari passu Indebtedness surrendered by
such holders thereof exceeds the amount of Excess Proceeds, the trustee shall select the Notes and the Issuers shall select such Pari passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes
or such Pari passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero. Parent may satisfy the foregoing obligation with respect to any Net
Cash Proceeds prior to the expiration of the relevant 365 day period (as such period may be extended in accordance with the indenture). Nothing in this paragraph shall preclude the Issuers from making an Asset Sale Offer even if the amount of Excess
Proceeds not previously subject to an Asset Sale Offer pursuant to this Limitation on Asset Sales covenant totals less than $25 million.
Pending the final application of any Net Cash Proceeds pursuant to this covenant, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under
a revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by the indenture.
The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in
connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the indenture, the Issuers will comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations described in the indenture by virtue thereof.
Our $1 billion credit facility entered into on April 18, 2013 limits, and future credit agreements or other agreements relating to Indebtedness to which the Issuers become a party may prohibit or
limit, the Issuers from purchasing any Notes pursuant to this Asset Sale covenant. In the event the Issuers are prohibited from purchasing the Notes, the Issuers could seek the consent of their lenders to the purchase of the Notes or could attempt
to refinance the indebtedness that contains such prohibition. If the Issuers do not obtain such consent or repay such indebtedness, they will remain prohibited from purchasing the Notes. In such case, the Issuers failure to purchase tendered
Notes would constitute an Event of Default under the indenture.
The provisions under the indenture relative to the
Issuers obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the holders of a majority in principal amount of the Notes then outstanding.
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Consolidation, Merger and Sale of Assets
Neither Parent nor either Issuer will consolidate with or merge with or into, or sell, convey, transfer or otherwise dispose of all or
substantially of it and its Restricted Subsidiaries (taken as a whole) property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person or permit any Person (other than a
Restricted Subsidiary) to merge with or into it unless:
(1) Parent or such Issuer shall be the continuing Person, or the
Person (if other than Parent or such Issuer) formed by such consolidation or into which Parent or such Issuer is merged or that acquired such property and assets of Parent or such Issuer shall be a corporation, limited liability company, partnership
(including a limited partnership) or trust organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the
trustee, all of the obligations of Parent or such Issuer with respect to the Notes and under the indenture (provided that in the case of a limited liability company, partnership (including a limited partnership) or trust, there shall also be a
corporation organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof which shall expressly jointly with such limited liability company, partnership (including a limited partnership) or trust,
assume, by a supplemental indenture, executed and delivered to the trustee, all of the obligations of such Issuer with respect to the Notes and under the indenture);
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable Four-Quarter Period, on a pro forma basis
Parent and the Issuers, or any Person becoming the successor obligor of the Notes, as the case may be, (a) could Incur at least $1.00 of Indebtedness under paragraphs (1) and (3) of the Limitation on Indebtedness
covenant or (b) the ratios in (1) and (3) of such covenant are better than immediately prior to such transaction; provided, however, that this clause (3) shall not apply to a consolidation or merger with or into Parent, an Issuer
or a Wholly Owned Restricted Subsidiary; and
(4) the Issuers deliver to the trustee an officers certificate (attaching
the arithmetic computations to demonstrate compliance with clause (3) above) and an opinion of counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this covenant and that all
conditions precedent provided for herein relating to such transaction have been complied with and, with respect to the opinion of counsel, that the supplemental indenture constitutes a valid and binding obligation enforceable against the Issuers, or
the Person (if other than Parent or an Issuer) formed by such consolidation or into which such Issuer is merged or that acquired all or substantially all of Parents, such Issuers and its Restricted Parent or Subsidiaries property
and assets;
provided, however, that clause (3) above does not apply if, in the good faith determination of the Board of
Directors of Parent, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of domicile of Parent or an Issuer; provided, further, however, that any such transaction shall not
have as one of its purposes the evasion of the foregoing limitations.
Parent and the Issuers will not permit any Subsidiary
Guarantor to consolidate with or merge with or into, or convey or transfer, in one transaction or a series of transactions, all or substantially all of its property and assets to any Person unless:
(1) the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a supplemental indenture, all the obligations of
such Subsidiary Guarantor, if any, under the Notes or its Subsidiary Guaranty, as applicable; provided, however, that the foregoing requirement will not apply in the case of a Subsidiary Guarantor or all or substantially all of its property and
assets (x) that has been disposed of in
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its entirety to another Person (other than to Parent or an Issuer or an Affiliate of Parent or an Issuer), whether through a merger, consolidation or sale of Capital Stock or assets or
(y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, so long as, in both cases, in connection therewith the Issuers provide an Officers Certificate to the trustee to the effect that
the Issuers will comply with their obligations under the covenant described under Limitation on Asset Sales;
(2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes
an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(3) the Issuers deliver to the trustee an officers certificate and an opinion of counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture, if any, complies with the indenture and, with respect to the opinion of counsel, that the supplemental indenture constitutes a valid and binding obligation enforceable against the Issuers, the
Subsidiary Guarantors, Parent and the surviving Persons.
Notwithstanding the foregoing, any Subsidiary Guarantor may
(i) merge with an Affiliate of Parent or an Affiliate of a Restricted Subsidiary or another Subsidiary Guarantor solely for the purpose of changing the state of domicile of the Subsidiary Guarantor, (ii) merge with or into or transfer all
or part of its properties and assets to another Subsidiary Guarantor, Parent or an Issuer, or (iii) convert into a corporation, partnership, limited partnership, limited liability company or trust organized under the laws of the jurisdiction of
organization of such Subsidiary Guarantor.
Under the terms of the indenture, the trustee will have no duty to inquire as to,
ascertain compliance with, or make any calculations relating to performance of the covenants summarized herein.
Repurchase of Notes upon a
Change of Control
If a Change of Control occurs, each holder of Notes will have the right to require the Issuers to
purchase some or all (in principal amounts of $2,000 or an integral multiple of $1,000) of such holders Notes pursuant to the offer described below (the Change of Control Offer).
Any Change of Control Offer will include a cash offer price of 101% of the principal amount of any Notes purchased plus accrued and
unpaid interest to the date of purchase (the Change of Control Payment). If a Change of Control Offer is required, within 20 Business Days following a Change of Control, the Issuers will give a notice to each holder (with a copy to the
trustee) describing the Change of Control and offering to repurchase Notes on a specified date (the Change of Control Payment Date). The Change of Control Payment Date will be no earlier than 30 days and no later than 60 days from the
date the notice is given.
On the Change of Control Payment Date, the Issuers will, to the extent lawful:
(1) accept for payment all Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit the Change of Control Payment with the paying agent in respect of all Notes so accepted; and
(3) deliver to the trustee the Notes accepted and an officers certificate stating the aggregate principal amount of all Notes
purchased by the Issuers.
The paying agent will promptly mail to each holder of Notes properly tendered the Change of Control
Payment for such Notes, and the trustee will promptly authenticate and mail, or cause to be transferred by book entry, to each holder a new Note in principal amount equal to any unpurchased portion of the Notes surrendered.
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The Issuers will comply with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations to the extent those laws and regulations are applicable to any Change of Control Offer. If the provisions of any of the applicable securities laws or securities regulations conflict with the provisions of the
covenant described above, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the covenant described above by virtue of that compliance.
A third party, instead of the Issuers, may make the Change of Control Offer in compliance with the requirements set forth in the
indenture and purchase all Notes properly tendered and not withdrawn. In addition, the Issuers will not be obligated to make or consummate a Change of Control Offer with respect to the Notes, if they have irrevocably elected to redeem all of the
Notes under provisions described under Optional Redemption and have not defaulted in its redemption obligations. The provisions under the indenture relating to the Issuers obligation to make an offer to repurchase the Notes
as a result of a Change of Control may be waived or modified with the written consent of the holders of a majority in principal amount of the Notes then outstanding.
Some Change of Control events may constitute a default under the Credit Agreement. Future indebtedness of the Issuers or Guarantors may contain prohibitions on the events that constitute a Change of
Control. The Credit Agreement requires and future indebtedness may require the indebtedness to be purchased or repaid if a Change of Control occurs. Moreover, the exercise by the holders of their right to require the Issuers to repurchase the Notes
could cause a default under such indebtedness, even if the Change of Control itself does not. Finally, the Issuers ability to pay cash to the holders of Notes, if required to do so, may be limited by its then existing financial resources.
There can be no assurance that sufficient funds will be available when necessary to make any required repurchases. See Risk FactorsRisks Relating to the Exchange NotesThe Issuers may not be able to repurchase the notes upon a
Change of Control.
The definition of Change of Control includes a phrase relating to the sale, exchange or
transfer of all or substantially all of the properties or assets of Parent and its Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase substantially all, there is no precise
established definition of the phrase under applicable law. Furthermore, this term has not been interpreted under New York law (which is the governing law of the indenture) to represent a specific quantitative test. Accordingly, the ability of a
holder of Notes to require the Issuers to repurchase its Notes as a result of a sale, exchange or transfer of less than all of the assets of Issuers and their Subsidiaries taken as a whole to another Person or group may be uncertain. In addition,
the Chancery Court of Delaware, in a recent decision, raised the possibility that a Change of Control as a result of a failure to have continuing directors comprising a majority of a Board of Directors may be unenforceable on
public policy grounds.
Limitation on Activities of Finco
Finco may not hold any material assets, become liable for any material obligations, engage in any trade or business, or conduct any business activity, other than (1) the issuance of its Capital Stock
to Opco or any Wholly Owned Restricted Subsidiary of Opco, (2) the incurrence of Indebtedness as a co-obligor or guarantor, as the case may be, of the Notes, the Credit Agreement and any other Indebtedness that is permitted to be incurred under
the covenant described under the heading Limitation on Indebtedness, provided that the net proceeds of such Indebtedness are not retained by Finco, and (3) activities incidental thereto. Neither Parent nor any Restricted
Subsidiary shall engage in any transaction with Finco in violation of the immediately preceding sentence.
Events of Default
Events of Default under the indenture include the following:
(1) default in the payment of principal of, or premium, if any, on any Note when they are due and payable at maturity, upon acceleration,
redemption or otherwise;
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(2) default in the payment of interest on any Note when due and payable, and such default
continues for a period of 30 days;
(3) Parent or Restricted Subsidiaries do not comply with their obligations under
Consolidation, Merger and Sale of Assets;
(4) the Issuers fail to make or consummate a Change of Control
Offer following a Change of Control when required as described under Repurchase of Notes Upon a Change of Control;
(5) Parent or Restricted Subsidiaries default in the performance of or breach any other covenant or agreement of Parent or the Restricted Subsidiaries in the indenture or under the Notes (other than a
default specified in clause (1), (2), (3) or (4) above) and such default or breach continues for 60 consecutive days after written notice by the trustee or the holders of 25% or more in aggregate principal amount of the Notes;
(6) there occurs with respect to any issue or issues of Indebtedness of Parent, an Issuer or any Significant Subsidiary having an
outstanding principal amount of $25.0 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created,
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an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such
acceleration has not been rescinded or annulled within 30 days of such acceleration and/or
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the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived
or extended within 30 days of such payment default;
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(7) any final and non-appealable judgment or order for
the payment of money in excess of $25.0 million in the aggregate for all such final judgments or orders against all such Persons:
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shall be rendered against Parent, an Issuer or any Significant Subsidiary and shall not be paid or discharged, and
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there shall be any period of 60 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final
judgments or orders outstanding and not paid or discharged against all such Persons to exceed $25.0 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
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(8) a court of competent jurisdiction enters a decree or order for:
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relief in respect of Parent, an Issuer or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect,
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appointment of a receiver, liquidator, assignee custodian, trustee, sequestrator or similar official of Parent, an Issuer or any Significant Subsidiary
or for all or substantially all of the property and assets of an Issuer or any Significant Subsidiary, or
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the winding up or liquidation of the affairs of Parent, an Issuer or any Significant Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
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(9) Parent, an Issuer or any Significant
Subsidiary:
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commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under such law,
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consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of
Parent, an Issuer or such Significant Subsidiary or for all or substantially all of the property and assets of Parent, an Issuer or such Significant Subsidiary, or
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effects any general assignment for the benefit of its creditors.
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If an Event of Default (other than an Event of Default specified in clause (8) or (9) above that occurs with respect to an
Issuer) occurs and is continuing under the indenture the trustee or the holders of at least 25% in aggregate principal amount of the Notes then outstanding, by written notice to the Issuers (and to the trustee if such notice is given by the
holders), may, and the trustee at the request of the holders of at least 25% in aggregate principal amount of the Notes then outstanding shall, declare the principal of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (6) above
has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (6) shall be remedied or cured by Parent or the relevant
Issuer or Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto.
If an Event of Default specified in clause (8) or (9) above occurs with respect to Parent or an Issuer, the principal of, premium, if any, and accrued interest on the Notes then outstanding
shall automatically become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder. The holders of at least a majority in principal amount of the outstanding Notes by written notice to the
Issuers and to the trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if:
(1) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been
cured or waived, and
(2) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
As to the waiver of defaults, see Modification and Waiver.
The holders of at least a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee. However, the trustee may refuse to follow
any direction that conflicts with law or the indenture, that may involve the trustee in personal liability, or that the trustee determines in good faith may be unduly prejudicial to the rights of holders of Notes not joining in the giving of such
direction and may take any other action it deems proper that is not inconsistent with any such direction received from holders of Notes. A holder may not pursue any remedy with respect to the indenture or the Notes unless:
(1) the holder gives the trustee written notice of a continuing Event of Default;
(2) the holders of at least 25% in aggregate principal amount of outstanding Notes make a written request to the trustee to pursue the
remedy;
(3) such holder or holders offer the trustee indemnity satisfactory to the trustee against any costs, liability or
expense;
(4) the trustee does not comply with the request within 60 days after receipt of the request and the offer of
indemnity; and
(5) during such 60-day period, the holders of a majority in aggregate principal amount of the outstanding
Notes do not give the trustee a direction that is inconsistent with the request.
However, such limitations do not apply to
the right of any holder of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment on or after the due date expressed in the Notes, which right shall not be
impaired or affected without the consent of the holder.
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The indenture requires certain officers of the Issuers to deliver an officers
certificate to the trustee, on or before a date not more than 120 days after the end of each fiscal year, stating that a review has been conducted of the activities of Parent and the Restricted Subsidiaries and of its performance under the indenture
and that Parent and the Restricted Subsidiaries have fulfilled all obligations thereunder, or, if there has been a default in fulfillment of any such obligation, specifying each such default and the nature and status thereof. The Issuers will also
be obligated to notify the trustee of any default or defaults in the performance of any covenants or agreements under the indenture within 30 days of becoming aware of any such default unless such default has been cured before the end of the 30 day
period.
Defeasance
The Issuers may, at their option and at any time, elect to have their obligations and the obligations of the Guarantors discharged with respect to the outstanding Notes (Legal Defeasance) and
cure all then existing Events of Default. Legal Defeasance means that the Issuers and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and the Guaranties, and the indenture shall cease to be
of further effect as to all outstanding Notes and Guaranties, except as to
(1) rights of holders to receive payments in
respect of the principal of and interest on the Notes when such payments are due from the trust funds referred to below,
(2)
the Issuers obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes, and the maintenance of an office or agency for payment and money for security payments
held in trust,
(3) the rights, powers, trust, duties, and immunities of the trustee, and the Issuers obligations in
connection therewith, and
(4) the Legal Defeasance provisions of the indenture.
In addition, the Issuers may, at their option and at any time, elect to have their obligations and the obligations of the Guarantors
released with respect to most of the covenants under the indenture, except as described otherwise in the indenture (Covenant Defeasance), and thereafter any omission to comply with such obligations shall not constitute a Default. In the
event Covenant Defeasance occurs, certain Events of Default (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) will no longer apply. The Issuers may exercise their Legal Defeasance option regardless of
whether they previously exercised Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuers must irrevocably deposit with the trustee, in trust, for the benefit of the holders, U.S. legal tender, U.S.
Government Obligations or a combination thereof, in such amounts as will be sufficient (without reinvestment) in the opinion of a nationally recognized firm of independent public accountants selected by the Issuers, to pay the principal of and
interest on the Notes on the stated date for payment or on the redemption date of the Notes,
(2) in the case of Legal
Defeasance, the Issuers shall have delivered to the trustee an opinion of counsel in the United States confirming that:
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the Issuers have received from, or there has been published by the Internal Revenue Service, a ruling, or
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since the date of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based
thereon this opinion of counsel shall confirm that, the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Legal
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Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred,
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(3) in the case of Covenant Defeasance, the Issuers shall have delivered to the trustee an opinion of
counsel in the United States reasonably acceptable to the trustee confirming that the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as would have been the case if the Covenant Defeasance had not occurred,
(4) no Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit and any similar and simultaneous
deposit relating to other Indebtedness and, in each case, the granting of Liens on the deposited funds in connection therewith),
(5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement or instrument (other than the indenture) to which
Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any
similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith),
(6) the Issuers shall have delivered to the trustee an officers certificate stating that the deposit was not made by them with the intent of preferring the holders over any other of their creditors
or with the intent of defeating, hindering, delaying or defrauding any other of their creditors or others, and
(7) the
Issuers shall have delivered to the trustee an officers certificate and an opinion of counsel, each stating that the conditions provided for in, in the case of the officers certificate, clauses (1) through (6) and, in the case
of the opinion of counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with.
Satisfaction and
Discharge
The indenture will be discharged and will cease to be of further effect (except as to surviving rights or
registration of transfer or exchange of the Notes, as expressly provided for in the indenture) as to all outstanding Notes when
(1) either:
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all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuers or discharged from such trust) have been delivered to the trustee for cancellation; or
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all Notes not theretofore delivered to the trustee for cancellation (1) have become due and payable or (2) will become due and payable within
one year, or are to be called for redemption within one year, under arrangements reasonably satisfactory to the trustee for the giving of notice of redemption by the trustee in the name, and at the expense, of the Issuers, and the Issuers have
irrevocably deposited or caused to be deposited with the trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the trustee for cancellation, for principal of, premium, if any,
and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Issuers directing the trustee to apply such funds to the payment thereof at maturity or redemption, as the case may
be;
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(2) the Issuers have paid all other sums payable under the indenture by Parent, the Issuers and the
Subsidiary Guarantors; and
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(3) the Issuers have delivered to the trustee an officers certificate and an opinion
of counsel stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with.
Modification and Waiver
Subject to certain limited exceptions,
modifications and amendments of the indenture may be made by the Issuers and the trustee with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding Notes; provided, however, that no such modification
or amendment may, without the consent of each holder affected thereby:
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Note,
(2) reduce the principal amount of, or premium, if any, or interest on, any Note,
(3) change the place of payment of principal of, or premium, if any, or interest on, any Note,
(4) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity (or, in the case of a
redemption, on or after the Redemption Date) of any Note,
(5) reduce the above-stated percentages of outstanding Notes the
consent of whose holders is necessary to modify or amend the indenture,
(6) waive a default in the payment of principal of,
premium, if any, or interest on the Notes (except a rescission of the declaration of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the Notes then outstanding and a waiver of the payment default that
resulted from such acceleration, so long as all other existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been
cured or waived),
(7) voluntarily release a Guarantor of the Notes, except as permitted by the indenture,
(8) reduce the percentage or aggregate principal amount of outstanding Notes the consent of whose holders is necessary for waiver of
compliance with certain provisions of the indenture or for waiver of certain defaults, or
(9) modify or change any provisions
of the indenture affecting the ranking of the Notes as to right of payment or the Guaranties thereof in any manner adverse to the holders of the Notes.
Notwithstanding the preceding, without the consent of any holder, Parent, the Issuers, the Subsidiary Guarantors and trustee may amend the indenture:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation of the obligations of Parent, the Issuers or any Subsidiary Guarantor under the indenture;
(3) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(4) to add Guarantees with respect to the Notes, including any Subsidiary Guaranties or to secure the Notes;
(5) to add to the covenants of Parent or a Restricted Subsidiary for the benefit of the holders or to surrender any right or power
conferred upon Parent or a Restricted Subsidiary;
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(6) to make any change that does not adversely affect the rights of any holder, as evidenced
by an officers certificate delivered to the trustee (upon which it may fully rely);
(7) to comply with any requirement
of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act;
(8) to make any
amendment to the provisions of the indenture relating to the transfer and legending of Notes; provided, however, that (a) compliance with the indenture as so amended would not result in Notes being transferred in violation of the Securities Act
or any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of holders to transfer Notes;
(9) to conform the text of the indenture or the Guaranties or the Notes to any provision of this Description of Notes;
(10) evidence and provide for the acceptance of appointment by a successor trustee, provided that the successor trustee is otherwise qualified and eligible to act as such under the terms of the indenture;
(11) provide for a reduction in the minimum denominations of the Notes;
(12) comply with the rules of any applicable securities depositary; or
(13) to provide for the issuance of additional Notes and related Guaranties in accordance with the limitations set forth in the
indenture.
The consent of the holders is not necessary under the indenture to approve the particular form of any proposed
amendment. It is sufficient if such consent approves the substance of the proposed amendment.
After an amendment under the
indenture becomes effective, the Issuers are required to give to holders a notice briefly describing such amendment. However, the failure to give such notice to all holders, or any defect therein, will not impair or affect the validity of the
amendment.
No Personal Liability of Incorporators, Stockholders, Officers, Directors, or Employees
The indenture provides that no recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any
claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Issuers or the Guarantors in the indenture, or in any of the Notes or Guaranties or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Issuers or the Guarantors or of any successor Person thereof. Each holder, by accepting the Notes, waives
and releases all such liability. The waiver and release are part of the consideration for issuance of the notes.
Book-Entry, Delivery and
Form
We have obtained the information in this section concerning The Depository Trust Company (DTC),
Clearstream Banking, S.A., Luxembourg (Clearstream, Luxembourg) and Euroclear Bank S.A.N.V., as operator of the Euroclear System (Euroclear) and their book-entry systems and procedures from sources that we believe to be
reliable. We take no responsibility for an accurate portrayal of this information. In addition, the description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream, Luxembourg and
Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time.
The notes will
initially be represented by one or more fully registered global notes. Each such global note will be deposited with, or on behalf of, DTC or any successor thereto and registered in the name of Cede & Co. (DTCs nominee). You may hold
your interests in the global notes in the United States through DTC, or in
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Europe through Clearstream, Luxembourg or Euroclear, either as a participant in such systems or indirectly through organizations which are participants in such systems. Clearstream, Luxembourg
and Euroclear will hold interests in the global notes on behalf of their respective participating organizations or customers through customers securities accounts in Clearstream, Luxembourgs or Euroclears names on the books of
their respective depositaries, which in turn will hold those positions in customers securities accounts in the depositaries names on the books of DTC.
So long as DTC or its nominee is the registered owner of the global securities representing the notes, DTC or such nominee will be considered the sole owner and holder of the notes for all purposes of the
notes and the indenture. Except as provided below, owners of beneficial interests in the notes will not be entitled to have the notes registered in their names, will not receive or be entitled to receive physical delivery of the notes in definitive
form and will not be considered the owners or holders of the notes under the indenture, including for purposes of receiving any reports delivered by us or the trustee pursuant to the indenture. Accordingly, each person owning a beneficial interest
in a note must rely on the procedures of DTC or its nominee and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, in order to exercise any rights of a holder of notes.
Unless and until we issue the notes in fully certificated, registered form under the limited circumstances described below under the
heading Certificated Notes:
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you will not be entitled to receive a certificate representing your interest in the notes;
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all references in this prospectus to actions by holders will refer to actions taken by DTC upon instructions from its direct participants; and
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all references in this prospectus to payments and notices to holders will refer to payments and notices to DTC or Cede & Co., as the
registered holder of the notes, for distribution to you in accordance with DTC procedures.
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The Depository Trust Company
DTC will act as securities depositary for the notes. The notes will be issued as fully registered notes registered in the
name of Cede & Co. DTC is:
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a limited-purpose trust company organized under the New York Banking Law;
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a banking organization under the New York Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation under the New York Uniform Commercial Code; and
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a clearing agency registered under the provisions of Section 17A of the Securities Exchange Act of 1934.
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DTC holds securities that its direct participants deposit with DTC. DTC facilitates the settlement among direct participants of
securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in direct participants accounts, thereby eliminating the need for physical movement of securities certificates.
Direct participants of DTC include securities brokers and dealers (including the underwriters), banks, trust companies,
clearing corporations and certain other organizations. DTC is owned by a number of its direct participants. Indirect participants of DTC, such as securities brokers and dealers, banks and trust companies, can also access the DTC system if they
maintain a custodial relationship with a direct participant.
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The ownership interest of each beneficial owner in the notes is recorded on the records of
direct participants and indirect participants. Beneficial owners receive periodic statements of their holdings from the direct participants or indirect participants through which such beneficial owners hold notes. Transfers of ownership interests in
the notes are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in notes, except as provided below in
Certificated Notes.
To facilitate subsequent transfers, all notes deposited with DTC are registered in the
name of DTCs nominee, Cede & Co. The deposit of notes with DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the notes.
DTCs records reflect only the identity of the direct participants to whose accounts such notes are credited, which may or may not be the beneficial owners. The participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to direct participants, by direct
participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Book-entry format
Under the book-entry format, the paying agent will pay interest or principal payments to Cede & Co., as nominee of DTC. DTC will forward the payment to the direct participants, who will then
forward the payment to the indirect participants (including Clearstream, Luxembourg or Euroclear) or to you as the beneficial owner. You may experience some delay in receiving your payments under this system. Neither we, the trustee under the
indenture nor any paying agent has any direct responsibility or liability for the payment of principal or interest on the notes to owners of beneficial interests in the notes.
DTC is required to make book-entry transfers on behalf of its direct participants and is required to receive and transmit payments of principal, premium, if any, and interest on the notes. Any direct
participant or indirect participant with which you have an account is similarly required to make book-entry transfers and to receive and transmit payments with respect to the notes on your behalf. We and the trustee under the indenture have no
responsibility for any aspect of the actions of DTC, Clearstream, Luxembourg or Euroclear or any of their direct or indirect participants. In addition, we and the trustee under the indenture have no responsibility or liability for any aspect of the
records kept by DTC, Clearstream, Luxembourg, Euroclear or any of their direct or indirect participants relating to or payments made on account of beneficial ownership interests in the notes or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. We also do not supervise these systems in any way.
The trustee will not
recognize you as a holder under the indenture, and you can only exercise the rights of a holder indirectly through DTC and its direct participants. DTC has advised us that it will only take action regarding a note if one or more of the direct
participants to whom the note is credited directs DTC to take such action and only in respect of the portion of the aggregate principal amount of the notes as to which that participant or participants has or have given that direction. DTC can only
act on behalf of its direct participants. Your ability to pledge notes to non-direct participants, and to take other actions, may be limited because you will not possess a physical certificate that represents your notes.
Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to the notes unless authorized by a
direct participant in accordance with DTCs procedures. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.s consenting or voting rights
to those direct participants to whose accounts the notes are credited on the record date (identified in a listing attached to the omnibus proxy).
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Clearstream, Luxembourg or Euroclear will credit payments to the cash accounts of
Clearstream, Luxembourg customers or Euroclear participants in accordance with the relevant systems rules and procedures, to the extent received by its depositary. These payments will be subject to tax reporting in accordance with relevant
United States tax laws and regulations. Clearstream, Luxembourg or the Euroclear Operator, as the case may be, will take any other action permitted to be taken by a holder under the indenture on behalf of a Clearstream, Luxembourg customer or
Euroclear participant only in accordance with its relevant rules and procedures and subject to its depositarys ability to effect those actions on its behalf through DTC.
DTC, Clearstream, Luxembourg and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of the notes among participants of DTC, Clearstream, Luxembourg and Euroclear. However,
they are under no obligation to perform or continue to perform those procedures, and they may discontinue those procedures at any time.
Transfers within and among book-entry systems
Transfers between DTCs direct participants will occur in accordance with DTC rules. Transfers between Clearstream, Luxembourg customers and Euroclear participants will occur in accordance with its
applicable rules and operating procedures.
DTC will effect cross-market transfers between persons holding directly or
indirectly through DTC, on the one hand, and directly or indirectly through Clearstream, Luxembourg customers or Euroclear participants, on the other hand, in accordance with DTC rules on behalf of the relevant European international clearing system
by its depositary. However, cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in that system in accordance with its rules and procedures and within its
established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, instruct its depositary to effect final settlement on its behalf by delivering or receiving
securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC.
Clearstream, Luxembourg customers and Euroclear participants may not deliver instructions directly to the depositaries.
Because of time-zone differences, credits of securities received in Clearstream, Luxembourg or Euroclear resulting from a transaction with a DTC direct participant will be made during the subsequent
securities settlement processing, dated the business day following the DTC settlement date. Those credits or any transactions in those securities settled during that processing will be reported to the relevant Clearstream, Luxembourg customer or
Euroclear participant on that business day. Cash received in Clearstream, Luxembourg or Euroclear as a result of sales of securities by or through a Clearstream, Luxembourg customer or a Euroclear participant to a DTC direct participant will be
received with value on the DTC settlement date but will be available in the relevant Clearstream, Luxembourg or Euroclear cash amount only as of the business day following settlement in DTC.
Although DTC, Clearstream, Luxembourg and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of debt
securities among their respective participants, they are under no obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time.
Certificated Notes
Unless and until they are exchanged, in whole or in
part, for notes in definitive form in accordance with the terms of the notes, the notes may not be transferred except (1) as a whole by DTC to a nominee of DTC or (2) by a nominee of DTC to DTC or another nominee of DTC or (3) by DTC
or any such nominee to a successor of DTC or a nominee of such successor.
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We will issue notes to you or your nominees, in fully certificated registered form, rather
than to DTC or its nominees, only if:
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we advise the trustee in writing that DTC is no longer willing or able to discharge its responsibilities properly or that DTC is no longer a registered
clearing agency under the Securities Exchange Act of 1934, and the trustee or we are unable to locate a qualified successor within 90 days; or
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an event of default has occurred and is continuing under the indenture and a request for such exchange has been made.
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If any of the two above events occurs, DTC is required to notify all direct participants that notes in fully certificated registered form
are available through DTC. DTC will then surrender the global note representing the notes along with instructions for re-registration. The trustee will re-issue the debt securities in fully certificated registered form and will recognize the
registered holders of the certificated debt securities as holders under the indenture.
Unless and until we issue the notes in
fully certificated, registered form, (1) you will not be entitled to receive a certificate representing your interest in the notes; (2) all references in this prospectus to actions by holders will refer to actions taken by the depositary
upon instructions from their direct participants; and (3) all references in this prospectus to payments and notices to holders will refer to payments and notices to the depositary, as the registered holder of the notes, for distribution to you
in accordance with its policies and procedures.
Concerning the Trustee
The indenture provides that, except during the continuance of a Default, the trustee will not be liable, except for the performance of
such duties as are specifically set forth in the indenture. If an Event of Default has occurred and is continuing, the trustee will use the same degree of care and skill in its exercise of the rights and powers vested in it under the indenture as a
prudent person would exercise under the circumstances in the conduct of such persons own affairs.
The indenture and
provisions of the Trust Indenture Act of 1939 incorporated by reference into the indenture contain limitations on the rights of the trustee, should it become a creditor of an Issuer, to obtain payment of claims in certain cases or to realize on
certain property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions; provided, however, that if it acquires any conflicting interest, it must eliminate such conflict or
resign.
The trustee is an affiliate of U.S. Bancorp Investments, Inc., one of the initial purchasers.
Certain Definitions
Set
forth below are definitions of certain terms contained in the indenture that are used in this description. Please refer to the indenture for the definitions of other capitalized terms used in this description that are not defined below.
3.75% Convertible Senior Notes due 2014 means Parents outstanding 3.75% Convertible Senior Notes due 2014.
Acquired Indebtedness means Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary or that
is assumed in connection with an Asset Acquisition from such Person by a Restricted Subsidiary; provided, however, that Indebtedness of such Person that is redeemed, defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transactions by which such Person becomes a Restricted Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
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Adjusted Total Assets means, for any Person, the sum of:
(1) Total Assets for such Person as of the end of the fiscal quarter preceding the Transaction Date; and
(2) any increase in Total Assets following the end of such quarter determined on a pro forma basis, including any pro forma increase in
Total Assets resulting from the application of the proceeds of any additional Indebtedness.
Affiliate means, as
applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, control (including, with correlative meanings, the
terms controlling, controlled by and under common control with), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract or otherwise.
Applicable Premium
means, with respect to any Note on any redemption date, the greater of:
(1) 1.0% of the principal amount of the Note; and
(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of the Notes at April 15, 2016 (such redemption price being set forth in the table appearing above under the caption
Optional Redemption) plus (ii) all required interest payments due on the Notes through April 15, 2016 (excluding interest paid prior to the redemption date and accrued but unpaid interest to the redemption date), computed
using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(b) the principal
amount of the Note on such redemption date.
The trustee shall not be responsible for the calculation of, or otherwise
required to verify, the Applicable Premium.
Asset Acquisition means:
(1) an investment by an Parent or any of the Restricted Subsidiaries in any other Person pursuant to which such Person shall become a
Restricted Subsidiary or shall be merged, amalgamated or consolidated with and into Parent or any of the Restricted Subsidiaries; provided, however, that such Persons primary business is related, ancillary, incidental or complementary to the
businesses of Parent or any of the Restricted Subsidiaries on the date of such investment; or
(2) an acquisition by Parent or
any of the Restricted Subsidiaries from any other Person of assets or one or more properties of such Person; provided, however, that the assets and properties acquired are related, ancillary, incidental or complementary to the businesses of Parent
or any of the Restricted Subsidiaries on the date of such acquisition.
Asset Disposition means the sale or other
disposition by Parent or any of the Restricted Subsidiaries, other than to Parent or a Restricted Subsidiary, of:
(1) all or
substantially all of the Capital Stock of such Restricted Subsidiary, whether in a single transaction or a series of transactions; or
(2) all or substantially all of the assets that constitute a division or line of business, or one or more properties, of Parent or any of the Restricted Subsidiaries, whether in a single transaction or a
series of transactions.
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Asset Sale means any sale, transfer or other disposition, including by way of
merger, consolidation or Sale and Leaseback Transaction, in one transaction or a series of related transactions by Parent or any of the Restricted Subsidiaries to any Person other than Parent or any of the Restricted Subsidiaries of:
(1) all or any of the Capital Stock of any Restricted Subsidiary;
(2) all or substantially all of the assets that constitute a division or line of business of Parent or any of the Restricted
Subsidiaries;
(3) any property and assets of Parent or any of the Restricted Subsidiaries outside the ordinary course of
business of Parent or such Restricted Subsidiary;
(4) and, in each of (1), (2) and (3), that is not governed by the
provisions of the indenture applicable to mergers, consolidations and sales of assets of Parent or such Restricted Subsidiary;
provided, however, that Asset Sale shall not include:
(A) the lease or sublease of any Real Estate Asset;
(B) sales, leases, assignments, licenses, sublicenses, subleases or other dispositions of inventory, receivables and other current assets;
(C) the sale, conveyance, transfer, lease, disposition or other transfer of all or substantially all of the assets of the Issuers as
permitted under Consolidation, Merger and Sale of Assets;
(D) the license or sublicense of intellectual
property or other general intangibles;
(E) the issuance of Capital Stock by a Restricted Subsidiary in which the percentage
interest (direct and indirect) in the Capital Stock of such Restricted Subsidiary owned directly or indirectly by the Issuers after giving effect to such issuance, is at least equal to the percentage interest prior to such issuance;
(F) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim in the
ordinary course of business;
(G) any Restricted Payment permitted by the Limitation on Restricted Payments
covenant or that constitutes a Permitted Investment;
(H) sales, transfers or other dispositions of assets or the issuance of
Capital Stock of a Restricted Subsidiary with a fair market value not in excess of $10.0 million in any transaction or series of related transactions;
(I) sales or other dispositions of assets for consideration at least equal to the fair market value of the assets sold or disposed of, to the extent that the consideration received would satisfy clause
(2) of the third paragraph of the Limitation on Asset Sales covenant;
(J) sales or other dispositions
of cash or Temporary Cash Investments;
(K) the creation, granting, perfection or realization of any Lien permitted under the
indenture;
(L) the lease, assignment or sublease of property in the ordinary course of business so long as the same does not
materially interfere with the business of Parent and the Restricted Subsidiaries, taken as a whole;
(M) sales, exchanges,
transfers or other dispositions of damaged, worn-out or obsolete or otherwise unsuitable or unnecessary equipment or assets that, in Parents reasonable judgment, are no longer used or useful in the business of Parent or the Restricted
Subsidiaries and any sale or disposition of property in connection with scheduled turnarounds, maintenance and equipment and facility updates; and
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(N) the voluntary unwinding of any hedging agreements or other derivative instruments
(including any Interest Rate Agreements) other than those entered into for speculative purposes.
(O) dispositions of
receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in the bankruptcy or similar proceedings and exclusive factoring or similar arrangements;
(P) dispositions of the Opry Assets in one or a series of transaction for consideration in an amount not less than the fair market value
of such assets;
(Q) dispositions of property or assets in connection with the granting of state or local tax or economic
development incentives, provided that (a) the use of such property or assets by Parent or any of its Restricted Subsidiaries is not materially limited or restricted thereby, and (b) such dispositions are either (i) for nominal
consideration pursuant to arrangements that also provide for the return of such property or assets to Parent or one of its Restricted Subsidiaries for nominal consideration at the conclusion of the related agreements, or (ii) for consideration
that is no less favorable to Parent or its Restricted Subsidiaries than would be achieved in an arms length transaction with a Person that is not an Affiliate of Parent;
(R) the sale, exchange, transfer, assignment, pledge, or other disposition of rights with respect to the amended and restated letter of intent, dated May 24, 2012, between Gaylord Entertainment
Company (the predecessor of Parent) and The Peterson Companies L.C. (the LOI) or any equity interest in a Person substantially all of the assets of which consist of rights with respect to the LOI; and
(S) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or
in the bankruptcy or similar proceedings and exclusive factoring or similar arrangements.
Attributable Debt in
respect of a Sale and Leaseback Transaction means, at the time of determination, the present value of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction.
For purposes hereof such present value shall be calculated using a discount rate equal to the rate of interest implicit in such Sale and Leaseback Transaction, determined by lessee in good faith on a basis consistent with comparable determinations
of Capitalized Lease Obligations under GAAP; provided, however, that if such Sale and Leaseback Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the
definition of Capitalized Lease Obligations.
Average Life means at any date of determination with
respect to any debt security, the quotient obtained by dividing:
(1) the sum of the products of:
(i) the number of years from such date of determination to the dates of each successive scheduled principal payment of such debt security;
and
(ii) the amount of such principal payment, by
(2) the sum of all such principal payments.
Board of Directors
means, as to any Person, the board of directors (or similar governing body) of such Person or any duly authorized committee thereof.
Board Resolution means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the trustee.
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Business Day means a day other than a Saturday, Sunday or any other day on which
banking institutions in New York City or the location of the corporate trust office of the trustee are authorized or required by law, regulation or executive order to close.
Capital Stock means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting), including partnership or
limited liability company interests, whether general or limited, in the equity of such Person, whether outstanding on the Issue Date or issued thereafter, including all Common Stock and Preferred Stock; provided, for the avoidance of doubt, than any
debt security convertible into or exchangeable for such shares, interests or participations, shall not be treated as Capital Stock.
Capitalized Lease means, as applied to any Person, any lease of any property, whether real, personal or mixed, of which the discounted present value of the rental obligations of such Person as
lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person.
Capitalized Lease
Obligations means, at the time any determination is to be made, the amount of the liability in respect of a Capitalized Lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP.
Change of Control means the occurrence of one or more of the following events:
(1) any sale, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the
assets of Parent and its Subsidiaries taken as a whole to any person or group (as such terms are defined in Sections 13(d) and 14(d)(2) of the Exchange Act), together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of the indenture) other than (a) Parent or a Subsidiary of Parent or (b) in any such transaction where the Voting Stock of Parent outstanding immediately prior to such transaction constitutes or is converted
or exchanged for a majority of shares of the Voting Stock of such surviving or transferee Person; provided, however, that for the avoidance of doubt, the lease of all or substantially all of the assets of Parent and its Subsidiaries taken as a whole
shall not constitute a Change of Control;
(2) a person or group (as such terms are defined in
Sections 13(d) and 14(d)(2) of the Exchange Act), other than Parent or any Subsidiary of Parent, becomes the ultimate beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the
Voting Stock of Opco or any of its direct or indirect parent companies on a fully diluted basis;
(3) the approval by the
holders of Capital Stock of an Issuer of any plan or proposal for the liquidation or dissolution of Parent or an Issuer (whether or not otherwise in compliance with the provisions of the indenture); or
(4) individuals who on the Issue Date constitute the Board of Directors of Parent (together with any new or replacement directors whose
election, appointment or nomination for election by the stockholders of Parent is duly approved by a vote of at least a majority of the members of the Board of Directors of Parent then still in office who either were members of the Board of
Directors of Parent on the Issue Date or whose election, appointment or nomination was so approved, either by a specific vote of the Board of Directors or by approval of the proxy statement issued by Parent on behalf of the entire Board of Directors
in which such individual is named as nominee for director) cease for any reason to constitute a majority of the members of the Board of Directors of Parent then in office.
Code means the Internal Revenue Code of 1986, as amended.
Common Stock means, with respect to any Person, any and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) that have no preference on liquidation or with
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respect to distributions over any other class of Capital Stock, including partnership interests, whether general or limited, of such Persons equity, whether outstanding on the Issue Date or
issued thereafter, including all series and classes of common stock.
Common Units means any common units of Opco.
Consolidated EBITDA means, for any period, the aggregate net income (or loss) attributable to Parent and the
Restricted Subsidiaries for such period determined on a consolidated basis in conformity with GAAP, increased by, to the extent such amount was deducted in calculating such net income (without duplication):
(1) net income from discontinued operations;
(2) provision for income taxes;
(3) loss from unconsolidated entities;
(4) interest expense, net (other than interest income on the bonds referenced under the definition of Opry
Assets);
(5) depreciation and amortization;
(6) preopening costs;
(7) non-cash ground lease expense;
(8) equity-based compensation expense;
(9) impairment charges;
(10) closing costs of completed acquisition;
(11) REIT conversion costs; and
(12) any (gain) or loss, together with any related provision for taxes on such (gain) or loss, realized in connection with: (a) any disposition of assets by Parent or any Restricted Subsidiary
outside the ordinary course of business; or (b) the disposition of any securities by Parent or any Restricted Subsidiary or the extinguishment of any Indebtedness of Parent or a Restricted Subsidiary.
Consolidated Interest Expense means, for any period, the aggregate amount of interest expense, less the aggregate amount of
interest income for such period, in respect of Indebtedness of Parent and the Restricted Subsidiaries during such period, all as determined on a consolidated basis in conformity with GAAP including (without duplication):
(1) the interest portion of any deferred payment obligations;
(2) all commissions, discounts and other fees and expenses owed with respect to letters of credit and bankers acceptance financing;
(3) the net cash costs associated with Interest Rate Agreements and Indebtedness that is Guaranteed or secured by assets of Parent or any
Restricted Subsidiary; and
(4) all but the principal component of rentals in respect of Capitalized Lease Obligations paid,
accrued or scheduled to be paid or to be accrued by Parent and the Restricted Subsidiaries;
excluding, to the extent included
in interest expense above, (i) accretion of accrual of discounted liabilities not constituting Indebtedness, (ii) any expense resulting from the discounting of any Indebtedness in connection
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with the application of purchase accounting in connection with any acquisition, (iii) amortization of debt discount, amortization of deferred financing charges, debt issuance costs,
commissions, fees and expenses, (iv) any expensing of bridge, commitment or other financing fees and (v) non-cash costs associated with Interest Rate Agreements or attributable to mark-to-market valuation of derivative instruments pursuant
to GAAP.
Construction Indebtedness means, with respect to any Person, any Indebtedness incurred to finance the
cost of design, development, construction and opening of new or redeveloped assets that will be used or useful in a Permitted Business, including the cost of acquisition of related property, plant or equipment, to be owned by such Person or any of
its Restricted Subsidiaries and which is designated by such Person as Construction Indebtedness.
Credit
Agreement means the Third Amended and Restated Revolving Credit Agreement, dated as of August 1, 2011, as amended by First Amendment and Consent Agreement dated August 6, 2012, and by Second Amendment to Third Amended and Restated
Credit Agreement dated as of October 1, 2012, by and among Opco and the Restricted Subsidiaries now or hereafter party thereto as borrowers or guarantors, Parent, as guarantor, the lenders party thereto in their capacities as lenders thereunder
and Bank of America, N.A., as administrative agent, together with the related documents thereto (including any guarantee agreements and security documents).
Credit Facility means one or more credit or debt facilities (including any credit or debt facilities provided under the Credit Agreement), financings, commercial paper facilities, note
purchase agreements or other debt instruments, indentures or agreements, providing for revolving credit loans, term loans, swing line loans, notes, securities, letters of credit, swaps, treasury management agreements or other debt obligations, in
each case, as amended, restated, modified, renewed, refunded, restructured, supplemented, replaced or refinanced in whole or in part from time to time, including any amendment increasing the amount of Indebtedness incurred or available to be
borrowed thereunder, extending the maturity of any Indebtedness incurred thereunder or contemplated thereby or deleting, adding or substituting one or more parties thereto (whether or not such added or substituted parties are banks or other lenders
or investors).
Default means any event that is, or after notice or passage of time or both would be, an Event of
Default.
Designated Non-cash Consideration means the fair market value of non-cash consideration received by an
Issuer or any of its Restricted Subsidiaries in connection with an Asset Sale (other than Replacement Assets and Indebtedness described in the proviso of clause (2) in the first paragraph of Limitation on Asset Sales above),
that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, executed by the principal financial officer of Parent, less the amount of cash or Temporary Cash
Investments received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
Disqualified Stock means any class or series of Capital Stock of any Person that by its terms or otherwise is:
(1) required to be redeemed on or prior to the date that is 91 days after the Stated Maturity of the Notes;
(2) redeemable at the option of the holder of such class or series of Capital Stock, at any time on or prior to the date that is 91 days
after the Stated Maturity of the Notes (other than into shares of Capital Stock that is not Disqualified Stock); or
(3)
convertible into or exchangeable for Capital Stock referred to in clause (1) or (2) above or Indebtedness having a scheduled maturity on or prior to the date that is 91 days after the Stated Maturity of the Notes;
provided, however, that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock upon the occurrence of an asset sale or change of control occurring prior to the Stated Maturity of the Notes shall not constitute Disqualified Stock
if the asset sale or change of control provisions applicable to such Capital
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Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Limitation on Asset Sales and Repurchase of Notes upon a Change of
Control covenants described above and such Capital Stock specifically provides that such Person will not repurchase or redeem any such stock pursuant to such provisions unless such repurchase or redemption complies with the covenant described
above under the caption Certain CovenantsLimitation on Restricted Payments. Disqualified Stock shall not include (i) Capital Stock which is issued to any plan for the benefit of employees of Parent or its Subsidiaries or
by any such plan to such employees solely because it may be required to be repurchased by Parent or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations and (ii) Capital Stock issued to any future, present or
former employee, director, officer or consultant of Parent, an Issuer (or any of their respective direct or indirect parents or Subsidiaries) which is redeemable or subject to repurchase pursuant to any management equity subscription agreement,
stock option agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time. Disqualified Stock shall not include Common Units.
Equity Offering means a public or private offering of Capital Stock (other than Disqualified Stock) of Opco or Parent (other
than Disqualified Stock).
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto.
fair market value means the price that would be paid in an arms-length
transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy. For purposes of determining compliance with the provisions of the indenture described under the
caption Certain Covenants, any determination that the fair market value of assets other than cash or Temporary Cash Investments is equal to or greater than $15.0 million will be as determined in good faith by the Board of
Directors of Parent, whose determination shall be conclusive if evidenced by a Board Resolution, and otherwise by the principal financial officer of Parent acting in good faith, each of whose determination will be conclusive.
Four Quarter Period means, for purposes of calculating the Interest Coverage Ratio with respect to any Transaction Date, the
then most recent four fiscal quarters prior to such Transaction Date for which reports have been filed with the SEC or provided to the trustee pursuant to the Certain CovenantsSEC Reports and Reports to Holders covenant.
Funds From Operations for any period means the consolidated net income attributable to Parent and the Restricted
Subsidiaries for such period determined in conformity with GAAP, excluding REIT conversion costs and plus depreciation and amortization (excluding amortization of deferred financing costs and debt discounts) and impairment losses.
GAAP means generally accepted accounting principles in the United States of America as in effect as of the Issue Date
(without giving effect to SFAS No. 159 The Fair Value Option for Financial Assets and Financial Liabilities), including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. Except as otherwise
specifically provided in the indenture, all ratios and computations contained or referred to in the indenture shall be computed in conformity with GAAP applied on a consistent basis.
Guarantee means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner, including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations.
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Guarantor means Parent and each Subsidiary Guarantor.
Guaranty means a Guarantee by a Guarantor of the payment of the Notes by such Guarantor.
Incur means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become liable for or
with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness, including an Incurrence of Acquired Indebtedness; provided, however, that (1) the committed but undrawn portion of any
Construction Indebtedness available to any Person will be deemed to be incurred by such Person at the time of such commitment, will not be deemed to be incurred upon being subsequently drawn, and will be deemed to be no longer incurred to the extent
such commitment terminates or is withdrawn without being subsequently drawn, and (2) neither the accrual of interest, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, nor the accretion of
original issue discount shall be considered an Incurrence of Indebtedness.
Indebtedness means, with respect to
any Person at any date of determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) the face amount of letters of credit or other similar instruments (excluding obligations with respect to letters of credit (including
trade letters of credit) securing obligations (other than obligations described in (1) or (2) above or (5), (6) or (7) below) entered into in the ordinary course of business of such Person to the extent such letters of credit are
not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement);
(4) all unconditional obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase
price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except trade payables;
(5) all Capitalized Lease Obligations and Attributable Debt;
(6) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness
shall be the lesser of (A) the fair market value of such asset at that date of determination and (B) the amount of such Indebtedness;
(7) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person; and
(8) to the extent not otherwise included in this definition or the definition of Consolidated Interest Expense, obligations under Interest Rate Agreements.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations of
the type described above and, with respect to obligations under any Guarantee, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided, however, that:
(i) the amount outstanding at any time of any Indebtedness issued with original issue discount shall be deemed to be the face amount with
respect to such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at the date of determination in conformity with GAAP;
(ii) Indebtedness shall not include any liability for foreign, federal, state, local or other taxes;
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(iii) Indebtedness shall not include any obligations in respect of indemnification,
adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds, in each case securing any such obligations of the Issuers or any of the Restricted Subsidiaries, in any case Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition) in a principal amount not in excess of the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent
changes in value) actually received by the Issuers and the Restricted Subsidiaries on a consolidated basis in connection with such disposition;
(iv) Indebtedness shall not include contingent obligations under performance bonds, performance guarantees, surety bonds, appeal bonds or similar obligations incurred in the ordinary course of business
and consistent with past practices; and
(v) the committed but undrawn portion of any Construction Indebtedness of such
Person.
Interest Coverage Ratio means, on any Transaction Date, the ratio of:
(1) the aggregate amount of Consolidated EBITDA for the then applicable Four Quarter Period to
(2) the aggregate Consolidated Interest Expense during such Four Quarter Period.
In making the foregoing calculation (and without duplication),
(1) pro forma effect shall be given to any Indebtedness Incurred or repaid during the period (Reference Period) commencing on the first day of the Four Quarter Period and ending on the
Transaction Date (other than Indebtedness Incurred or repaid under a revolving credit or similar arrangement), in each case as if such Indebtedness had been Incurred or repaid on the first day of such Reference Period;
(2) Consolidated Interest Expense attributable to interest on any Indebtedness (whether existing or being Incurred) computed on a pro
forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Transaction Date (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term
in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period;
(3) pro forma effect shall be given to Asset Dispositions, Asset Acquisitions and Permitted Mortgage Investments (including giving pro forma effect to the application of proceeds of any Asset Disposition
and any Indebtedness Incurred or repaid in connection with any such Asset Acquisitions or Asset Dispositions) that occur during such Reference Period or subsequent to the end of the related Four Quarter Period as if they had occurred and such
proceeds had been applied on the first day of such Reference Period and after giving effect to Pro forma Cost Savings;
(4)
pro forma effect shall be given to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to (i) the application of proceeds of any asset disposition and any Indebtedness Incurred or repaid in connection with any such
asset acquisitions or asset dispositions, (ii) expense and cost reductions calculated on a basis consistent with Regulation S-X under the Exchange Act and (iii) Pro forma Cost Savings) that have been made by any Person that is or has
become a Restricted Subsidiary or has been merged with or into an Issuer or any of its Restricted Subsidiaries during such Reference Period or subsequent to the end of the related Four Quarter Period and that would have constituted asset
dispositions or asset acquisitions during such Reference Period or subsequent to the end of the related Four Quarter Period had such transactions occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset
acquisitions were Asset Dispositions or Asset Acquisitions and had occurred on the first day of such Reference Period;
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(5) the Consolidated Interest Expense attributable to discontinued operations, as determined
in accordance with GAAP, shall be excluded, but only to the extent that the obligations giving rise to such Consolidated Interest Expense will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Transaction
Date; and
(6) Consolidated Interest Expense attributable to interest on any Indebtedness (whether existing or being incurred)
computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Transaction Date (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness if
such agreement has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period. Interest on Indebtedness that may optionally be determined at
an interest rate based on a factor of a prime or similar rate, a Eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if not, then based upon such operational rate chosen as the
Issuers may designate. Interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based on the average daily balance of such Indebtedness during the applicable period except as set forth in clause
(1) of this definition. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuers to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP;
provided, however, that to the extent that clause (3) or
(4) of this paragraph requires that pro forma effect be given to an Asset Acquisition, Asset Disposition, Permitted Mortgage Investment, asset acquisition or asset disposition, as the case may be, such pro forma calculation shall be based upon
the four full fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of business, or one or more properties, of the Person that is acquired or disposed of to the extent that such financial information is
available or otherwise a reasonable estimate thereof is available.
Interest Rate Agreement means any interest
rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract or other
similar agreement or arrangement with respect to interest rates.
Investment in any other Person means any direct
or indirect advance, loan or other extension of credit (including by way of Guarantee or similar arrangement, but excluding advances to customers and distributors and trade credit made in the ordinary course of business that are, in conformity with
GAAP, recorded as accounts receivable on the consolidated balance sheet of Parent and the Restricted Subsidiaries and commission, travel and similar advances to employees, directors, officers, managers and consultants in each case made in the
ordinary course of business) or capital contribution to (by means of any transfer of cash or other property (tangible or intangible) to others or any payment for property or services solely for the account or use of others, or otherwise), or any
purchase or acquisition of Capital Stock, bonds, notes, debentures or other similar instruments issued by, such Person and shall include:
(1) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary; and
(2) the fair market value of the Capital Stock (or any other Investment), held by Parent or any of the Restricted Subsidiaries of (or in)
any Person that has ceased to be a Restricted Subsidiary;
provided, however, that the fair market value of the Investment
remaining in any Person shall be deemed not to exceed the aggregate amount of Investments previously made in such Person valued at the time such Investments were made, less the net reduction of such Investments. For purposes of the definition of
Unrestricted Subsidiary and the Limitation on Restricted Payments covenant described above:
(i)
Investment shall include the fair market value of the assets (net of liabilities (other than liabilities to Parent or any of the Restricted Subsidiaries)) of any Restricted Subsidiary at the time such Restricted Subsidiary is designated
an Unrestricted Subsidiary;
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(ii) the fair market value of the assets (net of liabilities (other than liabilities to
Parent or any of the Restricted Subsidiaries)) of any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary shall be considered a reduction in outstanding Investments; and
(iii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such
transfer.
Investment Grade Status means, with respect to the Issuers, when the Notes have (1) a rating of
Baa3 or higher from Moodys and (2) a rating of BBB- or higher from S&P, in each case published by the applicable agency.
Issue Date means April 3, 2013.
Lien means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Cash Proceeds means, (1) with respect to any Asset Sale, the proceeds of such Asset Sale in the form of
cash or Temporary Cash Investments, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or Temporary Cash Investments
(except to the extent such obligations are financed or sold with recourse to Parent or any of the Restricted Subsidiaries) and proceeds from the conversion or sale of other property received when converted to or sold for cash or cash equivalents,
net of brokerage and sales commissions and other fees and expenses (including fees and expenses of counsel, accountants and investment bankers) related to such Asset Sale, and (2) with respect to any issuance or sale of Capital Stock, the
proceeds of such issuance in the form of cash or Temporary Cash Investments, including payments in respect of deferred payment obligations (to the extent corresponding to the principal but not interest, component thereof) when received in the form
of cash or Temporary Cash Investments (except to the extent such obligations are financed or sold with recourse to Parent or any of its Restricted Subsidiaries) and proceeds from the conversion of other property received when converted to cash or
Temporary Cash Investments, net of attorneys fees accountants fees, underwriters or placement agents fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance
or sale and net of tax paid or payable as a result thereof.
Obligations means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
Opry Assets means the then existing tangible and intangible assets described as the Grand Ole Opry, the Ryman Auditorium, the General Jackson Showboat, the Gaylord Springs Golf Links, the
Wildhorse Saloon and WSM-AM in Part I of Parents annual report on Form 10-K for the year ended December 31, 2012, as filed with the Securities and Exchange Commission, together with (a) the taxable special obligation bonds of Prince
Georges County, Maryland issued in 2005 in connection with the National Harbor convention center project, with an initial principal amount of $95,000,000 and (b) the taxable subordinate special obligation bonds of Prince Georges
County, Maryland issued in 2008 in connection with the National Harbor convention center project, with an initial principal amount of $50,000,000.
Pari passu Indebtedness means any Indebtedness of an Issuer or any Subsidiary Guarantor that ranks pari passu in right of payment with the Notes or the Subsidiary Guarantee thereof by such
Subsidiary Guarantor, as applicable.
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Permitted Business means any business activity (including Permitted Mortgage
Investments) in which Parent and Restricted Subsidiaries are engaged in on the Issue Date, any business activity related to properties customarily constituting assets of a REIT owning assets in the hospitality or entertainment industries, or any
business reasonably related, ancillary, incidental or complementary thereto, or reasonable expansions or extensions thereof.
Permitted Government Revenue Bond Indebtedness means revenue bonds issued by a state or local government or an agency,
authority or other instrumentality thereof, the proceeds of which are used to finance or refinance the acquisition, construction, equipping or improvement of facilities or property used in a Permitted Business, and any deferred lease obligation of
Parent or any of its Restricted Subsidiaries relating thereto; provided, that (a) such revenue bonds are non-recourse to Parent and any of its Restricted Subsidiaries (unless and to the extent Parent or a Restricted Subsidiary is the holder of
such bonds), and (b) the principal of, interest on or costs relating to such revenue bonds are payable solely from (i) proceeds of such bonds, (ii) all or an incremental portion of sales, use, lodgers, property and other
generally applicable taxes (not including income taxes), whether generated by or levied on such facilities or property or the activities and business conducted thereon or upon property located in a broader area, (iii) reserve funds created with
proceeds of such bonds or with revenues described in (ii), (iv) a general or moral obligation pledge of a state or local government or agency, authority or other instrumentality thereof, or, (v) if Parent or a Restricted
Subsidiary is the holder of such bonds, payments made by Parent or a Restricted Subsidiary.
Permitted Investment
means:
(1)(a) an Investment in Parent or any of the Restricted Subsidiaries or (b) a Person that will, upon the making of
such Investment, become a Restricted Subsidiary or be merged or consolidated with or into or transfer or convey all or substantially all its assets to, Parent or any of the Restricted Subsidiaries and, in each case, any Investment held by such
Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;
(2) investments in cash and Temporary Cash Investments;
(3) Investments made by
Parent or the Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with the Limitation on Asset Sales covenant or from any other disposition or transfer of assets not
constituting an Asset Sale;
(4) Investments represented by Guarantees that are otherwise permitted under the indenture;
(5) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be
treated as expenses in accordance with GAAP;
(6) Investments received in satisfaction of judgments or in settlements of debt
or compromises of obligations incurred in the ordinary course of business;
(7) any Investment acquired solely in exchange for
Capital Stock (other than Disqualified Stock) of Parent or Opco, which Parent or Opco did not receive in exchange for a cash payment, Indebtedness or Disqualified Stock, but excluding any new cash Investments made thereafter;
(8) obligations under Interest Rate Agreements otherwise permitted under the indenture;
(9) Permitted Mortgage Investments;
(10) any transaction which constitutes an Investment to the extent permitted and made in accordance with the provisions of the second paragraph of the covenant described under Certain
CovenantsLimitation on Transactions with Affiliates (except transactions described under clauses (1), (4), (5), (8), (9) and (12) of such paragraph);
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(11) any Investment consisting of prepaid expenses, negotiable instruments held for
collection and lease, endorsements for deposit or collection in the ordinary course of business, utility or workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of
business;
(12) pledges or deposits by a Person under workers compensation laws, unemployment insurance laws or similar
legislation, or deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business;
(13) any Investment acquired by Parent or any of the Restricted
Subsidiaries (a) in exchange for any other Investment or accounts receivable or rents receivable held by Parent or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of
the issuer of such other Investment or accounts receivable or rents receivable or (b) as a result of a foreclosure by Parent or any of the Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to
any secured Investment in default;
(14) any Investment consisting of a loan or advance to officers, directors or employees of
Parent or any of the Restricted Subsidiaries (a) in connection with the purchase by such Persons of Capital Stock of Parent or (b) for additional purposes made in the ordinary course of business, in the aggregate under this clause
(14) not to exceed $2.5 million at any one time outstanding;
(15) any Investment made in connection with the funding of
contributions under any nonqualified employee retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expenses recognized by Parent and any of the Restricted Subsidiaries in connection with such
plans;
(16) any Investment existing on the Issue Date or made pursuant to a binding commitment in each case, in effect on the
Issue Date or an Investment consisting of any extension, modification, replacement or renewal of any such Investment or binding commitment existing on the Issue Date;
(17) additional Investments not to exceed the greater of (x) $100.0 million and (y) 4.0% of Adjusted Total Assets at any time outstanding;
(18) Investments in Unrestricted Subsidiaries and joint ventures in an aggregate amount, taken together with all other Investments made
in reliance on this clause not to exceed the greater of (x) $100.0 million and (y) 4.0% of Adjusted Total Assets (net of, with respect to the Investment in any particular Person, the cash return thereon received after the Issue Date as a
result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Consolidated EBITDA), not to exceed the amount of Investments in such Person made after the Issue Date in reliance on this
clause); and
(19) Investments in bonds, notes, loans or other Investments acquired solely as a means of implementing
government tax or economic incentive programs relating to property or assets used in, and/or permitted public costs in connection with, a Permitted Business, and which shall be repaid from tax revenues.
Permitted Liens means:
(1) Liens on any assets (including real or personal property) of Parent and any Restricted Subsidiary securing Indebtedness and other Obligations (A) under any Credit Facility that were permitted to
be incurred under clause (4)(A) under the subheading Certain CovenantsLimitation on Indebtedness or (B) permitted to be incurred under both clauses (2) and (3) under the subheading Certain
CovenantsLimitation on Indebtedness;
(2) Liens in favor of the Issuers or the Guarantors;
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(3) Liens on property of a Person existing at the time such Person is merged with or into or
consolidated with Parent or any Restricted Subsidiary or becomes a Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such merger, consolidation or acquisition and do not extend to any assets other than
those of the Person merged into, consolidated with Parent or such Restricted Subsidiary or acquired by Parent or such Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of the property by Parent or any Restricted Subsidiary, provided that such Liens were in existence prior to the contemplation of such acquisition
and do not extend to any property other than the property so acquired by Parent or such Restricted Subsidiary;
(5) Liens to
secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capitalized Lease Obligations) incurred under clause (4)(O) of the second paragraph of the covenant described above under the subheading
Certain CovenantsLimitation on Indebtedness covering only the assets acquired with such Indebtedness;
(7) Liens existing on the Issue Date;
(8) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently
concluded; provided, that, any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;
(9) Liens securing Permitted Refinancing Indebtedness constituting Secured Indebtedness; provided that any such Lien does not extend to or cover any property, Capital Stock or Indebtedness other than the
property, shares or debt securing the Indebtedness so refunded, refinanced or extended;
(10) Attachment or judgment Liens not
giving rise to a Default or an Event of Default;
(11) Liens on the Capital Stock of Unrestricted Subsidiaries securing
Indebtedness of such Unrestricted Subsidiaries;
(12) Liens incurred with respect to obligations that do not exceed $25.0
million at any one time outstanding;
(13) pledges or deposits under workmens compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which Parent or any Restricted Subsidiary is a party, or deposits to secure public or statutory
obligations of Parent or any Restricted Subsidiary or deposits or cash or government securities to secure surety or appeal bonds to which Parent or any Restricted Subsidiary is a party, or deposits as security for contested taxes or import or
customs duties or for the payment of rent, in each case incurred in the ordinary course of business;
(14) Liens imposed by
law, including carriers, warehousemens and mechanics Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings if a reserve or other appropriate provisions; if any, as shall be required by
GAAP shall have been made in respect thereof;
(15) survey exceptions, encumbrances, easements or reservations of, or rights
of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or liens incidental to the conduct of the business of Parent
or a Restricted Subsidiary or to the ownership of its properties which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of Parent or such Restricted
Subsidiary;
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(16) leases and subleases of real property which do not materially interfere with the
ordinary conduct of the business of Parent or any of the Restricted Subsidiaries;
(17) normal customary rights of setoff,
revocation, refund or chargeback with respect to money or instruments upon deposits of cash in favor of collecting or payor banks or other depository institutions;
(18) any interest or title of a lessor, licensor or sublicensor in the property subject to any lease, license or sublicense (other than property that is the subject of a Sale Leaseback Transaction);
(19) Liens of cash or Temporary Investments securing Interest Rate Agreements;
(20) Liens, deposits or pledges to secure performance of bids, tenders, contracts (other than contracts for the payment of Indebtedness),
leases, or other similar obligations arising in the ordinary course of business;
(21) Liens on property or assets used to
defease Indebtedness that was not incurred in violation of the Indenture;
(22) Liens arising from precautionary UCC financing
statements regarding operating leases and consignments; and
(23) Liens related to Permitted Government Revenue Bond
Indebtedness and the implementation of related or similar governmental tax or economic incentive programs.
Permitted
Mortgage Investment means any Investment in secured notes, mortgage, deeds of trust, collateralized mortgage obligations, commercial mortgage-backed securities, other secured debt securities, secured debt derivative or other secured debt
instruments, so long as such investment relates directly or indirectly to real property that constitutes or is used as a hotel, resort or other property customarily constituting an asset of a real estate investment trust specializing in properties
relating to the hospitality and entertainment industries.
Permitted Refinancing Indebtedness means any
Indebtedness of Parent or any of the Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other Indebtedness of Parent or any of the Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased, discharged or refunded (plus all accrued
interest thereon and the amount of any fees and expenses, including premiums, incurred in connection therewith);
(2) such
Permitted Refinancing Indebtedness has:
(a) a final maturity date later than (x) the final maturity date of the
Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded or (y) the date that is 91 days after the maturity of the Notes, and
(b) an Average Life equal to or greater than the Average Life of the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded or 91 days more than the Average Life of
the Notes;
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded is
contractually subordinated in right of payment to the Notes or any Guaranty, such Permitted Refinancing Indebtedness is contractually subordinated in right of payment to the Notes on terms at least as favorable to the holders of Notes as those
contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded;
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(4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged
or refunded is pari passu in right of payment with the Notes or any Guaranty thereof, such Permitted Refinancing Indebtedness is pad passu in right of payment with, or subordinated in right of payment to, the Notes or such Guarantee; and
(5) such Indebtedness is incurred either by Parent, an Issuer, any Subsidiary Guarantor or the Restricted Subsidiary who is the obligor
on the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded.
Person means
any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Preferred Stock means, with respect to any Person, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) that have a preference on liquidation or with respect to distributions over any other class of Capital Stock, including preferred partnership interests, whether general or limited, or such
Persons preferred or preference stock, whether outstanding on the Issue Date or issued thereafter, including all series and classes of such preferred or preference stock.
Pro forma Cost Savings means, with respect to any period, the reductions in costs (including such reductions resulting from
employee terminations, facilities consolidations and closings, standardization of employee benefits and compensation policies, consolidation of property, casualty and other insurance coverage and policies, standardization of sales and distribution
methods, reductions in taxes other than income taxes) that occurred during such period that are (1) directly attributable to an asset acquisition or (2) implemented and that are factually supportable and reasonably quantifiable by the
underlying records of such business, as if, in the case of each of clauses (1) and (2), all such reductions in costs had been effected as of the beginning of such period, decreased by any incremental expenses incurred or to be incurred during
such period in order to achieve such reduction in costs, all such costs to be determined in good faith by the chief financial officer of Parent.
Real Estate Assets of a Person means, as of any date, the real estate assets of such Person and its Restricted Subsidiaries on such date, on a consolidated basis determined in accordance with
GAAP.
REIT conversion costs means any REIT conversion costs included in Parents consolidated statements of
operations, prepared in accordance with GAAP, for the applicable period.
Replacement Assets means
(1) tangible non-current assets that will be used or useful in a Permitted Business or (2) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will
become on the date of acquisition thereof a Restricted Subsidiary (including the merger of such a Person into a Restricted Subsidiary of Parent).
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Subsidiary means, with respect to a Person, any Subsidiary of such Person other than an Unrestricted Subsidiary. Unless the context otherwise requires, Restricted Subsidiaries refer
to Restricted Subsidiaries of Parent, including, without limitation, the Issuers.
Sale and Leaseback Transaction
means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to Parent or any Restricted Subsidiary of any property, whether owned by Parent or any such Restricted Subsidiary at the Issue
Date or later acquired and held for more than 60 days, which has been or is to be sold or transferred by Parent or any such Restricted Subsidiary to such Person or any other Person from whom funds have been or are to be advanced by such Person on
the security of such property.
Secured Indebtedness means any Indebtedness secured by a Lien upon the property of
Parent or any Restricted Subsidiaries.
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Securities Act means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto.
Significant Subsidiary, with respect to any Person, means any Restricted Subsidiary
of such Person that satisfies the criteria for a significant subsidiary set forth in Rule 1-02(w) of Regulation S-X under the Exchange Act, as such regulation is in effect on the Issue Date.
S&P means Standard & Poors Ratings Services and its successors.
Stated Maturity means:
(1) with respect to any debt security, the date specified in such debt security as the fixed date on which the final installment of principal of such debt security is due and payable; and
(2) with respect to any scheduled installment of principal of or interest on any debt security, the date specified in such debt security
as the fixed date on which such installment is due and payable,
provided, that Stated Maturity shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
Subordinated Indebtedness means Indebtedness which by the terms of such Indebtedness is subordinated in right of payment to the principal of and interest and premium, if any, on the Notes or
any Guaranty.
Subsidiary means, with respect to any Person, any corporation, association or other business entity
of which more than 50% of the voting power of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person and the accounts of which would be consolidated with those of such Person
in its consolidated financial statements in accordance with GAAP, if such statements were prepared as of such date.
Subsidiary Guarantors means (i) each Restricted Subsidiary of the Issuers on the Issue Date that Guarantees the Credit
Agreement and (ii) each other Person that is required to become a Guarantor by the terms of the indenture after the Issue Date, in each case, until such Person is released from its Subsidiary Guaranty.
Subsidiary Guaranty means a Guaranty by a Subsidiary Guarantor.
Temporary Cash Investment means any of the following:
(1) United States dollars;
(2) direct obligations of the United States of America or any agency thereof or obligations fully and unconditionally guaranteed by the United States of America or any agency thereof;
(3) time deposits accounts, term deposit accounts, time deposits, bankers acceptances, certificates of deposit, Eurodollar time
deposits and money market deposits maturing within twelve months or less of the date of acquisition thereof issued by (A) a bank or trust company which is organized under the laws of the United States of America, any state thereof, and which
bank or trust company has capital, surplus and undivided profits aggregating in excess of $250 million and has outstanding debt which is rated A (or such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities Act) or (B) any money-market fund sponsored by a registered broker-dealer or mutual fund distributor;
(4) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (2) and
(3) above entered into with a bank meeting the qualifications described in clause (3) above;
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(5) commercial paper, maturing not more than six months after the date of acquisition,
issued by a corporation (other than an Affiliate of Parent) organized and in existence under the laws of the United States of America, any state of the United States of America with a rating at the time as of which any investment therein is made of
P-2 (or higher) according to Moodys or A-2 (or higher) according to S&P;
(6) securities
with maturities of twelve months or less from the date of acquisition issued or fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority
thereof, and rated at least A by S&P or Moodys;
(7) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (3)(A) of this definition;
(8) any fund investing substantially all of its assets in investments that constitute Temporary Cash Investments of the kinds described in clauses (1) through (7) of this definition; and
(9) money market funds that (A) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of
1940, as amended, (B) are rated AAA by S&P and Aaa by Moodys and (C) have portfolio assets of at least $5,000,000,000.
Total Assets means, for any Person as of any date, the sum of (a) Undepreciated Real Estate Assets plus (b) the book value of all assets (excluding Real Estate Assets and
intangibles) of such Person and its Restricted Subsidiaries as of such date of determination on a consolidated basis determined in accordance with GAAP.
Transaction Date means, with respect to the Incurrence of any Indebtedness by Parent or any of the Restricted Subsidiaries, the date such Indebtedness is to be Incurred and, with respect to
any Restricted Payment, the date such Restricted Payment is to be made.
Treasury Rate means, as of any redemption
date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) (Statistical Release)
that has become publicly available at least two business days prior to the redemption date or, in the case of a satisfaction, discharge or defeasance, at least two Business Days prior to the deposit of funds with the trustee to pay and discharge the
entire Indebtedness of the Notes (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 15, 2016; provided, however, that
if the period from the redemption date to April 15, 2016, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Undepreciated Real Estate Assets means, as of any date, the cost (being the original cost to Parent or the Restricted
Subsidiaries plus capital improvements) of real estate assets of the Issuers and the Subsidiaries on such date, before depreciation and amortization of such real estate assets, determined on a consolidated basis in conformity with GAAP.
Unrestricted Subsidiary means
(1) any Subsidiary of the Issuers that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of Parent in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
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Except during a Suspension Period, the Board of Directors of Parent may designate any
Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of the Issuers) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, Parent or any of its
Restricted Subsidiaries; provided, however, that:
(i) any Guarantee by Parent or any of its Restricted Subsidiaries of any
Indebtedness of the Subsidiary being so designated shall be deemed an Incurrence of such Indebtedness and an Investment by Parent or such Restricted Subsidiary (or all, if applicable) at the time of such designation;
(ii) either (a) the Subsidiary to be so designated has total assets of $1,000 or less, (b) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under the Limitation on Restricted Payments covenant described above or (c) substantially all of the assets of such Subsidiary consist of rights with respect to
the LOI; and
(iii) if applicable, the Incurrence of Indebtedness and the Investment referred to in clause (i) above
would be permitted under the Limitation on Restricted Payments covenant described above.
The Board of
Directors of Parent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that:
(i) no
Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation; and
(ii) all Indebtedness of such Unrestricted Subsidiary outstanding immediately after such designation would, if Incurred at such time, have been permitted to be Incurred (and shall be deemed to have been
Incurred) for all purposes of the indenture.
Any such designation by the Board of Directors of Parent shall be evidenced to
the trustee by promptly filing with the trustee a copy of the Board Resolution giving effect to such designation and an officers certificate certifying that such designation complied with the foregoing provisions.
U.S. Government Obligations means direct obligations of, obligations guaranteed by, or participations in pools consisting
solely of obligations of or obligations guaranteed by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States of America is pledged and that are not callable or redeemable at the
option of the issuer thereof.
Voting Stock means with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.
Wholly Owned means, with respect to any Subsidiary of any Person, the ownership of all of the outstanding Capital Stock of such Subsidiary (other than any directors qualifying shares or
Investments by individuals mandated by applicable law) by such Person or one or more Wholly Owned Subsidiaries of such Person.
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