0001040829 false 0001040829 2022-06-16 2022-06-16 iso4217:USD xbrli:shares iso4217:USD xbrli:shares

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM 8-K

 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 16, 2022

 

 

 

RYMAN HOSPITALITY PROPERTIES, INC.

(Exact name of registrant as specified in its charter)

 

 

  

Delaware   1-13079   73-0664379

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

One Gaylord Drive
Nashville
, Tennessee

37214
(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code: (615316-6000

 

(Former name or former address, if changed since last report)

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

  Securities registered pursuant to Section 12(b) of the Act:

  

Title of Each Class   Trading Symbol(s)   Name of Each Exchange on
Which Registered
Common Stock, par value $.01   RHP   New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2).

 

Emerging growth company  ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ¨

 

 

 

 

 

 

ITEM 1.01ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

 

On June 16, 2022, in connection with the closing of the OEG Transaction (as defined below), Ryman Hospitality Properties, Inc. (the “Company”) and certain of its subsidiaries, including RHP Hotels, LLC (the “Ryman Member”), RHP Hotel Properties, LP (the “Operating Partnership”) and OEG Attractions Holdings, LLC (f/k/a RHP Operations and Attractions Holdings, LLC) (“OEG”), and Atairos Group, Inc. (“Atairos”) and A-OEG Holdings, LLC, an affiliate of Atairos (the “Investor”), entered into that certain Second Amended and Restated Limited Liability Company Agreement for OEG (the “LLC Agreement”).

 

The LLC Agreement sets forth the rights and obligations of OEG’s members with respect to the ownership and operation of OEG, including, but not limited to, the following material terms.

 

Board Representation. OEG will be governed by a Board of Managers (the “Board”), subject to member consent to certain actions. The Board will initially consist of six members, four designated by the Ryman Member and two designated by the Investor. The Executive Chairman of the Board will initially be appointed by the Ryman Member. So long as the Investor may appoint one member to the Board, it will have representation on each Board committee. The Investor’s right to Board representation is contingent upon the Investor’s ownership of at least 10% of the outstanding units of OEG.

 

The Board’s membership will be modified from time to time to reflect the proportional ownership of outstanding units by the Ryman Member and the Investor, and in the event that the Ryman Member owns less than 51% of the outstanding units of OEG (whether due to transfer or dilution), the Ryman Member and the Investor will renegotiate the governance provisions above to reflect rights appropriate in light of their proportional ownership.

 

Major Decisions; Member Consent Rights. Subject to certain ownership thresholds, the approval of both the Ryman Member and the Investor will be required with respect to the “Major Decisions” set forth below.

 

So long as the Investor or the Ryman Member owns at least 20% of the outstanding units of OEG, it will have consent rights with respect to (i) the incurrence by OEG of any loan or other debt (including debt-like preferred securities), if such debt is not in conformity with “Permitted Financing Terms” (including designated leverage thresholds) (provided, however, that for so long as the Block 21 Loan (as defined in the LLC Agreement) remains outstanding, approval by the Investor will not be required for the refinancing of the Block 21 Loan), (ii) certain decisions with respect to selecting and compensating the chief executive officer of OEG and the chief financial officer of OEG and (iii) approval of OEG’s annual operating budget, provided that (A) if such budget is not approved, then OEG will operate on the prior year’s budget, with cost items not increasing by more than 7.5%, and (B) OEG will have the ability to fund on an annual basis certain costs associated with the development of new Ole Red units without Investor approval.

 

So long as the Investor or the Ryman Member owns at least 10% of the outstanding units of OEG, it will have consent rights with respect to (i) OEG’s issuance of new equity securities (other than “Exempt Securities” (generally, management awards issued under an approved plan, shares in an IPO (as defined in the LLC Agreement) or shares issued in a joint venture transaction or acquisition approved by the Board) or securities to which the Ryman Member or the Investor have preemptive rights), (ii) mergers involving OEG (except as subject to the Ryman Member’s right to cause a Sale of OEG), (iii) any asset or business acquisition or disposition by OEG in excess of $150 million (provided, however, that, for so long as the Block 21 Loan remains outstanding, approval by the Investor will not be required for OEG’s decision to sell Block 21 (as defined in the LLC Agreement)), (iv) OEG’s issuance of management equity units in excess of 8% of fully-diluted units, and (v) a change in OEG’s U.S. federal income tax classification or the making of any tax election that would materially disproportionately adversely affect the Investor.

 

So long as the Investor or the Ryman Member owns at least 5% of the outstanding units of OEG, it will have consent rights with respect to (i) certain affiliate transactions involving OEG, (ii) any dissolution, termination or liquidation of OEG (provided, however, that for so long as the Block 21 Loan remains outstanding, approval by the Investor will not be required for OEG’s decision to effect or to refrain from effecting the bankruptcy or liquidation of RHP Block 21, LLC (or any affiliate of OEG that is a successor borrower under the Block 21 Loan)) and (iii) and certain amendments to OEG’s certificate of formation.

 

So long as the Investor owns any outstanding units of OEG, it will have consent rights with respect to distributions to members of OEG that are disproportionate to the ownership percentages of the members and certain matters related to radio or television licenses.

 

Distributions. Distributions to members will be subject to approval by the Board. Owners, including the Investor, will be entitled to pro rata distributions with other common units except as described in the LLC Agreement.

 

Investor Purchase Option. The Investor will have the option to acquire additional common units of OEG from the Ryman Member, as follows (the “Purchase Option”): (i) in the fourth quarter of each of 2023, 2024 and 2025, the Investor may exercise the Purchase Option in an amount equal to the lesser of (a) $125 million, or (b) the maximum amount of proceeds that the Company may receive in respect of the common units of OEG purchased by the Investor under the income test applicable to the Company as a real estate investment trust (“REIT”), and provided that the Investor may not exercise the option in respect of a number of common units that would result in the Ryman Member ceasing to retain 51% of the outstanding common units after giving effect to the purchase.

 

The price to be paid by the Investor for common units acquired pursuant to the exercise of the Purchase Option (the “Purchase Option Price”) will be based on an enterprise valuation of 17 times OEG’s last twelve months Adjusted EBITDAre, reduced by net debt of OEG. The calculation of the last twelve months’ Adjusted EBITDAre is subject to a floor, generally 80% of the prior corresponding period’s Adjusted EBITDAre.

 

 

 

 

If the Investor elects to exercise the Purchase Option, then its rights with respect to an IPO Payment, a Sale Payment, an IPO Put Right, and a Seven-Year Put Right (each as defined below) will expire. Additionally, the Purchase Option will expire on the earlier to occur of (i) a Qualified IPO (as defined below), (ii) a Sale of OEG (as defined below), or (iii) a Qualified Spinoff (as defined below).

 

Company Exit Rights; Investor Right of First Offer (“ROFO”). At any time, the Ryman Member can cause a (i) “Qualified IPO” (defined as an underwritten initial public offering resulting in OEG being listed on a national securities exchange and raising at least $200 million in the aggregate, including in connection with a special purpose acquisition company transaction), (ii) “Qualified Spinoff” (defined as a spin or split transaction of OEG equity to stockholders of the Company that results in the listing of OEG securities on a national securities exchange, in which the Ryman Member holds no more than 20% of such equity following such transaction); or (iii) “Sale of OEG” (generally defined as a merger, sale of equity or other transaction involving OEG in which holders of OEG equity hold less than a majority of the voting power of the combined entity following such transaction, or the sale of all or substantially all of the assets of OEG).

 

Upon notice from the Ryman Member that it intends to cause a Qualified IPO, a Qualified Spinoff, or a Sale of OEG, the Investor has a right of first offer, or the right to make a proposal to purchase all of the Ryman Member’s equity in OEG.

 

In the case of a Sale of OEG, if the Ryman Member elects not to accept the Investor’s offer, it may close the Sale of OEG within a defined period, so long as the value of such transaction, meets certain requirements and the price is equal to or greater than 95% of the per unit consideration in the Investor’s ROFO proposal (the “ROFO+95% floor”).

 

IPO Payment. Upon a Qualified IPO that occurs on or before the seventh anniversary of the Investor’s original investment in OEG (the “Seventh Anniversary”), the Investor may be entitled to payment (an “IPO Payment”) from the Ryman Member. An “IPO Payment” will be required if the Post IPO Investor Stake Value (as defined below) measured on the 120th trading day post-IPO does not equal or exceed the Minimum Investor Stake Value (as defined below). If the IPO occurs after the fourth anniversary of the Investor’s original investment in OEG (the “Fourth Anniversary”), the IPO Payment will capped at the Payment Cap (as defined below). The IPO Payment may be satisfied by the Ryman Member in either (i) cash, (ii) OEG equity owned by the Ryman Member, or (iii) Company stock (measured in accordance with a volume-weighted average trading price (“VWAP”) calculation). The Investor’s right to an IPO Payment will terminate on or before the Seventh Anniversary when the Purchase Option closes.

 

“Post-IPO Investor Stake Value” means the sum of (i) proceeds received by the Investor in the IPO or in follow-on sales made in connection with the IPO or after, and (ii) the market value of OEG equity retained by the Investor.

 

“Minimum Investor Stake Value” means either (i) if a Qualified IPO closes on or prior to the second anniversary of the Investor’s original investment in OEG (the “Second Anniversary”), the product of (x) the Investor’s retained invested equity times (y) 1.4, reduced by any distributions from OEG and certain proceeds of any prior sales or (ii) if a Qualified IPO closes after the Second Anniversary but prior to Seventh Anniversary, the product of (x) the Investor’s retained invested equity times (y) 1.5, reduced by any distributions from OEG and certain proceeds of any prior sales.

 

Sale of OEG. Upon a Sale of OEG (but excluding a Qualified Spinoff) that occurs on or before the Seventh Anniversary, the Investor will be entitled to a payment (any such payment, a “Sale Payment”) if the value of the Investor’s retained invested equity (implied by the sale) does not equal or exceed the Minimum Investor Sale Value (as defined below). Any Sale Payment (i) may be satisfied by the Ryman Member in either (A) cash, (B) a preferential cash distribution, (C) additional consideration in the Sale of OEG or (D) Company stock (measured in accordance with a VWAP calculation) and (ii) will be capped at half of the Investor’s investment made in connection with the OEG Transaction (the “Payment Cap”) if the Sale of OEG occurs after the fifth anniversary of the Investor’s original investment in OEG (the “Fifth Anniversary”). The Investor’s right to a Sale Payment will terminate if at any time on or before the Seventh Anniversary the Purchase Option closes.

 

“Minimum Investor Sale Value” means either (i) if a Sale of OEG closes on or prior to the Fifth Anniversary, the greater of (A) the product of (x) Investor’s retained invested equity times (y) 1.5, reduced by any distributions from OEG and certain proceeds of any prior sales; or (B) an amount based on a 15% internal rate of return on retained invested equity, in each case reduced by any distributions from OEG and certain proceeds of prior sales or (ii) if a Sale of OEG closes on or after the Fifth Anniversary, but on or before the Seventh Anniversary, the product of (x) the Investor’s retained invested equity times (y) 1.5, reduced by any distributions from OEG and certain proceeds of prior sales.

 

Investor IPO Request; IPO Request Put Right. If OEG has not completed a Qualified IPO prior to the Fourth Anniversary, for a period of 30 days commencing on the Fourth Anniversary (the “IPO Request Period”), the Investor may request that OEG undertake a Qualified IPO (the “IPO Request Right”). If so requested by the Investor, the Ryman Member may either (i) elect to use reasonable efforts to cause OEG to undertake a Qualified IPO, or (ii) decline to undertake such Qualified IPO. If the Ryman Member declines to undertake such Qualified IPO, the Investor may cause the Ryman Member to acquire all of the Investor’s interest in OEG, at a price (the “Put Price”) equal to the product of (x) the Investor’s retained invested equity times (y) 1.5, adjusted for (i) reductions attributable to any distributions from OEG and certain proceeds of prior sales, and (ii) increases due to a pro-rated return on additional equity purchased by the Investor subsequent to its initial purchase. The Put Price may be paid by the Ryman Member in three equal annual installments (subject to 8% interest) and may be satisfied by the Ryman Member in either cash or Company stock (measured in accordance with a VWAP calculation). The IPO Request Right will terminate at the closing of the Purchase Option.

 

 

 

 

In the event of a Put Delay Event (as defined below), the Ryman Member will have rights to delay the exercise of the put rights or installment payments, as described in the LLC Agreement. “Put Delay Event” means the occurrence of either (i) an “Index Event” (defined as a 30% decline in the Dow Jones U.S. Hospitality REIT Index (measured based on a 5-trading day period, as compared to the previous 60-trading day period)); or (ii) a “Ryman Parent Stock Event” (meaning in any 60-day period, the occurrence of both a (A) 30% decline in the VWAP of Company stock (measured based on a 5-trading day period, as compared to the previous 60-trading day period) and (B) property closure or capacity limitation related to certain disaster events such as a flood or pandemic (including new variants of COVID-19).

 

Investor Seven-Year Put Right. If OEG has not completed a Qualified IPO, Sale of OEG or a Qualified Spinoff prior to the Seventh Anniversary, for a period of 30 days commencing on the Seventh Anniversary (the “Seven-Year Put Period”), the Investor may cause the Ryman Member to acquire all of the Investor’s interest in OEG (the “Seven-Year Put”). The Ryman Member will pay a purchase price to the Investor in connection with the Seven-Year Put (the “Seven-Year Put Price”) equal to the fair market value of the Investor’s interest. The Seven-Year Put Price may be paid by the Ryman Member in cash or Company stock (measured in accordance with a VWAP calculation) in two equal installments, with the first such installment due within 90 days of, and the second such installment due 18 months after, the Seventh Anniversary. The Seven-Year Put Right will terminate when the Purchase Option closes. The Ryman Member’s rights in the event of a Put Delay Event (as described in the LLC Agreement) also apply with respect to the Seven-Year Put Right.

 

IPO Demand Right. If the Investor has at any time exercised the Purchase Option, the Investor will, beginning on the Fifth Anniversary, have a right to demand that OEG undertake a Qualified IPO.

 

Transfers; Pledges. The Investor may not assign, sell or otherwise transfer its units in any manner (other than to certain permitted transferees) without the approval of the Ryman Member.

 

The Ryman Member will have limited rights to transfer its interest in OEG, subject to the extent necessary for the Company to maintain REIT compliance; and subject to requirements applicable to certain stake sales (in an amount after which Ryman would still own 51% of the outstanding units), requiring the Ryman Member to offer to sell to the Investor, at a price not to exceed the Purchase Option Price per unit, subject to the ROFO+95% floor. If the Investor does not elect to purchase the equity, the Ryman Member may transfer such equity without the Investor’s consent, provided that the transferee thereof would have no rights other than those generally available to all members, but with the Ryman Member having the right to grant certain minority protections (such as a Board designation) pursuant to an arrangement solely between the Ryman Member and such transferee. If the Ryman Member proposes to sell, assign or otherwise transfer its units in OEG to a third party, the Investor will be able to exercise its “tag-along” right and sell a proportionate share of its units in the proposed transaction.

 

Neither the Ryman Member nor the Investor may pledge its equity interests in OEG without approval by the Board.

 

The Ryman Member may invoke a “drag-along right” and cause the Investor to also sell its ownership in OEG in connection with a Sale of OEG.

 

Capital Calls; Preemptive Rights. The Investor is not required to contribute capital in the event of a shortfall in operating cash to cover expenses and/or capital needs, but OEG may issue new units without approval of the Investor after offering a preemptive right to the Investor to purchase equity, permitting the Investor to maintain its percentage ownership in OEG, provided that the Investor’s preemptive rights in such case would not apply to Exempt Securities.

 

Strategic Opportunities. Atairos, the Investor and NBCUniversal will agree in a separate agreement to explore strategic opportunities involving OEG.

 

Corporate Opportunity; Non-Compete. Prior to an IPO or a Qualified Spinoff, or prior to a time that the Investor or the Ryman Member no longer owns 20% or more of the fully-diluted units of OEG, neither the Ryman Member nor the Investor (nor their respective affiliates) will invest in or develop any live entertainment asset or business focused on the country lifestyle consumer without first offering such opportunity to OEG. Notwithstanding the foregoing, (i) the Investor or the Ryman Member may acquire a business that has a country lifestyle component, provided that such asset generated less than 25% of its revenues from such component, and (ii) affiliates of the Ryman Member may own such an asset at one or more of its hotel properties not located in Nashville, Tennessee so long as it has less than a 250- seat capacity.

 

REIT Savings Clause. For so long as the Ryman Member and its affiliates own units in OEG, OEG may not take any action which would reasonably be expected to cause the Company to fail to satisfy the applicable REIT tests; subject to the Ryman Member’s obligations with respect to the satisfaction of the Investor’s Sale Payment and IPO Payment, if applicable, and with respect to the IPO Put Right and the Seven-Year Put Right and certain other exceptions.

 

The above summary of the LLC Agreement does not purport to be complete and is qualified in its entirety by reference to the LLC Agreement, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

ITEM 8.01Other Events.

 

OEG Credit Agreement

 

On June 16, 2022, OEG Borrower, LLC (“OEG Borrower”) and OEG Finance, LLC (“OEG Finance”), each a wholly owned direct or indirect subsidiary of OEG, entered into a Credit Agreement (the “OEG Credit Agreement”) among OEG Borrower, as borrower, OEG Finance, certain subsidiaries of OEG Borrower from time to time party thereto as guarantors, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.

 

 

 

 

The OEG Credit Agreement provides for (i) a senior secured term loan facility in an aggregate principal amount equal to $300,000,000 (the “OEG Term Loan”) and (ii) a senior secured revolving credit facility in an aggregate principal amount not to exceed $65,000,000 (the “OEG Revolver”).

 

The OEG Term Loan and the OEG Revolver are each secured by substantially all of the assets of OEG Finance and each of its subsidiaries (other than Block 21 and Circle, as more specifically described in the OEG Credit Agreement). The OEG Term Loan shall bear interest at a rate equal to either, at OEG Borrower’s election, as of the closing contemplated by the OEG Credit Agreement: (a) the Alternate Base Rate plus 4.00% or (b) Adjusted Term SOFR plus 5.00% (all as more specifically described in the OEG Credit Agreement). The OEG Revolver shall bear interest at a rate equal to either, at OEG Borrower’s election, as of the closing contemplated by the OEG Credit Agreement: (a) the Alternate Base Rate plus 3.75% or (b) Adjusted Term SOFR plus 4.75%, which shall be subject to reduction in the applicable margin based upon OEG’s First Lien Leverage Ratio (all as more specifically described in the OEG Credit Agreement).

 

The OEG Term Loan matures on June 16, 2029 and the OEG Revolver matures on June 16, 2027.

 

At the closing contemplated by the OEG Credit Agreement, the entirety of the OEG Term Loan was advanced to OEG Borrower, which proceeds OEG intends to use in connection with the OEG Transaction (as defined below) and for general corporate purposes, and no revolving credit advances were made under the OEG Revolver.

 

Certain lenders under the OEG Credit Agreement or their affiliates have provided, and may in the future provide, certain commercial banking, financial advisory, and investment banking services in the ordinary course of business of the Company, its subsidiaries (including OEG, OEG Borrower and OEG Finance) and certain of its affiliates, for which they receive customary fees and commissions.

 

The above summary of the OEG Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the OEG Credit Agreement, which is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Press Release

 

On June 16, 2022, the Company issued a press release (the “Press Release”) announcing the completion of the previously announced proposed strategic investment by Atairos and NBCUniversal in OEG, which directly or indirectly owns the assets that comprise the Company’s Entertainment segment, whereby OEG issued and sold to the Investor, and the Investor acquired, 30% of the equity interests of OEG for approximately $296,000,000. The Company retains a controlling 70% equity interest in OEG and will continue to consolidate OEG and the other subsidiaries comprising the Company’s Entertainment segment in the Company’s consolidated financial statements (collectively, the “OEG Transaction”). A copy of the Press Release is filed herewith as Exhibit 99.2 and is incorporated herein by reference.

 

Strategic Side Letter

 

In connection with the OEG Transaction, Atairos, the Investor and NBCUniversal agreed in a separate letter agreement to explore certain strategic opportunities involving OEG (the “Strategic Side Letter”). The Strategic Side Letter will remain in effect until the earliest of (i) such time as the Investor owns less than 5% of the outstanding units of OEG, (ii) a Qualified IPO, including a SPAC Transaction (as defined in the LLC Agreement), (iii) the consummation of a Spinoff Transaction (as defined in the LLC Agreement), (iv) the consummation of a Sale of OEG and (v) such time as the Ryman Member owns less than 5% of the outstanding units of OEG.

 

Cautionary Note Regarding Forward-Looking Statements

 

This Current Report on Form 8-K contains statements as to the Company’s beliefs and expectations of the outcome of future events that are forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995. You can identify these statements by the fact that they do not relate strictly to historical or current facts. Examples of these statements include, but are not limited to, statements regarding the Company’s beliefs and expectations with respect to the OEG Transaction and the Company’s intended use of the net proceeds received from the OEG Transaction. These forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from the statements made, including, but not limited to, risks and uncertainties associated with the Company’s ability to capitalize on existing and new opportunities related to OEG and the Company’s Hospitality segment, the occurrence of any event, change or other circumstance that could limit the Company’s ability to capitalize on such existing and new opportunities and adverse effects on the Company’s common stock resulting from a failure to capitalize on such existing and new opportunities. Other factors that could cause actual results to differ from the Company’s beliefs and expectations are described in the filings made from time to time by the Company with the U.S. Securities and Exchange Commission and include the risk factors and other risks and uncertainties described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and its Quarterly Reports on Form 10-Q and subsequent filings. Except as required by law, the Company does not undertake any obligation to release publicly any revisions to forward-looking statements made by it to reflect events or circumstances occurring after the date hereof or the occurrence of unanticipated events.

 

 

 

 

ITEM 9.01FINANCIAL STATEMENTS AND EXHIBITS.

 

(d)Exhibits

 

10.1*Second Amended and Restated Limited Liability Company Agreement for OEG Attractions Holdings, LLC dated June 16, 2022.

 

99.1**Credit Agreement, dated as of June 16, 2022, among OEG Borrower, LLC, as borrower, OEG Finance, LLC, certain subsidiaries of OEG Borrower, LLC from time to time party thereto as guarantors, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.

 

99.2Press Release of Ryman Hospitality Properties, Inc. dated June 16, 2022.

 

104Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

*Certain schedules and similar attachments have been omitted in reliance on Instruction 4 of Item 1.01 of Form 8-K and Item 601(a)(5) of Regulation S-K. The Company will provide, on a supplemental basis, a copy of any omitted schedule or attachment to the Securities and Exchange Commission or its staff upon request.

 

**Certain schedules and similar attachments have been omitted in reliance on Item 601(a)(5) of Regulation S-K. The Company will provide, on a supplemental basis, a copy of any omitted schedule or attachment to the Securities and Exchange Commission or its staff upon request.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  RYMAN HOSPITALITY PROPERTIES, INC.
   
Date: June 16, 2022 By: /s/ Scott J. Lynn
  Name: Scott J. Lynn
  Title: Executive Vice President, General Counsel and Secretary

 

 

 

 

Exhibit 10.1 

 

Execution Version

 

______________________________

 

SECOND AMENDED AND RESTATED

 

LIMITED LIABILITY COMPANY AGREEMENT

 

FOR

 

OEG ATTRACTIONS HOLDINGS, LLC

 

A Delaware Limited Liability Company

 

______________________________

 

Dated as of June 16, 2022

 

THE MEMBERSHIP INTERESTS ISSUED PURSUANT TO THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (THIS “AGREEMENT”) HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAW OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN. CERTAIN OF THE MEMBERSHIP INTERESTS REPRESENTED BY THIS AGREEMENT ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFERABILITY SET FORTH IN THIS AGREEMENT.

 

 

 

 

TABLE OF CONTENTS

 

Page

 

Article I DEFINITIONS 2
Section 1.1 Certain Definitions 2
     
Article II ORGANIZATIONAL MATTERS 15
Section 2.1 Legal Status 15
Section 2.2 Name 15
Section 2.3 Purpose 15
Section 2.4 Term 15
Section 2.5 Limited Liability Company Agreement 15
     
Article III MEMBERS AND MEMBERSHIP INTERESTS 15
Section 3.1 Holders 15
Section 3.2 Confidentiality 16
Section 3.3 Certification 17
Section 3.4 Equitable Adjustment of Units 17
Section 3.5 Preemptive Rights 17
     
Article IV CAPITAL; DISTRIBUTIONS 20
Section 4.1 Loans; Debt Securities 20
Section 4.2 No Interest; No Right to Return of Investment 20
Section 4.3 Limitation on Liability 20
Section 4.4 Distributions; General 20
Section 4.5 Withholding 20
Section 4.6 Class B Units 20
     
Article V INTENTIONALLY OMITTED 21
     
Article VI RESERVED 21
     
Article VII MANAGEMENT 21
Section 7.1 Management of the Company 21
Section 7.2 Composition of Board; Number; Term of Office; Committees 22
Section 7.3 Vacancies; Removal; Resignation 23
Section 7.4 Board Approval; Voting 23
Section 7.5 Action by the Board 24
Section 7.6 Action by the Members 25
Section 7.7 Officers 26
Section 7.8 Limitation on Authority of Holders 27
     
Article VIII EXCULPATION, OTHER ACTIVITIES AND INDEMNIFICATION 28
Section 8.1 Exculpation; Elimination of Fiduciary Duties; Other Activities 28
Section 8.2 Indemnification 31

 

- i

 

 

Article IX BOOKS AND RECORDS 32
Section 9.1 Books and Records 32
Section 9.2 Bank Accounts 32
Section 9.3 Annual Operating Budget 33
Section 9.4 Reports 34
Section 9.5 Access to Information 34
Section 9.6 Accounting; Internal Controls 34
     
Article X TRANSFERS 35
Section 10.1 Restrictions on Transfers. 35
Section 10.2 Permitted Transfers 36
Section 10.3 Ryman Member Transfer Rights 37
Section 10.4 Transferability of Ryman Member and Investor Member Rights 37
Section 10.5 Other Transfer Conditions, Restrictions and Requirements 38
Section 10.6 Involuntary Transfers 40
Section 10.7 Termination of Status 40
     
Article XI WITHDRAWAL AND DISSOLUTION 40
Section 11.1 Withdrawal 40
Section 11.2 Events of Dissolution 41
Section 11.3 Liquidating Distributions 41
Section 11.4 Conduct of Winding-Up 41
     
Article XII REPRESENTATIONS, WARRANTIES, AGREEMENTS AND OTHER MATTERS 41
Section 12.1 Holder Representations 41
Section 12.2 Anti-Corruption Compliance 43
Section 12.3 FCC Matters 44
     
Article XIII SPECIAL RIGHTS 45
Section 13.1 Investor Member Purchase Option 45
Section 13.2 Right of First Offer in Favor of the Investor Member (Stake Sale) 52
Section 13.3 Tag-Along Rights 54
Section 13.4 Redemption and Cross-Purchase Rights 57
Section 13.5 Public Offering; Spinoff Transaction; Corporate Conversion in Connection with Public Offering or Spinoff Transaction 59
Section 13.6 Registration Rights 63
Section 13.7 Drag-Along Rights 63
Section 13.8 Additional Terms Applicable to Covered Transactions 65
Section 13.9 Payment Exception 68
Section 13.10 Investor ROFO 68
Section 13.11 IPO Shortfall 70
Section 13.12 Sale Payment upon a Sale of the Company 72
Section 13.13 Investor IPO Request; IPO Request Put Right 75
Section 13.14 Investor Seven-Year Put Right 77
Section 13.15 Rights Terminate; Suspension 79
Section 13.16 Put Delay Event 80

 

- ii

 

 

Section 13.17 Ryman Member Right to Assign 82
Section 13.18 REIT Protections 82
Section 13.19 Valuation of Securities and Other Non-Cash Consideration 83
     
Article XIV MISCELLANEOUS 83
Section 14.1 Amendment of Agreement 83
Section 14.2 Remedies 84
Section 14.3 Waiver 84
Section 14.4 Notices 84
Section 14.5 Entire Agreement 84
Section 14.6 Conflict Between this Agreement and Related Agreements 84
Section 14.7 Binding Effect; Third-Party Beneficiaries 85
Section 14.8 Severability 85
Section 14.9 Headings 85
Section 14.10 No Strict Construction 85
Section 14.11 Interpretation 85
Section 14.12 Counterparts 86
Section 14.13 Governing Law 86
Section 14.14 Jurisdiction and Venue 86
Section 14.15 Expenses 87
Section 14.16 Specific Performance 87
Section 14.17 Legal Counsel 87
Section 14.18 Advice from Independent Legal Counsel; Voluntary Agreement 87
Section 14.19 Ryman Parent Guarantee; Successors 87
Section 14.20 Atairos Parent Guarantee 88

 

Schedules and Exhibits:

 

Schedule A :      Membership Interests
Schedule B :      Initial Managers
Schedule C :      Major Decisions
Schedule D :      Permitted Financing Terms
Schedule E :      Sample LTM Adjusted EBITDAre and Option Price
Schedule F :      Sample Minimum Investor Stake Value, Post IPO Investor Stake Value
Schedule G :      Sample Minimum Investor Sale Value and Sale Payment
Schedule H :      Sample IPO Request Put Price
     
Exhibit A :      Form of Joinder
Exhibit B :      Registration Rights
Exhibit C :      Form of Assignment of Membership Interests

 

- iii

 

 

This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of OEG Attractions Holdings, LLC, formerly known as RHP Operations and Attractions Holdings, LLC (the “Company”), is made and entered into as of this 16th day of June, 2022 (the “Effective Date”), by and among the Company, RHP Hotel Properties, LP, a Delaware limited partnership (the “RHP Operating Partnership”), Ryman Hospitality Properties, Inc., a Delaware corporation (“Ryman Parent”), Atairos Group, Inc., a Cayman Islands exempted company (“Atairos Parent”), each Person listed as a Member on Schedule A attached hereto as of the date hereof and each Person subsequently admitted as a member of the Company in accordance with the terms hereof.

 

RECITALS

 

WHEREAS, the Company was formed as a Delaware limited liability company on September 18, 2012, by the filing of the Certificate of Formation with the Secretary of State of the State of Delaware and the name of the Company has been changed from “RHP Operations and Attractions Holdings, LLC” to “OEG Attractions Holdings, LLC” pursuant to a Certificate of Amendment thereto filed with the Secretary of State of Delaware on January 25, 2022;

 

WHEREAS, the initial Limited Liability Company Agreement of the Company dated as of September 18, 2012 (the “Initial LLC Agreement”) was entered into with RHP Hotels, LLC (f/k/a Gaylord Hotels, Inc.) as the initial member of the Company (the “Ryman Member”);

 

WHEREAS, the Ryman Member (as the Sole Member) and the Company amended and restated the Initial LLC Agreement as of November 16, 2012 (the “Amended LLC Agreement”);

 

WHEREAS, as part of the transactions contemplated by the Investment Agreement (as hereinafter defined), immediately prior to the closing of the transactions contemplated by the Investment Agreement and the execution of this Agreement, Ryman Member transferred all the membership interests in the Company to OEG MergeCo, LLC, and OEG MergeCo, LLC merged with and into the Company, with the Company as the surviving entity (the “Merger”), with Ryman Member receiving all the Membership Interests in the Company as of the effectiveness of the Merger as the sole Member of the Company prior to the admission of the Investor Member upon the effectiveness of this Agreement;

 

WHEREAS, pursuant to an Investment Agreement, dated as of April 4, 2022, by and among the Company, the Ryman Member, RHP Operating Partnership, Ryman Parent, the Investor Member and Atairos Group, Inc., a Cayman Islands exempted company, as amended by that certain First Amendment to Investment Agreement, dated May 26, 2022, and as amended by that certain Second Amendment to Investment Agreement, dated June 15, 2022 (the “Investment Agreement”), the Investor Member agreed to become a Member of the Company and purchase units of membership interests in the Company in consideration of the contribution to the Company by the Investor Member of the Initial Funding Amount, which the Company used to repay all or a portion of the Intercompany Note (as hereinafter defined) and to fund a distribution to the Ryman Member, in each case on the terms set forth in the Investment Agreement;

 

WHEREAS, the Members desire to enter into this Agreement to set forth herein their respective rights, duties and obligations with respect to the Company and each other and reflect the issuance of the Membership Interest to the Investor Member and are hereby amending and restating the Amended LLC Agreement by entering into this Agreement, which supersedes and replaces the Amended LLC Agreement in its entirety.

 

 

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members agree as follows:

 

Article I
DEFINITIONS

 

Section 1.1      Certain Definitions.

 

(a)            For purposes of this Agreement, the following terms shall have the meanings set forth below:

 

Affiliate” means, with respect to any Person, any other Person Controlling, Controlled by or under common Control with such Person. Notwithstanding the foregoing, (a) the Investor Member shall not in any event be considered an Affiliate of (x) any Portfolio Company and (y) any member of the Comcast Group, and (b) neither the Investor Member nor the Ryman Member shall in any event be considered an Affiliate of the Company or any of its Subsidiaries, and vice versa.

 

Anniversary” used with a number indicating years means the specified anniversary of the date of this Agreement; for example, “Seventh Anniversary” means the seventh anniversary of the date of this Agreement in 2029.

 

Annual Maximum Permissible Amount” shall mean, for any given calendar year, the maximum amount of cash that the Ryman Member could receive in respect of its Units for such year without causing the Ryman Parent’s estimated gross income described in Section 856(c)(3) of the Code to represent less than the minimum percentage permitted by Section 856(c)(3) plus five percent (5%) of its total estimated gross income (within the meaning of Section 856(c)(3) of the Code), which maximum amount shall be determined by the Ryman Member in good faith in accordance with Section 13.1.

 

Anti-Corruption Laws” means all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act and in any other applicable jurisdiction.

 

Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.

 

Class A Holder” means any Holder owning Class A Units, in such Holder’s capacity as such.

 

Class A Unit” means any Unit having the rights and obligations specified with respect to a “Class A Unit” in this Agreement and designated as such on Schedule A hereto.

 

- 2 -

 

 

Class B Unit” means a Unit hereinafter designated as a “Class B Unit” and having the rights and obligations specified with respect thereto, as mutually agreed by the Ryman Member and the Investor Member, acting in good faith.

  

Code” means the Internal Revenue Code of 1986, as amended. All references in this Agreement to sections of the Code shall include any corresponding provision or provisions of any succeeding law.

 

Comcast Group” means (i) Comcast Parent, (ii) any entity (A) into which Comcast Parent merges, (B) to which Comcast Parent transfers all or substantially all of its assets or (C) of which Comcast Parent becomes a Subsidiary as part of a reorganization, restructuring or other transaction (or, if such entity has an ultimate parent company, the ultimate parent company of such entity), and (iii) any Subsidiary of a Person described in the foregoing clauses (i) or (ii), but not any Portfolio Company of Atairos Parent or a Portfolio Company of an Affiliate of Atairos Parent.

 

Comcast Parent” means Comcast Corporation, a Pennsylvania corporation.

 

Confidential Information” means any and all information, statements, reports, trade secrets, documents, and other materials prepared or produced by or on behalf of the Company, the Board or any Subsidiary of the Company or any of their respective officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative of such Person (collectively “Representatives”) and any and all information, statements, reports, trade secrets, documents, and other materials concerning the Company or any Persons that are or become its Subsidiaries or the financial condition, business, operations or prospects of the Company or any such Persons in the possession of or furnished to any Member (including by virtue of its present or former right to designate a Manager of the Company); provided that the term “Confidential Information” does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by or on behalf of a Member or its Representatives in violation of this Agreement, (ii) was available to such Member on a non-confidential basis prior to its disclosure to such Member or its Representatives by the Company or (iii) becomes available to such Member on a non-confidential basis from a source other than the Company or its Representatives after the disclosure of such information to such Member or its Representatives by or on behalf of the Company, which source is (at the time of receipt of the relevant information) not, to the Member’s knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person; provided, further, that, notwithstanding anything to the contrary contained herein, “Confidential Information” in the possession of the Ryman Member or the Investor Member or any of their respective Affiliates prior to the date hereof shall not by virtue of the foregoing exceptions be deemed not to be Confidential Information and the Ryman Member shall and shall cause its Affiliates, and the Investor Member shall and shall cause its Affiliates, to keep or cause to be kept confidential such information in accordance with Section 3.2 as fully as if they did not have access to such information prior to the date of this Agreement and only received it after the date of this Agreement.

 

Control(including the terms “Controlling,” “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether by agreement, contract or law or through any ownership of voting securities, power-of-attorney, proxy, or other arrangement or mechanism.

 

- 3 -

 

 

Debt-Like Preferred Equity” means preferred equity that (i) has a “hard coupon”, minimum return or the equivalent, such as a preferred return or similar required payments that must be paid on dates certain, (ii) a “hard maturity” such as mandatory redemption date or similar required date of repayment or redemption, (iii) provides for a change in control, required redemption, increase in preferred return, right to change control or management, buy-sell mechanism or similar remedies in the event of a failure to repay or redeem on date certain or satisfy preferred return or similar payment thresholds, (iv) is secured by a pledge of ownership interests, or (v) is treated as debt under GAAP.

 

Earnout Transactions” has the meaning given such term in the Investment Agreement.

 

Enforcement Action” means any investigation of the Company, any of its Subsidiaries, any of its or their officers, directors, employees or agents or, to the Company’s knowledge, any of its or its Subsidiaries’ stockholders, partners or other equity holders (in connection with the business of the Company and its Subsidiaries) for alleged violation of any Anti-Corruption Laws.

 

Equity Securities” means, with regard to any Person, as applicable, (a) any capital stock, voting, partnership, membership, joint venture or other ownership or equity interests, or other share capital of such Person, (b) any securities (including debt securities) of such Person, directly or indirectly, convertible into or exchangeable for any capital stock, partnership, membership, joint venture or other ownership or equity interests, or other share capital (whether voting or non-voting, whether preferred, common or otherwise) of such Person or containing any profit participation features with respect to such Person, (c) any rights or options directly or indirectly to subscribe for or to purchase any capital stock, partnership, membership, joint venture or other ownership or equity interests, other share capital of such Person or securities containing any profit participation features with respect to such Person or directly or indirectly to subscribe for or to purchase any securities directly or indirectly convertible into or exchangeable for any capital stock, partnership, membership, joint venture or other ownership interests, other share capital of such Person or securities containing any profit participation features with respect to such Person, (d) any share, unit or membership interest appreciation rights, phantom share rights, contingent interest or other similar rights relating to such Person (including any equity-linked rights or rights, to payments or otherwise, tied to the equity value of such Person), or (e) any Equity Securities of such Person issued or issuable with respect to the securities referred to in clauses (a) through (d) above in connection with a combination of shares, units or membership interests or recapitalization, exchange, merger, consolidation or other reorganization.

 

Family Member” means, with respect to any individual, (i) such individual’s spouse or ex-spouse, (ii) such individual’s parents, (iii) such individual’s children, step-children or their respective lineal descendants and (iv) any trust or other estate planning entity for the exclusive benefit of any individuals referenced in (i) through (iii) above.

 

- 4 -

 

 

Federal Communications Laws” means the Communications Act of 1934, as amended, and the rules, regulations and written policies of the Federal Communications Commission (“FCC”) promulgated pursuant thereto, as the same may be amended from time to time.

 

Fiscal Year” means the calendar year.

 

GAAP” means U.S. generally accepted accounting principles applied on a consistent basis during the periods involved.

 

Governmental Body” means any federal, state or local court, tribunal, administrative or regulatory department, agency or commission, arbitral or judicial body, or other governmental or administrative authority, domestic or foreign.

 

Holder” means any Member or any other Person owning a Membership Interest (including any Involuntary Transferee), regardless of whether and to what extent such Member or other Person has been, is or will be admitted to the Company as a member in accordance with the provisions of this Agreement and applicable law.

 

Indemnitee” means any Person that is or was (a) a Manager, Officer or employee or (b) serving or served at the Company’s request as a director, manager, officer, employee or agent of another Person.

 

Initial Funding Amount” means an amount equal to the Purchase Price (as defined in the Investment Agreement).

 

Intercompany Note” means that certain promissory note dated as of April 5, 2021 in the original principal amount of $ 509,000,000, (which amount is subject to increase including in connection with the Block 21 Acquisition) in favor of RHP Hotel Properties L.P., which is being repaid and extinguished upon the execution of this Agreement.

 

Investor Member means, collectively, A-OEG Holdings, LLC, a Delaware limited liability company, and any Permitted Transferee of the Investor Member holding Units, in each case, for so long as any such Person is the owner of a Unit and a Permitted Transferee.

 

Involuntary Transfer” means except for any Transfer approved in accordance with Section 10.6, any Proceeding, transaction or other event by or in which any Person is involuntarily deprived or divested of any right, title or interest in or to any Membership Interest (or portion thereof), including (i) a seizure under levy of attachment or execution, (ii) a foreclosure under a pledge, (iii) a Transfer to a trustee in bankruptcy, receiver or other officer or agency, (iv) a Transfer to a governmental officer or agency pursuant to a statute pertaining to escheat or abandoned property or (v) a Transfer occurring as a result of or otherwise in connection with the death or divorce of a Person; provided that an Involuntary Transfer shall not be applicable to the Ryman Member, the Investor Member or any of their respective Permitted Transferees.

 

Involuntary Transferee” means any Person to the extent such Person has acquired or will acquire any right, title or interest in or to any Membership Interest (or portion thereof) as a result of or in connection with an Involuntary Transfer, unless and until such Person is admitted as a Member in accordance with this Agreement with respect to and to the extent of such Membership Interest.

 

- 5 -

 

 

IPO” means an underwritten initial public offering of the Equity Securities of the Company or a New Company registered on Form S-1 (or any equivalent or successor form) under the Securities Act for listing on a nationally recognized exchange.

 

IPO Disruption Event” means either (i) the market for equity securities in the United States shall have deteriorated from market conditions reasonably foreseeable as of the IPO Acceptance Date so as to render it impracticable or inadvisable to proceed with an IPO of the Company’s Equity Securities in the reasonable judgment of the proposed underwriters for the IPO or (ii) the earnings, business, consolidated financial position or consolidated results of operations of the Company and its Subsidiaries considered as one enterprise shall have deteriorated from those reasonably foreseeable as of the IPO Acceptance Date, which in the reasonable judgment of the proposed underwriters for the IPO is so material and adverse as to make it impracticable or inadvisable to proceed with the IPO.

 

Liens” has the meaning ascribed to such term in the Investment Agreement.

 

LMA” means the Local Programming and Marketing Agreement, dated as of the date hereof, between WSM-AM, LLC, a Delaware limited liability company, and Grand Ole Opry, LLC, a Delaware limited liability company.

 

Major Decision” means the actions set forth on Schedule C in items (1) through (12).

 

Management Member” means (i) any current or former officer, employee, director, independent contractor or consultant of the Company or any of its Subsidiaries, who directly or indirectly, received Class B Units or any other equity incentive compensation arrangement approved by the Board, (ii) any other Member who is designated as a “Management Member” pursuant to a written agreement or acknowledgment with such Member, or (iii) any Permitted Transferee of a party described in the foregoing clauses (i) and (ii). Notwithstanding anything to the contrary contained herein, in no event shall the term include the Investor Member, the Ryman Member or any of their Permitted Transferees.

 

Member” means each Person admitted to the Company as a Member in accordance with the provisions of this Agreement and applicable law, including any Permitted Transferee, in each case, only for so long as such Person is the owner of Units. If a Person admitted as a Member with respect to a Membership Interest acquires an additional Membership Interest (whether as a result of an Involuntary Transfer or otherwise), such Person shall not be treated as a Member with respect to such additional Membership Interest unless and until such Person is admitted as a Member in accordance with this Agreement with respect to and to the extent of such additional Membership Interest. Notwithstanding anything to the contrary in this Agreement but subject to compliance with Section 10.5, any Permitted Transferee shall automatically be admitted as a Member in accordance with Section 10.2 with respect to any Units it receives under and in accordance with this Agreement.

 

- 6 -

 

 

Membership Interest” means, as provided in this Agreement, the entire equity interest in the Company of a Person (whether or not such Person is or has been admitted as a Member), including the number of Units, any economic rights, any right to participate in liquidating and non-liquidating distributions from the Company, any obligation to make additional contributions, and any and all other rights, obligations and duties associated with such equity interest.

 

Officer” means any Person validly and properly appointed and acting as an officer of the Company in accordance with Section 7.7.

 

Option Agreement” means the Option Agreement, dated as of the date hereof, between WSM-AM, LLC, a Delaware limited liability company, and Grand Ole Opry, LLC, a Delaware limited liability company.

 

Outstanding Units” means, at any time of determination, the number of then outstanding Class A Units.

 

Permitted Transferee” means:

 

(a)            with respect to the Investor Member, (i) any of Atairos Parent’s controlled Affiliates, (ii) any of Atairos Parent’s Affiliates that is controlled, managed or advised on a discretionary basis by (A) Atairos Partners, L.P., (B) Atairos Management, L.P. or (C) any other Affiliate of Atairos Partners, L.P. or Atairos Management, L.P. that acts as an investment advisor to, or, directly or indirectly, as a general partner, controlling shareholder or equivalent of, Atairos Parent, (iii) solely in the event of and following or in connection with the winding up or dissolution of Atairos Parent, (A) any member, shareholder, general partner or limited partner of Atairos Parent, (B) any officer, general partner, director, manager, shareholder, employee or limited partner of any of the Persons described in the foregoing clause (A), (C) any Family Member, executor, administrator, testamentary trustee, legatee or beneficiary of any of the Persons described in the foregoing clauses (A) or (B), (D) a trust or similar entity substantially all the economic interests of which are held by or for the Persons described in the foregoing clauses (A) through (C), and (E) any corporation, limited liability company or other legal entity, substantially all of the economic interests of which are held by or for the benefit of any of the Persons described in the foregoing clauses (A) through (C) and (iv) any member of the Comcast Group;

 

(b)            with respect to the Ryman Member or the RHP Operating Partnership, (i) Ryman Parent, (ii) any entity (A) with which Ryman Parent or the RHP Operating Partnership merges, (B) to which Ryman Parent or the RHP Operating Partnership transfers all or substantially all of its assets or (C) of which Ryman Parent or the RHP Operating Partnership becomes a Subsidiary as part of a reorganization, restructuring or other transaction (or, if such entity has an ultimate parent company, the ultimate parent company of such entity), or (iii) any Subsidiary of a Person described in the foregoing clauses (i) or (ii); and

 

(c)            in the case of a Member that is a natural person, (x) a Transferee by testamentary or intestate disposition or (y) any Family Member of such Member, and which in each case of clauses (x) or (y), if an entity or trust, is controlled by the Transferring Member (where “control” means the possession, directly or indirectly, of the power to direct the disposition and voting of the Units transferred to such trust or other legal entity).

 

- 7 -

 

 

Person” means any individual, partnership, corporation, limited liability company, joint venture, trust, association or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

 

Portfolio Company” means any portfolio operating company in which the Investor Member or any of its Affiliates has made a debt or equity investment.

 

Preemptive Rights Members” means each Holder of Class A Units who is an “accredited investor” as defined under Rule 501 of Regulation D of the Securities Act.

 

Proceeding” means any claim, suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) in each case commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

 

Qualified IPO” means a firmly underwritten public offering of common stock of a New Company, after which the common stock is listed on the New York Stock Exchange, NASDAQ Global Select Market or NASDAQ Global Market, raising proceeds to the New Company and/or its equityholders of $200,000,000 or more in the aggregate (without deducting underwriting discounts, expenses and commissions). A SPAC Transaction will be deemed a Qualified IPO for purposes of Section 13.11 (but subject to any requirements specifically applicable to a SPAC Transaction as required by this Agreement).

 

Qualified Spinoff” means a Spinoff Transaction where no more than twenty percent (20%) of the economic or voting interests of all Equity Securities then outstanding of the Issuer following the spin off, split off or other dividend or other distribution are held, directly or indirectly, by the Ryman Member or any of its Permitted Transferees, or, after a Qualified IPO, any Spinoff Transaction.

 

Redemption Fair Market Value” means, in Section 13.4 with respect to any Units or any portion thereof, the fair market value thereof determined as of the applicable reference date in good faith by the Board, taking into consideration all factors it deems relevant; provided, that, for purposes of Article XIII, Redemption Fair Market Value may take into consideration any lack of liquidity, minority interest or other similar discounts as might otherwise be applicable under generally accepted appraisal and valuation standards.

 

Ryman Parent Common Stock” means the common stock, $0.01 par value per share, of Ryman Parent to the extent listed on a United States national securities exchange and registered under Section 12(b) of the Securities Exchange Act.

 

Sale of the Company” means any of the following, whether in a single transaction or series of related transactions, with a third party: (a) any merger, consolidation or other business combination of the Company with another Person, if the Member or Members owning a majority in voting power of the Voting Units, as determined immediately prior to the relevant transaction, would own, directly or indirectly, less than a majority (as determined immediately after the consummation of the relevant transaction) in voting power of the voting securities of the surviving Person; (b) any voluntary sale or exchange of Voting Units to a third party, if a third party or “group” (in accordance with the Securities Exchange Act requirements but excluding, for the avoidance of doubt, any such “group” that may be deemed to be created by virtue of this Agreement) would own a majority in voting power of the Voting Units, other than (i) (A) the Ryman Member or any of its Permitted Transferees, or (B) the Investor Member or any of its Permitted Transferees (each Person in clause (A) and (B), a “Permitted Holder”) or (ii) any such “group” controlled, directly or indirectly, by one or more of the Permitted Holders ; or (c) any sale or exchange of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole other than to a Permitted Holder or a group controlled directly or indirectly by a Permitted Holder. For the avoidance of doubt, a transaction involving a SPAC Transaction, shall be considered to be an IPO, and not a Sale of the Company, for purposes of this Agreement (but without limiting any requirements specifically applicable to a SPAC Transaction as required by this Agreement). For the avoidance of doubt, a Sale of the Company does not include a transaction where (i) the Ryman Member or any of its Affiliates or (ii) the Investor Member or any of its Affiliates, in each case, is a purchaser, unless otherwise mutually agreed by the Ryman Member and the Investor Member; provided in no event shall a Sale of the Company be deemed to include any transaction effected for the purpose of changing, directly or indirectly, the form of organization or the organization structure of the Company, so long as the Holders immediately prior to such transaction own Equity Securities with respect to such reorganized entity in substantially the same proportions as their ownership of the Units immediately prior to such transaction.

 

- 8 -

 

 

SEC” means the Securities and Exchange Commission.

 

Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder, in each case as amended from time to time, or any successor thereto.

 

Securities Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

 

SPAC” means any publicly traded blank check company and/or special purpose acquisition company or vehicle pursuing an initial business combination or any Subsidiary thereof that, immediately prior to the consummation of the initial business combination transaction, (x) has no material assets (other than proceeds from its initial public offering, the private placement of securities in connection therewith and working capital loans made by such company’s sponsor, management team or their respective Affiliates), (y) has no material liabilities or obligations (other than ordinary course payables to vendors, professionals, consultants and other advisors, deferred underwriting fees incurred in connection with its initial public offering and otherwise to the extent arising from the rights of the company’s public shareholders to redeem their shares and receive liquidating distributions under specified circumstances) and (z) is not an Affiliate of the Ryman Member or the Investor Member.

 

SPAC Transaction” means (a) a transaction or series of related transactions, by merger, consolidation or other business combination pursuant to which a majority of the business, assets or divisions of the Company or any successor thereto or Subsidiary thereof is combined with that of a SPAC, regardless of the percentage of the Members’ ownership interest in the entity resulting from or surviving such merger, consolidation or other business combination, (b) the sale, transfer, exchange or other disposition of all or a majority of the business, assets, divisions or voting securities of the Company or any successor thereto or Subsidiary thereof to a SPAC, whether by way of merger, consolidation or otherwise, or (c) a restructuring, recapitalization or similar transaction resulting in the combination of the Company or any successor thereto or Subsidiary thereof with a SPAC, in each case, (i) as a result of which the surviving entity (or its parent entity) is listed on a United States national securities exchange with Equity Securities registered under Section 12(b) of the Securities Exchange Act and (ii) the consideration payable in such transaction to the Members shall be solely cash or publicly traded Equity Securities (including earnout consideration payable in cash or publicly traded Equity Securities).

 

- 9 -

 

 

Spinoff Transaction” means a spin off, split off or other dividend or other distribution by Ryman Parent to, or exchange with, its shareholders of securities of the Company or its successor other than in connection with a Qualified IPO, in which (i) the Company or its successor is listed on a United States national securities exchange with Equity Securities registered under Section 12(b) of the Securities Exchange Act, (ii) the Investor Member receives or owns after the Spinoff Transaction the same type and/or series of Equity Securities of the Issuer as the public shareholders and (iii) the Investor Member’s ownership interests in the Issuer would not be diluted as a result of the spin off, split off or other dividend or other distribution, or any Corporate Conversion occurring prior to such transactions.

 

Subsidiarymeans, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (iii) that would be required to be consolidated in such party’s financial statements under GAAP as adopted (whether or not yet effective) in the United States. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, association or other business entity or is or controls the managing director, managing member or general partner (or equivalent) of such partnership, association or other business entity.

 

Substitute Member” means any Person admitted as a Member of the Company pursuant to Section 10.5(b) in connection with the Transfer of Membership Interests to such Person.

 

Transfer” means, whether direct or indirect, any transfer (whether of record or beneficial ownership, including an indirect transfer of equity (including pursuant to a derivative transaction or through the transfer or issuance of any Equity Securities in or by any direct or indirect company holding such equity), sale, redemption option grant, swap or other derivative transaction, assignment, gift, abandonment, termination, withdrawal, bequest, pledge, lien, mortgage or other encumbrance or disposition (irrespective of whether any of the foregoing is effected voluntarily, by operation of law or otherwise, or whether inter vivos or upon death), but excluding, in each case, (i) redemptions or repurchases of Equity Securities of the Company or any of its Subsidiaries in accordance with Section 13.4 by the Company or purchases in accordance with Section 13.13 or Section 13.14, (ii) any sale, transfer or issuance (including any public offering) of Equity Securities of (A) Ryman Parent or Comcast Parent or (B) Atairos Parent, RHP Operating Partnership or any other member of the Comcast Group or any successor thereto or any holding company or direct or indirect holder of Equity Securities in Atairos Parent, Ryman Parent or RHP Operating Partnership or any successor thereto, but only in each case if the fair market value of the Equity Securities of the Company held, directly or indirectly, by such Person does not exceed thirty-three percent (33%) of the fair market value of the total consolidated assets of such Person, (iii) a Corporate Conversion or (iv) after a Qualified Spinoff, transactions by holders of Equity Securities of the Company or a New Issuer or transfers of equity in holders of Equity Securities of the Company or a New Issuer after a Qualified Spinoff, with respect to Equity Securities that are distributed or exchanged in any Qualified Spinoff.

 

- 10 -

 

 

Unit” means any unit representing a Membership Interest under this Agreement, including any Class A Unit, Class B Unit and any other types and classes and/or series of Units that may be issued in the future in accordance with this Agreement. The Company may issue whole or fractional Units.

 

Voting Unit” means any Class A Unit and any other Unit designated to have voting rights under this Agreement. For the avoidance of doubt, notwithstanding anything to the contrary herein, the Earnout Transactions shall not be deemed to affect the number or percentage of Voting Units held by the Investor Member.

 

VWAP” means the volume-weighted average trading price for a share of a security on the principal market on which a security is listed, over the specified number of trading days.

 

(b)            The following additional terms shall have the meanings specified in the indicated Section of this Agreement:

 

Term Section
   
Accepting Preemptive Rights Member 3.5(c)
Accepting Preemptive Rights Member’s Proportionate Percentage 3.5(i)
Acquiror REIT Protections 13.10(a)
Act 3.3
Agreement Preamble
AMPA Notice 13.1(c)
Annual Operating Budget 9.3(a)
Block 21 Loan Schedule D
Board 7.1(a)
Budget Year 9.3(a)
Calculation Value 13.11(a)
Call Event Date 13.4(b)
Call Member 13.4(b)
Chairman 7.2(b)

 

- 11 -

 

 

Term Section
Closing Units 13.11(b)(iii)
Company Preamble
Company Call Period 13.4(b)
Company Credit Facility Schedule D
Company Equity 13.11(b)(ix)
Competitive Business 8.1(c)(iv)
Competitive Business Opportunity Offer 8.1(c)(i)(A)
Consulting Member 13.5(c)
Continuing Member 13.4(b)
Corporate Conversion 13.5(d)(i)
Covered Member 13.8(a)
Covered Transaction 13.8
Delaware Act 2.1
Determining Member 13.5(c)
Draft Budget 9.3(a)
Drag-Along Holders 13.7(a)
Drag-Along Purchaser(s) 13.7(a)
Drag-Along Sale 13.7(a)
Dragging Holder 13.7(a)
Effective Date Preamble
Eligible Tag-Along Units 13.3(b)
Emergency Meeting 7.5(b)
Event of Dissolution 11.2
Excess Sale Proceeds 13.11(b)(v)
Exempt Securities 3.5(g)
Exempted Officers 7.7(d)
Fund Indemnitors 8.2(h)
Independent Referee 13.1(b)(ii)
Index Event 13.16(f)(iii)
Initial LLC Agreement Recitals
Investment Date 13.12(a)(ii)
Investor Designees 7.2(a)
Investor Member Proceeds 13.12(a)(iii)
Investor Put Rights 13.14(a)
Investor ROFO 13.10(a)
Involuntary Transfer Notice 13.4(a)
IPO Consummation Period 13.13(b)
IPO Failure Notice 13.13(b)
IPO Request Period 13.13(a)
IPO Request Put Exercise Notice 13.13(a)
IPO Request Put Price 13.13(c)
IPO Request Put Right 13.13(a)
IPO Request Put Window 13.13(a)
IPO Request Right 13.13(a)
IPO Shortfall 13.11(b)(vii)

 

- 12 -

 

 

Term Section
IRR 13.12(a)(ii)
Issuer 13.5(d)(ii)
Issuer Shares 13.5(d)(ii)
Joinder 10.5(a)(iii)
Legal Requirement 13.16(f)
Liquidity Restriction 13.4(f)
LTM Adjusted EBITDAre 13.1(f)
Major Decisions Schedule C
Management Holdco 4.6
Manager 7.1(a)
Maximum Amount 13.3(b)
Member Representative 14.11
Minimum Investor Sale Value 13.12(a)(i)
Minimum Investor Stake Value 13.11(b)(v)
New Company 13.5(d)(i)
New Issue Notice 3.5(a)
New Unit 9.3(c)
New Unit Costs 9.3(b)(vi)
Notice 14.4
Notice of Acceptance 3.5(c)
Notice of Objection 13.4(c)
Offered Securities 3.5(b)
Option 13.1(a)
Option Exercise Notice 13.1(d)(i)
Option Period 13.1(d)(i)
Option Price 13.1(e)
Option Price Dispute 13.1(b)(ii)
Option Price Dispute Notice 13.1(b)(i)
Option Price Notice 13.1(a)
Option Units 13.1(d)(ii)
Order 13.16(f)(iv)
Other Eligible Member 13.3(b)
Oversubscription Rights 3.5(d)
Payment Cap 13.11(b)(viii)
Permitted Financing Terms Schedule D
Post IPO Investor Stake Value 13.11(b)(vi)
Post-Commencement Put Delay Event 13.16(a)
Post-Window Put Delay Event 13.16(a)
Preemptive Rights Issuance 3.5(a)
Preemptive Rights Member’s Proportionate Percentage 3.5(i)
Preemptive Rights Offer 3.5(b)
Preemptive Rights Offer Period 3.5(b)
Pre-Window Put Delay Event 13.16(a)
Prorated Return Multiple 13.13(d)(iii)
Purchase Notice 13.7(a)

 

- 13 -

 

 

Term Section
Put Delay Event 13.16(f)(i)
Put Delay Notice 13.16(a)
Put Delay Period 13.16(f)(ii)
Reallotment Units 13.3(i)
Redemption Closing 13.4(d)
Redemption Price 13.4(b)
REIT 10.3(b)
REIT Compliance Date 13.2(a)
REIT Compliance Offer 13.2(a)
REIT Compliance Transfer 13.2(a)
Remaining Offered Securities 3.5(d)
Restricted Person 8.1(c)(i)
Retained Invested Equity 13.11(b)(ii)
Retained Units 13.11(b)(iv)
ROFO Notice 13.2(a)
ROFO Notice (13.10) 13.10(a)
ROFO Offer 13.2(a)
ROFO Offer Period 13.2(c)
ROFO Offer Price 13.2(a)
ROFO Proposal 13.10(a)
ROFO Sale 13.2(a)
ROFO Securities 13.2(a)
Rollover Investment 13.8(b)
Ryman Designees 7.2(a)
Ryman IPO Response 13.13(a)
Ryman Member Recitals
Ryman Parent Sale 13.12(e)
Ryman Parent Stock Event 13.16(f)(iv)
Ryman Successor Transaction 14.19(b)
Sale Deficit 13.12(a)
Sale Payment 13.12(a)
Settlement Date 13.11(b)(i)
Seven-Year Put Consideration 13.14(b)
Seven-Year Put Exercise Date 13.14(a)
Seven-Year Put Exercise Notice 13.14(a)
Seven-Year Put Price 13.14(b)
Seven-Year Put Right 13.14(a)
Seven-Year Put Window 13.14(a)
Subject Financing Schedule D
Subsequent IPO Request Put Window 13.13(b)
Tag-Along Interest 13.3(b)
Tag-Along Notice 13.3(d)
Tag-Along Period 13.3(d)
Tag-Along Sale 13.3(b)
Tag-Along Seller 13.3(b)

 

- 14 -

 

 

Term Section
Tagging Member 13.3(d)
Tax-Deferred Sale 13.10(a)
Third Party 13.3(b)
Third Party Terms 13.3(c)
TRA 13.5(f)
Transaction Member Representative 13.8(h)
Transferor Tag-Along Notice 13.3(c)
Unreturned Subsequent Investment 13.13(d)(ii)

 

Article II
ORGANIZATIONAL MATTERS

 

Section 2.1      Legal Status. The Company is a limited liability company formed and existing under the Delaware Limited Liability Company Act, as amended (the “Delaware Act”). The Company shall be governed by the Delaware Act. The Board and the Holders shall take such steps as are necessary to maintain the Company’s status as a limited liability company formed under the laws of the State of Delaware and qualification to conduct business in any jurisdiction where the Company does business and is required to be so qualified.

 

Section 2.2      Name. The name of the Company is OEG Attractions Holdings, LLC. The Board may change the name of the Company at any time and from time to time. The Company’s business may be conducted under its name and/or any other name or names deemed advisable by the Board.

 

Section 2.3      Purpose. The purpose of the Company is to engage in any activity permitted under the Delaware Act. The Company shall possess and may exercise all the powers and privileges granted by the Delaware Act or by any other law or by this Agreement, together with any powers incidental thereto, insofar as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the foregoing objectives and purposes of the Company.

 

Section 2.4      Term. The term of the Company commenced on the date specified in the Certificate of Formation filed for record in the Office of the Secretary of State of the State of Delaware and shall continue until the Company is dissolved pursuant to this Agreement.

 

Section 2.5      Limited Liability Company Agreement. The Members and the Company hereby execute this Agreement for the purpose of establishing the affairs of the Company and the conduct of its business in accordance with the provisions set forth herein and the Delaware Act. This Agreement shall be effective immediately after the effectiveness of the Merger. The Members hereby agree that during the term of the Company set forth in Section 2.4 the rights, powers and obligations of the Company and the Members with respect to the Company will be determined in accordance with the terms and conditions of this Agreement and, except where the Delaware Act provides that such rights, powers and obligations specified in the Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words of similar effect and such rights, powers and obligations are set forth in this Agreement, the Delaware Act; provided that, notwithstanding the foregoing, Section 18-305(a) of the Delaware Act (entitled “Access to and Confidentiality of Information; Records”) shall not apply or be incorporated into this Agreement, and each Member waives any rights in connection therewith.

 

Article III
MEMBERS AND MEMBERSHIP INTERESTS

 

Section 3.1      Holders. Schedule A sets forth the name and address of each Holder, along with the Membership Interest held. From time to time, the Board shall amend Schedule A (without the consent of any Person) to reflect any change in ownership, redemption, forfeiture, cancellation or issuance of or other event affecting any Membership Interest in each case, occurring in accordance with the terms of this Agreement.

 

- 15 -

 

 

Section 3.2      Confidentiality. (a) Each Holder agrees to hold all Confidential Information in confidence and not to disclose any Confidential Information to any Person (other than the Company, any Subsidiary of the Company, any Manager or any Officer) and (b) the Company agrees to hold all Confidential Information concerning any Member or any Affiliate of a Member in confidence and not to disclose any such Confidential Information to any Person (other than the Company, any Subsidiary of the Company, any Manager or any Officer), in each case of (a) or (b), other than (i) to the financial, legal and other professional advisors of the Company or a Holder, or where such Person is an entity, to those employees, partners (general or limited), members, managers, shareholders, officers and directors of such Person, or by a Member to a prospective purchaser of a Membership Interest held by such Member pursuant to a Transfer in accordance with the provisions of this Agreement; provided that such recipients have been informed of the confidential nature of the Confidential Information and are subject to confidentiality obligations in respect of such information that are at least as protective with respect to such information as set forth in this Section 3.2 and, in the case of a prospective purchaser, such confidentiality obligations are in form reasonably satisfactory to the Company, and, in any event, the Person disclosing such Confidential Information shall be liable for any failure by any Person to whom or which such Confidential Information has been disclosed to abide by the provisions of this Section 3.2, (ii) as part of its normal reporting, rating or review procedure (including normal credit rating and pricing process), or in connection with such Member’s of its Affiliates’ or investors’ ordinary course fund raising, marketing, information or reporting activities, provided that such recipients have been informed of the confidential nature of the Confidential Information and are subject to confidentiality obligations in respect of such information that are at least as protective with respect to such information as set forth in this Section 3.2, (iii) to such Member’s (or any of its Affiliates’ or investors’) Affiliates, auditors, accountants, attorneys or other agents in the normal course of the performance of their duties, provided that such recipients have been informed of the confidential nature of the Confidential Information and are subject to confidentiality obligations in respect of such information, (iv) as required under applicable law or regulation (including any reporting or disclosure obligations pursuant to law, rules or regulations of the SEC, the preparation of any Tax return or Tax audit or required by any listing agreement with any national securities exchange) or by court or governmental order, subpoena or legal process to which such Member or any of its Affiliates is subject (including, in the case of this clause (iv), in connection with, and following, an initial public offering of a Member or any of its Affiliates permitted hereunder; provided that, the Member required to make such disclosure pursuant to this clause (iv) shall (except to the extent contemplated by the succeeding proviso) provide to the Company prompt notice of such disclosure to enable the Company to seek an appropriate protective order or confidential treatment); provided, further, that Ryman Parent and, if Atairos Parent or an Affiliate thereof is a public reporting company, Atairos Parent or such Affiliate, may make any required public company disclosures, and Ryman Parent and Atairos Parent will reasonably cooperate with the Company to enable such Persons to comply with legal obligations and will coordinate and keep the other informed with respect to the timing of disclosures, (v) to any actual or potential sources of debt or equity financing to such Member or its Affiliates (so long as such financing sources are advised of the confidential nature of such information and are bound by a confidentiality agreement containing terms no less restrictive than those contained in this Section 3.2); provided that such recipients have been informed of the confidential nature of the Confidential Information and are subject to confidentiality obligations in respect of such information, and, in any event, the Person disclosing such Confidential Information shall be liable for any failure by any Person to whom or which such Confidential Information has been disclosed to abide by the provisions of this Section 3.2), (vi) in the case of the Managers, as required in the performance of their duties for or on behalf of the Company or any of its Subsidiaries, (vii) to any regulatory authority or agency (including any rating agency) that has jurisdiction over or with which such Member or its Affiliates has regular dealings, so long as such authority or agency is advised of the confidential nature of such information and information regarding the Company is not the target of such inquiry, (viii) each Member is permitted to disclose to any Persons, without limitation of any kind, the tax treatment and tax structure of the Company and all materials of any kind (including opinions or other tax analyses) that are provided to such Member relating to such tax treatment and tax structure, or (ix) in the case of the Investor Member, the disclosure by it and its Affiliates on their respective worldwide web pages of the name of the Company, the name of the Chief Executive Officer of the Company or its Subsidiaries, a brief description of the business of the Company or its Subsidiaries and the logo of the Company or its Subsidiaries and the fact of the Investor Member’s investment in the Company; provided that in each case above, a Person disclosing such Confidential Information shall be liable for any failure by any Person to whom or which such Confidential Information has been disclosed to abide by the provisions of this Section 3.2. Notwithstanding anything herein to the contrary, the Investor Member’s obligations in this Section 3.2 shall, in each case, not be deemed to be breached by any disclosure (x) to members of the Comcast Group subject to subsection (b)(i) above, or (y) by NBC Universal Media, LLC or any other of members of the Comcast Group in the ordinary course of their business of disseminating news and information; provided that the individuals involved in such dissemination received such Confidential Information from a source other than the personnel of the Investor Member or any of its Affiliates, the Comcast Group or any of their or its representatives involved in the matters contemplated by this Agreement or the letter agreement dated as of the date hereof between Atairos Parent, the Investor Member and NBCUniversal Media, LLC (“NBCUniversal”) or the business of the Company and not in violation of any obligation of confidentiality by Investor Member or any of its Affiliates, NBCUniversal any of its Subsidiaries or any of their respective Representatives. Without limiting the foregoing, each Manager shall, subject to applicable law, be permitted to communicate Confidential Information received by such Manager in his capacity as a Manager to the Member who designated such Manager so long as such Member keeps such Confidential Information confidential pursuant to this Section 3.2.

 

- 16 -

 

 

Section 3.3      Certification. No Membership Interest shall be certificated unless otherwise directed by the Board. From time to time, the Board may cause any or all of the Membership Interests to be certificated, and may place one or more legends on any of such certificates. Without limitation of the foregoing, the Board may place the following legend on such certificates:

 

The securities represented hereby have not been registered under the Securities Act of 1933, as amended (the “Act”), or any applicable state securities laws, and may not be resold unless they are registered under the Act and those securities laws or an exemption from registration is available thereunder. The securities represented hereby are subject to the Second Amended and Restated Limited Liability Company Agreement of the issuer of such securities dated as of _____________, as amended from time to time, including the transfer restrictions set forth therein. A copy of that agreement may be obtained at the Company’s principal executive offices without charge.

 

Section 3.4      Equitable Adjustment of Units. In the event that the Company shall make any subdivision (by any Unit split, Unit dividend or distribution, reclassification, reorganization, recapitalization or otherwise) or combination (by reverse Unit split, reclassification, reorganization, recapitalization or otherwise) of the outstanding Class A Units, the Company shall make corresponding equitable adjustments to each other class of applicable Units.

 

Section 3.5      Preemptive Rights.

 

(a)            Except as set forth in this Section 3.5 below, the Company shall not issue Units or any warrants or options or other convertible or exchangeable securities or rights to acquire Units or other Equity Securities of the Company, and the Company shall not permit any Subsidiary to issue Equity Securities (each, a “Preemptive Rights Issuance”), in each case other than Exempt Securities, unless the Company first gives written notice to each Preemptive Rights Member of the type and amount of securities to be issued and the price and other terms upon which it proposes to issue the same (the “New Issue Notice”) and offers to sell (or cause such Subsidiary to sell) such securities to the Preemptive Rights Members on the terms set forth herein. The rights of any Preemptive Rights Member pursuant to this Agreement may, for the avoidance of doubt, be exercised on behalf of such Preemptive Rights Member by any of its Permitted Transferees who is an “accredited investor” as defined under Rule 501 of Regulation D of the Securities Act.

 

(b)            The Company shall first offer to sell to the Preemptive Rights Members such securities (the “Offered Securities”) at the price and on such other terms as are set forth in the New Issue Notice by delivering an offer to each Preemptive Rights Member (the “Preemptive Rights Offer”), which Preemptive Rights Offer by its terms shall remain open and irrevocable for a period of fifteen (15) Business Days (as such period may be extended to the extent reasonably required pursuant to applicable law or regulation) from the date the Preemptive Rights Offer is delivered by the Company to each Preemptive Rights Member (such period being hereinafter referred to as the “Preemptive Rights Offer Period”).

 

(c)            Notice of any Preemptive Rights Member’s intention to accept a Preemptive Rights Offer made pursuant to this Section 3.5 shall constitute a binding commitment to purchase the number of securities specified in the Notice of Acceptance (as defined below) and shall be evidenced by a writing signed by such Preemptive Rights Member and delivered to the Company prior to the end of the Preemptive Rights Offer Period, setting forth such portion of the Offered Securities which such Preemptive Rights Member elects to purchase (the “Notice of Acceptance”). Each Preemptive Rights Member that accepts a Preemptive Rights Offer (each, an “Accepting Preemptive Rights Member”) may elect to purchase up to such Preemptive Rights Member’s Proportionate Percentage (as defined below) of the Offered Securities.

 

- 17 -

 

 

 

(d)            In the event that Notices of Acceptance have not been given by the Preemptive Rights Members with respect to all the Offered Securities by the expiration of the Preemptive Rights Offer Period, the Accepting Preemptive Rights Members that elect to acquire their full Proportionate Percentage pursuant to the Notice of Acceptance may elect in their Notice of Acceptance to acquire the Offered Securities not subject to Notices of Acceptance (the “Remaining Offered Securities”) at the price and on such other terms set forth in the New Issue Notice. Each Accepting Preemptive Rights Member that elects to acquire Remaining Offered Securities may elect to purchase up to such Accepting Preemptive Rights Member’s Proportionate Percentage (as defined below) of the Remaining Offered Securities or such other proportion of the Remaining Offered Securities as such Accepting Preemptive Rights Members may determine by agreement among them (the “Oversubscription Rights”).

 

(e)            In the event that Notices of Acceptance have not been given by the Preemptive Rights Members with respect to all the Offered Securities by the expiration of the Preemptive Rights Offer Period after giving effect to Section 3.5(d), the Company shall have one hundred twenty (120) days (provided that, if such issuance with respect to such Preemptive Rights Offer Period is subject to regulatory approval, such one hundred twenty (120) day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than one hundred eighty (180) days from the date of the applicable New Issue Notice) from the expiration of the Preemptive Rights Offer Period to sell all or any part of the Offered Securities as to which a Notice of Acceptance has not been given after giving effect to Section 3.5(d) by any Preemptive Rights Member to any other Person or Persons, at a price that is not more favorable and on other material terms and conditions which are not more favorable in the aggregate, to such other Person or Persons than those set forth in the New Issue Notice.

 

(f)            At the closing of the transactions contemplated by a Preemptive Rights Offer and the Notice(s) of Acceptance, to be held at a time and place designated by the Company, each Accepting Preemptive Rights Member shall pay to the Company (or such Subsidiary) the entire purchase price for the Offered Securities purchased by such Accepting Preemptive Rights Member, and the Company (or such Subsidiary) shall issue to each such Accepting Preemptive Rights Member the securities purchased.

 

(g)            The rights of the Preemptive Rights Members under this Section 3.5 shall not apply in the case of (i) Class B Units issued to any current or former employees or other service providers of the Company or any of its Subsidiaries pursuant to any employee or service provider benefit plan, compensatory arrangement or employment agreement approved by the Board (or, to the extent such action constitutes a Major Decision, the approval of the Ryman Member and the Investor Member, subject to the provisions of Schedule C), (ii) an IPO (including any Corporate Conversion), (iii) subject to Section 7.1(b), Equity Securities in a Subsidiary of the Company issued to one or more strategic partners in any single or series of related transactions in connection with any bona fide joint venture or strategic partnership (the primary purpose of which is not to raise equity capital), (iv) Units issued as distributions to Holders or in connection with a Unit split, in each case, on a pro rata basis, (v) Units for which each of the Ryman Member and the Investor Member has waived its rights under this Section 3.5 (other than issuances of Units to the Ryman Member or the Investor Member or any of their respective Affiliates), (vi) Units issued pursuant to the Investment Agreement, (vii) Equity Securities of any Subsidiary of the Company issued to the Company or any wholly-owned Subsidiary of the Company, and (viii) subject to Section 7.1(b), equity including Voting Units or Equity Securities in a Subsidiary of the Company issued as consideration in a bona fide business acquisition by the Company or any of its Subsidiaries, whether by merger, consolidation, purchase of assets, exchange of securities or otherwise (clauses (i) through (viii), collectively, “Exempt Securities”).

 

- 18 -

 

 

(h)            Notwithstanding anything to the contrary in this Section 3.5, the rights under this Section 3.5 of any Preemptive Rights Members shall be deemed satisfied if the Company provides (or causes to provide) each Preemptive Rights Member the right to purchase from the Company or any Person within thirty (30) days after the issuance giving rise to the preemptive right, the same amount and number of Equity Securities that such Member would have had the right to purchase under this Section 3.5 (based on the aggregate number of Units owned by all Members immediately before giving effect to the issuance of the Offered Securities to the Preemptive Rights Members pursuant to this Section 3.5). Notwithstanding anything to the contrary, there shall be deemed to be no dilution to the percentage of Units held by any Member (including for purposes of Section 7.2(a), Section 7.1(b), Section 8.1(c), Section 13.17 and Section 14.1) of any Preemptive Rights Member who did not purchase the Offered Securities on such closing date due to the issuance of Offered Securities on such closing date until such Preemptive Rights Member has exercised or declined to exercise or waived its rights under this Section 3.5(h) with respect to such proposed issuance of Offered Securities; provided that, in lieu of the Company or its applicable Subsidiary issuing such Offered Securities, such Preemptive Rights Member may, in the Board’s discretion, receive such Offered Securities in a secondary offering from the Preemptive Rights Member(s) who elected to purchase the Offered Securities on such closing date (pro rata from such Preemptive Rights Member(s)).

 

(i)            For purposes of this Section 3.5, a “Preemptive Rights Member’s Proportionate Percentage” shall mean, as to each Preemptive Rights Member, the percentage as of the date of the Preemptive Rights Offer which expresses the ratio which (i) the Class A Units then held by such Preemptive Rights Member bear to (ii) the aggregate number of Class A Units then held by all Members. For purposes of this Section 3.5, an “Accepting Preemptive Rights Member’s Proportionate Percentage” shall mean, as to each Accepting Preemptive Rights Member that elects to acquire any Remaining Offered Securities, the percentage as of the date of the Preemptive Rights Offer which expresses the ratio which (x) the number of Class A Units then held by such Accepting Preemptive Rights Member bears to (y) the aggregate number of Class A Units then held by all such Accepting Preemptive Rights Members.

 

(j)            If two or more types of Offered Securities are to be issued or Offered Securities are to be issued together with other types of securities, including debt securities, in a single transaction or related transactions, the rights to purchase Offered Securities granted to the Preemptive Rights Members under this Section 3.5 must be exercised to purchase all types of Offered Securities and such other securities in the same proportion as such Offered Securities and other securities are to be issued by the Company or the applicable Subsidiary.

 

- 19 -

 

 

Article IV
CAPITAL; DISTRIBUTIONS

 

Section 4.1      Loans; Debt Securities. Subject to Section 7.1(b), any Member may make loans to the Company or any of its Subsidiaries or acquire debt securities from the Company or any of its Subsidiaries, that in each case, are made or issued on an arm’s length basis on terms and conditions not less favorable to the Company and its Subsidiaries than those available from unaffiliated third parties for similar loans or debt securities at such times as are mutually agreed upon by the Board and such Member, and any loan by or debt securities issued to a Member shall not be considered to be an equity contribution for any purpose. If, subject to Section 7.1(b), the Ryman Member or its Affiliates makes a loan or acquires debt securities pursuant to this Section 4.1, the Investor Member shall be entitled, or shall be entitled to cause its Permitted Transferees, to make a loan or acquire debt securities on the same terms, in proportion to its Class A Units as a percentage of Outstanding Units.

 

Section 4.2      No Interest; No Right to Return of Investment . No interest shall be paid by the Company on capital contributions made by Holders with respect to any investment in Units and no Person shall have any right (a) to demand the return of such Person’s investment in Units or any other distribution from the Company (whether upon resignation, withdrawal or otherwise) or (b) to cause a partition of the Company’s assets.

 

Section 4.3      Limitation on Liability. Except as otherwise required by applicable law or a separate written agreement signed by such Holder on or after the date hereof, no Holder shall have any personal liability whatsoever in such Holder’s capacity as a Holder for the debts, liabilities, commitments or any other obligations of the Company, whether to the Company or any of its Affiliates, to any of the other Holders, to the creditors of the Company or to any other Person. Each Holder shall be liable only for obligations provided expressly herein or in a separate written agreement.

 

Section 4.4      Distributions; General. The Company shall make distributions to the Holders as determined by the Board, subject to Section 7.1(b). Unless otherwise specified in this Agreement, distributions shall be made to the Unit Holders of a class or series pro rata in accordance with their respective total Units of such class or series.

 

Section 4.5      Withholding. The Company is hereby authorized and directed to withhold from any distribution made to a Holder the amount of taxes required to be withheld therefrom under applicable law. Any amount so withheld shall be treated as a distribution to such Holder under Section 4.4 or Section 11.3, as applicable, and shall reduce the amount otherwise distributable to such Holder thereunder.

 

Section 4.6      Class B Units. The Company may, with the prior approval of the Ryman Member and the Investor Member (in each case, acting in good faith), establish the terms and conditions applicable to the Class B Units (including through one or more amendments to this Agreement approved by the Ryman Member and the Investor Member), which terms will set forth, among other matters, whether (i) the Class B Units will be issued indirectly through a management holding company (“Management Holdco”) created for purposes of holding Class B Units on behalf of certain individuals who are employees or service providers of the Company or its Subsidiaries as part of a management incentive program (and, if so, the applicable terms of Management Holdco) and (ii) the Company’s direct or indirect call or redemptions right associated with the Class B Units. Following the establishment of the terms and conditions applicable to the Class B Units, the Company may from time to time, directly or indirectly through Management Holdco, issue Class B Units to any existing or new employee, officer, director, consultant or other service provider of the Company or any of its Subsidiaries pursuant to an incentive unit plan and incentive unit award agreements approved by the Board (and to the extent such action constitutes a Major Decision, the approval of the Ryman Member and the Investor Member, subject to the provisions of Schedule C). Such Class B Units shall be treated as incentive equity and shall take the form of options (with a strike price at least equal to the fair market value of a Class A Unit as determined by the Board) or such other right approved by the Ryman Member and the Investor Member.

 

- 20 -

 

 

Article V
INTENTIONALLY OMITTED

 

Article VI
RESERVED

 

Article VII
MANAGEMENT

 

Section 7.1      Management of the Company.

 

(a)            The powers of the Company shall be exercised by or under the authority of the board of managers of the Company (the “Board”), who shall collectively constitute “managers” (each, a “Manager”) of the Company within the meaning of the Delaware Act. Except for matters as to which the approval of any of the Members is required by this Agreement, the Board shall have full and complete authority, power and discretion to direct, manage and control the business, affairs and properties of the Company and its Subsidiaries; provided, however, that no Manager, solely in his or her capacity as such, shall have any power to act for, sign for or do any act that would bind the Company, unless the Board shall provide otherwise.

 

(b)            Notwithstanding anything to the contrary herein, (i) for so long as the Ryman Member and/or any Affiliate owns at least ten percent (10%) (or any other specified threshold on Schedule C) of the Outstanding Units, none of the Company, the Board or any Member shall take, and such Persons shall cause the Company’s Subsidiaries not to take, any action that constitutes a Major Decision without first receiving the Ryman Member approval and (ii) for so long as the Investor Member owns at least ten percent (10%) (or any other specified threshold on Schedule C) of the Outstanding Units, none of the Company, the Board or any Member shall take, and such Persons shall cause the Company’s Subsidiaries not to take, any action that constitutes a Major Decision without first receiving the Ryman Member and the Investor Member approval, subject to the provisions of Schedule C.

 

- 21 -

 

 

(c)      Notwithstanding anything to the contrary herein, for so long as the Investor Member owns at least ten percent (10%) of the Outstanding Units, none of the Company, the Board, the Ryman Member or any Affiliate of the Ryman Member shall, without first receiving the Investor Member’s written approval (which may be granted or withheld in the sole discretion of the Investor Member), cause or permit the Company or any Subsidiary (i) to be a “restricted subsidiary” (or similar concept) under, or otherwise be subject to the covenants or events of default in respect of, any indenture or similar agreement or arrangement governing any outstanding notes, bonds, other debt securities (including convertible debt) or similar instruments of the Ryman Member and/or any of its Affiliates or (ii) to be subject to the negative covenants in respect of any credit agreement, loan agreement or similar agreement or arrangement governing any other indebtedness of the Ryman Member and/or any of its Affiliates; provided that, to the extent not in express contravention of the foregoing, nothing in this Agreement shall prohibit Ryman Parent and its Affiliates from including the Company’s and its Subsidiaries’ net income, earnings or Adjusted EBITDAre for purposes of a lender’s underwriting process or calculating Ryman Parent’s and/or any Affiliate’s financial covenants in any agreement.  In addition to the foregoing, for so long as the Investor Member owns at least ten percent (10%) of the Outstanding Units, (x) in connection with entering into any new, or refinancing any existing, agreement or arrangement of the type described in the foregoing clause (ii), the Ryman Member and/or its applicable Affiliate shall negotiate in good faith for the Company and the Subsidiaries to be exempted from the affirmative covenants and events of default in respect of such agreement, and (y) the Ryman Member shall, or shall cause its applicable Affiliates to, maintain in full force and effect the provisions relating to the Company and the Subsidiaries in that certain Amendment No. 5 dated as of April 4, 2022 (the “Ryman Senior Credit Agreement Amendment”) to the Sixth Amended and Restated Credit Agreement among RHP Operating Partnership, Ryman Hospitality Properties, Inc., the guarantors and pledgers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the lenders party thereto (the “Ryman Senior Credit Agreement”), while the Ryman Senior Credit Agreement is outstanding.

 

Section 7.2       Composition of Board; Number; Term of Office; Committees.

 

(a)      The Board shall initially consist of up to six (6) Managers, two (2) of whom shall be designated by the Investor Member (the “Investor Designees”), and four (4) of whom shall be designated by the Ryman Member (the “Ryman Designees”). The Ryman Designees and Investor Designees who shall be the initial Managers are set forth on Schedule B. The number of Managers on the Board may be increased or decreased from time to time as determined by the Board, provided that in all cases, including in the event of changes in the number of Units held by a Member, the number of Managers and Members’ right to designate them shall be adjusted such that the Investor Member’s and the Ryman Member’s representation on the Board will reflect as closely as practicable the Investor Member’s and the Ryman Member’s proportional ownership of Outstanding Units, and provided that other than changes in the number of Managers and right to designate them as set forth in the previous clause, reducing the number of Managers designable by a Member pursuant to this Section 7.2(a) shall require the consent of such Member; provided that, notwithstanding anything to the contrary in this Agreement, a Member that owns at least 50.1% of the Outstanding Units shall have the right to designate a number of Managers comprising a majority of the Board. If at any time the Investor Member owns less than ten percent (10%) of the Outstanding Units, the Investor Member’s right to designate any Managers shall terminate and all Investor Designees shall be removed automatically without any action. So long as the Investor Member has a right to designate any Managers, the Investor Member shall be entitled to designate a representative Manager on any committees of the Board that the Board may create; it being further understood that the Investor Member shall be entitled to at least the same proportionate representation on any committee of the Board as it is entitled to on the Board with respect to the designation of Managers.

 

- 22 -

 

 

(b)       Colin Reed shall be the initial Chairman of the Board (the “Chairman”) and shall be an Executive Chairman, as an officer of the Company. The Chairman shall have the power to call and to preside over meetings of the Board or the Members and a Chairman designated as an Executive Chairman shall have such authority described below. The Ryman Member shall have the right to designate the Chairman for so long as the Ryman Member owns a majority of the Outstanding Units; provided that, if the Ryman Member does not own a majority of the Outstanding Units, the Chairman shall be designated by a majority of the Board. For the avoidance of doubt, the Chairman shall have the same voting power that such Manager would have if such Manager were not the Chairman and, except as provided above and in Section 7.7(c) with respect to an Executive Chairman, shall not be entitled to any other privileges or rights in excess of those that such Manager would have if such Manager were not the Chairman.

 

(c)       Each Manager shall hold office until his or her earlier death, resignation or removal. Unless otherwise provided in this Agreement, the Managers need not be Members or residents of the State of Delaware.

 

(d)       Managers shall not receive compensation in their capacity as such; provided that the Company shall pay, or shall cause one of its Subsidiaries to pay, the reasonable out-of-pocket costs and expenses incurred by each Manager in the course of his or her service as such; provided that travel shall be by commercial airline (standard fare), and not by private aircraft, and overnight accommodations shall be booked by the Company.

 

(e)       Each Member agrees that it will vote its Voting Units or execute a written consent, as the case may be, and take all other necessary action, to ensure that the composition of the Board and its committees is as set forth in this Section 7.2. The Board may establish and maintain such committees of the Board, and may delegate such authority to such committees as the Board deems appropriate from time to time.

 

Section 7.3      Vacancies; Removal; Resignation. Subject to Section 7.2, any vacancy to be filled by reason of an increase in the number of Managers shall be filled by the vote of the Board. Subject to Section 7.2, any vacancy to be filled other than by reason of an increase in the number of Managers shall be filled only by the Member(s) entitled to designate the Manager whose seat is vacant. Except as otherwise set forth in Section 7.2, any Manager designable by a Member pursuant to Section 7.2(a) may be removed, with or without cause, at any time, only by the Member(s) entitled to designate such Manager. Any Manager may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the Company. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

 

Section 7.4      Board Approval; Voting. All actions of the Board shall require the affirmative vote of a majority of all of the Managers. Each Manager shall receive one (1) vote.

 

- 23 -

 

 

Section 7.5      Action by the Board. The Board may act by vote, resolution or other action approved or adopted at a meeting held in accordance with this Section 7.5, or by a written consent signed in accordance with this Section 7.5. The rules for the conduct of meetings of the Board and for action by written consent of the Board are as follows:

 

(a)            Regular meetings of the Board shall be held quarterly at the Company’s corporate headquarters, and special meetings of the Board may be called (i) by the Chairman, (ii) by any three (3) Managers or (iii) once per calendar year by the Investor Manager, so long as the Investor Manager holds at least twenty percent (20%) of the Outstanding Units.

 

(b)            The Company shall send written notice stating the date, time, and place of any meeting of the Board to each Manager, at such address as appears in the records of the Company, at least two (2) Business Days, but no more than thirty (30) days, before the date of the meeting. Such notice need not state the purpose or purposes of, nor the business to be transacted at, such meeting, except as may otherwise be required by law or provided for by this Agreement; provided that, in the event of an emergency, disaster or catastrophe that would reasonably require prompt action by the Board to prevent a material adverse impact on the Company or any of its Subsidiaries or their respective businesses or assets, a special meeting of the Board may be called on 24 hours’ notice prior to such special meeting (an “Emergency Meeting”); provided that such notice clearly and conspicuously indicates that such meeting is an Emergency Meeting; provided, further that, the matters addressed at any Emergency Meeting shall be limited to matters giving rise to such meeting being deemed an Emergency Meeting.

 

(c)            A Manager may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Company for inclusion in the minutes. A Manager’s presence at any meeting waives objection to lack of notice or defective notice of the meeting, unless the Manager at the beginning of the meeting objects to holding the meeting or transacting business at the meeting.

 

(d)            Any or all Managers may participate in any meeting by, or through the use of, any means of communication by which all Managers participating may simultaneously hear each other during the meeting, and such means of communication shall be made available to each Manager in connection with each regular or special meeting of the Board. A Manager so participating is deemed to be present in person at the meeting.

 

(e)            A quorum of the Board or any committee thereof shall consist of a majority of the Board or such committee thereof; provided that notwithstanding the foregoing, a quorum shall not be present for the transaction of business by the Board or any committee thereof unless at least one Manager or committee member, as applicable, designated by the Investor Member is present at such meeting of the Board or such committee. If less than a quorum shall be in attendance at the time for which a meeting shall have been called, the meeting may be adjourned from time to time by a majority of the Managers present and the Company shall give notice of when the meeting will be reconvened; provided that if a quorum is not present at a first call of any such meeting of the Board or committee thereof that has been duly noticed and properly convened due to the absence of at least one Manager or committee member, as applicable, designated by the Investor Member, the meeting may be reconvened with an identical agenda no earlier than 24 hours after the initial scheduled meeting (with notice of such reconvened meeting being given to each Manager or committee member, as applicable, not present at the first call) and, at such second call, a quorum shall be deemed present if Managers or committee members, as applicable, entitled to cast a majority of the votes of the entire Board or committee thereof are present (and regardless of whether there is at least one Manager or committee member, as applicable, designated by the Investor Member, present at such meeting). If a quorum shall not be present at any such meeting, then the Managers present thereat may adjourn the meeting from time to time until a quorum shall be present. The requirement that at least one Manager or committee member designated by Investor Member be present at such meeting for there to be a quorum shall not apply to an Emergency Meeting.

 

- 24 -

 

 

(f)      Any Ryman Designee may cast the vote of any Ryman Designee not present, and any Investor Designee may cast the vote of any Investor Designee not present.

 

(g)      Any action required or permitted to be taken at a meeting of the Board or committee thereof may be taken without a meeting, without prior notice and without a vote, if the action is consented to in writing and is signed by all of the Managers. The written consent shall be delivered to the Company for inclusion in the minutes.

 

(h)      The Board may, from time to time, be entitled to withhold any information and exclude specific Managers from those portions of any meeting as in the good-faith determination of the Board (i) is reasonably necessary to protect the attorney-client privilege of the Company or any of its Subsidiaries, as applicable, with such determination to be based on the advice of legal counsel to the Company, or (ii) as to which such Manager(s) has a conflict of interest, so long as, in each case (x) the Company promptly notifies such Manager(s) of such determination and provides such Manager(s) a general description of the withheld information or excluded meeting portions to the extent such disclosure does not jeopardize such attorney-client privilege or create such conflict of interest and (y) the Company, and its Subsidiaries, shall use good faith efforts to minimize such withholding and exclusions.

 

Section 7.6      Action by the Members. Subject to Section 7.1(a) and Section 7.1(b), the Members may act by vote, resolution or other action approved or adopted at a meeting held in accordance with this Section 7.6, or by a written consent signed in accordance with this Section 7.6. The rules for the conduct of meetings of the Members and for action by written consent of the Members are as follows:

 

(a)       No annual or regular meetings shall be required. Meetings of the Members may be called only by (i) the Board or (ii) Members owning at least fifty percent (50%) in voting power of the Voting Units. Meetings of the Members shall be called upon delivery to the Members entitled to vote of notice of a meeting of the Members given in accordance with Section 7.6(b) below.

 

(b)      Upon the request of the Board or the Members calling a meeting of the Members under Section 7.6(a)(ii), the Company shall send written notice stating the date, time, and place of any meeting of the Members to each Member entitled to vote, at such address as appears in the records of the Company, at least two (2) Business Days, but no more than sixty (60) days, before the date of the meeting. Such notice need not state the purpose or purposes of, nor the business to be transacted at, such meeting, except as may otherwise be required by law or provided for by this Agreement.

 

- 25 -

 

 

(c)            A Member may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Company for inclusion in the minutes. A Member’s presence at any meeting waives objection to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting.

 

(d)            Any or all Members may participate in any meeting by, or through the use of, any means of communication by which all Members participating may simultaneously hear each other during the meeting, and such means of communication shall be made available to each Member entitled to vote in connection with each annual or special meeting of the Members. A Member so participating is deemed to be present in person at the meeting.

 

(e)            On all matters submitted by the Board to a vote or written consent of the Members, each Member shall be entitled to cast one (1) vote for each Voting Unit so held. The presence of Members holding a majority in voting power of the Voting Units at a meeting is necessary for a quorum. Except for any additional approval required by Section 7.1(b) for a Major Decision or as otherwise expressly provided herein, any action proposed to be taken by the Members shall be approved upon the affirmative vote of the Members holding a majority in voting power of the Voting Units. Subject to Section 7.1(b), unless and until a matter is proposed by the Board to be submitted to a vote of the Members, no Member actions shall be required.

 

(f)            A Member may vote either in person or by proxy executed in writing by the Member. An electronic transmission by a Member, or a photographic, photostatic, facsimile or similar reproduction of a writing executed by a Member, shall be treated as an execution in writing for purposes of this Section 7.6(f). Proxies for use at any meeting of Members or in connection with the taking of any action by written consent shall be filed with the Company, before or at the time of the meeting or execution of the written consent, as the case may be. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with an interest.

 

(g)            Subject to Section 7.1(a) and Section 7.1(b), any action required or permitted to be taken at a meeting of the Members may be taken without such meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the Member or Members holding not less than the minimum voting power of Voting Units that would be necessary to take such action at a meeting at which the Members holding all Voting Units entitled to vote on the action were present and voted.

 

Section 7.7            Officers.

 

(a)            The Board may, from time to time, designate one or more Persons to be Officers of the Company, which shall include an Executive Chairman, a Chief Executive Officer and such other Officers as the Board deems advisable. Officers of the Company shall, unless otherwise determined by the Board or as expressly set forth herein, have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as may from time to time be specifically conferred or imposed by this Agreement or the Board. Each Officer shall hold office until his or her successor shall be duly appointed and shall qualify or until his or her death or incapacity or until he or she shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same Person.

 

- 26 -

 

 

(b)            Any Officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Board. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any Officer may be removed as such, either with or without cause, by the Board whenever in its judgment the best interests of the Company will be served thereby. Designation of an Officer shall not of itself create contract rights. Any vacancy occurring in any office of the Company may be filled by the Board.

 

(c)            The Executive Chairman and the Chief Executive Officer may be appointed and removed by the Board, in its sole discretion but subject to any required approval of Major Decisions. Under the direction of and, at all times, subject to the authority of the Board and this Agreement, (i) the Executive Chairman shall have authority over the strategic direction of the Company and special projects as requested by the Board and (ii) the Chief Executive Officer shall have general supervision over and authority to conduct the day-to-day business, operations and affairs of the Company and shall perform such duties and exercise such powers as are typically incident to the office of Chief Executive Officer. The Chief Executive Officer shall have such other powers and perform such other duties as may from time to time be prescribed by the Board, but subject to any required approval of Major Decisions.

 

(d)            Other than (i) the Executive Chairman, and (ii) the Corporate Secretary, in each case of the foregoing clauses (i) and (ii), so long as such Person is an officer of Ryman Parent or one of its Affiliates, and (iii) any Officer who is also an officer of the Ryman Member or its Affiliates and, in the case of this clause (iii) is consented to by the Ryman Member and the Investor Member (the Officers referred to in clauses (i), (ii) and (iii), the “Exempted Officers”), the Officers, in the performance of their duties as such, shall owe to the Company duties of loyalty and due care of the type owed by the officers of a corporation to such corporation and its stockholders under the laws of the State of Delaware.

 

Section 7.8        Limitation on Authority of Holders. Notwithstanding anything to the contrary in the Delaware Act, no Holder in his, her or its capacity as a Holder shall have the authority to bind the Company. No Holder is an agent of the Company solely by virtue of being a Holder, and no Holder has authority to act for the Company solely by virtue of being a Holder. No provision of this Agreement (i) shall create any third-party beneficiary rights in any Holder or any of such Holder’s Affiliates in respect of employment or (ii) shall confer upon any Holder or any of such Holder’s Affiliates any right to employment or continued employment or level of compensation or benefits for any specified period of any nature or kind whatsoever under or by reason of this Agreement.

 

- 27 -

 

 

Article VIII
EXCULPATION, OTHER ACTIVITIES AND INDEMNIFICATION

 

Section 8.1             Exculpation; Elimination of Fiduciary Duties; Other Activities.

 

(a)            Notwithstanding any other provisions of this Agreement, whether express or implied, or obligation or duty at law or in equity, to the fullest extent permitted by law, no Person who is or was a Member, Manager or Officer or any of such Person’s respective Affiliates, heirs, successors, assigns, agents or representatives shall be liable to the Company or to any Holder for any losses sustained, liabilities incurred or benefits not derived as a result of any act or omission performed or suffered by such Person in such Person’s capacity as a Member, Manager or Officer if the conduct of such Person did not constitute, in the case of a Member or Manager, fraud or willful misconduct as affirmed by the highest court of applicable jurisdiction; provided that nothing in this Agreement relieves a Member from breach of the terms of this Agreement or, in the case of an Officer (other than an Exempted Officer), an act or omission by such Officer in his capacity as such for which a corporation organized under the laws of the State of Delaware would not be able to indemnify its officers under the laws of the State of Delaware. The termination of an action, suit or proceeding by judgment, order, settlement or upon a plea of nolo contendere or its equivalent shall not, in and of itself, create a presumption or otherwise constitute evidence that a Member, Manager or Officer is not entitled to exculpation hereunder. A Member, Manager or Officer shall be entitled to rely upon the advice of legal counsel, independent public accountants and other experts, including financial advisors, and any act of or failure to act by such Member, Manager or Officer in reliance on such advice shall in no event subject such Member, Manager or Officer or any of their respective Affiliates, heirs, successors, assigns, agents or representatives to liability to the Company or any Holder. Liability for breach of fiduciary duties as a Member or Manager (in their capacities as such) is hereby eliminated to the fullest extent permitted by applicable law, and fiduciary and other duties under statute or other doctrine shall not apply, provided that the foregoing shall not be deemed to limit or eliminate liability for any act or omission by such Person that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. Subject to compliance with the express terms of this Agreement, a Person who is or was a Member or Manager shall not be obligated to recommend or take any action as a Member or Manager (in their capacities as such) that prefers the interests of the Company or the other Holders over the interests of such Person (or the interest of a Holder with which such Person is affiliated) or its respective Affiliates, heirs, successors, assigns, agents or representatives, but instead may prefer its own interests including the interests of the Holder with which it is affiliated. To the maximum extent permitted by applicable law, each Holder hereby waives any claim or cause of action against a Person who is or was a Member or Manager (in their capacities as such) or any of such Person’s respective Affiliates, heirs, successors, assigns, agents and representatives for any breach of any fiduciary duty to the Company or the Holders by such Person, including as may result from a conflict of interest between the Company, any of the Holders or any of their respective Affiliates, on the one hand, and such Person, on the other hand.

 

(b)            It is acknowledged that the Ryman Member and its Affiliates, and the Investor Member and its Affiliates, have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Holder shall have any right, by virtue of this Agreement, to share or participate in such other investments or activities of the Ryman Member or any of its Affiliates or the Investor Member or any of Affiliates, or to the income or proceeds derived therefrom. In furtherance of the foregoing, to the fullest extent permitted by applicable law, the doctrine of corporate opportunity or any analogous doctrine shall not apply with respect to the Investor Member or any of its Affiliates or the Investor Designees or the Ryman Member or any of its Affiliates or the Ryman Designees, and the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any business opportunity presented to, or acquired by, created or developed by, or which otherwise comes into possession of the Investor Member or any of its Affiliates or the Investor Designees or the Ryman Member or any of its Affiliates or the Ryman Designees; provided that if the foregoing Persons come into possession of knowledge of an opportunity through their activities as a Manager, Member or agent of the Company or its Subsidiaries, then the opportunity shall belong solely to the Company.

 

- 28 -

 

 

(c)            (i) Atairos Parent agrees that it shall not, and shall cause its controlled Affiliates, including the Investor Member and its controlled Affiliates and its controlled Portfolio Companies not to, and Ryman Parent agrees that it shall not, and shall cause its controlled Affiliates, including the Ryman Member and its controlled Affiliates (each of the foregoing, collectively, the “Restricted Persons” and each, a “Restricted Person”; provided that a Person that for any reason is no longer an Affiliate of Ryman Member shall no longer be a Restricted Person) not to, invest in or develop any Competitive Business, other than through the Company or any of its Subsidiaries. Notwithstanding the prior sentence, any Restricted Person may engage in a Competitive Business if, prior to engaging in such Competitive Business:

 

(A)            the Investor Member or the Ryman Member, as applicable, shall have (x) notified the Board in writing of the underlying opportunity, which notice shall be accompanied by reasonable detail regarding the terms and conditions of the business opportunity, the identity of the counter-party to the business opportunity (if any) and the intended closing date of the business opportunity, and (y) irrevocably offer to allow the Company to pursue such business opportunity in lieu of such Restricted Person (the “Competitive Business Opportunity Offer”); and

 

(B)            the Managers designated by the Ryman Member (if the Investor Member brings the opportunity) or designated by the Investor Member (if the Ryman Member brings such opportunity) shall have fifteen (15) days to consider the Competitive Business Opportunity Offer and after such fifteen (15)-day period, the Company (acting in good faith at the direction of such Managers) shall not affirmatively elect, in writing, to pursue such Competitive Business Opportunity Offer;

 

then such Restricted Person may consummate such business opportunity on terms no more favorable to such Restricted Person than those set forth in the Competitive Business Opportunity Offer.

 

(ii)            Notwithstanding Section 8.1(c)(i):

 

(A)         each Restricted Person may acquire and hold Equity Securities of any Person that includes as a portion of its business a business focused on the country lifestyle consumer so long as such asset or business generated less than twenty-five percent (25%) of the revenues of the acquisition target (and the acquired portion thereof) for the twelve (12) month period ending on the last day of the month prior to the acquisition date;

 

- 29 -

 

 

(B)            each Restricted Person may acquire or own, as a passive investment, any Equity Securities of any Person that are publicly traded on a national or regional stock exchange if such Restricted Person is not a controlling Person of, or a member of a group that controls, such Person; and

 

(C)            no action by a Portfolio Company that is directly or indirectly controlled by Atairos Parent shall be deemed to be a violation of Section 8.1(c)(i) if Atairos Parent or any of its controlled Affiliates acting to prevent such Portfolio Company from taking such action would reasonably be expected to be a violation of any duty or obligation (fiduciary, contractual or otherwise) of the Investor Member, any of its controlled Affiliates or any of their respective designees or representatives on the board of directors or other similar governing body of such Portfolio Company to any other investors in such Portfolio Company, so long as the Investor Member and its controlled Affiliates do not direct such Portfolio Company to take such action or provide debt or equity financing to such Portfolio Company to support such action.

 

(iii)            The provisions of this Section 8.1(c) shall under no circumstances apply to any member of the Comcast Group even if all or any portion of the Investor Member’s Units are Transferred to a member of the Comcast Group. The covenants and obligations in this Section 8.1(c) shall terminate upon an IPO, Sale of the Company or a Qualified Spinoff or at such time that Investor Member or Ryman Member owns less than twenty percent (20%) of the Outstanding Units.

 

(iv)            Competitive Business” means a live entertainment asset or business focused on the country lifestyle consumer; provided that “Competitive Business” shall under no circumstances be deemed to include any amenity or feature at a Ryman Parent’s hotel property (other than in Nashville, Tennessee) with fewer than 250 seats and shall not include the Opry Backstage Grill at The Inn at Opryland; and further provided that in no event will Ryman Member or any Affiliate be deemed to be in breach because of the actions of a hotel manager in accordance with any hotel management agreement (to the extent any such hotel management agreement does not provide the hotel manager with greater rights in this regard than the hotel management agreements with Marriott currently in effect on the date hereof), and the parties recognize that a hotel manager may exercise discretion with respect to the hotel businesses, amenities and features.

 

(d)            For the avoidance of doubt, nothing in this Agreement shall limit or otherwise modify the rights or obligations of the Ryman Member or the Investor Member or any Affiliates thereof that are Restricted Parties under Section 8.1(c), respectively, pursuant to a separate agreement between such Member or its Affiliates, on the one hand, and the Company or a Subsidiary thereof, on the other hand.

 

- 30 -

 

 

Section 8.2            Indemnification.

 

(a)         To the fullest extent permitted by law, the Company shall indemnify and hold harmless any Person that was or is a party or is threatened to be made a party to any Proceeding involving the Company or its controlled Affiliates, by reason of the fact that such Person is or was an Indemnitee, against any loss, damage, liability or expense (including reasonable attorneys’ fees, costs of investigation and amounts paid in settlement) incurred by or imposed upon the Indemnitee in connection with such Proceeding (or, in the case of an Indemnitee that is an Officer (other than an Exempted Officer), if such Officer’s act or inaction constitutes an act or omission by such Officer for which a corporation organized under the laws of the State of Delaware would be able to indemnify its officers under the laws of the State of Delaware).

 

(b)        The Company shall pay the expenses incurred by an Indemnitee in defending any Proceeding, or in opposing any claim in connection with any potential or threatened Proceeding, in each case for which indemnification may be sought pursuant to this Section 8.2, in advance of the final disposition thereof, upon receipt of a written undertaking by such Indemnitee to repay such payment if it shall be judicially determined that such Indemnitee is not entitled to indemnification under this Section 8.2 with respect to such Proceeding.

 

(c)        The rights to indemnification and advancement of expenses conferred in this Section 8.2 shall (i) not be exclusive of any other right which any Indemnitee may have or hereafter acquire under any law, statute, rule, regulation, charter document, by-law, contract or agreement and shall inure to the benefit of the heirs, executors, administrators, personal representatives and successors of each such Indemnitee and (ii) continue as to an Indemnitee even if such Indemnitee is not or ceases to be a Manager or Officer.

 

(d)        Rights and benefits conferred on an Indemnitee under this Section 8.2 shall be considered a contract right and shall not be retroactively abrogated or restricted without the written consent of the Indemnitee affected by the proposed abrogation or restriction. The Company shall maintain directors and officers indemnity insurance coverage in effect at all times, as approved by the Board; provided, that failure to obtain insurance will not affect any rights to indemnification pursuant to Section 8.2.

 

(e)        The Company, at the sole discretion of the Board, may indemnify and advance expenses to a non-Officer employee or agent of the Company to the same extent and subject to the same conditions under which it may indemnify and advance expenses to an Officer under this Section 8.2.

 

(f)         Recourse by an Indemnitee for indemnity under this Section 8.2 shall be only against the Company as an entity and no Holder shall by reason of being a Holder be liable for the Company’s obligations under this Section 8.2.

 

(g)        Notwithstanding anything to the contrary in this Agreement or applicable law, an Indemnitee shall not have any right or benefit under this Section 8.2 or any other right to indemnification or reimbursement under this Agreement or applicable law with respect to a Proceeding if such Indemnitee (A) acted in bad faith, (B) was either grossly negligent or engaged in willful misconduct, or (C) in the case of an Officer (other than an Exempted Officer), such Indemnitee’s actions or inaction constitutes an act or omission by such Officer for which a corporation organized under the laws of the State of Delaware would not be able to indemnify its officers under the laws of the State of Delaware).

 

- 31 -

 

 

(h)            The Company hereby acknowledges that certain Indemnitees may have rights to indemnification, advancement of expenses and/or insurance provided by a fund, sponsor or Member and certain of their respective Affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to any such Indemnitees are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnitees are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by such Indemnitees and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement (or any other agreement between the Company and such Indemnitees), without regard to any rights such Indemnitees may have against the Fund Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of such Indemnitee with respect to any claim for which any Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against the Company. The Company and such Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section 8.2(h).

 

(i)          If this Section 8.2 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person otherwise entitled to indemnification under this Section 8.2 to the full extent permitted by any portion of this Section 8.2 that shall not have been invalidated.

 

(j)            Each Indemnitee shall be an express third-party beneficiary to this Section 8.2. No amendment, modification, or repeal of this Section 8.2 that adversely affects the rights of an Indemnitee to indemnification for claims incurred or relating to a state of facts existing before that amendment, modification, or repeal will apply in such a way as to eliminate or reduce that Indemnitee’s entitlement to indemnification for such claims without the Indemnitee’s prior written consent.

 

Article IX
BOOKS AND RECORDS

 

Section 9.1          Books and Records. Proper and complete books and records of the Company shall be kept and maintained at all times at the principal offices of the Company or, subject to the provisions of the Delaware Act, at such other place as the Board may from time to time determine.

 

Section 9.2          Bank Accounts. Funds of the Company shall be used only for Company purposes and shall be deposited in such accounts in banks or other financial institutions as may be established from time to time by the Board. Withdrawals shall be made by such Persons as are designated from time to time by the Board.

 

- 32 -

 

 

Section 9.3            Annual Operating Budget.

 

(a)            No later than thirty (30) days prior to the end of each Fiscal Year, the Company shall cause its Officers to prepare and submit to the Board for approval an annual operating budget (each such budget being the “Draft Budget”) for the Company and its Subsidiaries for the next Fiscal Year (a “Budget Year”). Such Draft Budget shall include estimates of the Company’s and its Subsidiaries’ operating expenses, uses of funds and capital expenditures for the Budget Year. The Board and Officers shall discuss the Draft Budget in good faith, and approval of such budget will be a Major Decision. The Draft Budget with such modifications (if any) as approved by the Board and the Members as a Major Decision will be the “Annual Operating Budget”.

 

(b)            Notwithstanding any provision of this Agreement, budgeted amounts for growth capital expenditures for constructing and opening New Units of existing concepts, and budgeted operating and pre-opening expenses for New Units of existing concepts may be included in the Annual Operating Budget without requiring approval of the Members as a Major Decision to the extent such budgeted amounts are first approved by the Board in such annual period and each of the following criteria are satisfied at the time the New Unit is first approved by the Board:

 

(i)            the Board determines that such annual budgeted amounts for growth capital expenditures in the aggregate for all such New Units first approved by the Board in such annual period are not projected to exceed the greater of (x) five percent (5%) of the Company’s revenues for the prior Fiscal Year and (y) $15,000,000;

 

(ii)            the Board determines that the projected annual budgeted operating expenses for such New Unit reflect such New Unit achieving breakeven on a projected New Unit “Adjusted EBITDAre” basis for the first twelve (12) months of its operations;

 

(iii)          the Board determines that pre-opening costs for such New Unit will not exceed $1,500,000;

 

(iv)         the Board determines that such New Unit is expected to generate a minimum unlevered IRR equal to at least twelve percent (12%);

 

(v)         the concept to which each such New Unit relates was either (i) an existing concept of units opened by the Company and its Subsidiaries as of the date hereof or (ii) a concept that was approved after the date hereof by the Board (including at least one designee of the Investor Member); and

 

(vi)        the Board’s determinations of the amounts referred to in clauses (i) through (v) above (collectively, “New Unit Costs”) were each based on projections prepared by the Company’s management that have been circulated to the entire Board, which projections state that they have been reasonably prepared based on assumptions reflecting the best currently available estimates and judgments of the Company’s management as to the expected future results of operations and financial condition of such New Units.

 

- 33 -

 

 

(c)            For purposes hereof, a “New Unit” means an asset that has been open for less than twelve (12) calendar months as of the beginning of the Budget Year.

 

(d)          If the Board and/or Members do not approve the Draft Budget, the Company shall operate under a budget that consists of (i) the prior year’s Annual Operating Budget with cost items (other than New Unit Costs) increased by no more than seven and one half percent (7.5%) in the aggregate, and subject to increase for increases in the Consumer Price Index, if higher and (ii) the aggregate New Unit Costs applicable to the Budget Year.

 

Section 9.4        Reports. The Company shall use its reasonable efforts to deliver or cause to be delivered to each Member the following:

 

(a)      Promptly after such information is provided to the Ryman Member (but in no event later than one hundred twenty (120) days after the end of each Fiscal Year), a copy of the audited consolidated balance sheet of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year then ended and the audited consolidated statements of income, equity, and cash flows of the Company and its Subsidiaries for such Fiscal Year then ended, and a copy of the report with respect to such audited financial statements from the certified public accounting firm that performed the audit;

 

(b)      Promptly after such information is provided to the Ryman Member (but in no event later than forty-five (45) days after the end of each of the first three quarters of any fiscal year), a copy of the consolidated balance sheet of the Company and its Subsidiaries as of the last day of the preceding fiscal quarter then ended and the consolidated statements of income of the Company and its Subsidiaries for such fiscal quarter and for the Fiscal Year-to-date period then ended, prepared in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments); and

 

(c)       On an annual basis at the written request of a Holder, a statement showing the number of Units outstanding of each class and series of membership interest, including any outstanding securities or rights convertible into or exercisable for Units, if any, all in sufficient detail as to permit the Holder to calculate its percentage equity ownership in the Company (it being understood that the Company shall not be required to provide any information regarding holdings of any individual Member(s) other than such Holder).

 

Section 9.5        Access to Information. The Company shall, and shall cause its Subsidiaries to, provide the Ryman Member and the Investor Member and their respective agents and representatives with access to their respective personnel, services providers (including auditors), properties, contracts, books and records and other documents and data, whether in written, electronic or visual form, subject to time, location and other restrictions as the Company or its applicable Subsidiary may reasonably impose; provided that the Company shall not be required to provide to Investor Member any information or reports that it does not provide to Ryman Member (or in any form it does not provide to Ryman Member). Access to information shall be limited as the Company may reasonably deem appropriate to preserve attorney-client privilege or other rights.

 

Section 9.6      Accounting; Internal Controls. The Company will maintain (i) effective internal control over financial reporting as defined in Rule 15d-15 under the Securities Exchange Act, and (ii) a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

- 34 -

 

 

Article X
TRANSFERS

 

Section 10.1          Restrictions on Transfers.

 

(a)         General. Transfers of Membership Interests may be made only in compliance with this Agreement. No Member may Transfer or permit the Transfer of any of its Membership Interests, except that, subject to compliance with Section 10.5(a), such prohibition shall not apply to Transfers:

 

(i)            to Permitted Transferees in accordance with Section 10.2;

 

(ii)            by the Investor Member in accordance with Section 10.1(b);

 

(iii)            by the Ryman Member in accordance with Section 10.1(c);

 

(iv)           in connection with a Sale of the Company in accordance with Section 13.7 and Section 13.8;

 

(v)          in connection with a Tag-Along Sale in accordance with Section 13.3 and Section 13.8;

 

(vi)          of Class B Units to the Company;

 

(vii)          in accordance with Section 13.4;

 

(viii)         by Ryman Member in a Qualified Spinoff or by the Members in a Qualified IPO; and

 

(ix)          otherwise with the prior approval of each of the Investor Member and the Ryman Member (for so long as the applicable Member and its Permitted Transferees hold at least ten percent (10%) of the Outstanding Units), which may be withheld for any reason.

 

(b)         Transfers by the Investor Member. The Investor Member shall not Transfer or permit the Transfer of any or all of its or its Units, except (i) to one or more of its Permitted Transferees in accordance with Section 10.2, (ii) pursuant to a Transfer made in accordance with Section 13.3, Section 13.7, Section 13.13 or Section 13.14, or (iii) with the prior written consent of the Ryman Member.

 

- 35 -

 

 

(c)            Transfers by the Ryman Member. The Ryman Member shall not Transfer or permit the Transfer of any or all of its or its Units, except (i) to one or more of its Permitted Transferees in accordance with Section 10.2, (ii) pursuant to a Transfer made in accordance with Section 13.1, Section 13.2, Section 13.3 and Section 13.10, (iii) pursuant to a Transfer made in accordance with Section 10.3 and/or (iv) with the prior written consent of the Investor Member.

 

(d)            Termination. The provisions of this Article X shall terminate upon the consummation of an IPO, Qualified Spinoff or a Sale of the Company, except (i) each Member shall be subject to the black-out or lock-up periods provided in Section 13.6 or set forth in any lock-up agreement entered into in connection with any offering effected under Section 13.5 and (ii) with respect to a Management Member, such Management Members must comply with any applicable terms in such Management Member’s employment agreement (or equivalent) and such management equity interest ownership guidelines as are adopted from time to time in connection with or after an IPO.

 

Section 10.2           Permitted Transfers.

 

(a)            Notwithstanding anything in this Agreement to the contrary (but subject to Section 10.5(a)), any Member may Transfer or permit the Transfer of any or all of its Membership Interests to one or more of its Permitted Transferees without the consent of any Person; provided that (i) in the case of any Permitted Transferee that becomes the direct holder of any Units, such Permitted Transferee shall have agreed in writing to be bound by the terms of this Agreement by executing the Joinder and (ii) in the case of any Permitted Transferee, whether such Permitted Transferee becomes the direct holder of Units or holds a direct or indirect interest in the Person that is the direct holder of Units, if such Permitted Transferee ceases to be a Permitted Transferee of such Member, such Permitted Transferee shall agree (in a manner that is enforceable by the Company) to Transfer its Units back to such Member or one or more of such Member’s Permitted Transferees prior to ceasing to be a Permitted Transferee of such Member; provided that, in the event that the Investor Member Transfers its Units to one or more of its Permitted Transferees prior to the date that the Earnout Transactions occur or can no longer occur, each such Permitted Transferee shall agree to be bound by the obligations of the Investor Member in respect of the Earnout Transactions with respect to a pro rata portion of the Class A Units held by such Permitted Transferee relative to all Class A Units held by the Investor Member and all of its Permitted Transferees.

 

(b)            No Member will avoid the provisions of this Agreement by either making one or more Transfers to one or more Permitted Transferees and then disposing of all or any portion of such party’s interest in any such Permitted Transferee or by Transferring the Equity Securities of any entity whose primary purpose is to hold (directly or indirectly) Units.

 

- 36 -

 

 

Section 10.3          Ryman Member Transfer Rights.

 

(a)            From and after the date hereof, subject to Section 10.2, this Section 10.3 and Section 10.4(a), the Ryman Member may Transfer any or all of its Units to any Person without the consent of any other Person, so long as, after giving effect to such Transfer, the Ryman Member (together with its Permitted Transferees) continues to hold at least 51.0% of each of the Voting Units and the Outstanding Units; provided that the limitations in Section 10.3 will not apply to a Sale of the Company, a Qualified Spinoff or a Qualified IPO.

 

(b)          In addition to and without limiting Section 10.3(a), from and after the date hereof, subject to Section 10.2, Section 10.3 and Section 10.4(a), the Ryman Member may Transfer any or all of its Units to any Person without the consent of any other Person to the extent such Transfer is necessary, based on the advice of outside legal counsel, to maintain Ryman Parent’s qualification as a real estate investment trust under the Code (a “REIT”); provided that the Ryman Member may not Transfer pursuant to this Section 10.3(b) more than the number of Units that would result in Ryman Parent’s ownership of securities of taxable REIT subsidiaries to represent the maximum percentage permitted by Section 856(c)(4)(B)(ii) of the Code less three percent (3%) of its total assets (as determined for purposes of Section 856(c)(4)(B)(ii) of the Code) immediately after such Transfer or that are otherwise required to be Transferred for Ryman Parent to maintain its qualification as a REIT.

 

(c)            If, at any time, the Ryman Member and its Permitted Transferees hold less than 50.1% of the Outstanding Units or 50.1% of the Voting Units, whether due to a Transfer of Units by the Ryman Member or as a result of the issuance of additional Units, the Investor Member and the Ryman Member shall negotiate in good faith to amend this Agreement to reflect rights (including governance rights, ownership thresholds with respect thereto and, if applicable, the interests of any third party admitted as a Member and referred to in the proviso to Section 10.4(b)) that reflects the percentage of the Outstanding Units and Voting Units held by each of the Investor Member, the Ryman Member and, if applicable, any third party admitted as a Member and referred to in the proviso to Section 10.4(b).

 

(d)          For the avoidance of doubt, Ryman Member shall have the right to cause a Sale of the Company, a Qualified IPO or a Qualified Spinoff at any time.

 

Section 10.4         Transferability of Ryman Member and Investor Member Rights.

 

(a)         The rights of the Ryman Member and the Investor Member set forth herein arising from or relating to such Member’s status as the “Ryman Member” or the “Investor Member”, as applicable, including such Member’s right to designate Managers as set forth in Section 7.2 and approve certain actions as provided in Section 7.1(b), and any other rights specifically provided to the Ryman Member and the Investor Member, as applicable, but excluding the rights of such Member that are generally applicable to all Members (including, for the avoidance of doubt, economic rights associated with Units), in each case are not assignable or transferable, and shall terminate if at any time the holder thereof ceases to be a Member or to hold the requisite ownership percentage or number of Units applicable hereunder, except (i) in the case of a Transfer of Units by any such Person to its Permitted Transferees pursuant to Section 10.2 or (ii) as mutually agreed by the Ryman Member and the Investor Member.

 

- 37 -

 

 

 

(b)            Except as mutually agreed by the Ryman Member and the Investor Member, in connection with the Transfer of Units, neither the Ryman Member nor the Investor Member shall enter into any agreements or arrangements of any kind that would be inconsistent with the provisions of Section 10.4(a) (including through any back-to-back or similar arrangement), provided that in connection with a Transfer by the Ryman Member in compliance with Section 10.3(a) (and excluding, for the avoidance of doubt, a Transfer pursuant to Section 10.3(b)), the Ryman Member may:

 

(i)            permit one (but no more than one) transferee to designate an individual to serve as a Manager; provided that (A) such Manager shall count for all purposes hereof as a Ryman Manager and (B) for purposes of determining the Ryman Member’s and the Investor Member’s proportional representation on the Board, the Class A Units transferred to such transferee will be included in the number of Outstanding Units owned by the Ryman Member; and

 

(ii)            enter into one or more back-to-back arrangements with transferees providing such transferees with customary minority protections that do not interfere with the Investor Member’s rights hereunder, and that do not result in any amendments to this Agreement (except amendments to Schedule A to identify such transferee as a Member and such transferee’s ownership of Units) (i.e., any such back-to-back arrangements will be solely between the Ryman Member and such transferees).

 

(c)            For the avoidance of doubt, a Member and its Permitted Transferees shall be entitled to enter into one or more arrangements among themselves, including with respect to the allocation of any right, obligation or action that may be exercised, borne or taken by such Persons.

 

Section 10.5          Other Transfer Conditions, Restrictions and Requirements.

 

(a)            Notwithstanding anything in this Agreement to the contrary, no Transfer of a Membership Interest shall be permitted and any such purported Transfer shall be void ab initio, and no transferee of a Membership Interest shall be admitted to the Company as a Member, if:

 

(i)            such Transfer violates any provision of this Agreement;

 

(ii)            such Transfer, alone or in conjunction with one or more other conditions or events, with the passage of time, with the giving of notice, or as a result of any combination of the foregoing, would result in, cause or create a material risk of (A) a violation of applicable federal or state securities laws or require the Company to register under the Securities Act, (B) a material violation or breach of any law, regulation, ordinance, agreement or instrument by which the Company, or any of its properties or assets, is bound or subject, (C) the Company’s obligation to register under the Investment Company Act of 1940, as amended, or (D) all or any portion of the assets of the Company to constitute “plan assets” under the Employee Retirement Income Security Act of 1974 or the Code;

 

- 38 -

 

 

(iii)            the transferee of such Membership Interest does not agree in writing to be bound by all of the provisions of this Agreement by signing and delivering to the Company a joinder substantially in the form of Exhibit A or in a form otherwise reasonably acceptable to the Company (the “Joinder”) (and, if such transferee is a married individual, such transferee’s spouse does not execute and deliver to the Company a spousal consent to the extent such transferee is domiciled in a community property state and requested by the Company);

 

(iv)            if requested by the Board, the transferee fails to furnish promptly to the Company an opinion of counsel, which counsel and opinion shall be reasonably satisfactory to the Board, that such purported Transfer does not fall within or give rise to any condition set forth in Section 10.5(a)(ii)(A); provided that this Section 10.5(a)(iv) shall not apply in respect of the Transfer by the Ryman Member or the Investor Member to its Permitted Transferees or to a Qualified IPO or a Qualified Spinoff, and no Transfer to a Permitted Transferee shall occur that would cause the Company to be required to become a reporting company pursuant to the Securities Exchange Act (other than a Qualified Spinoff by Ryman Member or its Affiliates);

 

(v)            the transferor of such Membership Interest shall not have paid, or reimbursed the Company for, all reasonable out-of-pocket costs and expenses incurred by the Company in connection with such Transfer; provided that this Section 10.5(a)(v) shall not apply in respect of a Transfer by the Ryman Member or the Investor Member to its Permitted Transferees; or

 

(vi)            the Company or its Subsidiaries then holds any licenses issued by the FCC, unless all necessary prior FCC approvals of such Transfer under the Federal Communications Laws have been obtained.

 

(b)            No transferee of any Membership Interest or Person to whom any Membership Interests are issued pursuant to this Agreement shall be admitted as a Member hereunder unless (i) such Membership Interests are Transferred or issued in compliance with the provisions of this Agreement (including this Section 10.5(b)), and (ii) such transferee or recipient shall have executed and delivered to the Company the Joinder, and (iii) in the case of the issuance of new Membership Interests, if required hereunder, the requisite Members shall have executed and delivered an amendment or joinder to this Agreement reflecting the admission of such recipient as a Member. If the immediately preceding sentence is complied with, the applicable transferee or recipient shall, without the need for any further action of any Person, be deemed admitted to the Company as a Member. Unless otherwise expressly set forth in this Agreement (and subject in all cases to Section 10.4), a Substitute Member shall enjoy the same rights, and be subject to the same obligations, as the transferor. In the event of any admission of a Substitute Member pursuant to this Section 10.5(b), this Agreement shall be deemed amended to reflect such admission, and any formal amendment of this Agreement (including Schedule A) in connection therewith shall only require execution by the Company and such Substitute Member to be effective. As promptly as practicable after the admission of any Person as a Member, the books and records of the Company shall be changed to reflect the admission of such Person as a Member.

 

- 39 -

 

 

Section 10.6          Involuntary Transfers.

 

(a)         In the event of an Involuntarily Transfer of any Membership Interest, the Involuntary Transferee shall take and hold such Membership Interest subject to this Agreement, shall assume all of the obligations arising under this Agreement (including pursuant to Article XIII) or applicable law of the transferor of the Membership Interest, and otherwise shall comply with this Agreement. Without any limitation on the foregoing, unless and to the extent admitted as a Member with the prior approval of each of the Investor Member and the Ryman Member, an Involuntary Transferee shall not have any right to vote or consent or otherwise participate in management, to acquire any Membership Interest under Section 3.5, or Article XIII, or to sell any Membership Interest under Article XIII but the Membership Interest of such Involuntary Transferee (whether or not owned as an Involuntary Transferee) shall remain subject nonetheless to purchase under Section 13.4.

 

(b)          If a Person otherwise admitted as a Member acquires an additional Membership Interest as a result of or in connection with an Involuntary Transfer, such Person shall not be treated as a Member and shall be treated as an Involuntary Transferee with respect to and to the extent of such additional Membership Interest acquired as a result of or in connection with such Involuntary Transfer, unless such Person is admitted as a Member with the prior approval of each of the Investor Member and the Ryman Member.

 

Section 10.7        Termination of Status. Upon a Transfer (other than a Transfer in the nature of a pledge, mortgage, lien or other encumbrance in the nature of a security interest) of all of a Holder’s Membership Interest in a Transfer permitted by this Agreement, such Holder, if previously admitted as a Member, shall cease to be a Member, and all rights of such Holder as a Member or Holder shall terminate, except that Section 3.2, Article VIII and the representations and warranties made by such Member or Holder under Section 12.1, together with any other provisions of this Agreement necessary or ancillary to implementation of any of the foregoing provisions, shall survive such termination; provided that such transferor shall not be relieved of any obligation or liability hereunder arising prior to the consummation of such Transfer but shall be relieved of all future obligations with respect to the Membership Interest so Transferred.

 

Article XI
WITHDRAWAL AND DISSOLUTION

 

Section 11.1        Withdrawal. No Holder shall have the power or right to withdraw or otherwise resign from the Company prior to the dissolution and winding-up of the Company pursuant to this Article XI without the prior written consent of the Board (which consent may be withheld by the Board in its sole discretion), except that, upon a Transfer (other than a Transfer in the nature of a pledge, mortgage, lien or other encumbrance in the nature of a security interest) of all of a Holder’s Membership Interest in a Transfer permitted by this Agreement, such Holder shall cease to be a Holder. Notwithstanding that payment on account of a withdrawal may be made after the effective time of such withdrawal, any completely withdrawing Holder will not be considered a Holder for any purpose after the effective time of such complete withdrawal and, in the case of a partial withdrawal, such Holder’s corresponding economic, voting and other rights shall be reduced for all other purposes hereunder upon the effective time of such partial withdrawal.

 

- 40 -

 

 

Section 11.2        Events of Dissolution. The Company shall be dissolved and its affairs shall be wound up on the first to occur of the following (each, an “Event of Dissolution”):

 

(a)            subject to Section 7.1(b), the approval of the Board;

 

(b)            the sale of all or substantially all of the assets of the Company; or

 

(c)            the entry of a decree of judicial dissolution of the Company under the Delaware Act.

 

The Members hereby agree that the Company shall not dissolve prior to the occurrence of an Event of Dissolution and that no Member shall seek a dissolution of the Company under Section 18-802 of the Delaware Act. For the avoidance of doubt, an Event of Dissolution shall not include, and this Section 11.2 shall not apply to, an IPO, any Sale of the Company or a Qualified Spinoff or a breach of this Agreement.

 

Section 11.3         Liquidating Distributions. Upon the dissolution and winding-up of the Company, the assets shall be distributed first to creditors and then to Unit Holders as set forth in Section 4.4.

 

Section 11.4        Conduct of Winding-Up. The winding-up of the business and affairs of the Company shall be conducted by the Board except as otherwise required by law.

 

Article XII
REPRESENTATIONS, WARRANTIES,
AGREEMENTS AND OTHER MATTERS

 

Section 12.1          Holder Representations. In connection with the acquisition and/or ownership of any Membership Interest (including any acquisition and/or ownership occurring as a result of or in connection with an Involuntary Transfer), the Person acquiring the Membership Interest (including any Involuntary Transferee) severally, for itself only, represents and warrants to the Company and the other Members and agrees and acknowledges that:

 

(a)         any Membership Interest acquired by or for such Person is and shall be acquired solely for such Person’s own account, for investment purposes only and not with a present view toward the distribution thereof and not with any present intention of distributing or reselling any such Membership Interest; provided that, irrespective of any other provisions of this Agreement, any Transfer of such Membership Interest by such Person shall be made only in compliance with all applicable federal and state securities laws, including the Securities Act;

 

(b)            any Membership Interest acquired by or for such Person is not registered under the Securities Act and is not qualified or registered under any state securities law and must be held by such Person until such Membership Interest or any successor security is so registered or qualified or an exemption from such registration or qualification is available; neither the Company nor any Holder or Manager shall have any obligation to take any action to cause any Membership Interest to be registered under the Securities Act or qualified or registered under any state securities law or to qualify any Membership Interest for an exemption from such registration or qualification;

 

- 41 -

 

 

(c)            in connection with any Transfer of a Membership Interest pursuant to any exemption under federal and applicable state securities laws, such Person may, at the option of the Company, be required to, and shall, deliver to the Company such documents, affidavits and opinions of counsel for such Person acceptable to the Company, and/or receive an opinion from counsel for the Company, as the Company may require and to the reasonable satisfaction of the Company and its counsel, as to the compliance of such Transfer with all applicable federal and state securities law requirements;

 

(d)            such Person is an “accredited investor” (as defined in Regulation D promulgated under the Securities Act);

 

(e)          such Person has such knowledge and experience in financial and business matters such that such Person is capable of evaluating the merits and risks of an investment in a Membership Interest and of making an informed investment decision with respect thereto or has consulted with advisors who possess such knowledge and experience;

 

(f)            such Person is able to bear the full economic risk of his or its investment in a Membership Interest for an indefinite period of time because a Membership Interest has not been registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or unless an exemption from such registration is available;

 

(g)          the execution, delivery and performance of this Agreement by such Person do not and shall not conflict with, violate or cause a breach of any agreement, contract or instrument to which such Person is a party, any judgment, order or decree to which such Person is subject, or, if such Person is an entity, such Person’s organizational and governing documents;

 

(h)            such Person has no and shall not grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement;

 

(i)            if such Person is a corporation, partnership, limited liability company, trust, custodianship, estate or other entity, this Agreement has been duly executed and delivered by a duly authorized Person on its behalf and constitutes the legally binding obligation of such Person, enforceable against such Person in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights generally and by the availability of injunctive relief, specific performance and other equitable remedies);

 

(j)          such Person has carefully reviewed this Agreement, has had the opportunity to ask questions and receive answers concerning this Agreement and fully understands the provisions contained herein;

 

(k)          with respect to the Tax and other consequences of acquiring, receiving, owning, holding, and disposing of any Membership Interest and the income and proceeds thereof, such Person is relying solely on its own Tax and other counsel and advisors and is not relying on the Company or any Person other than such Person’s own counsel and advisors;

 

- 42 -

 

 

(l)            if such Person is at any time a married individual, upon the request of the Company, the spouse of such Member, acting with legal capacity to do so, has executed and delivered (or, if applicable, shall execute and deliver) to the Company a spousal consent;

 

(m)         neither such Person, any Affiliate of such Person nor any direct or indirect officer, manager, member, partner, shareholder or principal employee of any of the foregoing is on the list of Specially Designated Nationals and Blocked Persons issued by the Office of Foreign Assets Control of the U.S. Department of Treasury;

 

(n)            such Person is a “United States person” within the meaning of Code Section 7701(a)(30);

 

(o)           such Person is not an employee benefit plan subject to ERISA or Code Section 4975 and no “plan assets” (within the meaning of Section 3(42) of ERISA) of an employee benefit plan subject to ERISA or Code Section 4975 are being used to acquire any Membership Interest;

 

(p)            there are no brokerage fees, agents’ fees, commissions or finders’ fees (or any basis therefor) resulting from any action taken by such Person acting or purporting to act on its behalf upon entering into this Agreement; and

 

(q)         if the Company or its Subsidiaries then holds any licenses issued by the FCC, such Person is qualified to hold Membership Interests in the Company under the Federal Communications Laws, including but not limited to the provisions relating to media ownership and attribution and character qualifications; and there are no facts or circumstances concerning any such Person and its Affiliates that would, under the Federal Communications Laws and the existing procedures of the FCC, including, without limitation, under 47 C.F.R. § 73.3555, Section 310(b) of the Communications Act of 1934, as amended, and 47 C.F.R. § 1.5001(i)(1), disqualify any such Person as a holder of any Membership Interests in the Company or cause the Company to violate the Federal Communications Laws.

 

A Person’s inability to make the representations and warranties will entitle the Company to void the Transfer or suspend the rights of any Person under this Agreement. The Board may cause the Company to waive any of the foregoing representations as it may deem appropriate; provided that, the Company will be deemed to have waived the foregoing representation in clause (q) with respect to acquisition and/or ownership of any Membership Interest by the Investor Member (and its Permitted Transferees) prior to the Company having sought and obtained a petition for declaratory ruling finding that the Company’s foreign ownership by the Investor Member, its Affiliates and any member of the Comcast Group in excess of the twenty-five percent (25%) foreign ownership limit in Section 310(b)(4) of the Communications Act of 1934, as amended, is in the public interest.

 

Section 12.2        Anti-Corruption Compliance. The Company and its Subsidiaries (acting by its and their officers, directors and employees) shall, and the Company shall use good faith efforts to ensure that its’ and its Subsidiaries’ agents, stockholders, partners and other equity holders (to the extent acting in connection with the business of the Company and its Subsidiaries) shall, comply with all Anti-Corruption Laws, including maintaining systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure such compliance. The Company shall provide the Investor Member and its Affiliates with access to the Company’s and its Subsidiaries’ officers, directors and employees, and such other information as the Investor Member may reasonably request, in order to enable the Investor Member to determine the Company’s compliance with relevant Anti-Corruption Laws and the covenants contained herein and for purposes of complying with any legal or regulatory inquiry, reporting requirements or internal compliance and other policies relating to Anti-Corruption Laws, and shall also promptly notify the Investor Member of any Enforcement Action.

 

- 43 -

 

 

Section 12.3          FCC Matters.

 

(a)          Ryman Parent, on behalf of itself and its Subsidiaries, and the Company acknowledge and agree that the Investor Member is a third-party beneficiary of the Option Agreement and is entitled to exercise and enforce the rights of the Optionee (as defined in the Option Agreement) on behalf of the Optionee under the Option Agreement to the fullest extent as though the Investor Member were the Optionee and a party to the Option Agreement.

 

(b)          So long as the Investor Member holds any of the Outstanding Units, neither the Ryman Member nor the Company shall cause, effect, or permit the transfer of the FCC Licenses (as defined in the Option Agreement) to the Company or a Subsidiary thereof without the prior consent of the Investor Member.

 

(c)          Prior to any Sale of the Company, a Qualified Spinoff, a Qualified IPO or a Change of Control of Ryman Parent (as defined in the Services Agreement) or such earlier time as shall be mutually agreed by the Ryman Member and the Investor Member, Ryman Parent, Atairos Parent and the Company shall, and shall cause their respective Affiliates to, cooperate in good faith to structure a transfer of the FCC Licenses to such Person or Persons that is in the best interests of the Company given the commercial realities of the proposed transaction (including, for example, a transfer of the FCC Licenses to the Company or a Subsidiary thereof or to a new entity that would be owned by Affiliates of the Ryman Member and/or indirect equityholders of the Investor Member who are not treated as “foreign” under applicable Federal Communications Laws), and shall thereafter use commercially reasonable efforts to effect such transfer on terms that the Ryman Member and Investor Member shall mutually agree; provided that no party hereto or any of its Affiliates shall, in connection with any of the foregoing, be required to accept or otherwise agree to any structure or transfer that (i) would reasonably be expected to impose, directly or indirectly (including through its indirect ownership in the Person that holds the FCC Licenses), any limitation or restriction on the ability of such party or any of its Affiliates (or any member of the Comcast Group) to freely conduct their businesses, structure their direct or indirect ownership, engage in transactions with other Persons (including investments in other Persons) or own any other assets; or (ii) would require any member of the Comcast Group to acquire directly or indirectly any ownership interest in the FCC Licenses.

 

- 44 -

 

 

(d)            So long as the Investor Member holds any of the Outstanding Units, without the prior written consent of the Investor Member, the Ryman Member and the Company shall not, and each shall cause its Subsidiaries not to:

 

(i)            exercise any rights with respect to any Event of Default (as defined in the LMA);

 

(ii)          terminate, materially amend or modify the Option Agreement or the LMA (or otherwise not extend the term of the Option Agreement or the LMA); and

 

(iii)          (A) exercise the Option (as defined in the Option Agreement) or (B) designate any third party to acquire all or part of the Station Assets (as defined in the Option Agreement) or otherwise assign the Option to a third party.

 

Article XIII
SPECIAL RIGHTS

 

Section 13.1      Investor Member Purchase Option.

 

(a)            Option Price Notice. On the terms and subject to the conditions set forth in this Agreement, the Investor Member shall have the exclusive and irrevocable right and option (the “Option”) to purchase and acquire Class A Units from the Ryman Member, free and clear of any Liens, at the times and in the amounts set forth below. By no later than October 31 of each of 2023, 2024 and 2025, the Ryman Member shall deliver a written notice (each, an “Option Price Notice”) to the Investor Member setting forth a reasonably detailed calculation of LTM Adjusted EBITDAre for the twelve (12)-month period ending on the September 30 of that year and, based on such calculation, the Ryman Member’s calculation of the Option Price.

 

(b)            Option Price Dispute.

 

(i)            If the Investor Member objects to numerical inaccuracies in the calculation of the LTM Adjusted EBITDAre or the Option Price reflected in an Option Price Notice or believes that the LTM Adjusted EBITDAre or the Option Price reflected in an Option Price Notice was not prepared in accordance with the terms of this Agreement, the Investor Member may, within seven (7) Business Days after receipt of the applicable Option Price Notice, deliver a notice (each, an “Option Price Dispute Notice”) to the Ryman Member disagreeing with such calculation, specifying in reasonable detail the nature and basis for such dispute and setting forth the Investor Member’s calculation of LTM Adjusted EBITDAre and the Option Price for such year. If Investor Member does not deliver, or cause to be delivered, an Option Price Dispute Notice for a given year with respect to the calculation of LTM Adjusted EBITDAre and the Option Price for such year, then such Option Price Notice for such year shall be deemed final.

 

- 45 -

 

 

(ii)            If an Option Price Dispute Notice is delivered within the applicable seven (7) Business Day period specified in Section 13.1(b)(i), then the Investor Member and the Ryman Member shall negotiate in good faith for five (5) Business Days following the receipt of such Option Price Dispute Notice to resolve such objections. Any such objections that the Investor Member and the Ryman Member are unable to resolve during such five (5) Business day negotiation period is referred to as an “Option Price Dispute”. After such five (5) Business Day negotiation period, any matter set forth in the Option Price Dispute Notice that is not an Option Price Dispute shall be deemed final based on the resolution of such matter as agreed by the Ryman Member and the Investor Member. If the Ryman Member and the Investor Member are unable to resolve all objections during such five (5) Business day negotiation period, then any Option Price Disputes, and only Option Price Disputes, shall be resolved by a regionally or nationally recognized certified public accounting firm upon which the Ryman Member and the Investor Member shall reasonably agree (the “Independent Referee”). If Option Price Disputes are submitted to the Independent Referee for resolution, (A) the Investor Member and the Ryman Member will cooperate with the Independent Referee during the term of its engagement; (B) the Investor Member and the Ryman Member shall furnish or cause to be furnished to the Independent Referee such work papers and other documents and information relating to the Option Price Disputes as the Independent Referee may request (subject to reasonable confidentiality restrictions and providing such assurances, releases, indemnities or other agreements as accountants may customarily require in such circumstances) and that are available to that party or its agents and shall be afforded the opportunity to present to the Independent Referee any material relating to the Option Price Disputes and to discuss the Option Price Disputes with the Independent Referee (provided, that Investor Member and the Ryman Member shall not, and shall each cause its representatives not to, engage in any ex parte communications with the Independent Referee during the term of its engagement); (C) the Investor Member and the Ryman Member shall instruct the Independent Referee to complete its review and render its final determination no later than December 15 of the applicable year, and each of the Investor Member and the Ryman Member shall use commercially reasonable efforts to ensure that the Independent Referee is in a position to deliver such final determination no later than such date; (D) the determination by the Independent Referee of the Option Price for the applicable year shall be final, binding and conclusive on the parties; (E) the Independent Referee shall make a final determination of LTM Adjusted EBITDAre and the Option Price, based solely on the Option Price Disputes and the terms of the Agreement and, in resolving such Option Price Disputes, the Independent Referee shall not assign to any item in dispute a value that is, as applicable (i) greater than the greatest value for such item assigned by the Investor Member, on the one hand, or the Ryman Member, on the other hand, or (ii) less than the smallest value for such item assigned by the Investor Member, on the one hand, or the Ryman Member, on the other hand; and (F) the Investor Member and the Ryman Member shall instruct the Independent Referee to determine the allocation of the cost of the Independent Referee’s review and report based on the inverse of the percentage its determination (before such allocation) bears to the total amount of the Option Price Disputes impacting the Option Price as originally submitted to the Independent Referee (for example, should the Option Price Disputes impacting the Option Price total an amount equal to $1,000 and the Independent Referee awards $600 in favor of the Ryman Member’s position, sixty percent (60%) of the costs of the Independent Referee in connection with providing the services contemplated by this Section 13.1(b)(ii) would be borne by the Investor Member and forty percent (40%) of such costs would be borne by the Ryman Member). The Investor Member and the Ryman Member shall each bear the fees, costs and expenses of their respective auditors, advisors, and other representatives incurred in connection with the determination and review of the Option Price Notice and Option Price Dispute Notice, as applicable.

 

(c)            AMPA Notice. By no later than December 1 of each of 2023, 2024 and 2025, the Ryman Member shall deliver a written notice (each, an “AMPA Notice”) to the Investor Member setting forth a reasonably detailed calculation of the Annual Maximum Permissible Amount for such year, together with a detailed description of the assumptions that the Ryman Member is making for the remainder of such year in order to derive its calculation of Annual Maximum Permissible Amount; provided that no AMPA Notice shall be delivered prior to November 15 of any year. The Ryman Member shall afford the Investor Member the opportunity to review the AMPA Notice and such supporting schedules and analyses, including the underlying records or documentation, as are reasonably necessary or appropriate to allow the Investor Member to verify the accuracy of the calculation of the Annual Maximum Permissible Amount for such year, and shall make Ryman Parent’s representatives reasonably available to the Investor Member and its representatives to discuss its calculation of the Annual Maximum Permissible Amount; provided that the Ryman Member shall be permitted to withhold any information as is reasonably necessary to protect the attorney-client privilege of the Ryman Parent or any of its Affiliates (provided that the Ryman Member shall take such reasonable actions to implement alternate arrangements (including entering into joint defense agreements, redacting parts of documents or preparing “clean” summaries of information) in order to allow the Investor Member access to such information to the fullest extent reasonably practicable under the circumstances) and to impose an appropriate confidentiality and non-use agreement with respect to any information that is material nonpublic information for purposes of securities laws. The Ryman Member shall review any comments proposed by the Investor Member with respect to the Annual Maximum Permissible Amount within the ten (10) Business Day period following the delivery of the AMPA Notice and shall consider in good faith any appropriate changes thereto and to the extent the Ryman Member deems it reasonably appropriate, revise the Annual Maximum Permissible Amount to reflect such comments; provided that, for the avoidance of doubt, the final determination of the Annual Maximum Permissible Amount shall be in the Ryman Member’s good faith discretion.

 

- 46 -

 

 

(d)            Option Exercise.

 

(i)            At any time during an Option Period, the Investor Member may exercise the Option by delivery of written notice to the Ryman Member (the “Option Exercise Notice”) indicating its election to exercise the Option and the number of Option Units, up to the total number of Option Units, that it will purchase. Any exercise will be irrevocable. For purposes hereof, the “Option Period” means the period commencing on the date of the delivery of the Option Price Notice and ending on December 20 of the applicable year for which such Option Price Notice has been delivered; provided that if an Option Price Dispute is submitted to the Independent Referee and the Independent Referee has not completed its review and rendered its final determination by December 15 of such year, the Ryman Member and the Investor Member shall agree to an appropriate extension of the Option Period to allow the Investor Member to make an informed and considered determination as to whether it desires to exercise the Option based on the final Option Price, but also allowing for an Option closing by no later than the end of such year.

 

(ii)            The total number of Class A Units subject to the Option for any year (the “Option Units”) shall be equal to a number of Class A Units equal to the lesser of (i) the number of Class A Units having an aggregate Option Price equal to the lesser of (A) $125,000,000 and (B) the Annual Maximum Permissible Amount as finally determined pursuant to Section 13.1(c) and (ii) the greatest number of Class A Units that if Transferred by the Ryman Member in the Option would still result in the Ryman Member owning 51.0% of the Outstanding Units. No fractional Units will be transferred.

 

- 47 -

 

 

(iii)            The Option closing will occur no later than December 31 of the year in which the applicable Option relates. At the Option closing, (A) the Investor Member shall purchase and pay, by wire transfer of immediately available funds to the account designated by the Ryman Member, for the Option Units included in the Option Exercise Notice and the Ryman Member shall, concurrently with such payment, deliver to the Investor Member the certificates or other applicable instruments, if any, representing such Option Units, free and clear of all Liens, and (B) the Investor Member and the Ryman Member shall execute an Assignment in the form attached as Exhibit C hereto. Schedule A shall thereupon be modified to reflect the Transfer of such Option Units.

 

(iv)            The Investor Member may designate any of its Permitted Transferees to purchase all or part of the Option Units with respect to which the Investor Member exercises the Option; provided that the Investor Member shall remain obligated to consummate the purchase if such designees fail to do so.

 

(e)            Calculation of Option Price. The “Option Price” with respect to each Option Period shall be calculated on a per Unit basis as follows: (17 multiplied by the LTM Adjusted EBITDAre for the twelve (12)-month period ending on the September 30 prior to the Option Period), minus (net debt of the Company) to calculate equity value, then divided by the number of Outstanding Units. For purposes of determining the Option Price, “net debt” shall be Indebtedness minus Cash calculated as of the September 30 prior to the Option Period; provided that, in the event that the Company or any of its Subsidiaries incurs any Indebtedness outside of the ordinary course of business (including in connection with any M&A transaction) or makes any distribution of Cash to the Members (or by an non-wholly owned Subsidiary to its equityholders) between the September 30 and the closing of the applicable Option, amounts associated with such actions shall be reflected in net debt for purposes of determining the Option Price.

 

(f)            LTM Adjusted EBITDAre” means the following for the trailing twelve months ended on the most recent September 30:

 

The Company’s consolidated net income (calculated in accordance with GAAP) plus interest expense, income tax expense, depreciation and amortization, gains or losses on the disposition of depreciated property (including gains or losses on change in control), impairment write-downs of depreciated property and of investments in unconsolidated Affiliates caused by a decrease in the value of depreciated property or the Affiliate, and adjustments to reflect the Company’s share of EBITDAre of unconsolidated Affiliates, shall be equal to the Company’s “EBITDAre” for such period.

 

- 48 -

 

 

LTM Adjusted EBITDAre shall then be calculated as the Company’s EBITDAre, plus to the extent the following adjustments (each of which, for the avoidance of doubt, can be positive or negative) occurred during the periods presented (and solely to the extent they are not already captured in the Company’s EBITDAre calculation):

 

(i)            Preopening costs (with the add back for preopening costs limited to direct costs and costs allocated using an activity-based costing methodology);

 

(ii)          Non-cash lease expense;

 

(iii)         Equity-based compensation expense;

 

(iv)         Impairment charges that were not calculated in EBITDAre above;

 

(v)         Credit losses on held-to-maturity securities;

 

(vi)         Any transaction costs of acquisitions, whether or not consummated (with the add back with respect to transaction costs of acquisitions limited to third-party costs and direct, “hard” costs (e.g., travel, but not allocations of time);

 

(vii)        Loss on extinguishment of indebtedness;

 

(viii)       Pension settlement charges;

 

(ix)         Pro rata adjusted EBITDAre from unconsolidated joint ventures;

 

(x)          Pro rata adjusted EBITDAre for non-controlling interests in consolidated joint ventures; and

 

(xi)         Any other adjustments identified below.

 

The following shall apply to the calculation of the Company’s EBITDAre: interest expense shall be added back to net income net of interest income, and income tax expense shall be added back to net income net of income tax benefits, and sponsorship revenue shall be accounted for in a manner consistent with the Company’s audited financial statements for the year ended December 31, 2020.

 

The following will apply to the (or are additional) adjustments to the Company’s EBITDAre to calculate LTM Adjusted EBITDAre:

 

(i)          Add back one-time gains and losses not captured in EBITDAre definition above;

 

(ii)          Add back amounts attributable to business disruption due to disasters including (x) flooding, hurricane, earthquake, tornado or other weather-related damage or act of god, (y) fire, arson, acts of war, sabotage or terrorism that results in damage to, or materially restricts the use of, any property of Ryman Parent and its Subsidiaries or (z) pandemic, epidemic or disease (other than any existing known variants of COVID-19 as of the date of this Agreement) net of any insurance recoveries. Normalization adjustment for “lost” LTM Adjusted EBITDAre to be based on the latest unaffected forecast presented to the Board, or if not available, the comparable prior-year LTM Adjusted EBITDAre (for the comparable last twelve (12) month period).

 

- 49 -

 

 

(iii)            Add back amounts attributable to business disruption (e.g., closure, reduced capacity, and/or extraordinary/one-time costs) due to a planned major addition to or major renovation of a venue of the Company or any of its Subsidiaries, which is approved by the Board and was not already included in the projection model provided to the Investor Member in connection with the negotiation of this Agreement. Normalization adjustment for “lost” LTM Adjusted EBITDAre to be based on the latest unaffected forecast presented to the Board prior to the calculation of LTM Adjusted EBITDAre, or if not available, the comparable prior-year LTM Adjusted EBITDAre (for the comparable last twelve (12) month period).

 

(iv)            Add pro forma adjustment so that the full trailing twelve (12)-month LTM Adjusted EBITDAre of any acquisition target of any closed asset acquisition, stock acquisition, merger, or any other form of business combination by which a Person or business becomes a Subsidiary of, or part of, the Company or any of its Subsidiaries (“M&A”) is reflected.

 

(v)            The aggregate net addbacks to LTM EBITDAre to calculate LTM Adjusted EBITDAre (excluding (i) the trailing twelve-month M&A impact addition, (ii) any add-backs of non-cash charges and/or losses, (iii) pro rata share of LTM Adjusted EBITDAre from unconsolidated joint ventures (which for the avoidance of doubt, can be a positive or negative number), and (iv) pro rata share of LTM Adjusted EBITDAre related to non-controlling interests in consolidated joint ventures) shall be limited to thirty percent (30%) of EBITDAre, calculated prior to giving effect to the aggregate net adjustments.

 

Notwithstanding anything in this Agreement, LTM Adjusted EBITDAre shall be subject to a floor, and in no event will the LTM Adjusted EBITDAre for a trailing twelve (12) month period used for purposes of the calculation be less than the greater of (i) eighty percent (80%) of LTM Adjusted EBITDAre calculated for the prior “year” comparable trailing twelve (12) month period and (ii) (A) if the Block 21 Acquisition has closed, $67,000,000 or (B) if the Block 21 Acquisition has not closed, $55,000,000. An example calculation of LTM Adjusted EBITDAre for the period October 1, 2020 to September 30, 2021 and a sample calculation of Option Price at December 1, 2021 is attached as Schedule E, and LTM Adjusted EBITDAre and Option Price shall be calculated consistently therewith.

 

(g)            Effect of Exercising the Option. If the Investor Member exercises rights under this Section 13.1 and an Option closes, then the Investor Member’s rights pursuant to Section 13.11, Section 13.12, Section 13.13 and Section 13.14, including all rights to the Investor Put Rights and all rights in connection with the Sale Payment and the IPO Shortfall Payment, shall terminate immediately. If the Option is not exercised in the manner provided on or before the end of an Option Period with respect to all or a portion of the Option Units, the Option will expire with respect to Option Units available to purchase during that Option Period.

 

(h)            Termination; Delay.

 

(i)            The Option and all the Investor Member’s rights under this Section 13.1 will terminate upon the first to occur of the closing of a Qualified IPO, a Sale of the Company or Qualified Spinoff.

 

- 50 -

 

 

(ii)            If the Ryman Member and the Company have taken bona fide steps (regardless of whether such steps are made public, and including, as an example, the engagement of advisors) to effect an IPO that would constitute a Qualified IPO, a Sale of the Company or a Qualified Spinoff at least three (3) months prior to the date on which the applicable Option Price Notice is required to be delivered and the Ryman Member and the Company are then continuing to pursue such transaction in good faith, the Ryman Member may deliver to the Investor Member written notice thereof prior to the date on which the applicable Option Price Notice is required to be delivered, in which case the Option for such year shall be suspended and shall not apply, and in lieu thereof, if no IPO, Sale of the Company or Qualified Spinoff has then occurred, the Investor Member shall be entitled to exercise the Option for an additional year following the last year in which the Option is then exercisable (e.g., if the delay and postponement right is exercised in calendar year 2023, the Investor Member will have the right to exercise the Option in calendar year 2026 in addition to calendar years 2024 and 2025).

 

For purposes of this Section 13.1,

 

Cash” means all cash, cash equivalents, marketable securities of the Company and the OEG Subsidiaries, including checks and other wire transfers, credit card receivables, ACH transactions and drafts deposited or available for the account of the Company or OEG Subsidiaries, as applicable, and deposits in transit, to the extent deposits in transit are removed from accounts receivable and there is no double counting between Cash and Closing Net Working Capital (net of issued but uncleared checks, wire transfers and drafts of the Company and OEG Subsidiaries), and (i) inclusive of FF&E escrows of the Company and surety bond arrangements, and (ii) excluding (y) any cash deposits with respect to real property leased by the Company and any OEG Subsidiaries, calculated in accordance with the Accounting Principles; and

 

Indebtedness” of any Person means, without duplication, (a) indebtedness of such Person for borrowed money, whether current, short-term, secured or unsecured; (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable; (c) all liabilities of such Person issued or assumed as the deferred purchase price of assets, property, goods or services (other than trade payables, accruals or similar liabilities incurred in the ordinary course of business), all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement; (d) any unpaid earnout obligations (to the extent such obligations or portions thereof would be required to be accrued in accordance with GAAP), deferred purchase price consideration, hold-backs or seller notes, (e) any liabilities for outstanding equity-based compensation that are required to be settled in cash, (f) accrued and unpaid severance obligations, (g) Current Income Taxes, (h) Deferred COVID-19 Taxes, (i) any liabilities of such Person with respect to interest rate or currency swaps, collars, caps and similar hedging obligations, (j) any liabilities of such Person in respect of any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which liabilities are required to be classified and accounted for under the Accounting Principles as capital leases, (k) any liabilities of such Person under any performance bond or letter of credit and or any bank overdrafts and similar charges, in each case, to the extent drawn or called, (l) any declared but unpaid dividends or other distributions payable, (n) all liabilities of the type referred to in clauses (a) through (i) of any Persons the payment for which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise (including under any “keep well” or similar arrangement), in each case, to the extent called upon, and (o) all obligations of the type referred to in clauses (a) through (i) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person); provided, however, “Indebtedness” shall not include (x) liabilities of such Person in respect of any operating or lease obligations (other than capital leases), or (y) any liabilities of such Person under any letters of credit, performance bonds, bankers’ acceptances, indemnities or similar obligations to the extent not drawn or payable.

 

- 51 -

 

 

Section 13.2         Right of First Offer in Favor of the Investor Member (Stake Sale).

 

(a)            If the Ryman Member proposes to Transfer any Units in compliance with Section 10.3(a) or Section 10.3(b), the Ryman Member shall deliver to the Investor Member written notice (a “ROFO Notice”) that the Ryman Member desires to make such a Transfer (a “ROFO Sale”) and that specifies the Units proposed to be Transferred by the Ryman Member (the “ROFO Securities”), the price (subject to Section 13.2(b)) that the Ryman Member proposes to be paid for such ROFO Securities (the “ROFO Offer Price”), any other material terms sought by the Ryman Member and, in the case of any proposed Transfer pursuant to Section 10.3(b) (a “REIT Compliance Transfer”), the date that is the fifth (5th) Business Day preceding the date on which such Transfer must occur to maintain Ryman Parent’s qualification as a REIT (the “REIT Compliance Date”). Each ROFO Notice shall include wire transfer or other instructions for payment of any consideration for the ROFO Securities. The giving of the ROFO Notice shall constitute an offer (the “ROFO Offer,” and any such ROFO Offer in respect of a REIT Compliance Transfer, a “REIT Compliance Offer”) by the Ryman Member to Transfer the ROFO Securities to the Investor Member for cash at the ROFO Offer Price and on the terms set forth in the ROFO Notice.

 

(b)            Notwithstanding anything herein to the contrary, if at the time that the ROFO Offer is made, the Investor Member continues to have the right to exercise the Option pursuant to Section 13.1 (i.e., such right has not expired by its terms), then the ROFO Offer Price with respect to Class A Units comprising all or part of the ROFO Securities shall not be in excess of the Option Price (calculated, for these purposes, as of the most recent quarter end before the ROFO Notice is delivered). In connection with any ROFO Offer for which this Section 13.2(b) is applicable, the Ryman Member shall also deliver, together with the ROFO Notice, the information required to be delivered with an Option Price Notice, and the Investor Member shall have the right to dispute such ROFO Offer Price, and if so disputed, the dispute mechanism set forth in Section 13.1(b) shall apply, in each case, on a mutatis mutandis basis; provided, however, that in the case of any REIT Compliance Offer, the Ryman Member shall take all reasonable actions to deliver such information together with the ROFO Notice and, if notwithstanding the use of such reasonable actions, the Ryman Member cannot otherwise comply with the obligation to provide such information together with the ROFO Notice, the Ryman Member shall otherwise deliver such information to the Investor Member as promptly as practicable.

 

- 52 -

 

 

(c)            The Investor Member shall have a thirty (30)-day period (or, if the Investor Member disputes the ROFO Offer Price pursuant to Section 13.2(b), the thirty (30)-day period after such dispute is resolved and the Option Price is finally determined) (the “ROFO Offer Period”) in which to accept the ROFO Offer for the ROFO Securities; provided, however, that in the case of any REIT Compliance Offer, the Investor Member may not accept the REIT Compliance Offer any later than the date that is the fifth (5th) Business Day preceding the REIT Compliance Date, except to the extent that the REIT Compliance Offer was delivered to the Investor Member fewer than three (3) Business Days prior to such date, in which case the Investor Member shall have until the date that is the earlier of (A) the third (3rd) Business Day following the date the REIT Compliance Offer is delivered to the Investor Member and (B) the REIT Compliance Date to accept the REIT Compliance Offer. To the extent the Investor Member has disputed the ROFO Offer Price pursuant to Section 13.2(b) in respect of such REIT Compliance Offer and such dispute has not been resolved by the date such REIT Compliance Offer must be accepted, the Investor Member may accept the REIT Compliance Offer on the condition that it will pay the ROFO Offer Price set forth in the ROFO Notice if such dispute has not been resolved by the REIT Compliance Date and, if such dispute is ultimately resolved in the Investor Member’s favor, the Ryman Member must promptly thereafter pay the Investor Member an amount equal to the excess of (A) the ROFO Offer Price paid by the Investor Member for such ROFO Securities over (B) the product of (x) the Option Price as finally determined in accordance with this Agreement and (y) the number of ROFO Securities sold to the Investor Member. If the Investor Member fails to notify the Ryman Member of its acceptance or rejection of the ROFO Offer prior to the expiration of the ROFO Offer Period or at any earlier time required by this Section 13.2(c) in respect any REIT Compliance Offer, Investor Member shall be deemed to have declined the ROFO Offer. If the Investor Member accepts the ROFO Offer in accordance with the foregoing (A) the Investor Member shall purchase and pay, by wire transfer of immediately available funds to the account designated by the Ryman Member in the ROFO Notice, for the ROFO Securities within fifteen (15) Business Days after the date on which the ROFO Securities have been accepted and the Ryman Member shall, concurrently with such payment, deliver to the Investor Member the certificates or other applicable instruments, if any, representing the ROFO Securities, free and clear of all Liens; provided that, if the Transfer of such ROFO Securities is subject to any prior regulatory approval, the time period during which such Transfer must be consummated shall be extended until the expiration of five (5) Business Days after all such approvals shall have been received; provided, further, that, in the case of any accepted REIT Compliance Offer, such purchase and sale must occur no later than the REIT Compliance Date, (B) the Investor Member and the Ryman Member shall execute an assignment in the form of Exhibit C hereto. To the extent the Ryman Member determines a REIT Compliance Transfer is necessary, it shall deliver the REIT Compliance Offer to the Investor Member as soon as commercially reasonable after making such determination to the extent the REIT Compliance Offer would be delivered less than thirty (30) days prior to the REIT Compliance Date.

 

(d)            Upon the earliest to occur of (A) rejection of the ROFO Offer by the Investor Member and (B) the expiration of the ROFO Offer Period without the Investor Member electing to purchase the ROFO Securities, the Ryman Member shall have a one hundred eighty (180)-day period during which to effect a Transfer of all of the ROFO Securities at a price in cash and non-cash consideration (with the value of non-cash consideration determined in accordance with Section 13.19) not less than ninety-five percent (95%) of the ROFO Offer Price on a pre-tax basis and on substantially the same or more favorable (as to the Investor Member) other terms and conditions in the aggregate as were set forth in the Investor ROFO Offer Notice (including, the same Units being sold as set forth in the ROFO Offer Notice); provided, further, that, if the Transfer of the ROFO Securities is subject to any prior regulatory approval, the time period during which such Transfer may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals shall have been received. If the Ryman Member does not consummate the Transfer of the ROFO Securities in accordance with the time limitations set forth in the preceding sentence, then the right of the Ryman Member to effect the Transfer of the ROFO Securities pursuant to this Section 13.2 shall terminate and the Ryman Member shall again comply with the procedures set forth in this Section 13.2 with respect to any proposed Transfer of Units pursuant to Section 13.2.

 

- 53 -

 

 

(e)            The Investor Member may designate any of its Permitted Transferees to purchase all or part of the ROFO Securities with respect to which the Investor Member exercises the ROFO Offer; provided that the Investor Member shall remain obligated to consummate the purchase if such designees fail to do so.

 

(f)            Notwithstanding anything to the contrary herein, with respect to any ROFO Sale (including any REIT Compliance Transfer) the Ryman Member shall (i) use its good faith efforts to, in the Ryman Member’s good faith judgment, comply with the timelines and information requirements set forth in this Section 13.2 applicable to a ROFO Sale that is not a REIT Compliance Transfer (including to use good faith efforts to regularly evaluate Ryman Parent’s qualification as a REIT such that the Ryman Member would not be required to avail itself of the expedited timelines or more limited information requirements set forth in this Section 13.2 that are applicable to REIT Compliance Transfers), (ii) only rely on the expedited timing set forth in this Section 13.2 applicable to REIT Compliance Transfers to the extent that, notwithstanding such good faith efforts pursuant to the preceding clause (i), the Ryman Member cannot otherwise comply with such non-expedited timing in a commercially reasonable manner, and (iii) if any regulatory approvals are required in connection with any REIT Compliance Offer accepted by the Investor Member, take efforts in good faith to cooperate with the Investor Member to allow sufficient time, to the extent practicable under the circumstances as determined by the Ryman Member in good faith, for the Investor Member to seek and obtain such regulatory approvals.

 

(g)            For the avoidance of doubt, the provisions of this Section 13.2 shall not apply to any proposed Transfer of Units by the Ryman Member (A) pursuant to a Sale of the Company, a Qualified IPO or Qualified Spinoff, (B) to a Permitted Transferee or (C) pursuant to Section 13.1.

 

Section 13.3         Tag-Along Rights.

 

(a)            This Section 13.3 shall not apply in the event of any Transfer pursuant to Section 13.2 in which the Investor Member accepts any ROFO Securities offered in a ROFO Offer. The provisions of Section 13.2 (to the extent applicable) shall apply in advance of the provisions of this Section 13.3.

 

(b)            If (i) the Ryman Member proposes to Transfer any Class A Units, (ii) to the extent applicable, the Ryman Member has complied with the terms of Section 13.2, and (iii) the relevant provisions of Article X have been complied with in all respects with respect to a proposed Transfer, then the Ryman Member (a “Tag-Along Seller”) may consummate a Transfer of all or any portion of such Units (the “Tag-Along Interest”) to the applicable third party purchaser (a “Third Party”) to the extent it complies with the provisions of this Section 13.3 and Section 13.8 (a “Tag-Along Sale”). In such event, the Class A Holders (each, an “Other Eligible Member”) shall have the right to require the Third Party, subject to the provisions of this Section 13.3 and Section 13.8, to purchase from such Other Eligible Member up to that portion of its Eligible Tag-Along Units (such Other Eligible Member’s “Maximum Amount”) (and the Tag-Along Seller shall reduce the Tag-Along Interest to be sold by it by a corresponding amount) that is equal to the product of (x) the Tag-Along Interest to be purchased by the Third Party and (y) a fraction, the numerator of which is (A) the total number of Eligible Tag-Along Units owned by such Other Eligible Member and the denominator of which is (B) the total number of Eligible Tag-Along Units owned by all of the Other Eligible Members and the Tag-Along Seller immediately prior to the transaction. For purposes hereof, “Eligible Tag-Along Units” means Class A Units.

 

- 54 -

 

 

(c)            The Tag-Along Seller shall notify the Other Eligible Members in writing of a proposed Transfer not less than twenty (20) days prior to the date of such proposed Transfer (the “Transferor Tag-Along Notice”). The Transferor Tag-Along Notice shall include (i) the name and address of the Third Party, (ii) the Tag-Along Interest to be Transferred, (iii) the Maximum Amount for each Other Eligible Member (which the Company shall confirm upon request of the Tag-Along Seller prior to the delivery of such notice), (iv) the purchase price and terms and conditions of payment, (v) the other material terms and conditions of the transaction, and (vi) the proposed closing date of the transaction (collectively, the “Third Party Terms”).

 

(d)            The tag-along right provided for in this Section 13.3 may be exercised by any Other Eligible Member (each such exercising Other Eligible Member, a “Tagging Member”) by delivery of a written notice to the Company, the Tag-Along Seller and the Third Party (the “Tag-Along Notice”) within fifteen (15) days following receipt of the Transferor Tag-Along Notice (the “Tag-Along Period”). The Tag-Along Notice shall state the Eligible Tag-Along Units that such Tagging Member wishes to include in such Transfer to the Third Party, up to the Maximum Amount. The failure of an Other Eligible Member to deliver a Tag-Along Notice meeting the requirements of this Section 13.3(d) within the Tag-Along Period shall constitute a waiver of such Other Eligible Member’s tag-along rights with respect to such proposed Transfer.

 

(e)            Upon the giving of its Tag-Along Notice, a Tagging Member shall be obligated to sell to the Third Party the number of its Eligible Tag-Along Units set forth in its Tag-Along Notice on the Third Party Terms (up to the Maximum Amount); provided, however, that neither the Tag-Along Seller nor any Tagging Member shall consummate the sale of any of their respective Eligible Tag-Along Units unless the Third Party purchases, on the Third Party Terms, all of the Eligible Tag-Along Units contained in the Tag-Along Notices that the Tagging Members are entitled to sell under the terms of this Section 13.3. If the Third Party does not purchase Eligible Tag-Along Units entitled to be sold by any Tagging Member that has complied with the terms of this Section 13.3, then any Transfer by the Tag-Along Seller and any Other Eligible Member to such Third Party shall be null and void and of no effect whatsoever.

 

(f)            Any Eligible Tag-Along Units purchased from a Tagging Member pursuant to this Section 13.3 shall be purchased at the same price and same type of consideration and on the same terms and conditions as the Transfer by the Tag-Along Seller and shall be subject to Section 13.8.

 

- 55 -

 

 

(g)            In the event that the Tag-Along Seller delivers a Transferor Tag-Along Notice in accordance with Section 13.3(c) and no Other Eligible Member exercises its tag-along right in accordance with Section 13.3(d), the Tag-Along Seller shall have the right to Transfer its Tag-Along Interest to the Third Party at a price not more than the purchase price set forth in the Transferor Tag-Along Notice and otherwise in all material respects on the terms, provisions and conditions set forth in the Transferor Tag-Along Notice, so long as such Transfer takes place within one hundred eighty (180) days after the date on which the Transferor Tag-Along Notice is delivered (as such period may be extended to the extent reasonably required pursuant to applicable law or regulation). In the event that such Transfer shall not have taken place within such one hundred eighty (180)-day period (provided, further, that, if the Transfer of the Tag-Along Interest is subject to any prior regulatory approval, the time period during which such Transfer may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals shall have been received), the Tag-Along Seller shall not be permitted to Transfer all or any portion of such Tag-Along Interest without once again complying with the provisions of this Section 13.3. If the terms of such proposed Transfer are different in any material respect from the terms, provisions and conditions set forth in the Transferor Tag-Along Notice (in a manner that is beneficial to the Tag-Along Seller), the Tag-Along Seller shall deliver to the Other Eligible Members a revised Transferor Tag-Along Notice, and shall again comply with all of the requirements of this Section 13.3.

 

(h)            Reserved.

 

(i)            If, at the end of the Tag-Along Period, (i) any Tagging Member declines to exercise its tag-along rights under this Section 13.3 or (ii) any Tagging Member elects to exercise its tag-along rights under this Section 13.3 committing to Transfer less than such Tagging Member’s Tag-Along Interest, the Tag-Along Seller shall give notice to each Tagging Member who has elected to fully exercise its tag-along rights under this Section 13.3 of the right to sell in the Tag-Along Sale additional Tag-Along Interests (such Tag-Along Interests, the “Reallotment Units”), in an amount equal to such Tagging Member’s pro rata portion of the Reallotment Units (based on the percentage equal to (x) the number of such Tagging Member’s Tag-Along Interests held as of immediately prior to the Tag-Along Sale divided by (y) the number of Tag-Along Interests held by the Tag-Along Seller and the Tagging Members who have elected to fully exercise their tag-along rights under this Section 13.3, in the aggregate, as of immediately prior to the Tag-Along Sale). Each such Tagging Member shall have five (5) Business Days to notify the Tag-Along Seller of its election to sell all or a portion of the Reallotment Units.

 

(j)            The reasonable attorney’s fees of one counsel designated by the Tag-Along Seller (and, to the extent participating in the transaction, one counsel designated by the Investor Member), and the other reasonable costs and expenses incurred by the Tag-Along Seller(s)), and the Company in connection with any proposed Transfer pursuant to this Section 13.3 (whether or not consummated) (including accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions (but only if the Company engages such advisers)), will be paid by the Company. Any other costs and expenses incurred by or on behalf of any or all of the other Tagging Members in connection with any proposed Transfer pursuant to this Section 13.3 (whether or not consummated) will be borne by such Tagging Members.

 

(k)            Notwithstanding anything else herein to the contrary, if in connection with any Sale of the Company in which the Dragging Member has not exercised its rights to require the Investor Member to Transfer all of its Units in such Sale of the Company pursuant to Section 13.7, the Investor Member shall have the right to exercise its tag-along rights pursuant to this Section 13.3 and elect to sell up to 100% of its Units in such transaction (and the Tag-Along Seller shall reduce the Tag-Along Interest to be sold by the Ryman Member by a corresponding amount).

 

- 56 -

 

 

(l)        The provisions of this Section 13.3 shall not apply to any proposed Transfer of Units by the Tag-Along Seller (A) pursuant to Section 13.7 (except, in the case of the Investor Member, as provided in Section 13.3(k)), (B) to a Permitted Transferee, (C) in a Qualified Spinoff, (D) in a Qualified IPO, (E) pursuant to Section 13.1, or (F) that is a REIT Compliance Transfer to the extent such provisions would reasonably be expected to prevent the Ryman Member from completing such REIT Compliance Transfer by the REIT Compliance Date; provided that, prior to availing itself of the exception in this clause (F), the Ryman Member shall have used good faith efforts to comply with the provisions of this Section 13.3 (including using its good faith efforts to regularly evaluate Ryman Parent’s qualification as a REIT) such that the Ryman Member would not be required to avail itself of the exception set forth in this clause (F).

 

(m)         If (i) the Company issues any class or series of Units other than Class A Units and (ii) the Ryman Member (or any of its Permitted Transferees) and any Other Eligible Members acquire such Units through the exercise of its pre-emptive rights under Section 3.5, such Other Eligible Members will be granted tag-along rights with respect to such Units that are substantially similar to the tag-along rights set forth herein with respect to the Class A Units and this Agreement will be modified accordingly.

 

Section 13.4           Redemption and Cross-Purchase Rights.

 

(a)         If an Involuntary Transfer occurs or, solely with the passage of time and/or the giving of notice, will occur, the Holder whose Membership Interest is or will be subject to the Involuntary Transfer or, if such Holder fails to do so, the Person who is or will become the Involuntary Transferee in such Involuntary Transfer, shall promptly give written notice (the “Involuntary Transfer Notice”) to the Company stating (i) when the Involuntary Transfer occurred or is to occur, (ii) the obligations and other circumstances giving rise to the Involuntary Transfer, (iii) a description of the Membership Interest subject to the Involuntary Transfer, and (iv) the name, address and capacity of the Involuntary Transferee.

 

(b)         If an Involuntary Transfer occurs, the Company, at the sole discretion of the Board, shall have the right to redeem from the Involuntary Transferee or applicable employee (or, if an employee invested through a trust or other entity, such entity and any Permitted Transferees of such employee or entity) (the “Call Member”) all (but not less than all) of the Membership Interests to be acquired by the Involuntary Transferee in the Involuntary Transfer for an amount equal to the Redemption Fair Market Value per Unit (the “Redemption Price”); provided that the Company gives written notice of its election to redeem such Membership Interest to the Call Member no later than one hundred eighty (180) days after the Company’s receipt of the Involuntary Transfer Notice (such date of receipt, the “Call Event Date” and such one hundred eighty (180)-day period, the “Company Call Period”); provided, further, that it is agreed and acknowledged that the Redemption Fair Market Value of the Membership Interest of such Call Member for purposes of this Section 13.4(b) shall be determined as of the Call Event Date. If and to the extent that the Company does not redeem all of the Membership Interests owned by such Call Member pursuant to the preceding sentence, then the Ryman Member (or its Permitted Transferees) and the Investor Member (or its Permitted Transferees) first, and then second each other Member (other than the Call Member or Holder whose Membership Interest is or will be subject to the relevant Involuntary Transfer) (each, a “Continuing Member”) shall have the right to purchase all (but not less than all) of such Membership Interests, subject to the same terms and conditions set forth in the preceding sentence, except that the notice period set forth in the preceding sentence shall be no later than one hundred eighty (180) days after the expiration of the Company Call Period; provided, that (i) if both the Ryman Member and the Investor Member elect to exercise their first priority purchase option after the Company in the manner described in this Section 13.4(b), such purchase option shall be allocated between them based on the relative number of Class A Units owned by them as of the Call Event Date, or (ii) more than one Continuing Member elects to exercise their second priority purchase option after the Company, such Members shall purchase their pro rata share of such Membership Interests (based on the relative number of Class A Units owned by such Continuing Member as of the Call Event Date and the aggregate number of Class A Units owned by all Continuing Members exercising such second priority purchase option under this Section 13.4(b)).

 

- 57 -

 

 

 

(c)            The Redemption Price for any Membership Interest to be redeemed by the Company and/or purchased by one or more Members under this Section 13.4 shall be determined by the Board in good faith. If the Call Member objects to the Board’s determination of the Redemption Price for the subject Membership Interest to be purchased or redeemed, the Call Member shall submit a notice of objection to the Company within thirty (30) days of receiving notice of the Redemption Price setting forth the Call Member’s own valuation of the Redemption Fair Market Value of such Membership Interest (the “Notice of Objection”). After receiving a Notice of Objection, the Company and the Call Member shall hire an independent appraiser to determine the Redemption Fair Market Value of such Membership Interest; provided, that the valuation provided by such independent appraiser shall be within the range of the Redemption Price and the Redemption Fair Market Value of such Membership Interest set forth in the Notice of Objection. The cost of the investment banking or appraisal firm shall be shared equally by the Company and the Call Member. If the Company and the Call Member fail to agree on a mutually acceptable appraiser within fifteen (15) days following the Company’s receipt of the Notice of Objection, then the Company and the Call Member will each appoint an investment banking firm or appraisal firm of national or regional reputation and such two firms will select a third investment banking firm or appraisal firm of national or regional reputation experienced in the appraisal of businesses similar to that of the Company to serve as the appraiser and shall direct such appraiser to independently determine the Redemption Price of the subject Membership Interest and to submit its determination in writing at the earliest practicable date, but in any event within sixty (60) days following the date of such appraiser’s selection; provided, that, the valuation provided by such appraiser shall be within the range of the Redemption Price and the Redemption Fair Market Value of such Membership Interest set forth in the Notice of Objection. The Company and the Call Member shall each bear the costs of their respective investment banking or appraisal firms for purposes of appointing a third appraiser, and the costs of the third appraiser shall be shared equally by the Company and the Call Member. All appraisal reports will be in writing, will be signed by the appraiser and will be delivered to the Company with a copy to the Call Member. If the appraiser expresses its opinion as to the Redemption Price for the subject Membership Interest in terms of a range of values, the mean of such range shall be deemed to be the Redemption Price for such Membership Interest, or if such opinion expresses the Redemption Price for the subject Membership Interest as an absolute number, such number shall be deemed to be the Redemption Price for such Membership Interest. The Redemption Price for the subject Membership Interest will be final and binding upon the Company and the Call Member.

 

- 58 -

 

 

(d)            The closing of any redemption and/or purchase under this Section 13.4 shall take place on a date designated by the Company (the “Redemption Closing”), which date shall not be more than thirty (30) days after compliance with the applicable requirements set forth above, subject to the execution of purchase documentation reasonably acceptable to the applicable Holder and the Board, including a release and discharge from the Call Member in form and substance reasonably acceptable to the Call Member and the Board.

 

(e)            In the event any purchase or redemption right exercised by the Company pursuant to Section 13.4(b), the Company shall make payment of the Redemption Price in a lump cash sum at the Redemption Closing or by paying at least fifteen percent (15%) of the Redemption Price in cash at the Redemption Closing and paying the remainder prior to the date that is eighteen (18) months from the date of such Redemption Closing. In the event of any purchase right exercised by one or more Continuing Members pursuant to Section 13.4(b), the Continuing Member(s) shall make payment of the Redemption Price in a lump cash sum at the Redemption Closing.

 

(f)            Notwithstanding anything to the contrary contained herein, the payment of all or any portion of the Redemption Price may be suspended, delayed or deferred by the Company with prior written notice to the applicable Call Member, to the extent that the Company would be unable to make such payment due to the Company having insufficient cash on hand (as determined by the Board in good faith) or restrictions under any applicable law or any bona fide contractual arrangements of the Company or any of its Subsidiaries (each, a “Liquidity Restriction”). Any amount so deferred will be paid to the applicable Call Member as soon as practicable following the earlier of (i) the time that the Liquidity Restrictions are no longer applicable, as determined in good faith by the Board and (ii) the consummation of a Sale of the Company.

 

(g)            The provisions of this Section 13.4 shall not be applicable to the Ryman Member, the Investor Member or any of their respective Permitted Transferees.

 

Section 13.5           Public Offering; Spinoff Transaction; Corporate Conversion in Connection with Public Offering or Spinoff Transaction.

 

(a)            Ryman’s Qualified IPO and Qualified Spinoff Rights. The Ryman Member shall be entitled to cause the Company to consummate a Qualified IPO or a Qualified Spinoff at any time (provided that (i) the Investor Member shall, after a Qualified Spinoff, own the same class of equity as the public shareholders unless otherwise agreed by the Investor Member and (ii) for the avoidance of doubt, the Ryman Member may not cause the Company to consummate (x) an IPO that does not constitute a Qualified IPO or (y) a Spinoff Transaction that does not constitute a Qualified Spinoff, in each case, without the approval of the Investor Member; provided that after a Qualified IPO, the Ryman Member may at any time cause a Spinoff Transaction without the approval of the Investor Member); provided that if Ryman causes the Company to undertake a Qualified IPO or a Qualified Spinoff, the Investor Member will have the Investor ROFO as set forth in Section 13.10. The Investor Member shall not be required to be a selling shareholder in an IPO. If the Ryman Member is a selling shareholder in an IPO, the Investor Member shall have the right to sell equity in the IPO on a pro rata basis of secondary shares based on its relative percentage ownership of the Outstanding Units relative to the Ryman Member’s ownership prior to the IPO (such that, for example, if 1,000,000 shares in the aggregate are proposed to be sold by the Ryman Member and the Investor Member (and not by the Company) as secondary shares in an IPO, and the Ryman Member and the Investor Member then own sixty-five percent (65%) and twenty-five percent (25%), respectively, of the aggregate Outstanding Units, the Investor Member shall be entitled to sell 27.8% (25% / (65% + 25%)) of such secondary shares in the IPO (and for the avoidance of doubt, not including any SPAC Transaction). Neither the Ryman Member, the Company or any of their Affiliates shall impose any contractual constraint on the Investor Member’s sales of equity after a SPAC Transaction, Qualified Spinoff or an IPO, other than customary “lockups” in connection with an underwritten public offering or SPAC Transaction; provided that, as long as the Investor Member owns at least ten percent (10%) of the Outstanding Units, the Ryman Member and the Company shall cause, and cause their respective Affiliates to, make proper provisions to ensure that the governing documents of the entity resulting from such SPAC Transaction, Qualified Spinoff or IPO provide that such entity may not (i) impose any limitation or other constraint (including ownership or voting caps or standstill restrictions) on the Investor Member’s or Ryman Member’s purchases or ownership of equity after such SPAC Transaction, Qualified Spinoff or IPO or (ii) issue or adopt any shareholder purchase rights or “poison pill” or any similar plan or arrangement or adopt any control share acquisition, business combination or other anti-takeover provision under its certificate of incorporation, bylaws or similar organizational documents, unless such rights, plan, arrangement or provision expressly exclude the Investor Member and the Ryman Member and each of their respective Permitted Transferees from the applicability thereof.

 

- 59 -

 

 

(b)            Investor Member’s Qualified IPO Right. If the Investor Member exercises any Option under Section 13.1, commencing on and after the Fifth Anniversary, as long as the Investor Member owns at least ten percent (10%) of the Outstanding Units, the Investor Member shall have the right to elect to cause the Company to use reasonable efforts (and without limiting the Investor Member’s rights under Section 13.5(c)) to effect, as soon as practicable an IPO that is a Qualified IPO, by delivering written notice thereof to the Company.

 

(c)            IPO Determinations. Upon the Ryman Member initiating an IPO process, the Ryman Member agreeing to use its reasonable efforts to cause the Company to undertake a Qualified IPO pursuant to Section 13.13 or the receipt of a written notice from the Investor Member pursuant to Section 13.5(b) requesting that the Company effect an IPO, the Company shall engage a nationally recognized managing underwriter determined by the Determining Member (in consultation with the Consulting Member and after giving good faith consideration to Consulting Member’s views). The Determining Member (in consultation with the Consulting Member and after giving good faith consideration to the Consulting Member’s views) shall also make all other decisions regarding the IPO, including the terms and conditions of such Qualified IPO, the pricing of Equity Securities to be offered by the New Company in such IPO, the size of the IPO and the hiring of other underwriters and advisors and the drafting of documentation. The engagement of the underwriters shall be on financial and other terms customary in the industry, and all fees and expenses (but not customary underwriting discounts and commissions) shall be borne by the Company. Upon the request of the Determining Member, the Company and the Members shall take the actions contemplated by this Section 13.5(c) without any further action by the Board. The Company agrees and acknowledges that it shall be the indemnitor of first resort with respect to such IPO. For purposes hereof, the “Determining Member” shall mean the Ryman Member, except that the Investor Member shall be the “Determining Member” if the Investor Member delivers written notice after the Seventh Anniversary requesting that the Company effect an IPO pursuant to Section 13.5(b), and the “Consulting Member” shall be the Investor Member if the Ryman Member is the Determining Member or the Ryman Member if the Investor Member is the Determining Member. In connection with any request to effect an IPO, each of the Ryman Member and the Investor Member shall cooperate and take such actions as are reasonably necessary or desirable to complete the IPO in a manner designed to achieve a fair price and broad public distribution of the securities being offered.

 

- 60 -

 

 

(d)            Corporate Conversion.

 

(i)            In connection with any IPO or Qualified Spinoff, the Ryman Member (or, in the case of an IPO, the Determining Member) shall have the power to cause the Company, at the Company’s expense, to effect the conversion of the Company into a corporation or other form of entity or to create a new holding company structure with respect to the Company and its Subsidiaries; provided that such conversion shall be made in such manner as the Ryman Member (or, in the case of an IPO, the Determining Member) deems appropriate and efficient (including in terms of tax treatment, which conversion shall, unless otherwise agreed by the Ryman Member and the Investor Member, be tax-free to each of the Ryman Member and the Investor Member for U.S. federal income tax purposes) including by way of conversion, merger, recapitalization or asset and liability transfer (the “Corporate Conversion”). In connection with a Corporate Conversion, the Board may require that each Holder transfer to the Company, any of its Subsidiaries or any other entity or entities created pursuant to the Corporate Conversion (collectively, the “New Company”) any or all of such Holder’s Membership Interest. The terms of any stockholders agreement to be entered into among the New Company and the Holders in connection with a Corporate Conversion shall, to the extent practicable and permitted by applicable Law, rule, regulation or historical standard or unless otherwise agreed by the Ryman Member and the Investor Member, replicate the provisions of this Agreement.

 

(ii)            In connection with such Corporate Conversion (x) each Holder shall be entitled to receive shares of common stock or other Equity Securities (together with any securities exercisable, exchangeable or convertible into such shares or Equity Securities, the “Issuer Shares”) of the issuer/spun off company in the IPO or Qualified Spinoff (the “Issuer”) such that if the Company liquidated and distributed its assets in accordance with this Agreement immediately following such IPO or Qualified Spinoff, such Holder would, in the aggregate in respect of such Units or other Equity Securities, be entitled to receive the same percentage of the total proceeds as it would have been entitled to receive in a liquidation and distribution of the Company’s assets pursuant to this Agreement immediately prior to such IPO (determined without giving effect to any actions or steps taken to effect or facilitate such IPO pursuant to this Section 13.5(d)) (but for the avoidance of doubt, this clause (x) shall not take into account any Sale Payment or any IPO Shortfall that may be owing to the Investor Member as a result of such IPO) and (y) such IPO or Qualified Spinoff shall be effected in a manner that treats Holders identically other than, such differences as may be necessary to give effect to the respective economic entitlements of the various classes and series of Units in accordance with this Agreement (including, for example, by providing certain classes or series of Units with enhanced economic entitlements or by issuing additional shares to the Holders of certain classes or series of Units, as appropriate, to reflect such different economic entitlements inherent in such Units) and the fact that certain of the Units may be subject to vesting and other contingencies; provided that each Holder of a given class or series of Units shall receive the same securities and same amount of securities per Unit of such class or series, and if any Holders of Units of such class or series are given an option as to the type or amounts of securities to be received, each Holder of Units of such class or series shall be given the same option. Fractional shares of Issuer Shares issuable pursuant to a Corporate Conversion shall be rounded or cashed out in an equitable manner, as determined by the Board; provided that the Board shall use good faith efforts to minimize fractional shares.

 

- 61 -

 

 

(e)            Board Designation Rights. In the event of a SPAC Transaction, Qualified Spinoff or IPO, so long as the Investor Member holds at least ten percent (10%) of the outstanding voting equity resulting from such transaction, (i) the Ryman Member and the Company shall cause the governing documents of such resulting entity (including in a stockholders agreement) to provide that the Ryman Member and the Investor Member shall have proportionate board designation rights with respect to such resulting entity based on their respective ownership in such entity after giving effect to such SPAC Transaction, Qualified Spinoff or IPO, and (ii) the Ryman Member, the Company and the Investor Member shall (x) negotiate in good faith the other governance rights (including approval rights over significant matters involving the resulting entity and its business) that would apply following such SPAC Transaction, Qualified Spinoff and Qualified IPO that are consistent with rights and entitlements that are afforded to substantial shareholders in similar transactions and that is otherwise reflective of their respective proportionate ownership in such entity at the time such transaction is consummated.

 

(f)            Tax Receivables Agreement. In the event that the Board (in its discretion) approves and the Company puts in place a “tax receivable agreement” (“TRA”) with the Company (or a successor Issuer to the Company) in connection with an IPO; the Ryman Member and the Investor Member shall be entitled to payments under the tax receivable agreement based on their respective ownership in the Company (or successor thereto) immediately prior to the IPO; provided that if Ryman Member makes the IPO Shortfall Payment, Ryman Member shall be entitled to receive, and the TRA shall require the Company to pay to Ryman Member, all amounts payable to the Investor Member under the TRA until such time as Ryman Member has received, in addition to amounts payable to Ryman under the TRA, amounts equal to the IPO Shortfall Payment.

 

(g)            Termination of Certain Rights. The rights and obligations (including restrictions on transfers of equity) provided in Section 3.5, Article VII, Article X (other than as contemplated in Section 10.1(d)), Section 11.3, Section 13.1, Section 13.2, Section 13.3, Section 13.10, ‎ Section 13.13 and Section 13.14 shall terminate and be of no further force and effect immediately prior to, but conditioned upon, the consummation of a Qualified IPO, a Qualified Spinoff or a Sale of the Company (and, for the avoidance of doubt, the rights and obligations set forth in Section 13.18 shall survive the consummation of any such transaction provided the Ryman Member or any of its Affiliates continues to hold any Units following such transaction).

 

- 62 -

 

 

Section 13.6             Registration Rights. Prior to the effectiveness of the Company’s registration statement in connection with its IPO, the parties shall enter into a registration rights agreement, in form and substance reasonably approved by the Ryman Member and the Investor Member, that shall contain demand registration rights and “piggyback” registration rights in favor of the Investor Member and the Ryman Member, which agreement will incorporate the provisions described in Exhibit B, and other terms and conditions as are then reasonable and customary to include in such agreements. Each Holder shall be subject to customary underwriter cutbacks and lock up restrictions. In the case of a Qualified Spinoff, the parties shall enter into a registration rights agreement, in form and substance reasonably approved by the Ryman Member and the Investor Member, that shall contain demand registration rights and “piggyback” registration rights in favor of the Ryman Member and the Investor Member, which agreement will incorporate the provisions described in Exhibit B, on a mutatis mutandis basis (giving due regard to each Member’s ownership percentages), and other terms and conditions as are then reasonable and customary to include in such agreements.

 

(b)            From and after an IPO or Qualified Spinoff, the Company will provide reasonable and customary assistance to any Member seeking to offer and sell its securities in the public market so as to enable such Member to sell its Company securities pursuant to Rule 144 under the Securities Act or any similar rules or regulations hereinafter adopted by the SEC, including reasonably cooperating with such Member to facilitate the timely preparation and delivery of certificates representing the securities to be sold.

 

(c)            In the case of a SPAC Transaction, (i) the Investor Member and its Permitted Transferees shall not be subject to more onerous lock-up or similar restrictions (including after giving effect to any fall away conditions) than those applicable to the Ryman Member and its Permitted Transferees with respect to the Equity Securities of the public entity resulting from such SPAC Transaction and (ii) the Investor Member shall be offered registration rights with respect to resales of the Equity Securities of the public entity resulting from such SPAC Transaction that are no less favorable to the Investor Member than those granted to the Ryman Member, other than with respect to rights that customarily differ based on different ownership percentages (such as the number and availability of demand registration rights) (provided that, in all cases, it is understood that with respect to any underwriter or other cut-back, the Equity Securities to be registered by the Investor Member in any offering, on the one hand, and the Ryman Member, on the other hand, will be reduced on a pari passu basis (regardless of whether the offering is a demand registration initiated by the Ryman Member or the Investor Member)).

 

Section 13.7           Drag-Along Rights. General. The Ryman Member (the “Dragging Holder”), if it desires to cause the Sale of the Company, but subject to first complying with Section 13.10, shall have the right, upon written notice of such proposed Sale of the Company delivered to the Company (the “Purchase Notice”), which shall in turn promptly forward the Purchase Notice to each other Holder (the “Drag-Along Holders”), which Purchase Notice shall include all of the material terms and conditions (including the proposed amount and form of consideration and terms and conditions of payment) of such proposed Sale of the Company to the proposed purchaser(s) in such Sale of the Company (the “Drag-Along Purchaser(s)”), to, subject to Section 13.8, Section 13.3(k) and Section 13.15, require each Drag-Along Holder to cooperate in furtherance of such Sale of the Company (a “Drag-Along Sale”), including requiring each such Holder to sell to the Drag-Along Purchaser(s) a number of Units of each class or series of Equity Securities of the Company owned by such other Holder equal to (i) the total number of Equity Securities in the Company of such class or series owned by the Drag-Along Holders immediately prior to such Drag-Along Sale multiplied by (ii) a fraction, (x) the numerator of which is the number of the Dragging Holder’s Class A Units proposed to be sold by the Dragging Holder in such Drag-Along Sale and (y) the denominator of which is the aggregate number of Class A Units owned by the Dragging Holder immediately prior to such Drag-Along Sale.

 

- 63 -

 

 

(b)            Cooperation; No Continuing Rights in Units. Upon receipt of any such notice, the Company and such Drag-Along Holders shall, subject to Section 13.8 and Section 13.10, cooperate with the Dragging Holder and otherwise take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary or appropriate to enter into, consummate and make effective the Sale of the Company, as reasonably requested by the Dragging Holder, including the sale and purchase of each Drag-Along Holder’s Units together with the Units of the Dragging Holder (including (i) voting in favor of any merger, sale of assets or similar transaction requiring a vote of the Members, (ii) waiving or otherwise not exercising any applicable appraisal or dissenter’s rights with respect to such transaction, (iii) subject to Section 13.8, executing and delivering to the Drag-Along Purchaser any and all documents required to be executed and delivered by the Drag-Along Holder to effect such Sale of the Company and (iv) taking all action (including with respect to voting their Units) to cause the Board to take all necessary steps to complete such transaction). In furtherance of the foregoing, the Dragging Holder may at any time, at the cost and expense of the Company and on behalf of, and to represent, the Company, hire and retain investment bankers, attorneys and any other advisors identified by the Dragging Holder, in order to initiate an auction of the Company and the Company shall fully cooperate with such auction and sale.

 

(c)            Solely for purposes of this Section 13.7, in order to secure the performance of the obligations of each Holder hereunder, each Holder other than the Ryman Member and the Investor Member hereby irrevocably and unconditionally appoints the Company as the attorney-in-fact and proxy of such holder (with full power of substitution or re-substitution) to vote (if applicable), provide a written consent (if applicable), or take any other action with respect to the Units required to be transferred by such holder pursuant to this Section 13.7, and the Company shall have, and is hereby granted, a proxy and power of attorney to vote, provide a written consent or take any other action with respect to each such holder’s Units for purposes of taking the actions required by this Section 13.7. Each such Holder intends this irrevocable and unconditional proxy and power of attorney to be, and it shall be, irrevocable and coupled with an interest, and each such holder shall take further action and execute such other instruments as may be necessary to effectuate the intent of this proxy and power of attorney and hereby revoke any proxy previously granted by it with respect to the matters set forth in this Section 13.7. The irrevocable and unconditional proxy and power of attorney granted hereby is intended to be, and is, attached to the Units held by such Holder and shall survive for the duration of this Agreement. Each Holder hereby revokes any power of attorney and proxy previously granted by it with respect to the matters set forth in this Section 13.7.

 

(d)            The Drag-Along Seller shall have a period of one hundred eighty (180) days from the date of delivery of the Purchase Notice to consummate the Drag-Along Sale on the terms and conditions as set forth in such Purchase Notice; provided that, if such Drag-Along Sale is subject to regulatory approval, such one hundred eighty (180)-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received. If the Drag-Along Sale shall not have been consummated during such period, the Drag-Along Seller shall return to each of the Drag-Along Holders such documents in the possession of the Drag-Along Seller executed by the Drag-Along Holders in connection with the proposed Drag-Along Sale. If the Drag-Along Seller proposes to consummate a Drag-Along Sale after such period referred to in the first sentence of this Section 13.7(d), such Drag-Along Seller shall again comply with the provisions set forth in this Section 13.7.

 

- 64 -

 

 

(e)            Promptly after the consummation of the Drag-Along Sale pursuant to this Section 13.7, the Drag-Along Seller shall (i) notify the Drag-Along Holders thereof, (ii) subject to Section 13.8, remit (or cause to be remitted) to each Drag-Along Holder the total consideration for the Equity Securities of such Drag-Along Holder Transferred pursuant thereto less the Drag-Along Holder’s pro rata share of any escrows, holdbacks or purchase price adjustments, in each case, as determined in accordance with Section 13.8, with the cash portion of the purchase price paid by wire transfer of immediately available funds in accordance with the wire transfer instructions provided by the Drag-Along Holder and (iii) furnish such other evidence of the completion and the date of completion of such Transfer and the terms thereof as may be reasonably requested by the Drag-Along Holders. The Drag-Along Seller shall promptly remit (or cause to be remitted) to the Drag-Along Holders any additional consideration payable upon the release of any escrows, holdbacks or adjustments in purchase price, subject to the terms of this Agreement.

 

(f)            In the event that the Investor Member and the Ryman Member agree to terms of a transaction pursuant to the Investor ROFO whereby the Ryman Member sells all of its Membership Interest to the Investor Member, the Investor Member shall have rights as the Dragging Member with respect to applicable Units held by Holders other than the Ryman Member that would have been subject to this Section 13.7.

 

Section 13.8           Additional Terms Applicable to Covered Transactions. Any transaction effected pursuant to Section 13.3, Section 13.5 (with respect to a SPAC Transaction) or Section 13.7 (including in connection with a Sale of the Company for which the Investor Member elects to have Section 13.3 apply pursuant to Section 13.3(k)) (each, a “Covered Transaction”) shall be completed on the following terms and subject to the following conditions:

 

(a)            Each Tagging Member (with respect to a Transfer of Units pursuant to Section 13.3), Drag-Along Holders (with respect to a Drag-Along Sale) or Holder (with respect to a SPAC Transaction), as applicable (a “Covered Member”), shall execute and deliver all documentation required thereunder and, subject to the limitations set forth in this Section 13.8 take such other action reasonably necessary to consummate a Covered Transaction as shall reasonably be requested by the Dragging Holder (with respect to a Drag-Along Sale), the Tag-Along Seller (with respect to a Tag-Along Sale) or the Ryman Member (with respect to a SPAC Transaction), including executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents, in each case which are customary and reasonable for the Covered Transaction.

 

- 65 -

 

 

(b)            Upon consummation of a Covered Transaction: (i) each Holder will receive the same form of consideration; provided that other than in connection with a Rollover Investment, if any Holder is offered an option as to the form or amount of consideration to be received in such Covered Transaction, then each other Holder shall be offered the same option, (ii) in the case of a Sale of the Company or a SPAC Transaction, the aggregate consideration receivable by all Holders shall be allocated among the Holders in the manner specified under Section 4.4; provided that, if the Investor Member shall receive illiquid securities as consideration in a Sale of the Company, no such Sale of the Company or SPAC Transaction shall be consummated unless the Investor Member shall be entitled to preemptive rights and tag-along rights with respect to such securities at least as favorable as such rights, if any, that are extended to Ryman Member with respect to such securities or otherwise on market terms. Notwithstanding the foregoing, the terms of any Covered Transaction may provide (i) that all or a portion of the Equity Securities of the Company held, directly or indirectly, by any Management Member (or its Permitted Transferees) may be exchanged (at the same value per class or series of Unit as paid to the other Holders in such Covered Transaction) in whole or in part for securities of the acquiring, surviving or successor entity, as applicable, so long as such exchange is consented to by such Management Member (and, in the case of a Drag-Along Sale, the Dragging Member); (ii) the right to make a debt or equity investment in a purchaser or one of its Affiliates (whether directly or through a contribution of Equity Securities of the Company) (any such transaction contemplated by the foregoing (i) or (ii), collectively, a “Rollover Investment”) so long as such right to make such Rollover Investment shall, in the case of this clause (ii), be available to the Ryman Member and the Investor Member and such Rollover Investment is consented to by such Persons participating in such Rollover Investment; and (iii) that, in connection with such Covered Transaction, certain Holders may receive additional and reasonable consideration in their capacity as employees of the Company or its Subsidiaries for entering into restrictive covenants in favor of a purchaser or one of its Affiliates.

 

(c)            The Investor Member shall, to the extent that the Ryman Member is agreeing to the same, agree to non-solicitation and confidentiality covenants and a customary release of claims in favor of the purchaser; provided that in no event shall the Investor Member be required to agree to or otherwise become bound by (or have any of its Affiliates become bound by) any non-competition covenant, non-solicitation of customers covenant or any other restrictive covenant with respect to the Investor Member’s or any of its Affiliates’ right to engage in or invest in any business; provided, further, that in no event shall the Investor Member be required to have NBCUniversal or any member of the Comcast Group become bound by any non-solicitation of employees covenant or any other similar restrictive covenant.

 

(d)            The representations and warranties to be made by each of the Covered Members in connection with a Covered Transaction shall be made on a several (and not joint or joint and several) basis and limited to typical representations and warranties included in transactions of that type, including representations and warranties related to such Covered Person’s organization and capacity and that (i) such Covered Member holds all right, title and interest in and to the Units such Covered Member purports to hold, free and clear of all Liens, and has the authority to Transfer such Units, (ii) the obligations of such Covered Member in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by such Covered Member have been duly executed by such Covered Member and delivered to the acquirer and are enforceable against such Covered Member in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of such Covered Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement to which it is a party, law or judgment, order or decree of any court or governmental agency.

 

- 66 -

 

 

(e)            No Member shall be liable for the inaccuracy of any representation or warranty made by any other Person (other than the Company and its Subsidiaries subject to Section 13.8(f)) in connection with a Covered Transaction (except to the extent that funds may be paid out of an escrow or holdback established, or offset against future earn outs or other contingent payments, to cover breaches of representations, warranties and covenants of the Company as well as breach by any Member of any corresponding representations, warranties and covenants provided by all Members).

 

(f)            The liability for indemnification, if any, of each Member under the definitive documentation with respect to a Covered Transaction for the inaccuracy of any representations and warranties made by the Company, its Subsidiaries or such Member in connection with such Covered Transaction shall be several and not joint with any other Person (except to the extent that funds may be paid out of an escrow or holdback established, or offset against future earn outs or other contingent payments, to cover breach of representations, warranties and covenants of the Company as well as breach by any Member or any corresponding representations, warranties and covenants provided by all Members), and, except with respect to claims related to intentional fraud or willful breach by such Member or claims for breach of a representation or warranty given by such Member specifically regarding such Member (e.g., such Members’ title to and ownership of Units), shall be pro rata in proportion to, and shall not exceed, the amount of consideration paid to such Member in connection with such Covered Transaction.

 

(g)            Subject to Section 13.8(f), each Member’s potential liability in respect of a Covered Transaction shall be limited to such Member’s applicable share (determined based on the respective proceeds payable to each Member in connection with such Covered Transaction) of a negotiated aggregate indemnification amount or amounts that apply equally to all Members but that in no event shall any such amount exceed the net proceeds otherwise payable to such Member in connection with such Covered Transaction, except with respect to claims related to fraud or willful breach by such Member, the liability for which need not be so limited as to such Member.

 

(h)            If the Tag-Along Seller (with respect to a Tag-Along Sale under Section 13.3), the Drag-Along Seller (with respect to a Drag-Along Sale under Section 13.7) or the Ryman Member with respect to a SPAC Transaction under Section 13.5 or in connection with any other Covered Transaction, appoints a representative (the “Transaction Member Representative”) with respect to matters affecting the Members under the applicable definitive transaction agreements following consummation of a Covered Transaction, unless otherwise agreed by the Investor Member and the Ryman Member, such Transaction Member Representative shall be a third party firm that provides such transaction services and each Holder further agrees (x) to consent to (i) the appointment of such Transaction Member Representative, (ii) the establishment of any applicable escrow, expense, holdback or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Holders’ pro rata portion (from the applicable escrow, expense, holdback or similar fund or otherwise) of any and all reasonable and documented fees and expenses to such Transaction Member Representative in connection with such Transaction Member Representative’s service and duties in connection with such Covered Transaction and its related service as the representative of the Members and (y) not to assert any claim or commence any suit against the Transaction Member Representative in connection with its service as the Transaction Member Representative, absent fraud, willful breach or gross negligence.

 

- 67 -

 

 

(i)            The only expenses a Holder must pay in connection with the Covered Transaction are (i) expenses incurred for all Holders’ benefit and paid by the Company or acquiring party, (ii) Transaction Member Representative expenses, and (iii) the Holder’s expenses for its sole benefit (e.g., fees paid to its own professional advisors). Notwithstanding the foregoing, the reasonable attorneys’ fees (for a single counsel) of the Investor Member and the Ryman Member incurred in connection with a Drag-Along Sale under Section 13.7 or a SPAC Transaction under Section 13.5 will be borne by the Company.

 

Section 13.9           Payment Exception. If the consideration to be paid in exchange for Units pursuant to a Covered Transaction includes any securities and receipt thereof by any Holder would require under applicable law (x) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities or (y) the delivery to any Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Holder in lieu thereof, against surrender of the Units which would have otherwise been sold by such Holder, an amount in cash equal to the Redemption Fair Market Value of the securities which such Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Units.

 

Section 13.10          Investor ROFO.

 

(a)            In the circumstances set forth in Section 13.10(b), the Investor Member shall have the following rights, which are the “Investor ROFO.” Upon notice (a “ROFO Notice (13.10)”) from the Ryman Member of its intention to engage in or to cause the Company to engage in any of the events set forth in Section 13.10(b), which notice shall, in the case of an event described in Section 13.10(b)(iii), specify (i) any contractual protections that the Ryman Member requires in respect of the Ryman Parent’s status as a REIT in connection with such intended Sale of the Company (“Acquiror REIT Protections”) and (ii) whether the Ryman Member intends for all or a portion of the consideration to include Equity Securities that can be received by the Ryman Member on a tax deferred basis for U.S. federal income tax purposes (a “Tax-Deferred Sale”) and, if so, (A) the maximum amount of gain to be recognized by the RHP Operating Partnership (or if the RHP Operating Partnership is disregarded for U.S. federal income tax purposes, the Ryman Parent) as a result of such intended Sale of the Company and (B) the Maximum Annual Permissible Amount, and the Investor Member shall have the right to propose, no later than twenty (20) Business Days after receipt of the ROFO Notice (13.10), the terms, conditions and price, as well as availability and sources of financing, upon which the Investor Member desires to purchase the Company, all outstanding equity of the Company, or otherwise engage in a Sale of the Company (disregarding the exception for sales to Investor Member in the definition of Sale of the Company) (a “ROFO Proposal”); provided, however, that for such ROFO Proposal to be valid, (x) such terms must include any Acquiror REIT Protections specified in the ROFO Notice or such similar terms that are in all material respects no less favorable to the Ryman Parent in the aggregate, and (y) if the ROFO Notice (13.10) contemplated a Tax-Deferred Sale, the proposed consideration and transaction structure shall include an amount of common stock of Comcast Parent that is listed on a national securities exchange and registered under Section 12(b) of the Securities Exchange Act that would result in no greater amount of gain recognition by the RHP Operating Partnership or Ryman Parent, as applicable, than the gain set forth in the ROFO Notice (13.10). If at the time of making an offer pursuant to this Section 13.10, Atairos Parent is then a publicly traded company with common stock listed on the NYSE or Nasdaq market, then such consideration may also include Atairos Parent common stock but only if such offer includes registration rights for Ryman Member equivalent to the registration rights to be granted by the Company to Investor Member following a Qualified IPO and the shares issuable pursuant to the offer constitute less than 19.9% of the then-outstanding common stock of Atairos Parent. After receipt of the ROFO Proposal, the Ryman Member will consider and negotiate in good faith for a minimum of ten (10) Business Days with respect to the ROFO Proposal, provided that, except as set forth in Section 13.10(c), the Ryman Member may decline the ROFO Proposal after such ten (10) Business Day negotiation period in its discretion and for any reason and proceed with any action as permitted by this Agreement.

 

- 68 -

 

 

(b)            The Investor ROFO shall apply if:

 

(i)            the Ryman Member determines to cause a Qualified IPO; provided that the Investor ROFO will not apply after the occurrence of a consummated IPO; and

 

(ii)            the Ryman Member (or its Affiliate) determines to cause a Qualified Spinoff; provided that the Investor ROFO will not apply after the occurrence of a consummated Qualified Spinoff.

 

(iii)            the Ryman Member initiates a Sale of the Company to a third party; provided that the Investor ROFO will not apply after the occurrence of a consummated Sale of the Company.

 

(c)            If the Investor Member exercises rights under the Investor ROFO under the circumstances of Section 13.10(b)(iii) and delivers a valid ROFO Proposal in accordance with Section 13.10(a), and the Ryman Member declines the ROFO Proposal, then the Ryman Member may proceed with the Sale of the Company so long as:

 

(i)            a binding written agreement with a third party is entered into within one hundred eighty (180) days after the delivery of the ROFO Proposal and such Sale of the Company is consummated within one hundred twenty (120) days after the entry into of such binding Agreement (i.e., if the Ryman Member does not enter into a binding agreement or consummate the Sale of the Company within the time limitations set forth in the preceding sentence, then the right of the Ryman Member to effect the Sale of the Company pursuant to this Section 13.10 shall terminate and the Ryman Member shall again comply with the procedures set forth in this Section 13.10 with respect to any proposed Sale of the Company);

 

(ii)            the value of the cash and non-cash consideration (with the value of non-cash consideration determined in accordance with Section 13.19) from the third party in the Sale of the Company shall be equal to or exceed ninety-five percent (95%) of the per Unit value of the consideration in the ROFO Proposal;

 

- 69 -

 

 

(iii)            if the ROFO Notice (13.10) contemplated Acquiror REIT Protections, the Sale of the Company to the third party includes Acquiror REIT Protections that are materially the same or more favorable to the Ryman Member as those set forth in the ROFO Notice; and

 

(iv)            if the ROFO Notice (13.10) contemplated a Tax-Deferred Sale, the Sale of the Company to the third party is expected to be a Tax-Deferred Sale and the proposed consideration and transaction structure includes an amount of Equity Securities that are expected to result in no materially greater amount of gain recognition by the RHP Operating Partnership or Ryman Parent, as applicable, than the gain set forth in the ROFO Notice (13.10); provided, however, that such greater amount of gain recognition shall be permitted to the extent that the Annual Maximum Permitted Amount for the calendar year in which such Sale of the Company occurs (as determined solely by the Ryman Member in good faith) is greater than the Annual Maximum Permitted Amount specified in the ROFO Notice.

 

(d)            If Ryman Member accepts a ROFO Proposal, the Investor Member may designate any of its Permitted Transferees to pay all or a portion of the consideration payable in respect of the ROFO Proposal; provided that such designation or payment has no adverse consequences for the Ryman Member or any of its Affiliates and the Investor Member shall remain obligated to consummate the purchase if such designees fail to do so.

 

Section 13.11           IPO Shortfall.

 

(a)            In circumstances specified in this Section 13.11, the Investor Member shall be entitled to the IPO Shortfall on the terms set forth below. Upon a Qualified IPO that closes on or before the Seventh Anniversary, if the Post IPO Investor Stake Value at the Settlement Date does not equal or exceed the Minimum Investor Stake Value, then the Investor Member shall be entitled to a one-time payment equal to the IPO Shortfall. The Ryman Member may at its election pay the IPO Shortfall in cash, Company Equity owned by the Ryman Member, valued at the VWAP per share for the ninety (90) trading day period ending on the one hundred twentieth (120th) trading day after the Qualified IPO (the “Calculation Value”), or Ryman Parent Common Stock, valued at the VWAP per share calculated for the ten (10) trading day period ending on the Business Day that is two (2) days prior to the date of payment. The IPO Shortfall shall be paid by the Ryman Member to the Investor Member no later than sixty (60) days after the Settlement Date. Rights with respect to the Minimum Investor Stake Value and the IPO Shortfall will not apply under any circumstances with respect to any IPO that is effected after the Seventh Anniversary (but shall continue to apply in accordance with its terms with respect to any IPO effected prior to the Seventh Anniversary).

 

- 70 -

 

 

(b)            Defined Terms.

 

(i)            Settlement Date” is the date that is two (2) Business Days after the one hundred twentieth (120th) trading day after the Qualified IPO, on the principal market on which the Company Equity is listed.

 

(ii)            Retained Invested Equity” means the Initial Funding Amount, including, if paid, the Earnout Amount, and the Block 21 Incremental Capital Contribution, if paid (in each case, as defined in the Investment Agreement), with respect to the Retained Units.

 

(iii)            Closing Units” means Units that were originally purchased on the date of this Agreement (as adjusted for any Unit combinations, Unit splits, or equity dividends, recapitalizations, reclassifications and the like with respect to the Units (including any Corporate Conversion) and the Earnout Transactions, if applicable).

 

(iv)            Retained Units” means Closing Units retained by the Investor Member at the time of the Qualified IPO, the closing date of a Sale of the Company (immediately prior to the closing of the Sale of the Company) or the date specified for purposes of any calculation.

 

(v)            Minimum Investor Stake Value” means the amount calculated as (a) (i) Retained Invested Equity multiplied by (ii)(x) 1.4, if calculated with respect to a Qualified IPO that closes on or prior to the Second Anniversary or (y) 1.5, if calculated with respect to a Qualified IPO that closes after the Second Anniversary and prior to or on the Seventh Anniversary, and (b) reduced by (i) the amount of any cash distributions made from the Company on the Retained Units prior to any calculation and (ii) the portion of any proceeds from any prior Transfer (other than to a Permitted Transferee) by the Investor Member of any Closing Units (including as proceeds any cash distributions to the Investor Member with respect to such transferred or sold Units) that is in excess of the product of the original purchase price of such Units multiplied by (x) 1.4 if calculated on or prior to the Second Anniversary or (y) 1.5 if calculated after the Second Anniversary (“Excess Sale Proceeds”). Amounts shall be calculated on a pretax basis. A sample calculation of the Minimum Investor Stake Value, both prior to and after the Second Anniversary, is attached as Schedule F.

 

(vi)            Post IPO Investor Stake Value” means as of the Settlement Date, the sum of the following: (i) the gross proceeds of sales of Company Retained Equity received by the Investor Member (x) in the Qualified IPO (including pursuant to any option closing), and (y) from sales made simultaneously with or after the Qualified IPO; provided that for sales described in this clause (y), the proceeds will be deemed to be the greater of the actual proceeds and the Calculation Value; (ii) the market value of the Investor Member’s remaining Company Retained Equity calculated as the Calculation Value multiplied by the number of shares held; and (iii) the fair market value of any Company Retained Equity then owned by the Investor Member that is not of a class that is listed, as mutually determined in good faith by the Ryman Member and the Investor Member (provided that if the Ryman Member and the Investor Member are unable to reach agreement, then by independent appraisal by a mutually agreed to investment banker, the fees of which shall be paid by the Company). A sample calculation of Post IPO Investor Stake Value and IPO Shortfall is attached as Schedule F.

 

- 71 -

 

 

(vii)            IPO Shortfall” is the amount of any deficit of the Post IPO Investor Stake Value on the Settlement Date below the Minimum Investor Stake Value; provided that for any IPO effected after the Fourth Anniversary, the maximum amount of the IPO Shortfall shall be capped at the Payment Cap.

 

(viii)            Payment Cap” means the dollar amount that is fifty percent (50%) of the sum of (i) the Initial Funding Amount, including if paid at the applicable time of determination, the Earnout Amount, and (ii) if paid at the applicable time of determination, the Block 21 Incremental Capital Contribution.

 

(ix)            Company Equity” means equity of the Company or its successor (or Issuer) after an IPO.

 

(x)            Company Retained Equity” means Company Equity that comprise, or are the result of conversion or exchange of, Retained Units.

 

(c)            In the event that the Investor Member exercises the IPO Request Put Right, the Seven-Year Put Right or the Option, all rights under this Section 13.11 will immediately terminate upon the closing of the applicable transaction.

 

Section 13.12         Sale Payment upon a Sale of the Company.

 

(a)            In circumstances specified in this Agreement, the Investor Member shall be entitled to a Sale Payment on the terms set forth below. In connection with a Sale of the Company the closing of which occurs on or before the Seventh Anniversary, if the value of the Retained Units as established by the applicable per-Unit transaction consideration from a third party in the Sale of the Company multiplied by the number of the Retained Units does not equal or exceed the Minimum Investor Sale Value (such deficit, a “Sale Deficit”), then the Investor Member shall be entitled, at the election of the Ryman Member, to one of the following (a “Sale Payment”) in the amount of the Sale Deficit: (i) a cash payment from the Ryman Member; (ii) a preferential cash distribution from the Company; (iii) shares of Ryman Parent Common Stock valued at the VWAP per share calculated for the ten (10) trading day period ending on the Business Day that is two (2) Business Days prior to the date of payment; or (iv) consideration in the same form as is payable by the third party (and at the same per-Unit value) in the Sale of the Company. With respect to a Sale of the Company that closes after the Fifth Anniversary, notwithstanding the foregoing, the amount of the Sale Payment shall be capped at the Payment Cap. The Sale Payment shall be paid to the Investor Member as follows: (A) the portion of the Sale Payment taking the form of the consideration referred to in clauses (ii) and (iv) shall be paid at the closing of the Sale of the Company and (B) the portion of the Sale Payment taking the form of the consideration referred to in clauses (i) and (iii) shall be paid no later than sixty (60) days after the closing of the Sale of the Company. Notwithstanding anything in this Agreement, if the Investor Member has a right to tag along on a Sale of the Company pursuant to Section 13.3 hereof, the Ryman Member complies with its obligations to notify the Investor Member of its tag-along rights and the Investor Member does not exercise its right to be a Tagging Member with respect to all of its Membership Interests (and, for the avoidance of doubt, that of its Permitted Transferees), the Investor Member shall not (and its Permitted Transferees shall not) be entitled to a Sale Payment with respect to such Sale of the Company on Units not sold in the Sale of the Company, and all rights pursuant to this Section 13.12 shall immediately terminate upon the closing of the Sale of the Company. A sample calculation of Minimum Investor Sale Value and Sale Payment is attached as Schedule G, and such amounts shall be calculated consistently therewith.

 

- 72 -

 

 

(i)            Minimum Investor Sale Value” means (a) if a Sale of the Company closes prior to the Fifth Anniversary, the greater of (i) the Retained Invested Equity multiplied by 1.5, or (ii) an amount that would result in a fifteen percent (15%) IRR on the Retained Invested Equity, or (b) if a Sale of the Company closes on or after the Fifth Anniversary and through the Seventh Anniversary, the Retained Invested Equity multiplied by 1.5; in each case reduced by any Excess Sale Proceeds and in the case of (a)(i) or (b), reduced by the amount of any cash distributions made from the Company on the Retained Units prior to any calculation. Amounts shall be calculated on a pretax basis.

 

(ii)            IRR” means, as of any measurement date, the annual interest rate (compounded annually) which, when used to calculate the net present value as of the Investment Date (as defined below) of the Investor Member Proceeds received on or prior to such measurement date with respect to the Retained Units and the net present value as of the Investment Date of the Retained Invested Equity causes the difference between such net present value amounts to equal zero. For purposes of this IRR calculation, each Investor Member Proceed and each portion of Retained Invested Equity shall be deemed to have been received or made on the first (1st) day of the calendar month in which such Investor Member Proceed or portion of Retained Invested Equity is received or made, as applicable. For this purpose, the “Investment Date” shall mean (i) the date hereof for purposes of determining the IRR in respect of the Initial Funding Amount (other than the Earnout Amount) and (ii) the applicable date of investment for purposes of determining the IRR in respect of the Earnout Amount and the Block 21 Incremental Capital Contribution (in each case, as defined in the Investment Agreement), if made.

 

(iii)            Investor Member Proceeds” means, without duplication, as of any measurement date, all cash (including cash dividends, cash distributions and cash proceeds) and the value of securities received (on a cumulative basis) by the Investor Member with respect to or in exchange for Closing Units (whether such payments are received from the Company or any third party) from the date of this Agreement through such measurement date, in each case calculated on a pre-tax basis.

 

(b)            The Investor’s rights with respect to the Minimum Investor Sale Value and right to a Sale Payment will not apply under any circumstances after the Seventh Anniversary. Rights under Section 13.11 and Section 13.12 shall apply only to the first to occur of a Sale of the Company or a Qualified IPO (and only of the first occurrence of such an event). For avoidance of doubt, only one of an IPO Shortfall payment or Sale Payment may apply, and not both.

 

- 73 -

 

 

(c)            The following shall apply to Section 13.11 and Section 13.12:

 

(i)            In the event that the Investor Member exercises an Investor Put Right or the Option, all the Investor Member’s rights under Section 13.11 and Section 13.12 will immediately terminate upon the consummation of such transactions.

 

(ii)            In the event that the Ryman Member pays all or a portion of the IPO Shortfall in Company Equity, the class of securities comprising such Company Equity (i) shall be listed on a United States national securities exchange and registered under Section 12(b) of the Securities Exchange Act, (ii) shall be covered as “registered securities” (or the equivalent) by the registration rights agreement referred to in Section 13.6(a) in the hands of the Investor Member and (iii) shall not be subject to any lock-up” or other restriction on Transfer, contractual, legal or otherwise (other than restrictions under applicable state and federal securities laws and other than an IPO lock-up of the same duration as the listed equity of the Company held by the Investor Member).

 

(iii)            To the extent that the Investor Member acquires any Units after the date hereof that are the same class as the Closing Units, and following such acquisition, the Investor Member Transfers Units of such class, the Units Transferred shall be determined on a “last-in-first-out” basis, meaning the last Units of such class that were acquired will be deemed to be the first Units sold.

 

(d)            The Investor Member’s rights pursuant to Section 13.11 and Section 13.12 shall not survive any Transfer of the Investor Member’s Units to a third party, and are personal to the Investor Member, but for the avoidance of doubt, shall survive a Transfer to a Permitted Transferee.

 

(e)            For the avoidance of doubt, Investor Member’s rights in Section 13.12 do not apply to (or following) a Qualified Spinoff (whether or not in connection with a sale of equity of Ryman Parent or its hotel business or the sale of substantially all assets of Ryman Parent or its hotel business to a third party (any of the foregoing, a “Ryman Parent Sale”)), but the Sale Payment provisions will apply in connection with a Sale of the Company where the Company or its assets are sold to a different third party in connection with or separate and apart from the Ryman Parent Sale.

 

(f)            For purposes of calculating the per-Unit transaction consideration from the Sale of the Company that does not consist of cash paid at closing, (i) the value of any purchase money or other promissory notes, installment sales contracts or other deferred non-contingent consideration (including installment payments) shall be deemed to be the face amount thereof, discounted to present value using a discount rate of eight percent (8%); (ii) amounts in escrow (or otherwise held back) shall be excluded, and (iii) consideration received or receivable in the form of deferred performance payments, “earn-outs” or other contingent payments based upon the occurrence of future events shall be excluded. In addition, any other non-cash consideration forming all or a portion of the transaction consideration shall be determined in accordance with Section 13.19 (except that the non-cash consideration referred to in Section 13.19(c) shall be determined by mutual agreement of the Ryman Member and the Investor Member, but if the Ryman Member and the Investor Member are unable to reach agreement, then by independent appraisal by a mutually agreed to investment banker, the fees of which shall be paid by the Company). Notwithstanding the foregoing, when payment is made or released on any such amounts that were valued at zero or excluded pursuant to this Section 13.12(f) (but, for the avoidance of doubt, not consideration that has been discounted), Ryman Member shall be entitled to all such payments and amounts until the Sale Payment is recouped in full by Ryman Member.

 

- 74 -

 

 

Section 13.13         Investor IPO Request; IPO Request Put Right.

 

(a)            If the Company has not closed a Qualified IPO, Sale of the Company or a Qualified Spinoff prior to the Fourth Anniversary, the Investor Member shall have the right, subject to Section 13.15, to request (the “IPO Request Right”) to the Ryman Member, by written notice delivered to the Ryman Member within a period of thirty (30) days commencing on the Fourth Anniversary (the “IPO Request Period”), that the Company undertake a Qualified IPO during the following twelve (12) month period. If the Investor Member does not timely deliver such notice, the Investor Member’s rights under this Section 13.13 shall terminate at the close of business on such thirtieth (30th) day commencing on the Fourth Anniversary. If the Investor Member does timely deliver such notice, then within thirty (30) days of receipt of the Investor Member’s notice, the Ryman Member shall respond in writing (the “Ryman IPO Response”) indicating whether it will use its reasonable efforts to cause the Company to undertake a Qualified IPO or declines to do so. If the Ryman Member agrees to use its reasonable efforts to cause the Company to undertake a Qualified IPO and thereafter causes a Qualified IPO to be effected, then the Investor Member’s rights pursuant to the provisions regarding the Sale Payment and the IPO Shortfall Payment pursuant to Section 13.11 and Section 13.12 will terminate and be of no further force and effect (without payment). If the Ryman Member declines to cause the Company to undertake a Qualified IPO, then for a period of thirty (30) days after the Investor Member’s receipt of the Ryman IPO Response (the “IPO Request Put Window”), on the terms and subject to the conditions set forth in this Agreement, the Investor Member shall have the right to put all but not less than all of its Units, free and clear of any Liens (other than Liens incurred by Ryman Parent or its Affiliates or restrictions arising under applicable securities laws or imposed by this Agreement), to the Ryman Member and cause the Ryman Member to purchase the Units on the terms of this Section 13.13 (the “IPO Request Put Right”). At any time during the IPO Request Put Window, the Investor Member may exercise the IPO Request Put Right by delivery of written notice to the Ryman Member (the “IPO Request Put Exercise Notice”) indicating its election to exercise the IPO Request Put Right. Any exercise will be irrevocable. If the IPO Request Put Right is not exercised by the Investor Member during the IPO Request Put Window, the IPO Request Put Right shall expire and be null and void and of no further force and effect.

 

(b)            Notwithstanding anything in Section 13.13(a) to the contrary, if the Ryman Member agrees to use its reasonable efforts to cause the Company to undertake a Qualified IPO pursuant to Section 13.13(a), but a Qualified IPO is not consummated during the IPO Consummation Period (or, if earlier, the Ryman Member shall have determined to abandon pursuing the Qualified IPO), the Ryman Member shall be deemed to thereafter have declined to cause the Company to undertake the Qualified IPO. Within ten (10) Business Days after the expiration of the IPO Consummation Period (or such earlier abandonment), the Ryman Member shall deliver a written notice (an “IPO Failure Notice”) to the Investor Member indicating that a Qualified IPO has not been consummated within the IPO Consummation Period and that the Ryman Member has another thirty (30) day period commencing with the Investor Member’s receipt of the IPO Failure Notice (the “Subsequent IPO Request Put Window”) to exercise the IPO Request Put Right. At any time during the Subsequent IPO Request Put Window, the Investor Member may exercise the IPO Request Put Right by delivery of a IPO Request Put Exercise Notice to the Ryman Member indicating its election to exercise the IPO Request Put Right. Any exercise will be irrevocable. If the IPO Request Put Right is not exercised by the Investor Member during the Subsequent IPO Request Put Window, the IPO Request Put Right shall expire and be null and void and of no further force and effect. For purposes hereof, the “IPO Consummation Period” means the twelve (12)-month period commencing on the date of the Ryman IPO Response; provided that, subject to Section 13.16(e), if an IPO Disruption Event occurs during such twelve (12)-month period, the IPO Consummation Period shall be extended for an additional twelve (12)-month period.

 

- 75 -

 

 

(c)            If the IPO Request Put Right is timely exercised in accordance with either Section 13.13(a) or Section 13.13(b), the consideration for the Units to be purchased pursuant to the IPO Request Put Right (“IPO Request Put Price”) shall be (i) the Retained Invested Equity multiplied by 1.5, reduced by (x) the amount of any cash distributions made from the Company on the Retained Units prior to any calculation and (y) Excess Sale Proceeds; plus (ii) if the Investor Member purchased Units for consideration other than the Initial Funding Amount, the Earnout Payment (as defined in the Investment Agreement), or the Block 21 Incremental Capital Contribution (as defined in the Investment Agreement), the Unreturned Subsequent Investment multiplied by the Prorated Return Multiple; plus (iii) if the IPO Request Put Right is exercised during the Subsequent IPO Request Put Window, interest, if any, at per annum rate of eight percent (8%), compounded annually, on the sum of the amounts referred to in the foregoing clauses (i) and (ii) from the date that is twelve (12) months after the date of the Ryman IPO Response until the closing of the IPO Request Put Right. The IPO Request Put Price shall be paid to Investor Member by the Ryman Member in one or a combination of the following forms at the election of the Ryman Member in its sole discretion (for any installment): cash or shares of Ryman Parent Common Stock, valued at the VWAP for the ten (10) trading days ending on the Business Day that is two (2) Business Days prior to the date of the installment payment (with any fractional share paid in cash).

 

(d)            The closing of the IPO Request Put Right shall take place on the later of (i) the first (1st) Business Day of the calendar quarter immediately following the calendar quarter in which the IPO Request Put Exercise Notice is received by the Ryman Member and (ii) 30 days after the IPO Request Put Exercise Notice is received by the Ryman Member, and shall be documented by an assignment of interest in the form attached as Exhibit C hereto and Ryman Member shall confirm in writing the dates of the installment payments to be due from the Ryman Member in accordance with the following sentence. The IPO Request Put Price shall be paid in three equal annual installments of principal on the Fifth Anniversary, Sixth Anniversary and Seventh Anniversary; provided that interest at the rate of ten percent (10%) per annum, compounded annually, will accrue on the outstanding amounts and shall be paid at each installment; provided that if the IPO Request Put Right is exercised during the Subsequent IPO Request Put Window and any of the aforementioned Anniversaries has already occurred, the installments that would otherwise have been due on such Anniversaries shall be due immediately at the closing of the IPO Request Put Right. Any amount shall be prepayable at any time without penalty. If the Investor Member exercises rights pursuant to the IPO Request Put Right, then other rights to purchase or transfer Units under this Agreement and rights to receive any payment or distribution under this Agreement shall be suspended and not exercisable pending closing of the IPO Request Put Right. A sample calculation of IPO Request Put Price is attached as Schedule H, and IPO Request Put Price shall be calculated consistently therewith.

 

- 76 -

 

 

(ii)            Unreturned Subsequent Investment” means the purchase price of Units purchased from the Company other than with the Initial Funding Amount, the Earnout Payment (as defined in the Investment Agreement), or the Block 21 Incremental Capital Contribution (as defined in the Investment Agreement), which Units are retained by the Investor Member on the date of calculation (as adjusted for any Unit combinations, Unit splits, or equity dividends, recapitalizations, reclassifications and the like with respect to the Units (including any Corporate Conversion)).

 

(iii)            Prorated Return Multiple” means the sum of (A) 1.0 and (B) 0.5 multiplied by a percentage calculated by dividing (x) the number of days from the date the Unreturned Subsequent Investment was invested until the date of the calculation, by (y) the number of days from the date of this Agreement until the date of the calculation.

 

Section 13.14         Investor Seven-Year Put Right.

 

(a)            If the Company has not closed a Qualified IPO, Sale of the Company or a Qualified Spinoff prior to the Seventh Anniversary, then commencing on the Seventh Anniversary, the Investor Member shall have the rights in this Section 13.14 (the “Seven-Year Put Right”). The Seven-Year Put Right and the IPO Request Put Right are, collectively, the “Investor Put Rights.” Upon the closing of a Qualified IPO, Sale of the Company or a Qualified Spinoff before the Seventh Anniversary, this Section 13.14 and the Seven-Year Put Right will immediately terminate. Commencing on the Seventh Anniversary, for a period of thirty (30) days (the “Seven-Year Put Window”), on the terms and subject to the conditions set forth in this Agreement, the Investor Member shall have the right to put all but not less than all of its Units, free and clear of any Liens (other than Liens incurred by Ryman Parent or its Affiliates or restrictions arising under applicable securities laws or imposed by this Agreement), to the Ryman Member and cause the Ryman Member to purchase the Units on the terms of this Section 13.14. At any time during the Seven-Year Put Window, the Investor Member may exercise the Seven-Year Put Right by delivery of written notice to the Company and to the Ryman Member (the “Seven-Year Put Exercise Notice”) indicating its election to exercise the Seven-Year Put Right (the date of such Seven-Year Exercise Notice, the “Seven-Year Put Exercise Date.”) Any exercise will be irrevocable. If the Seven-Year Put Right is not exercised by the Investor Member during the Seven-Year Put Window, the Seven-Year Put Right shall then expire and be null and void and of no further force and effect.

 

(b)            The consideration for the Investor Member’s Units in the Seven-Year Put Right shall be fair market value determined as follows on a per-Unit basis with respect to each class of Units then held by the Investor Member as of the quarter end prior to the date of the Put Exercise Notice (subject to Section 13.16 below) (“Seven-Year Put Price”): Each of the Investor Member and the Ryman Member will prepare a pricing proposal describing its assumptions and calculations with respect to the fair market value of the Company’s equity and the price on a per-Unit basis. The pricing proposal of each party will be delivered to the other party no later than thirty (30) days after the Ryman Member’s receipt of the Seven-Year Put Exercise Notice. After delivery of the pricing proposals, the parties will engage in discussions and negotiations for a period of thirty (30) days and attempt to agree on the Seven-Year Put Price. If the parties agree on the price within the thirty (30)-day period, the price per Unit will be reflected in a document signed by both parties stating the Seven-Year Put Price. If the parties do not so agree, the Company will engage a nationally recognized investment banking firm mutually acceptable to the Board, the Ryman Member and the Investor Member to determine the fair market value of the Company and its equity on a per-Unit basis, within a range of the per-Unit prices proposed by each party in the Pricing Proposals, and such amount will be the Seven-Year Put Price; each of the Ryman Member and the Investor Member will be provided access to and information from the investment banking firm, including a final valuation report. Fair market value of the Company and its equity shall be based upon the following principles: (a) the assumption that there is a willing buyer and a willing seller, neither of which is an Affiliate of the other and neither of which is under any obligation to sell, with both the buyer and the seller in possession of all material facts, (b) such determination shall be based on the market conditions prevailing at the time, taking into account all attendant circumstances, (c) such determination shall disregard any control premium, any discount for lack of control or lack of marketability, or similar discounts and (d) the consideration will be determined without regard to any of the limitations set forth in Section 13.18 or the tax status of any Holder or its direct or indirect owners as a REIT or otherwise. The Seven-Year Put Price with respect to each class or series of Unit, as agreed or determined, multiplied by the number of Units of such class or series held by the Investor Member (“Seven-Year Put Consideration”) shall be the aggregate consideration to be paid to the Investor Member by the Ryman Member, and shall be paid in one or a combination of the following forms at the election of the Ryman Member in its sole discretion (for any installment): cash or shares of Ryman Parent Common Stock, valued at the VWAP for the ten (10) trading days ending two (2) Business Days prior to the installment payment (with any fractional share paid in cash).

 

- 77 -

 

 

 

(c)            The closing of the Seven-Year Put Right shall take place on the later of (i) the first (1st) Business Day of the calendar quarter immediately following the calendar quarter in which the Seven-Year Put Price is finally determined as set forth above and (ii) thirty (30) days after the date on which the Seven-Year Put Price is finally determined as set forth above, and shall be documented by an assignment of membership interest in form of Exhibit C, and Ryman Member shall confirm in writing the dates of the installment payments to be due from the Ryman Member in accordance with the following sentence. The Seven-Year Put Consideration shall be paid in two equal installments of principal, subject to prepayment by Ryman at any time, with the first installment paid ninety (90) days after the closing of the Seven-Year Put Right and the second installment paid no later than the date that is eighteen (18) months after the Seventh Anniversary; provided that interest at the rate of eight percent (8%) per annum, compounding annually, will accrue from the date of the first installment payment and shall be paid at the time of the payment of the second installment, paid at the election of Ryman in the form of cash or Ryman Parent Common Stock as set forth above.

 

(d)            If the Investor Member exercises rights pursuant to the Seven-Year Put Right, then other rights to purchase or transfer Units under this Agreement and rights to receive any payment or distribution under this Agreement shall be suspended and not exercisable pending closing of the Seven-Year Put Right.

 

- 78 -

 

 

(e)            In the event that the Ryman Member pays all or a portion of the Sale Payment, the IPO Shortfall, the IPO Request Put Price or the Seven-Year Put Consideration in shares of Ryman Parent Common Stock, the following shall apply to Section 13.11, Section 13.12, Section 13.13 and Section 13.14:

 

(i)            (x) Ryman Parent shall ensure that such Ryman Parent Common Stock will not be subject to any “lock-up” or other restriction on Transfer, contractual, legal or otherwise (other than restrictions under applicable state and federal securities laws) and (y) Ryman Parent shall enter into a registration rights agreement with the Investor Member (or its applicable Affiliate), on customary terms and conditions, obligating Ryman Parent to file and cause to be effective no later than the applicable payment date a resale registration statement on Form S-1 or Form S-3, which resale registration statement shall remain effective until such Ryman Parent Common Stock can be sold by the holders thereof in a single transaction under Rule 144 without volume restrictions or limitations as to manner or timing of sale;

 

(ii)            Ryman Parent shall publicly announce such event via a broadly disseminated press release and/or current report on Form 8-K at least ten (10) days prior to the commencement of the applicable VWAP period used to determine the value of a share of Ryman Parent Common Stock as of any payment date (including any installment payment), which announcement shall disclose the dollar amount of the payment to be paid in shares of Ryman Parent Common Stock, the VWAP formula and measurement period by which the number of shares of Ryman Parent Common Stock to be issued on such payment date shall be calculated; and

 

(iii)            During the applicable VWAP period, the Investor Member shall not trade in Ryman Parent Common Stock in a manner that would violate anti-manipulation provisions of the federal securities laws.

 

Section 13.15         Rights Terminate; Suspension.

 

(a)            In the event that the Option is exercised and the Option closes, a Qualified IPO occurs, a Sale of the Company occurs, or a Qualified Spinoff occurs, all rights under Section 13.13 and Section 13.14 shall immediately terminate. In addition, in the event the Investor Member receives the Sale Payment or the IPO Shortfall Payment pursuant to Section 13.11 or Section 13.12, all rights under Section 13.11, Section 13.12, Section 13.13 and Section 13.14 shall immediately terminate.

 

(b)            If the Ryman Member and the Company have taken bona fide steps (regardless of whether such steps are made public, and including, as an example, the engagement of advisors) to effect an IPO that would constitute a Qualified IPO, a Sale of the Company or a Qualified Spinoff at least three (3) months prior to the commencement of the IPO Request Period and the Ryman Member and the Company are then continuing to pursue such transaction in good faith, the Ryman Member may deliver the Investor Member written notice thereof prior to the Fourth Anniversary, in which case the Ryman Member may preempt the Investor Member’s rights under Section 13.13 and defer the IPO Request Period; provided that upon the earlier of (i) the Fifth Anniversary and (ii) the Ryman Member having determined to abandon pursuing such transaction, the Ryman Member shall, within ten (10) Business Days after the earlier thereof, deliver a written notice to the Investor Member indicating that fact and stating that the IPO Request Period that was deferred may now be exercised during the thirty (30)-day period commencing with the receipt of such notice. Following the delivery of such notice, the provisions of Section 13.13 shall thereafter apply, on a mutatis mutandis basis, but with the IPO Request Period commencing with the delivery of such letter instead of on the Fourth Anniversary.

 

- 79 -

 

 

Section 13.16         Put Delay Event.

 

(a)            Subject to Section 13.16(e), the Investor Member’s rights under the Seven-Year Put Right and the IPO Request Right (including a right to an installment) are subject to suspension for a Put Delay Event. In the event of a Put Delay Event (i) that occurs prior to the Seven-Year Put Window or the IPO Request Period (either, a “Pre-Window Put Delay Event”), the Ryman Member shall have the right to give written notice to the Investor Member (the “Put Delay Notice”) and thereafter during the Put Delay Period, the Ryman Member may elect to delay the exercise of the IPO Request Right or the Seven-Year Put Right, (ii) that occurs after the commencement of the IPO Request Period and prior to the Investor Member exercising the IPO Request Put Right (a “Post-Window Put Delay Event”), the Ryman Member shall have the right to give written notice to the Investor Member and thereafter during the Put Delay Period and prior to the commencement of the IPO Request Put Window, the Ryman Member may elect to delay the exercise of the IPO Request Right and (iii) that occurs after the commencement of the Seven-Year Put Window or the IPO Request Put Window (a “Post-Commencement Put Delay Event”), the Ryman Member shall have the right to give to the Investor Member the Put Delay Notice, and thereafter during the Put Delay Period, the Ryman Member may elect to delay payment (including an installment payment due during the Delay Period) pursuant to the IPO Request Put Right or the Seven-Year Put Right.

 

(b)            In the case of delaying the Seven-Year Put Right for a Pre-Window Put Delay Event, if the Seven-Year Put Right is ultimately exercised, the Seven-Year Put Price will be equal to the greater of (i) the Seven-Year Put Price calculated as of the original exercise period and (ii) the Seven-Year Put Price calculated after the Seven-Year Put is actually exercised as of the end of the Put Delay Event, in either case without interest. In the case of delaying the Seven-Year Put Right for a Post-Commencement Put Delay Event, the Seven-Year Put Price will be equal to the Seven-Year Put Price calculated as of the original exercise period (and, for the avoidance of doubt, the Seven-Year Put Price will be calculated as of the calendar quarter immediately preceding the delivery of the Seven-Year Put Exercise Notice and such calculation shall disregard any impact or changes resulting from the subsequent occurrence of the Put Delay Event) plus interest at per annum rate of eight percent (8%), compounded annually, on the applicable portion of the Seven-Year Put Price from the date on which the Ryman Member should have paid such portion at either the closing of the Seven-Year Put Right or any installment payment date in the absence of the Put Delay Period until the date of actual payment of the same.

 

(c)            In the case of delaying the IPO Request Right for a Pre-Window Put Delay Event or a Post-Window Put Delay Event, the IPO Request Right shall be available at the end of the Put Delay Period, and if the IPO Request Put Right is ultimately exercised, the IPO Request Put Price will be equal to the IPO Request Put Price plus interest at a per annum rate of eight percent (8%), compounded annually, on the IPO Request Put Price from the commencement of the Put Delay until the closing of the IPO Request Put Right.

 

- 80 -

 

 

(d)            Upon the expiration of the Put Delay Period after a Pre-Window Put Delay Event or a Post-Window Put Delay Event, the Ryman Member shall, within ten (10) Business Days after the expiration thereof, deliver a written notice to the Investor Member indicating that the Put Delay Period has expired and stating that the IPO Request Right or the Seven-Year Put Right, as applicable, may now be exercised during the thirty (30)-day period commencing with the receipt of such notice. Following the delivery of such notice, the provisions of Section 13.13 and Section 13.14 shall thereafter apply, on a mutatis mutandis basis, but with the IPO Request Period or Seven-Year Put Window, as applicable, commencing with the delivery of such letter.

 

(e)            Notwithstanding anything to the contrary herein, if the Investor Member has exercised the IPO Request Right, the Investor Member shall have the right to exercise the IPO Request Put Right pursuant to Section 13.13 commencing no later than the Sixth Anniversary (for the avoidance of doubt, regardless of any Put Delay Event or IPO Disruption Event that has occurred prior to, or is continuing as of, the Sixth Anniversary) and regardless of whether any delay in exercising the IPO Request Right has occurred pursuant to Section 13.15(b) or the IPO Consummation Period has otherwise expired.

 

(f)            For purposes hereof:

 

(i)            Put Delay Event” means, in the case of the IPO Request Put Right, within twelve (12) months prior to the beginning of the IPO Request Period or the due date of any installment payment relating to the IPO Request Put Price and, in the case of the Seven-Year Put Right, within twelve (12) months prior to the Seventh Anniversary or the due date of any installment payment of the Seven-Year Put Price, either of the following shall occur: (1) a Ryman Parent Stock Event, or (2) an Index Event.

 

(ii)            Put Delay Period” means in the event of (1) a Ryman Parent Stock Event, a period of twelve (12) months following the last day of the sixty (60)-day measurement period used to determine such Ryman Parent Stock Event, or (2) an Index Event, a period of twelve (12) months following the last day of the sixty (60)-day measurement period used to determine such Index Event.

 

(iii)            Index Event” means the VWAP for any five (5) consecutive trading day period of the Dow Jones US Hospitality REIT Index (DJUSHL) is at least thirty percent (30%) lower than the VWAP of the DJUSHL for the sixty (60) consecutive trading day period immediately preceding the first day of such five (5) consecutive trading day period.

 

(iv)            Ryman Parent Stock Event” means in any sixty (60) day period, the occurrence of both (i) the VWAP for Ryman Parent common stock for five (5) consecutive trading days is at least thirty percent (30%) lower than the VWAP for Ryman Parent common stock for the sixty (60) consecutive trading day period immediately preceding the first day of such five (5) consecutive trading day period and (ii) the first occurrence of a business closure or “sheltering-in-place,” or significant capacity limitation affecting any material property of Ryman Parent and its Subsidiaries that arises from (including due to a Legal Requirement resulting from) (A) a hurricane, earthquake, flood, tornado or other natural disaster or act of God, (B) fire, arson, acts of war, sabotage, or terrorism or (C) any epidemic, pandemic or disease, including COVID-19 (but only to the extent that there is a substantial escalation or worsening of COVID-19 attributable to a variant of COVID-19 first becoming prevalent after the date of this Agreement); where “Legal Requirement” means any United States, federal, state or local or any foreign law (in each case, statutory, common or otherwise), constitution, treaty, convention, Order, ordinance, code, rule, statute, regulation (domestic or foreign) or other similar requirement enacted, issued, adopted, promulgated, entered into or applied by a Governmental Body and “Order” means any order, writ, injunction, decree, judgment, award, injunction, settlement or stipulation issued, promulgated, made, rendered or entered into by or with any Governmental Body (in each case, whether temporary, preliminary or permanent).

 

- 81 -

 

 

(g)            No duplicate interests payments will apply where interest is required in Section 13.13 or Section 13.14.

 

Section 13.17         Ryman Member Right to Assign. The Ryman Member shall have the right to assign its rights and obligations to purchase the Investor Member’s Units in the Investor Put Rights to a third party designee, provided that any such designee that is not an Affiliate of the Ryman Parent shall pay in full at the closing of the Investor Put Right in cash, and the Ryman Member shall remain responsible for such designee’s failure to close the Investor Put Right.

 

Section 13.18         REIT Protections. For so long as the Ryman Member or any of its Affiliates holds any Units (i) in no event shall (x) the Ryman Member be required to Transfer any Units nor (y) the Company or any of its Affiliates take any action (including the filing of any tax election, any recapitalization or reclassification of any Units or the payment of any distribution), in either case, without the Ryman Member’s prior written consent to the extent such Transfer or action, as applicable, could reasonably be expected to cause, in Ryman Parent’s good faith determination based on the advice of counsel, Ryman Parent to fail to satisfy any requirement for qualification and taxation as a REIT or otherwise subject the Ryman Parent to any Tax liability pursuant to Section 857 of the Code or any similar provision of law, (ii) neither the Company nor any of its Subsidiaries shall directly or indirectly operate or manage a lodging facility or health care facility or provide any person with rights to a brand name under which any lodging facility or health care facility is operated, in each case, within the meaning of Section 856(l) of the Code, and (iii) the Company shall reasonably cooperate with the Ryman Member with respect to (x) the making of any “taxable REIT subsidiary” election with respect to the Company or any Subsidiary pursuant to Section 856(l)(1)(B) of the Code and (y) the provision of any information in the Company’s or any of its Subsidiary’s possession that is reasonably necessary for or relevant to the Ryman Parent’s status as a REIT.  For the avoidance of doubt, nothing in this Section 13.18 shall limit the Ryman Member’s or Ryman Parent’s obligations pursuant to Section 13.1, Section 13.3, Section 13.5, Section 13.7, Section 13.8, Section 13.11, Section 13.12, Section 13.13 and Section 13.14; provided that, in the case of Section 13.2 and Section 13.10, the Ryman Member shall only be permitted to avail itself of the provisions of this Section 13.18 to the extent that the Ryman Member cooperates with the Investor Member in good faith to provide the Investor Member the maximum benefit of such provisions as reasonably practicable under the circumstances.

 

- 82 -

 

 

Section 13.19         Valuation of Securities and Other Non-Cash Consideration. For purposes of valuing any securities to be received as consideration from any third party pursuant to Section 13.2, Section 13.3 or Section 13.10, the following shall apply:

 

(a)            If any such securities are traded on a nationally recognized securities exchange or inter dealer quotation system, the value shall be deemed to be the average of the closing prices of such securities on such exchange or system over the thirty (30) day period ending three (3) Business Days prior to the closing of the transaction; provided that for purposes of determining whether the ninety-five percent (95%) threshold set forth in Section 13.2(d) or Section 13.10(c)(ii) is satisfied, any non-cash consideration offered shall be determined as of the date the definitive transaction agreement is entered into with the applicable third party;

 

(b)            If any such securities are traded over the counter, the value shall be deemed to be the average of the closing prices of such securities over the thirty (30) day period ending three (3) Business Days prior to the closing; and

 

(c)            If there is no active public market for such securities or other non-cash consideration, the value shall be the fair market value thereof, as determined in good faith by the Board.

 

Article XIV
MISCELLANEOUS

 

Section 14.1         Amendment of Agreement. Subject to Section 7.1(b), this Agreement and the Certificate of Formation may be amended by the Company with the prior written consent of the Ryman Member and for so long as the Investor Member owns at least ten percent (10%) of the Outstanding Units, the Investor Member; provided, further, that the Board may amend this Agreement, including Schedule A hereto, without the approval of any Members in order (a) amend Schedule A to reflect the admission of Substitute Members or new Members; (b) subject to the foregoing proviso, to reflect the issuance or cancellation of Units, create and/or issue any class or series of Units, make any adjustments in connection therewith, and fix for each such class or series such voting powers, distinctive designations, preferences and relative, participating, optional or other special rights and such qualifications (including any rights to Board representation or the right to participate in the tag-along rights, preemptive rights or other rights granted to Members hereunder that has the effect of reducing the aggregate amount allocated in such rights to the Members then entitled to such rights), limitations or restrictions thereof, as shall be stated and expressed in such amendment; provided that for so long as the Investor Member owns at least ten percent (10%) of the Outstanding Units, no amendments pursuant to this clause (b) shall be permitted which (i) adversely impact the Investor Member’s governance rights under this Agreement (including Board designation, proportionate Board representation, approval rights and those other matters set forth in Article VII), (ii) impose any new or additional obligations on the Investor Member or any of its Permitted Transferees, (iii) adversely affect (either by its terms or its application) in a non-de minimis manner any of the enumerated rights and entitlements granted to the Investor Member as the “Investor Member” hereunder (as opposed to those rights generally applicable to all Members) or (iv) amend or modify the terms applicable to the Class B Units and/or, directly or indirectly, Class B Holders; (c) to satisfy any law or regulatory requirement; and (d) to change the name of the Company; provided, further, that for so long as the Investor Member owns any Units, any amendment, modification, waiver or supplement (including, in each case, by merger, consolidation or otherwise) of this Agreement that would reasonably be expected to materially and disproportionately adversely affect the rights and obligations of the Investor Member relative to the Ryman Member shall not be effective unless executed by the Investor Member.

 

- 83 -

 

 

Section 14.2         Remedies. Except as otherwise stated herein, no remedy conferred upon any party to this Agreement is intended to be exclusive of any other remedy herein or by law provided or permitted, but each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.

 

Section 14.3         Waiver. None of the terms of this Agreement shall be deemed to have been waived by any party hereto, unless such waiver is in writing and signed by that party. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or any further breach of the provision so waived.

 

Section 14.4         Notices. Except as otherwise expressly provided in this Agreement, all notices, requests and other communications (each, a “Notice”) to any Holder, the Company, the Board or any Manager shall be in writing (including electronic mail) and shall be given (a) if the recipient is a Holder, to such Holder at the address specified for such Holder on Schedule A or as such Holder shall hereafter specify for this purpose by Notice to the other Holders, (b) if the recipient is a Manager, to such Manager at the address to which any Notice to the Member that appointed such Manager would be sent hereunder, and (c) if the recipient is the Company or the Board, to the Company or the Board, as the case may be, at the addresses to which any Notice to all of the Holders would be sent hereunder. Each Notice shall be effective (i) if given by electronic mail, at the time such electronic mail is transmitted and the appropriate confirmation is received (or, if such time is not during business hours on a Business Day, on the next Business Day), or (ii) if given by personal delivery or any reputable courier service, when delivered at the address specified pursuant to this Section 14.4.

 

Section 14.5         Entire Agreement. Except as contemplated by Section 10.4(b), this Agreement, the other agreements among the parties hereto referenced herein and any other agreements entered into by the Company with a Person concurrent with their admittance as a Member hereunder contain the entire agreement, and supersede all prior agreements and understandings and arrangements, oral or written, among the parties hereto with respect to the subject matter hereof.

 

Section 14.6         Conflict Between this Agreement and Related Agreements. For the avoidance of doubt, and notwithstanding any other provision of this Agreement to the contrary, no Member who holds only Class B Units shall have any right to receive or review a copy of Schedule A to this Agreement (except for information on Schedule A that relates solely to such Member) or obtain other information about the identities of the other Members or the size or nature of their interests in the Company; provided, however, that any Person may view a copy of Schedule A if the Chief Executive Officer of the Company determines that it is reasonably necessary for such Person to perform his or her duties in connection with the Company.

 

- 84 -

 

 

Section 14.7         Binding Effect; Third-Party Beneficiaries. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, heirs, legal representatives and permitted assigns. Except as expressly set forth herein (including Article VIII hereof), this Agreement is not intended to confer any rights or remedies upon, and shall not be enforceable by, any Person other than the parties hereto, their respective successors, heirs, legal representatives and permitted assigns, and the Company.

 

Section 14.8         Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be unenforceable or invalid under applicable law, such provision shall be ineffective only to the extent of such unenforceability or invalidity (and for purposes only of such applicable law), and the remaining provisions of this Agreement shall continue to be binding and in full force and effect.

 

Section 14.9         Headings. The section and other headings contained in this Agreement are for convenience only and shall not be deemed to limit, characterize or interpret any provisions of this Agreement.

 

Section 14.10         No Strict Construction. The parties hereto jointly participated in the negotiation and drafting of this Agreement. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their collective mutual intent. This Agreement shall be construed as if drafted jointly by the parties hereto, and no rule of strict construction shall be applied against any Person.

 

Section 14.11         Interpretation. As used in this Agreement, each of the masculine, feminine and neuter genders shall be deemed to import the others whenever the context so indicates or requires. Terms defined in the singular have a comparable meaning when used in the plural and vice versa. Terms defined in the present tense shall have a comparable meaning when used in the past or future tense and vice versa. Terms defined as a noun shall have a comparable meaning when used as an adjective, adverb, or verb and vice versa. Whenever the term “include” or “including” is used in this Agreement, it shall mean “including, without limitation,” (whether or not such language is specifically set forth) and shall not be deemed to limit the range of possibilities to those items specifically enumerated. Unless otherwise limited, the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision. References to Persons owning a Membership Interest in a particular capacity shall mean in such Person’s capacity, as such and in no other capacity. The terms “Member,” “Investor Member” and “Ryman Member” shall each also mean, if any such Person shall have Transferred any of Units to any of its Permitted Transferees (or any Permitted Transferee has acquired any Units pursuant to Section 3.5 or Article XIII), such Person and its Permitted Transferees shall be aggregated together for the purposes of determining the availability of rights under this Agreement), and any right, obligation or action that may be exercised or taken at the election of such Person may be taken at the election of such Person and its Permitted Transferees; provided, further, that in the event such Person shall have Transferred any of its Units to any of its Permitted Transferees (or any Permitted Transferee has acquired any Units pursuant to ‎Section 3.5 or ‎Article XIII) such Person or, if such Person ceases to hold any Units, its Permitted Transferee with the greatest number of Units (the “Member Representative”) shall be appointed as the attorney-in-fact to act on behalf of all Permitted Transferees of such Person, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement in the absolute discretion of the Member Representative and in general to do all things and to perform all acts, including, without limitation, executing and delivering all agreements, waivers, consents, amendments, acknowledgements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement, and receiving all notices; and each such Permitted Transferee shall be bound by any and all actions taken by the Member Representative acting on its, his or her behalf; and the Ryman Member and the Investor Member (as well as the Company) shall be entitled to rely upon any decision, consent, waiver or other communication or writing given or executed by, and shall be entitled to deal exclusively with, the Member Representative of such other party’s Permitted Transferees.

 

- 85 -

 

 

Section 14.12         Counterparts. This Agreement may be executed in any number of counterparts, and by facsimile, .pdf or other electronic method, each of which shall be effective only upon delivery and thereafter shall be deemed to be an original, and all of which shall be taken to be one and the same instrument with the same effect as if each of the parties hereto had signed the same signature page. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.

 

Section 14.13         Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the conflicts of law principles thereof.

 

Section 14.14         Jurisdiction and Venue. Each party hereto agrees that jurisdiction and venue for any action arising from or relating to this Agreement or the relationship between the parties, including matters concerning validity, construction, performance, or enforcement, shall be exclusively brought in the Court of Chancery of the State of Delaware in and for New Castle County or, if the Court of Chancery lacks subject matter jurisdiction, in another court of the State of Delaware, County of New Castle, or in the United States District Court for the District of Delaware, (provided, that a final judgment in any such action shall be conclusive and enforced in other jurisdictions) and further agree that service of process may be made in any matter permitted by law. Each party hereto stipulates and agrees that it is subject to personal jurisdiction in Delaware and irrevocably waives any objection based on forum non conveniens with respect to any such court, and irrevocably waives any objection to venue of any such court. This paragraph is intended to fix the location of potential litigation between the parties and does not create any causes of action or waive any defenses or immunities to suit. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE AMONG THE MEMBERS OR THEIR AFFILIATES OR AMONG A MEMBER (OR ITS AFFILIATES) AND THE COMPANY CONCERNING THIS AGREEMENT, THE COMPANY OR ITS ASSETS.

 

- 86 -

 

 

Section 14.15         Expenses. Except as otherwise expressly set forth herein or as determined by the Board, each Holder and the Company shall be responsible for its costs and expenses in connection with the transactions contemplated hereby.

 

Section 14.16         Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent any breach or threatened breach of this Agreement and to enforce specifically the terms and provisions of this Agreement, without the requirement to post a bond or other security, this being in addition to any other remedy to which they are entitled at law or in equity.

 

Section 14.17         Legal Counsel. Legal counsel for a Member, a Manager or one of their respective Affiliates may represent the Company in connection with legal work or issues arising in connection with the Company, including with respect to a financing transaction. Each Member recognizes and acknowledges that any such counsel will be acting as legal counsel for the Company with respect to each such matter and shall not be acting as the legal counsel of any individual Member or Manager. Each Member further recognizes and accepts that its interest with respect to any such matter may be adverse to the interests of the other Members and of the Company. Each Member nevertheless consents to the representation of the Company by such counsel with respect to each such matter and waives for the benefit of each other Member and of such counsel any potential or actual conflict of interest between or among such Members and between any such Members and the Company. Each Member acknowledges that in the event of any future dispute or litigation between or among the Members and/or between any of the Members and the Managers or the Company, such counsel may continue to represent its Member or Manager client, notwithstanding any such dispute and its prior representation of the Company.

 

Section 14.18         Advice from Independent Legal Counsel; Voluntary Agreement. The Members represent and warrant that (a) each of them is represented by legal and tax counsel of its choice, (b) each of them has consulted with such counsel regarding this Agreement, (c) each of them is fully aware of the meaning and the tax and other consequences of the provisions contained herein, (d) except as set forth herein, each of them has not relied in any way on any representation or other statement made by any other Member or its legal or tax counsel or by any other Person and (e) each of them has entered into this Agreement voluntarily and without coercion or duress of any kind.

 

Section 14.19         Ryman Parent Guarantee; Successors.

 

(a)            Each of Ryman Parent and RHP Operating Partnership shall cause the Ryman Member and each of its Permitted Transferees to perform and comply with its obligations hereunder (including, for the avoidance of doubt, if and to the extent that the Ryman Member is required to cause any controlled Affiliates of Ryman Parent or RHP Operating Partnership to take or not take certain actions hereunder, causing each such controlled Affiliate to take or not take such actions). In such regard, each of Ryman Parent and RHP Operating Partnership shall be liable to the same extent as the Ryman Member for any failure of the Ryman Member to perform or comply with its obligations hereunder; provided that, as between Ryman Parent and RHP Operating Partnership, RHP Operating Partnership shall be primarily liable for any failure of the Ryman Member to perform or comply with its respective obligations hereunder; provided that, the foregoing shall not be construed to waive, abridge or diminish any right or remedy which the Investor Member might have against Ryman Parent.

 

- 87 -

 

 

(b)            If Ryman Parent or any of its successors or assigns (i) consolidates with or merges into any other Person or effects any reorganization, restructuring or other similar transaction with any other Person, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person (clauses (i) and (ii), a “Ryman Successor Transaction”), then, and in each such case, to the extent necessary, proper provision shall be made so that the successor or acquiring entity or, if Ryman Parent is not the ultimate parent entity resulting therefrom, the ultimate parent entity thereof shall assume the obligations set forth in this Agreement; provided that, this Section 14.19 shall not require any new ultimate parent entity to assume such obligations in the event that, in connection with and prior to consummation of a Ryman Successor Transaction, the Company enters into definitive agreements with respect to a Sale of the Company, IPO or Qualified Spinoff and the provisions of Section 13.11 and Section 13.12 are not applicable in respect of such transaction (or if applicable, the applicable Sale Payment or IPO Shortfall is paid or provided for prior to the closing of such transaction).

 

Section 14.20         Atairos Parent Guarantee. Atairos Parent shall cause the Investor Member and each of its Permitted Transferees to perform and comply with its obligations hereunder (including, for the avoidance of doubt, if and to the extent that the Investor Member is required to cause Atairos Parent or other Person to take or not take certain actions hereunder, causing each such Person to take or not take such actions, or itself taking or not taking such actions). In such regard, Atairos Parent shall be liable to the same extent as the Investor Member for any failure of the Investor Member to perform or comply with its obligations hereunder.

 

[SIGNATURES APPEAR ON FOLLOWING PAGE]

 

- 88 -

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and Restated Limited Liability Company Agreement as of the date first above written.

 

  COMPANY:
   
  OEG ATTRACTIONS HOLDINGS, LLC
   
   
  By: /s/ Scott J. Lynn
  Name: Scott J. Lynn
  Title: Vice President and Secretary

 

  RYMAN MEMBER:
   
  RHP HOTELS, LLC
   
   
  By: /s/ Scott J. Lynn
  Name: Scott J. Lynn
  Title: Vice President and Secretary

 

  RHP OPERATING PARTNERSHIP:
   
  RHP HOTEL PROPERIES, LP
   
  By: Its General Partner, RHP PARTNER, LLC
   
   
  By: /s/ Scott J. Lynn
  Name: Scott J. Lynn
  Title: Vice President and Secretary

 

  RYMAN PARENT:
   
  RYMAN HOSPITALITY PROPERTIES, INC.
   
   
  By: /s/ Scott J. Lynn
  Name: Scott J. Lynn
  Title: Executive Vice President, General Counsel and Secretary

 

[Signature Page to Second Amended and Restated Limited Liability Company Agreement for OEG Attractions Holdings, LLC]

 

 

 

 

  INVESTOR MEMBER:
   
  A-OEG HOLDINGS, LLC
   
  By: /s/ Alexander D. Evans
  Name: Alexander D. Evans
  Title: Authorized Signatory

 

  ATAIROS GROUP, INC.
   
   
  By: /s/ Alexander D. Evans
  Name: Alexander D. Evans
  Title: Authorized Signatory

 

[Signature Page to Second Amended and Restated Limited Liability Company Agreement for OEG Attractions Holdings, LLC]

 

 

 

 

SCHEDULE A

 

MEMBERSHIP INTERESTS

 

Holder Name & Address

Number and Class of

Units

 
 
Class A Member    

Ryman Member

RHP Hotels, LLC

One Gaylord Drive

Nashville, Tennessee 37214

Attn: Mark Fioravanti, President

Email: mfioravanti@rymanhp.com

Cc: Scott Lynn, General Counsel

slynn@rymanhp.com

 

Investor Member

A-OEG Holdings, LLC

c/o Atairos Group, Inc.

620 Fifth Avenue

New York, New York 10020

Attention: Alexander D. Evans

Email: a.evans@atairos.com

70,000 Class A Units

 

 

 

 

 

30,000 Class A Units

 

 

 

 

 

 

 

SCHEDULE B

 

INITIAL MANAGERS

 

Initial Managers on the Board (as per Section 7.2(a)):

 

Ryman Designees:

 

1.Colin Reed

 

2.Mark Fioravanti

 

3.Jennifer Hutcheson

 

4.Patrick Chaffin

 

Investor Designees:

 

1.Alex Evans

 

2.Jackson Phillips

 

 

 

 

 

SCHEDULE C

 

MAJOR DECISIONS

 

The following items (1) through (14) (whether involving the Company, any Subsidiary), or, where indicated, Circle Media, LLC (f/k/a New Country Ventures, LLC) (“Circle”), including any Subsidiary of Circle, are major decisions (the “Major Decisions”) requiring both the Ryman Member and the Investor Member approval to the extent set forth below in the textual provisions at the end of this Schedule C:

 

(1)Sales of equity (other than Exempt Securities or securities as to which the Investor Member and the Ryman Member have Preemptive Rights) or accepting loans from Members or issuing debt securities to Members other than as expressly provided for in this Agreement;

 

(2)(a) Distributions to Class A Holders (in their capacities as such) that are not made on a pro rata basis based on the number of Class A Units held, or (b) redemptions or repurchases of any Equity Securities of the Company or any of its Subsidiaries, in each case other than (i) redemptions or repurchases of Equity Securities by or among the Company and its wholly-owned Subsidiaries, (ii)  repurchases or redemptions of any Units from any Holder of Class B Units in accordance with the terms of this Agreement, or (iii) repurchases or redemptions of the Investor Member’s Units as contemplated by Article XIII;

 

(3)Creating, obtaining, incurring, assuming, extending, refinancing or guarantying any indebtedness, including any refinancing of or amendment to the Company Credit Facility (as defined in Schedule D), other than any indebtedness that is in conformity with the Permitted Financing Terms (it being understood that Debt-Like Preferred Equity of the Company or any of its Subsidiaries shall constitute indebtedness for these purposes). Notwithstanding the foregoing, for so long as the Block 21 Loan (as defined in Schedule D) remains outstanding, Investor Member approval under this Item (3) or any other provision of this Agreement will not be required for the refinancing the Block 21 Loan (but upon the completion of such refinancing, in whatever form, the Block 21 Loan will no longer be deemed to outstanding for any purpose of this Schedule C);

 

(4)Other than with respect to a Sale of the Company, causing or permitting the Company to (i) be merged or consolidated with any other entity (other than pursuant to Section 13.5) provided this subsection will not apply to a subsidiary merger not otherwise subject to this Schedule C in which the Company is the surviving entity and such merger does not result in any issuance, conversion or exchange of Equity Securities in the Company, (ii) purchase or otherwise acquire Equity Securities or assets of any Person (whether by merger, purchase of stock, purchase of assets or otherwise), that has a purchase price (including the assumption of indebtedness) of greater than $150,000,000 per transaction or series of related transactions or (iii) effect any sale or other disposition transaction involving the Company and/or any of its Subsidiaries and/or any of their respective businesses or assets having a value greater than $150,000,000 per transaction or series of related transactions (provided that, for so long as the Block 21 Loan remains outstanding, Investor Member approval under this Item (4) or any other provision of this Agreement will not be required for Company’s decision to sell Block 21 (as defined herein));

 

 

 

 

(5)an Annual Operating Budget that does not comply with Section 9.3;

 

(6)Selection of the Chief Executive Officer and Chief Financial Officer and the compensation of such persons (if such compensation is not reflected in the Annual Operating Budget); provided that, in the event that the Investor Member or the Ryman Member does not approve the first selected candidate with respect to the Chief Executive Officer and/or the Chief Financial Officer, such Member shall not unreasonably withhold its consent for any subsequent candidate(s);

 

(7)Any issuance of Class B Units in excess of eight percent (8%) of the number of Outstanding Units (as of the date of this Agreement);

 

(8)A change to the Company’s U.S. federal income tax classification;

 

(9)The making of any tax election that could reasonably be expected to have a disproportionately material adverse impact on the Investor Member based on the assumption that the Investor Member is c-corporation subject solely to U.S. federal income tax; provided, that (i) no election shall be considered to have a disproportionate adverse impact on the Investor Member solely on account of Ryman Parent’s status as a REIT and (ii) the Company shall be permitted (but not required) to notify the Investor Member of any proposed tax election regardless of whether the Company or the Ryman Member believes the making of such tax election would be a Major Decision. The Investor Member shall, within ten (10) days of being notified of any such tax election and receiving any information available to the Company that is reasonably requested by the Investor Member for purposes of determining whether the making of such tax election would be a Major Decision, consent or object to such tax election in writing, with any objection accompanied by a reasonably detailed written explanation of the Investor Member’s basis for the making of such tax election being a Major Decision. If the Investor Member fails to provide the Company with the Investor Member’s consent or objection to such tax election within such ten (10) day period, the Investor Member shall be deemed to have consented to such tax election. If the Investor Member objects to the making of any tax election in accordance with this paragraph (9) and the Ryman Member disputes the Investor Member’s basis therefor, the parties shall negotiate in good faith to resolve such dispute for five (5) Business Days and, if such dispute has not been resolved through such negotiation, the Ryman Member may submit such dispute to the Independent Referee or an arbitrator mutually agreeable to the Ryman Member and the Investor Member for resolution of whether such tax election would be a Major Decision, with the dispute mechanism set forth in Section 13.1(b) to apply, mutatis mutandis.

 

(10)Except (i) transactions in the ordinary course of business with any Portfolio Company in which the Investor Member or any of its Affiliates has made a debt or equity investment and that are on arm’s-length terms; or (ii) (A) any Transfer of Equity Securities made in accordance with Article X or Article XIII, if applicable, (B) any issuance of Equity Securities after compliance with, to the extent applicable, Section 3.5, (C) any issuance of debt securities or making of loans to the Company or any of its Subsidiaries, after compliance with Section 4.1 and item (4) of this Schedule C, and (D) any transaction, agreement or arrangement contemplated by the terms of the Investment Agreement or the Ancillary Agreements (as defined in the Investment Agreement) (other than this Agreement), (A) paying any salary, fees or other amounts to, (B) selling, leasing, transferring or other disposing of any of its properties or assets to, or (C) purchasing, leasing or otherwise acquiring any property or assets from, or (D) or entering into or amending any contract with, any Member or any of its Affiliates involving or having a value in excess of $500,000 (or, in the case of the foregoing clauses (C) and (D), $500,000 per year) (provided that the Services Agreement, the Trademark Coexistence Agreement, the Shared Cost Agreement, the Corporate Office Lease and the Field Shop Lease and the WSM Arrangement (each, as defined in the Investment Agreement) and an appropriate indemnity to Ryman Parent or its Affiliates in connection with its or their financing support for the Block 21 loan transaction (in a form reasonably acceptable to the Investor Member, with such consent not to be unreasonably withheld or delayed) are approved, and the performance thereof (including the payments required to be made thereunder) are approved; provided however, that material amendments, modifications or waivers to such agreements that are not favorable to the Company shall be subject to this paragraph (10)); provided, further, that, for the avoidance of doubt, any amendment to the Services Agreement that involves a markup or margin (or that otherwise increases consideration) that accrues to the benefit of Ryman Parent and its Affiliates shall be subject to this paragraph (10)) (and provided that transactions involving an amount less than $500,000 (or, in the case of the foregoing clauses (C) and (D), $500,000 per year) shall be on terms no less favorable in the aggregate to the Company or its applicable Subsidiary than could be obtained in an arms-length negotiation, or shall also be subject to approval pursuant to this paragraph (10);

 

 

 

 

(11)Amending the Certificate of Formation in a manner that would be disproportionately adverse to the Investor Member, or amending the governing documents of any Subsidiary in a manner that would materially affect the Investor Member (it being understood that administrative modifications such as changes to address or notice provisions, or other similar modifications, would not constitute a Major Decision hereunder);

 

(12)Causing, effecting, or permitting the Company, any of the OEG Subsidiaries, or Circle Media, LLC (f/k/a New Country Ventures, LLC) (“Circle”) or any Subsidiary of Circle, to acquire (i) a license issued by the FCC that is subject to an ownership restriction under the Federal Communications Laws; (ii) directly or indirectly, (a) any attributable interest, or (b) any interest subject to the equity and/or debt plus broadcast attribution rule, under the Federal Communications Laws in any Person (whether by merger, purchase of stock or other debt or equity ownership, purchase of assets or otherwise) that holds a license issued by the FCC that is subject to an ownership restriction under the Federal Communications Laws; or (iii) directly or indirectly, any ownership interest (whether by merger, purchase of stock, purchase of assets, or otherwise) that would be subject to a foreign ownership restriction under the Federal Communications Laws;

 

(13)Causing, effecting, or permitting Circle or any Subsidiary of Circle to enter into (i) any time brokerage, local marketing agreement, joint sales agreement, or other shared services agreement with a television broadcast station; or (ii) any other agreement with a television broadcast station that would cause Circle, the Company, Atairos Parent, or any member of the Comcast Group to be attributed with such television broadcast station under the Federal Communications Laws. For the avoidance of doubt, the immediately foregoing clause applies to agreements with television broadcast stations that are inconsistent with the Purpose of Circle Media, LLC, (as defined in Section 2.3(a) of the Limited Liability Company Agreement of New Country Ventures, LLC, dated April 22, 2019) (“The Service Content (I) will be available on linear multicast or diginet channels, including pursuant to the Gray Carriage Agreement, and (II) may be available on SVOD and/or OTT platforms.”); and

 

(14)Dissolving, terminating or liquidating the Company (other than following a sale of substantially all the assets in a Sale of the Company); provided, however, that for so long as the Block 21 Loan remains outstanding, Investor Member approval rights under this Item (14) or any other provision of this Agreement will not be required for Company’s decision to effect or to refrain from effecting the bankruptcy or liquidation of RHP Block 21, LLC (or any affiliate of Company that is a successor borrower under the Block 21 Loan).

 

Approval of any Major Decision may be granted or withheld in the sole discretion of the Member. Major Decisions in (i) paragraphs (10), (11) and (14) will no longer be subject to the approval of the Investor Member or the Ryman Member after the date that such Member owns less than five percent (5%) of the Outstanding Units; (ii) paragraphs (1), (4), (7) and (8), and (9) will no longer be subject to the approval of the Investor Member or the Ryman Member after the date that such Member owns less than ten percent (10%) of the Outstanding Units; (iii) paragraphs (3), (5) and (6) will no longer be subject to the approval of the Investor Member or the Ryman Member after the date that such Member owns less than twenty percent (20%) of the Outstanding Units; and (iv) paragraphs (12) and (13) shall be subject to the approval of the Investor Member so long as the Investor Member holds any Units. To effectuate the approval rights under paragraphs (12) and (13), Company shall provide Investor Member written advance notice of and the opportunity to review the material terms of any action or agreement subject to those rights, and Investor Member shall promptly provide Company with a written explanation of any reasonable basis to withhold its approval of such action or agreement.

 

Permitted Financing Terms. With respect to any future financings, for so long as the Ryman Member owns a majority of the Voting Units, the Ryman Member shall have the right to negotiate on behalf of the Company, subject to the terms below, any future financing of the Company and its Subsidiaries and may consummate such financing provided that it meets the requirements set forth on Schedule D (the “Permitted Financing Terms”, such financing a “Permitted Financing”), but subject to the remainder of this Schedule C. The Ryman Member shall keep the Investor Member reasonably informed on the status and material terms of any proposed Permitted Financing, and shall deliver to the Investor Member copies of (i) all term sheets that the Company may receive, and the Company shall not execute any term sheets and/or place any expense deposits prior to confirming to the Investor Member that the financing contemplated by such term sheets would constitute a Permitted Financing and (ii) all material documents to be entered into in connection with any such Permitted Financing, and the Company shall not execute any such documents prior to confirming to the Investor Member that the financing contemplated by such material documents continues to constitute a Permitted Financing. In no event shall the Investor Member be obligated to provide or otherwise incur any direct or indirect liability in respect of any guaranty of any Permitted Financing (or other financing or refinancing).

 

 

 

 

SCHEDULE D

 

PERMITTED FINANCING TERMS

 

REDACTED

 

 

 

 

SCHEDULE E

 

SAMPLE LTM ADJUSTED EBITDAre AND OPTION PRICE

 

REDACTED

 

 

 

 

SCHEDULE F

 

SAMPLE MINIMUM INVESTOR STAKE VALUE, POST IPO INVESTOR STAKE VALUE AND IPO SHORTFALL

 

REDACTED

 

 

 

 

SCHEDULE G

 

SAMPLE MINIMUM INVESTOR SALE VALUE AND SALE PAYMENT

 

REDACTED

 

 

 

 

SCHEDULE H

 

SAMPLE IPO REQUEST PUT PRICE

 

REDACTED

 

 

 

 

EXHIBIT A

 

JOINDER

 

REDACTED

 

 

 

 

EXHIBIT B

 

REGISTRATION RIGHTS

 

REDACTED

 

 

 

 

EXHIBIT C

 

ASSIGNMENT OF MEMBERSHIP INTERESTS

 

REDACTED

 

 

 

 

Exhibit 99.1

 

Execution Version

 

 

 

CREDIT AGREEMENT

 

dated as of June 16, 2022

 

among

 

OEG Borrower, LLC,
as the Parent Borrower,

 

OEG Finance, LLC,
as Holdings,

 

THE SUBSIDIARIES OF THE PARENT BORROWER PARTY HERETO,
as Borrowers,

 

THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,

 

JPMorgan Chase Bank, N.A.,
as Administrative Agent and an Issuing Bank,

 

and

 

JPMorgan Chase Bank, N.A.,

Morgan Stanley Senior Funding, Inc.,
Credit Suisse Loan Funding LLC, and
Barclays Bank PLC,
as Joint Lead Arrangers
and Joint Bookrunners

 

 

 

 

 

 

TABLE OF CONTENTS

 

   

Page

 

Article 1 DEFINITIONS 1

Section 1.01. Defined Terms 1
Section 1.02. Classification of Loans and Borrowings 76
Section 1.03. Terms Generally 76
Section 1.04. Accounting Terms; GAAP 77
Section 1.05. Representations and Warranties 81
Section 1.06. Timing of Payment and Performance 81
Section 1.07. Times of Day 81
Section 1.08. Currency Equivalents Generally 82
Section 1.09. Cashless Rollovers 83
Section 1.10. Benchmark Replacement Setting 83
Section 1.11. Alternate Currencies 84
Section 1.12. Additional Borrowers; Parent Borrower as Representative 85

 

Article 2 THE CREDITS 86

Section 2.01. Commitments 86
Section 2.02. Loans and Borrowings 86
Section 2.03. Requests for Borrowings 88
Section 2.04. [Reserved] 88
Section 2.05. Letters of Credit 89
Section 2.06. [Reserved] 92
Section 2.07. Funding of Borrowings 92
Section 2.08. Type; Interest Elections 93
Section 2.09. Termination and Reduction of Commitments 94
Section 2.10. Repayment of Loans; Evidence of Debt 95
Section 2.11. Prepayment of Loans 96
Section 2.12. Fees 101
Section 2.13. Interest 102
Section 2.14. Alternate Rate of Interest 102

 

i 

 

 

Section 2.15. Increased Costs 103
Section 2.16. [Reserved] 104
Section 2.17. Taxes 104
Section 2.18. Payments Generally; Allocation of Proceeds; Sharing of Payments 107
Section 2.19. Mitigation Obligations; Replacement of Lenders 108
Section 2.20. Illegality 109
Section 2.21. Defaulting Lenders 110
Section 2.22. Incremental Credit Extensions 111
Section 2.23. Extensions of Loans and Revolving Credit Commitments 115

 

Article 3 REPRESENTATIONS AND WARRANTIES 117

Section 3.01. Organization; Powers 117
Section 3.02. Authorization; Enforceability 117
Section 3.03. Governmental Approvals; No Conflicts 117
Section 3.04. Financial Condition; No Material Adverse Effect 117
Section 3.05. Properties 118
Section 3.06. Litigation and Environmental Matters 118
Section 3.07. Compliance with Laws 118
Section 3.08. Investment Company Status 118
Section 3.09. Taxes 118
Section 3.10. ERISA 118
Section 3.11. Disclosure 119
Section 3.12. Solvency 119
Section 3.13. Capitalization and Subsidiaries 120
Section 3.14. Security Interest in Collateral 120
Section 3.15. Labor Disputes 120
Section 3.16. Federal Reserve Regulations 120
Section 3.17. Sanctions and Anti-Corruption Laws 121

 

Article 4 CONDITIONS 121

Section 4.01. Closing Date 121
Section 4.02. Each Credit Extension 125

 

ii 

 

 

Article 5 AFFIRMATIVE COVENANTS 125

Section 5.01. Financial Statements and Other Reports 125
Section 5.02. Existence 129

Section 5.03. Payment of Taxes 129
Section 5.04. Maintenance of Properties 130
Section 5.05. Insurance 130
Section 5.06. Inspections 130
Section 5.07. Maintenance of Books and Records 131
Section 5.08. Compliance with Laws 131
Section 5.09. Transactions with Affiliates 131
Section 5.10. Designation of Subsidiaries 134
Section 5.11. Use of Proceeds 135
Section 5.12. Covenant to Guarantee Obligations and Give Security 135
Section 5.13. Maintenance of Ratings 136
Section 5.14. Maintenance of Fiscal Year 136
Section 5.15. Further Assurances 137
Section 5.16. Conduct of Business 137
Section 5.17. [Reserved] 137
Section 5.18. Post-Closing Actions 137

 

Article 6 NEGATIVE COVENANTS 138

Section 6.01. Indebtedness 138
Section 6.02. Liens 144
Section 6.03. No Further Negative Pledges 150
Section 6.04. Restricted Payments; Restricted Debt Payments 152
Section 6.05. [Reserved] 159
Section 6.06. Investments 159
Section 6.07. Fundamental Changes; Disposition of Assets 164
Section 6.08. Sale and Lease-Back Transactions 170
Section 6.09. [Reserved] 170
Section 6.10. [Reserved] 170

 

iii 

 

 

Section 6.11. [Reserved] 170
Section 6.12. Amendments of or Waivers with Respect to Restricted Debt 170
Section 6.13. [Reserved] 171
Section 6.14. Permitted Activities of Holdings. Holdings shall not: 171
Section 6.15. Financial Covenants 172

 

Article 7 EVENTS OF DEFAULT 175

Section 7.01. Events of Default 175

 

Article 8 THE ADMINISTRATIVE AGENT 179

 

Article 9 MISCELLANEOUS 189

Section 9.01. Notices 189
Section 9.02. Waivers; Amendments 191
Section 9.03. Expenses; Indemnity 200
Section 9.04. Waiver of Claim; Lender Action 201
Section 9.05. Successors and Assigns 202
Section 9.06. Survival 211
Section 9.07. Counterparts; Integration; Effectiveness; Electronic Execution 211
Section 9.08. Severability 211
Section 9.09. Right of Setoff 211
Section 9.10. Governing Law; Jurisdiction; Consent to Service of Process 212
Section 9.11. Waiver of Jury Trial 213
Section 9.12. Headings 213
Section 9.13. Confidentiality 214
Section 9.14. No Fiduciary Duty 215
Section 9.15. Several Obligations 215
Section 9.16. USA PATRIOT Act 215
Section 9.17. Disclosure 215
Section 9.18. Appointment for Perfection 215
Section 9.19. Interest Rate Limitation 216
Section 9.20. [Reserved] 216
Section 9.21. Conflicts 216
Section 9.22. Release of Collateral and Loan Parties 216
Section 9.23. Acknowledgement and Consent to Bail-In of Affected Financial Institutions 217
Section 9.24. Acknowledgement Regarding Any Supported QFCs 218

 

iv 

 

 

SCHEDULES:    
     
Schedule ‎1.01(a) Commitment Schedule
Schedule ‎1.01(b) Local Counsel
Schedule ‎1.01(c) Cash Equivalents
Schedule ‎3.05 Closing Date Mortgaged Properties
Schedule ‎3.06   Litigation and Environmental Matters
Schedule ‎3.13 Subsidiaries
Schedule 5.09 Affiliate Transactions
Schedule ‎5.10 Unrestricted Subsidiaries
Schedule 5.18 Post-Closing Actions
Schedule ‎6.01 Existing Indebtedness
Schedule ‎6.02 Existing Liens
Schedule ‎6.03 Negative Pledges
Schedule ‎6.06 Existing Investments
Schedule ‎6.07 Certain Dispositions

 

EXHIBITS:    
     
Exhibit A-1 Form of Assignment and Assumption
Exhibit A-2 Form of Affiliated Lender Assignment and Assumption
Exhibit B Form of Borrowing Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Interest Election Request
Exhibit E Form of Perfection Certificate
Exhibit F Form of Intercompany Note
Exhibit G Form of Promissory Note
Exhibit H-1 Form of Trademark Security Agreement
Exhibit H-2 Form of Patent Security Agreement
Exhibit H-3 Form of Copyright Security Agreement
Exhibit I Form of Loan Guaranty
Exhibit J Form of Security Agreement
Exhibit K Form of Letter of Credit Request
Exhibit L-1 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit L-2 Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit L-3 Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit L-4 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit M Form of Solvency Certificate

 

v 

 

 

CREDIT AGREEMENT

 

CREDIT AGREEMENT, dated as of June 16, 2022 (this “Agreement”), by and among Holdings, OEG Borrower, LLC, a Delaware limited liability company (the “Parent Borrower”), the Subsidiaries of the Parent Borrower from time to time party hereto as Borrowers, the Lenders and Issuing Banks from time to time party hereto, and JPMorgan Chase Bank, N.A. (“JPM”), in its capacities as administrative agent for the Lenders and collateral agent for the Secured Parties (in its capacities as administrative agent and collateral agent, together with its successors and permitted assigns, the “Administrative Agent”).

 

RECITALS

 

A.            Pursuant to the terms of the Investment Agreement, A-OEG Holdings, LLC (“Atairos Investor”) will acquire and subscribe for (the “Subscription”), directly or indirectly, 30,000 Class A Units of OEG Attractions Holdings, LLC, a Delaware limited liability (“OEG Parent”) and the direct or indirect parent of Holdings.

 

C.            In connection with the Subscription, and to consummate the Transactions, the Parent Borrower has requested that the Lenders extend credit in the form of (a) Initial Term Loans in an original aggregate principal amount equal to $300,000,000 and (b) a Revolving Facility in an original aggregate committed amount of $65,000,000, in each case, subject to increase as provided herein.

 

D.            The Lenders are willing to extend such credit on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

 

Article 1      DEFINITIONS

 

Section 1.01.      Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

 

ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.

 

Acceptable Intercreditor Agreement” means a Market Intercreditor Agreement, or another intercreditor agreement that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).

 

ACH” means automated clearing house transfers.

 

Additional Agreement” has the meaning assigned to such term in Article 8.

 

Additional Borrower” has the meaning assigned to such term in Section 1.12(a).

 

Additional Borrower Agreement” has the meaning assigned to such term in Section 1.12(a).

 

Additional Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c).

 

Additional Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).

 

1

 

 

Additional Lender” has the meaning assigned to such term in Section 2.22(b).

 

Additional Letter of Credit Facility” means any facility established by the Parent Borrower and/or any Restricted Subsidiary to obtain letters of credit, bank guarantees, bankers’ acceptances or other instruments required by customers, suppliers or landlords, or otherwise in the ordinary course of business.

 

Additional Loans” means any Additional Revolving Loans and any Additional Term Loans.

 

Additional Revolving Credit Commitment” means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).

 

Additional Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Additional Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure attributable to its Additional Revolving Credit Commitment.

 

Additional Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).

 

Additional Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.

 

Additional Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).

 

Additional Term Loan Commitment” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i).

 

Additional Term Loans” means any term loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(i).

 

Adjusted Daily Simple SOFR” means (i) for any Initial Term Loan, an interest rate per annum equal to Daily Simple SOFR for the applicable Interest Period plus 0.10% and (ii) for any Revolving Loan, an interest rate per annum equal to Daily Simple SOFR for the applicable Interest Period plus 0.00%; provided that, (a) solely with respect to the Initial Term Loans, in no event shall Adjusted Daily Simple SOFR be less than 0.50% per annum and (b) solely with respect to the Initial Revolving Loans, in no event shall Adjusted Daily Simple SOFR be less than 0.00% per annum.

 

Adjusted Term SOFR Rate” means (i) for any Initial Term Loan, an interest rate per annum equal to the Term SOFR Rate for the applicable Interest Period plus 0.10% and (ii) for any Revolving Loan, an interest rate per annum equal to the Term SOFR Rate for the applicable Interest Period plus 0.00%; provided that, (a) solely with respect to the Initial Term Loans, in no event shall the Adjusted Term SOFR Rate be less than 0.50% per annum and (b) solely with respect to the Initial Revolving Loans, in no event shall the Adjusted Term SOFR Rate be less than 0.00% per annum.

 

Adjustment Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable.

 

Administrative Agent” has the meaning assigned to such term in the preamble to this Agreement.

 

2

 

 

Administrative Questionnaire” has the meaning assigned to such term in Section 2.22(d).

 

Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings, the Parent Borrower or any of its Restricted Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Parent Borrower or any of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Parent Borrower or any of its Restricted Subsidiaries or any property of Holdings, the Parent Borrower or any of its Restricted Subsidiaries.

 

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio company of Ryman or Atairos and none of the Administrative Agent, any Arranger, any Lender (other than any Affiliated Lender or any Debt Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the avoidance of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or the Parent Borrower as of the Closing Date.

 

Affiliated Lender” means any Non-Debt Fund Affiliate, Holdings, the Parent Borrower and/or any of its Restricted Subsidiaries.

 

Affiliated Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit A-2 or any other form approved by the Administrative Agent and the Parent Borrower.

 

Affiliated Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).

 

Agreement” has the meaning assigned to such term in the preamble to this Credit Agreement.

 

Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federals Funds Effective Rate in effect on such day plus ½ of 1.00%, (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day)) plus 1.00%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology) and (d) solely with respect to Initial Term Loans, 1.50%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may be. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.14(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.

 

3

 

 

Alternate Currency” means (a) in the case of Letters of Credit, Dollars and each other currency that is approved for Letters of Credit in accordance with Section 1.11 and (b) in the case of Revolving Loans, Dollars and each other currency that is approved for Revolving Loans in accordance with Section 1.11.

 

Applicable Charges” has the meaning assigned to such term in Section 9.19.

 

Applicable Percentage” means (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class; provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.

 

Applicable Price” has the meaning assigned to such term in clause (c) the definition of “Dutch Auction”.

 

Applicable Rate” means, for any day, (a) for Initial Term Loans, (i) in the case of ABR Loans, 4.00% and (ii) in the case of Adjusted Term SOFR Rate Loans, 5.00% and (b) for Revolving Loans, the rate per annum set forth below under the caption “ABR Spread” or “Adjusted Term SOFR Rate Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of the most recently ended Test Period; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any Revolving Loans shall be the applicable rate per annum set forth below in Category 1; provided, further, that upon the consummation of a Qualifying IPO and thereafter, the “Applicable Rate” for any Revolving Loan shall be reduced by 0.25%.

 

First Lien Leverage Ratio  ABR Spread for Revolving
Loans
   Adjusted Term SOFR Rate
Spread for Revolving Loans
 
Category 1        
Greater than 3.47 to 1.00   3.75%   4.75%
Category 2          
Less than or equal to 3.47 to 1.00 and greater than 3.22 to 1.00   3.50%   4.50%
Category 3          
Less than or equal to 3.22 to 1.00   3.25%   4.25%

 

The Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table above; provided that if financial statements are not delivered when required pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving Loans shall be the rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.

 

4

 

 

The Applicable Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.

 

Approved Counterparty” means any Person that is, or is an Affiliate of, the Administrative Agent, a Lender or an Arranger, or that is a Person designated in writing by the Parent Borrower to the Administrative Agent as an “Approved Counterparty” and that is reasonably acceptable to the Administrative Agent.

 

Approved Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers, advises or manages such Lender.

 

Arrangersmeans the Joint Lead Arrangers and Joint Bookrunners set forth on the cover page of this Agreement.

 

Assignment Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any other form approved by the Administrative Agent and the Parent Borrower.

 

ASU” has the meaning assigned to such term in Section 1.04(c).

 

Atairos” means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed, advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing)

 

Atairos Investor” has the meaning assigned to such term in the Recitals to this Agreement.

 

Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.

 

Auction Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged by the Parent Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant to the definition of “Dutch Auction”.

 

Auction Amount” has the meaning assigned to such term in clause (a) of the definition of “Dutch Auction”.

 

Auction Notice” has the meaning assigned to such term in clause (a) of the definition of “Dutch Auction”.

 

5

 

 

Auction Party” has the meaning assigned to such term in the definition of “Dutch Auction”.

 

Auction Response Date” has the meaning assigned to such term in clause (a) of the definition of “Dutch Auction”.

 

Available Amount” means, at any time, an amount equal to, without duplication:

 

(a)            the sum of:

 

(i)            the greater of $25,000,000 and 32% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus

 

(ii)            the CNI Growth Amount; provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A) or any Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A) if any Specified Event of Default shall then exist at the time of determination pursuant to Section 1.04(e) (provided that, notwithstanding the foregoing, the cumulative amount in respect of this clause (ii) shall at no time be less than zero); plus

 

(iii)            the amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting a Cure Amount, an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received from the Parent Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)) received as Cash equity by the Parent Borrower or any of its Restricted Subsidiaries (including as the result of a merger or consolidation with another Person subsequent to the Closing Date or otherwise contributed to the equity of the Parent Borrower or any Restricted Subsidiary), plus the fair market value, as determined by the Parent Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Parent Borrower or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock, including as the result of a merger or consolidation with another Person subsequent to the Closing Date or otherwise contributed to the equity of the Parent Borrower or any Restricted Subsidiary (other than any amounts (x) constituting a Cure Amount, an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or (y) received from the Parent Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus

 

(iv)            the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Parent Borrower or any Restricted Subsidiary issued after the Closing Date (other than Indebtedness or Disqualified Capital Stock issued to the Parent Borrower or any Restricted Subsidiary), which has been converted into or exchanged for Qualified Capital Stock of the Parent Borrower or any Restricted Subsidiary or Capital Stock of any Parent Company, together with the fair market value of any Cash or Cash Equivalents (as determined by the Parent Borrower in good faith) and the fair market value (as determined by the Parent Borrower in good faith) of any property or assets received by the Parent Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus

 

6

 

 

(v)            the net proceeds received by the Parent Borrower or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in connection with the Disposition to any Person (other than the Parent Borrower or any Restricted Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus

 

(vi)            to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the proceeds received by the Parent Borrower or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Parent Borrower or any Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Parent Borrower or any Restricted Subsidiary)); plus

 

(vii)            an amount equal to the sum of (A) the amount of any Investments by the Parent Borrower or any Restricted Subsidiary made pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments by the Parent Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary or any Joint Venture that is not a Restricted Subsidiary that has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Parent Borrower or any Restricted Subsidiary and (C) the fair market value (as determined by the Parent Borrower in good faith) of the property or assets of any Unrestricted Subsidiary or any Joint Venture that is not a Restricted Subsidiary that have been transferred, conveyed or otherwise distributed to the Parent Borrower or any Restricted Subsidiary, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus

 

(viii)            the amount of any Declined Proceeds (other than any amounts used pursuant to Section 6.04(b)(viii)); minus

 

(b)            an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in each case, after the Closing Date and prior to such time or contemporaneously therewith.

 

Available Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets or property (as determined by the Parent Borrower in good faith), but excluding any Cure Amount received by the Parent Borrower or any of its Restricted Subsidiaries after the Closing Date from:

 

(1)            contributions in respect of Qualified Capital Stock (other than any amounts or other assets received from the Parent Borrower or any of its Restricted Subsidiaries), and

 

(2)            the sale of Qualified Capital Stock of the Parent Borrower or any of its Restricted Subsidiaries (other than (x) to the Parent Borrower or any Restricted Subsidiary, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),

 

in each case, designated as an Available Excluded Contribution Amount pursuant to a certificate of a Responsible Officer on or promptly after the date the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded from the calculation of the Available Amount.

 

7

 

 

Available RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Parent Borrower or any Restricted Subsidiary to make Investments pursuant to Section 6.06(q)(ii).

 

Available RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Section 6.04(a)(x) minus (a) the aggregate amount of the Available RP Capacity Amount utilized by the Parent Borrower or any Restricted Subsidiary to (i) make Investments pursuant to Section 6.06(q)(ii) or (ii) make Restricted Debt Payments.

 

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payment of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 1.10(e).

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Banking Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.

 

Banking Services Obligations” means any and all obligations of any Loan Party or any Restricted Subsidiary, whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a) under any arrangement that is in effect on the Closing Date between any Loan Party or any Restricted Subsidiary and a counterparty that is an Approved Counterparty at such time or (b) under any arrangement that is entered into after the Closing Date by any Loan Party or any Restricted Subsidiary with any counterparty that is an Approved Counterparty at the time such arrangement is entered into, in each case, in connection with Banking Services (other than Banking Services designated to the Administrative Agent in writing by the Parent Borrower as not constituting “Banking Services Obligations” for purposes of the Loan Documents), it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and each Acceptable Intercreditor Agreement, in each case as if it were a Lender.

 

8

 

 

Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).

 

Base ECF Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i).

 

Benchmark” means, initially, the Term SOFR Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.10(a).

 

Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(a) Adjusted Daily Simple SOFR; and

 

(b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Parent Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time in the United States and (ii) the related Benchmark Replacement Adjustment.

 

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Parent Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities. Each Benchmark Replacement Adjustment shall be subject to the consent of the Parent Borrower (not to be unreasonably withheld or delayed).

 

9

 

 

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (in consultation with the Parent Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary (in consultation with the Parent Borrower) in connection with the administration of this Agreement and the other Loan Documents, so long as consistent with the treatment of similar Dollar-denominated syndicated credit facilities for companies owned by top-tier financial sponsors in North America in respect of which the Administrative Agent acts as administrative agent).

 

Benchmark Replacement Date” means, the earliest to occur of the following events with respect to the then-current Benchmark:

 

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

 

(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) above with respect to any Benchmark only upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

10

 

 

(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the Federal Reserve Bank of New York, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark only if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 1.10 and (b) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 1.10.

 

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

Block 21” means, collectively, RHP Block 21 Holdings, LLC, Block 21 Service Company, LLC and RHP Block 21, LLC, in each case, together with its successors and permitted assigns, and any subsidiaries thereof.

 

Block 21 Disposition” has the meaning assigned to such term in the last paragraph of Section 6.07.

 

BHC Act Affiliate” has the meaning assigned to such term in Section 9.24(b).

 

Board” means the Board of Governors of the Federal Reserve System of the U.S.

 

Bona Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business for financial investment purposes (other than primarily in distressed situations) and which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the Parent Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel involved with any investment in such Person or the management, control or operation of such Person (i) directly or indirectly makes, has the right to make or participates with others in making any investment decisions, or otherwise causing the direction of the investment policies, with respect to such debt fund, investment vehicle, regulated bank entity or unregulated lending entity or (ii) has access to any information (other than information that is publicly available) relating to Holdings, the Parent Borrower or its subsidiaries or any entity that forms a part of any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not include any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i) or (a)(ii) of the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person on the basis of such Affiliate’s name.

 

11

 

 

Borrowers” means (a) as of the Closing Date, in respect of the Initial Term Loans and the Initial Revolving Facility (including with respect to Letters of Credit), the Parent Borrower and (b) from time to time, in respect of a given Class of Loans or Commitments, each Additional Borrower with respect to such Class, in each case individually or collectively as the context may require or permit. Following the consummation of a transaction permitted hereunder that results in a Successor Borrower or Successor Parent Borrower, such Successor Borrower or Successor Parent Borrower shall be substituted for the existing Borrower to which it is the successor. In the event that more than one Borrower is liable in respect of the Obligations of any Class, such Borrowers, including each Additional Borrower, shall be jointly and severally liable with respect to the Obligations of such Class unless provided to the contrary in the applicable Additional Borrower Agreement. For the avoidance of doubt, any reference in any Loan Document to a Borrower (or the Borrowers) shall be construed, where the context requires, to refer to a Borrower (or the Borrowers) in respect of the relevant Class of Loans or Commitments, and not to make any Borrower primarily liable for Obligations of any Class in respect of which it is not a Borrower.

 

Borrower Materials” has the meaning assigned to such term in Section 5.01.

 

Borrowing” means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of Adjusted Term SOFR Rate Loans, as to which a single Interest Period is in effect.

 

Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Parent Borrower.

 

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Chicago are authorized or required by law to remain closed; provided that the term “Business Day” shall also exclude, when used in connection with a Revolving Loan or Letter of Credit denominated in an Alternate Currency, any day on which banks are not open for dealings in deposits in such currency in the London or other applicable offshore interbank market.

 

Call Premium Termination Date” has the meaning assigned to such term in Section 2.12(f).

 

Capital Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Finance Leases) that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows for such Person for such period.

 

Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.

 

12

 

 

Captive Insurance Subsidiary” means any Restricted Subsidiary of the Parent Borrower that is subject to regulation as an insurance company (or any Restricted Subsidiary thereof).

 

Cash” or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance with GAAP.

 

Cash Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof, in each case maturing within two years after such date and, in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign government, in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one year after such date and issued or accepted by any Lender or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state thereof or the District of Columbia or any political subdivision thereof or any foreign bank or its branches or agencies and that has capital and surplus of not less than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued by Persons with a rating of at least BBB- from S&P or at least Baa3 from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating agency) with maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); (h) shares of any money market mutual fund that has (i) substantially all of its assets invested in the types of investments referred to in clauses (a) through (g) above, (ii) net assets of not less than $250,000,000 and (iii) a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (i) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law; (j) any cash equivalents (as determined in accordance with GAAP); and (k) shares or other interests of any investment company, money market mutual fund or other money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in the preceding clauses of this definition (which investment company or fund may also hold Cash pending investment or distribution);.

 

13

 

 

The term “Cash Equivalents” shall also include (x) Investments of the type and maturity described in the definition of “Cash Equivalents” of foreign obligors, which Investments or obligors (or the parent companies thereof) have the ratings (if any) described in such clauses or equivalent ratings from comparable foreign rating agencies and (y) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments described in the definition of “Cash Equivalents” and in this paragraph.

 

Change in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S. regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.

 

Change of Control” means the earliest to occur of:

 

(a)            at any time prior to a Qualifying IPO, the Permitted Holders, taken together, ceasing to beneficially own, either directly or indirectly (within the meaning of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the total voting power of all of the outstanding voting Capital Stock of Holdings;

 

(b)            at any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any Employee Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock representing more than the greater of (x) 50% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting power of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted Holders, taken together; and

 

(c)            the Parent Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Subscription shall not trigger a “Change of Control” for any purpose under this Agreement or any other Loan Document.

 

Notwithstanding the foregoing, (i) a passive holding company or special purpose acquisition vehicle or a Subsidiary thereof shall not be considered a “Person” and instead the equityholders of such passive holding company or special purpose acquisition vehicle (other than any other passive holding company or special purpose acquisition vehicle) shall be considered for purposes of the foregoing and (ii) a Change of Control shall be deemed not to have occurred pursuant to clause (a) or clause (b) above at any time if the Permitted Holders have, at such time, directly or indirectly, the right or the ability, by voting power, contract or otherwise, to elect or designate for election at least a majority of the Board of Directors of Holdings.

 

14

 

 

 

Notwithstanding the preceding clauses or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to beneficially own the Capital Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other Person’s parent entity (or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital Stock entitled to vote for the election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.

 

Charge” means any fee, loss, charge, expense, cost, accrual or reserve of any kind.

 

Circle JV” means Circle Media, LLC, together with its successors and permitted assigns, and any subsidiaries thereof.

 

Circle JV Disposition” means any Disposition (x) by the Parent Borrower or any of its Restricted Subsidiaries of any Capital Stock of the Circle JV owned by the Parent Borrower or such Restricted Subsidiary or (y) by the Circle JV of substantially all of the assets of the Circle JV.

 

Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Term Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i), Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, an Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans incurred or Letters of Credit issued under a Revolving Credit Commitment of a particular Class).

 

Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

 

Closing Date Material Adverse Effectshall have the meaning assigned to the term “Transaction Material Adverse Effect” in the Investment Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined in the Investment Agreement shall have the meanings ascribed to such terms in the Investment Agreement as in effect on the Closing Date).

 

15

 

 

CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term secured overnight financing rate (or a successor administrator).

 

CNI Growth Amountmeans, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated Net Income for the cumulative period from the first day of the Fiscal Quarter of the Parent Borrower during which the Closing Date occurs to and including the last day of the most recently ended Fiscal Quarter of the Parent Borrower prior to such date for which consolidated financial statements required pursuant to Section 5.01(a) or (b) have been delivered or, at the Parent Borrower’s election, are internally available (treated as one accounting period).

 

Code” means the Internal Revenue Code of 1986.

 

Collateral” means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan Party, now existing or hereafter acquired, that is purported to be (or becomes) subject to a Lien pursuant to any Collateral Document to secure the Secured Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset, unless specifically consented to by the Parent Borrower.

 

Collateral and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth in the applicable provisions of this Agreement and/or any other Loan Document, the requirement that:

 

(a)            the Administrative Agent shall have received, in respect of any Person required pursuant to Section 5.12 to comply with the Collateral and Guarantee Requirement (A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto or in any other form approved by the Administrative Agent and the Parent Borrower, (B) a supplement to the Security Agreement in substantially the form attached as an exhibit thereto or in any other form approved by the Administrative Agent and the Parent Borrower, (C) if such Person owns registrations of or applications for U.S. Patents, U.S. Trademarks and/or U.S. Copyrights, an Intellectual Property Security Agreement in substantially the form attached as an exhibit hereto or in any other form approved by the Administrative Agent and the Parent Borrower, (D) a completed supplement to the Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing in such jurisdictions as the Administrative Agent may reasonably request, (F) to the extent required by the terms thereof, an executed joinder to any applicable Acceptable Intercreditor Agreement in substantially the form attached as an exhibit thereto or in any other form approved by the Administrative Agent and the Parent Borrower and (G) each item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents; and

 

(b)            the Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset), a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary and appropriate (as reasonably determined by the Administrative Agent and the Parent Borrower):

 

(i)            evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary in order to create a valid and enforceable Lien on such Material Real Estate Asset in favor of the Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;

 

16

 

 

(ii)            a fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to the Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Parent Borrower in good faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the Administrative Agent, insuring the relevant Mortgage as having created a valid and enforceable Lien on the real property described therein with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in the applicable jurisdiction at commercially reasonable rates and otherwise in form and substance reasonably satisfactory to the Administrative Agent; provided that in lieu of a zoning endorsement, the Administrative Agent shall accept a zoning report from a nationally recognized zoning report provider;

 

(iii)            a customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may reasonably request and otherwise in form and substance reasonably satisfactory to the Administrative Agent; and

 

(iv)            (A) a new or existing survey, (B) an appraisal (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (C) a “Life-of-Loan” flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property as required by Section 5.05 hereto); provided that (I) any existing appraisal for any Material Real Estate Asset shall be deemed to be acceptable to the Administrative Agent so long as such existing appraisal satisfies any applicable Federal and local law requirements and (II) no new survey shall be required of any Material Real Estate Asset if there is an existing survey available for such Material Real Estate Asset that (together with a no-change affidavit, if required) is acceptable to the issuer of the Mortgage Policy to issue a Mortgage Policy (x) with no general survey exception and (y) with customary survey-related endorsements thereto.

 

Notwithstanding any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the Obligations evidenced hereby in connection with the delivery of a Mortgage or UCC fixture filing pursuant to clause (b) above, then, unless a Mortgage is not required with respect to the applicable Material Real Estate Asset pursuant to Section 5.12(b) to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or charge shall be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined in a manner reasonably acceptable to Administrative Agent and the Parent Borrower. Notwithstanding anything herein to the contrary, no Mortgage will be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent has received written notice of such Mortgage at least 15 days prior to such execution and delivery and has confirmed receipt of satisfactory flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.

 

17

 

 

Collateral Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security Agreement, (iv) the Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant to which any Loan Party grants a Lien on any Collateral as security for payment of the Secured Obligations.

 

Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business of such Person.

 

Commercial Tort Claim” has the meaning set forth in Article 9 of the UCC.

 

Commitment” means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional Commitment, as applicable, in effect as of such time.

 

Commitment Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the most recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.

 

First Lien Leverage Ratio  Commitment Fee Rate 
Category 1     
Greater than 3.47 to 1.00   0.500%
Category 2     
Equal to or less than 3.47 to 1.00 but greater than 3.22 to 1.00   0.375%
Category 3     
Equal to or less than 3.22 to 1.00   0.250%

 

The Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that (a) until the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when required pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.

 

Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a).

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

18

 

 

Company Competitor” means any competitor of Holdings, the Parent Borrower and/or any of its subsidiaries.

 

Compliance Certificate” means a compliance certificate substantially in the form of Exhibit C or in any other form approved by the Administrative Agent and the Parent Borrower.

 

Confidential Information” has the meaning assigned to such term in Section 9.13.

 

Consolidated Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication and at the election of the Parent Borrower, of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (viii), (x), (xi), (xii), (xiii), (xiv), (xix), (xx), (xxi) and (xxii) below) the amounts of:

 

(i)            Consolidated Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and hedging agreements);

 

(ii)            (A) Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax distribution) of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes permitted to be made hereunder;

 

(iii)            (A) depreciation, (B) amortization (including amortization of goodwill, software and other intangible assets), (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;

 

(iv)            any non-cash Charge, including the excess of rent expense over actual Cash rent paid, the benefit of lease incentives (in the case of a charge) during such period due to the use of straight line rent for GAAP purposes, and any non-cash Charge pursuant to any management equity plan, stock option plan or any other management or employee benefit plan, agreement or any stock subscription or shareholder agreement (provided that if any such non-Cash Charge represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such non-Cash Charge in the then-current period);

 

(v)            [reserved];

 

(vi)            Receivables Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets in connection with a Qualified Receivables Facility;

 

(vii)            the amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses (including reimbursements) paid or accrued, and payments made to any Investor (and/or its Affiliates or management companies) (or prior to the Closing Date, Ryman and/or its Affiliates or management companies) for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside directors of the Parent Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries; provided that such payment is permitted under this Agreement;

 

19

 

 

(viii)            any increase in deferred revenue;

 

(ix)            the amount of earn-out, non-compete and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date and (C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable period;

 

(x)            pro forma adjustments, including pro forma “run rate” cost savings, operating expense reductions, operational improvements and other synergies (collectively, “Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable and projected by such Person in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative Agent prior to the Closing Date (including by inclusion in the Investment Agreement, any financial model, management presentation, confidential information memorandum or quality of earnings or similar report or analysis) related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities constituting a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased pricing in customer contracts, the renegotiation or renewal of contracts and other arrangements or efficiencies from the shifting of production of one or more products from one manufacturing facility to another) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”) (in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Saving Initiative had been realized in full on the first day of such period); provided that the results of such Expected Cost Savings and/or Cost Saving Initiatives are projected by such Person in good faith to result from actions that have been taken or with respect to which steps have been taken or are expected to be taken (in the good faith determination of such Person) within 18 months after (i) with respect to the Transactions, the Closing Date and (ii) with respect to any Cost Saving Initiative, the date of any such operating improvement, restructuring, cost saving initiative or similar initiative or specified transaction; provided further that (x) for all purposes under this Agreement other than determining compliance with the Leverage Financial Covenant, the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to this clause (x)(B) and clause (xi)(B) and clause (xxi) below, and excluded from Consolidated Net Income pursuant to clause (c)(i) of the definition of “Consolidated Net Income”, shall not, for any Test Period, exceed an amount equal to 25% of Consolidated Adjusted EBITDA for such Test Period, calculated after giving effect to any such add-backs, inclusions, exclusions and/or adjustments and all other add-backs, inclusions, exclusions and/or adjustments and (y) for purposes of determining compliance with the Leverage Finacial Covenant, the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to this clause (x)(B) shall not, for any Test Period, exceed an amount equal to 25% of Consolidated Adjusted EBITDA for such Test Period, calculated after giving effect to any such add-backs, inclusions, exclusions and/or adjustments and all other add-backs, inclusions, exclusions and/or adjustments taken into account for purposes of determining compliance with the Leverage Financial Covenant;

 

20

 

 

(xi)            any Charge attributable to the undertaking and/or implementation of (A) new initiatives, business optimization activities, cost savings initiatives (including Cost Saving Initiatives) and/or synergies and/or similar initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following: any inventory optimization program and/or any curtailment, any business optimization Charge, any systems implementation Charge, any one time compensation Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements (including any early terminations thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge relating to any entry into new markets and contracts (including, without limitation, any renewals, extensions or other modifications thereof) or new product introductions, any retention or completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion and/or relocation Charge, any software or other intellectual property development Charge, any Charge associated with new systems design, any implementation Charge, any transition Charge, any Charge associated with improvements to information technology or accounting functions, losses related to temporary decreases in work volume and expenses related to maintaining underutilized personnel, any transition Charge, any project startup Charge, any Charge in connection with new operations, any Charge in connection with unused warehouse space, any Charge relating to a new contract, any consulting Charge, any corporate development Charge, any employee ramp-up Charges and/or any Charges related to underutilized personnel (including duplicative personnel) and/or (B) cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following: any curtailment, any restructuring Charge (including any Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility (including but not limited to rent termination costs, moving costs and legal costs), any severance Charge, any Charge relating to exiting a market, contract or product and/or any Charge associated with any modification or curtailment to any pension and post-retirement employee benefit plan (including any settlement of pension liabilities); provided that (x) for all purposes under this Agreement other than determining compliance with the Leverage Financial Covenant, the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to this clause (xi)(B), clause (x)(B) above and clause (xxi) below, and excluded from Consolidated Net Income pursuant to clause (c)(i) of the definition of “Consolidated Net Income”, shall not, for any Test Period, exceed an amount equal to 25% of Consolidated Adjusted EBITDA for such Test Period, calculated after giving effect to any such add-backs, inclusions, exclusions and/or adjustments and all other add-backs, inclusions, exclusions and/or adjustments and (y) for purposes of determining compliance with the Leverage Finacial Covenant, there shall be no cap on the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to this clause (xi)(B) or clause (xxi) of the definition of Consolidated Adjusted EBITDA or excluded from Consolidated Net Income pursuant to clause (c)(i) of the definition of Consolidated Net Income;

 

(xii)            any Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable by a third party (whether or not then realized so long as such Person in good faith expects to receive proceeds arising out of such insurance, indemnification or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any expense in any future period);

 

21

 

 

(xiii)            unrealized net losses in the fair market value of any arrangements under Hedge Agreements;

 

(xiv)            the amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause (c)(i) below for any previous period and not added back;

 

(xv)            the amount of any “bad debt” expense related to revenue earned prior to the Closing Date;

 

(xvi)            any net Charge included in such Person’s consolidated financial statements due to the application of Accounting Standards Codification Topic 810 (“ASC 810”);

 

(xvii)            the amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests of third parties in any non-Wholly-Owned Subsidiary;

 

(xviii)            the amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including any construction, pre-opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has been open (or renovated) and operating for a period of 12 consecutive months;

 

(xix)            the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized;

 

(xx)            at the option of the Parent Borrower, any other adjustments, exclusions and add-backs (w) reflected in Ryman’s model delivered to the Arrangers on or about December 27, 2021, (x) reflected in the quality of earnings summary delivered to certain of the Arrangers on or about April 7, 2022, (y) that are consistent with Regulation S-X or (z) that are identified or set forth in any quality of earnings analysis or report prepared by financial advisors of recognized standing or any other firm reasonably acceptable to the Administrative Agent (it being understood that the “Big Four” accounting firms are acceptable) and delivered to the Administrative Agent in connection with any acquisition or other Investment not prohibited hereunder;

 

22

 

 

(xxi)            for the first 12 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least 12 months (as determined by such Person in good faith); provided that (x) for all purposes under this Agreement other than determining compliance with the Leverage Financial Covenant, the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to this clause (xxi) and clause (x)(B) and clause (xi)(B) above, and excluded from Consolidated Net Income pursuant to clause (c)(i) of the definition of “Consolidated Net Income”, shall not, for any Test Period, exceed an amount equal to 25% of Consolidated Adjusted EBITDA for such Test Period, calculated after giving effect to any such add-backs, inclusions, exclusions and/or adjustments and all other add-backs, inclusions, exclusions and/or adjustments and (y) for purposes of determining compliance with the Leverage Finacial Covenant, there shall be no cap on the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to clause (xi)(B) or this clause (xxi) of the definition of Consolidated Adjusted EBITDA or excluded from Consolidated Net Income pursuant to clause (c)(i) of the definition of Consolidated Net Income;

 

(xxii) for the first 12 months following the renovation of a facility, an amount annualized over the applicable period based on the greater of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar facilities that have been in operation for a period of at least 12 months (as determined by such Person in good faith); and

 

(xxiii) the amount of any Charges (including losses) attributable to any contract within the first year following the date on which such contract (or any renewal thereof) becomes effective;

 

minus (c) without duplication, to the extent such amounts increase Consolidated Net Income, other than in respect of clause (ii) below:

 

(i)            non-Cash gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of potential Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;

 

(ii)            unrealized net gains in the fair market value of any arrangements under Hedge Agreements;

 

(iii)            [reserved];

 

23

 

 

(iv)            the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent the relevant business interruption insurance proceeds were not received within the time period required by such clause;

 

(v)            to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv) above, the cash payment in respect thereof in the relevant future period;

 

(vi)            the excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes; and

 

(vii)            any Consolidated Net Income included in such Person’s consolidated financial statements due to the application of ASC 810; and

 

(d)            increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification Topic 460 or any comparable regulation.

 

Consolidated First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes Collateral; provided that “Consolidated First Lien Debt” shall be calculated after applying or excluding (as applicable) the Netted Amounts.

 

Consolidated Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication), amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation, commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility, the interest component of any payment under any Finance Lease (regardless of whether accounted for as interest expense under GAAP), any commission, discount and/or other fee or charge owed with respect to any letter of credit, bank guarantee and/or bankers’ acceptance or any similar facilities, any fee and/or expense paid to the Administrative Agent in connection with its services hereunder, any other bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing activities (whether amortized or immediately expensed)), plus (b) any cash dividend or distribution paid or payable in respect of Disqualified Capital Stock during such period other than to such Person or any Loan Party, plus (c) any net losses, obligations or payments arising from or under any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such Person or its subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest in respect of any Finance Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Finance Lease in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).

 

24

 

 

Consolidated Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided that there shall be excluded, without duplication,

 

(a)            (i) any net income (loss) of any Person if such Person is not the Subject Person or a Restricted Subsidiary thereof, except that Consolidated Net Income will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) or that could have been made during such period (as determined in good faith by the Subject Person) by such Person to the Subject Person or any other Restricted Subsidiary thereof (subject, in the case of any such Restricted Subsidiary that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any Restricted Subsidiary (other than a Loan Party) if such Subsidiary is subject to restrictions on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Subject Person or any Loan Party by operation of its organizational documents or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable thereto (other than (x) any restriction that has been waived or otherwise released, (y) any restriction set forth in the Loan Documents, the documents related to any Incremental Loans and/or Incremental Equivalent Debt and the documents relating to any Replacement Debt or Refinancing Indebtedness in respect of any of the foregoing and (z) restrictions not prohibited by Section 6.03), except that Consolidated Net Income will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) or that could have been made in Cash or Cash Equivalents during such period (as determined in good faith by the Subject Person) by the Restricted Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary, to the limitations in this clause (ii));

 

(b)            any gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or of returned or surplus assets outside the ordinary course of business (as determined in good faith by such Person);

 

(c)            (i) any gain or Charge from (A) any extraordinary or exceptional item (as determined in good faith by such Person) and/or (B) any non-recurring, special or unusual item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any actual or prospective legal settlement, fine, judgment or order; provided that (x) for all purposes under this Agreement other than determining compliance with the Leverage Financial Covenant, the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to clause (x)(B), clause (xi)(B) and/or clause (xxi) of the definition of “Consolidated Adjusted EBITDA”, and excluded from Consoliated Net Income pursuant ot this clause (c)(i), shall not, for any Test Period, exceed an amount equal to 25% of Consolidated Adjusted EBITDA for such Test Period, calculated after giving effect to any such add-backs, inclusions, exclusions and/or adjustments and all other add-backs, inclusions, exclusions and/or adjustments and (y) for purposes of determining compliance with the Leverage Finacial Covenant, there shall be no cap on the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to clause (xi)(B) or clause (xxi) of the definition of Consolidated Adjusted EBITDA or excluded from Consolidated Net Income pursuant to this clause (c)(i) of the definition of Consolidated Net Income;

 

25

 

 

(d)            (i) any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with the above or any other currency related risk, any gains or Charges relating to translation of assets and liabilities denominated in a foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x) any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to, in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in respect of Hedge Agreements;

 

(e)            any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than, at the option of the Subject Person, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the option of the Subject Person, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or (iii) any facility that has been closed during such period;

 

(f)            any net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of Indebtedness or (ii) any Derivative Transaction;

 

(g)            (i) any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to be paid by the Subject Person or a Restricted Subsidiary thereof) any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement, any pension plan (including any post-employment benefit scheme which has been agreed with the relevant pension trustee), any stock subscription or shareholders agreement, any employee benefit trust, any employee benefit scheme, any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii) any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company, the Subject Person and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Qualified Capital Stock of the Subject Person and (iii) the amount of payments made to optionholders of such Person or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted hereunder;

 

(h)            any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required to be established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a result of such acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles or policies;

 

26

 

 

(i)            any (A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs, (C) amortization of intangible assets and (D) other amortization (including amortization of goodwill, software, deferred or capitalized financing fees, debt issuance costs, commissions and expenses and other intangible assets);

 

(j)            (A) the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in component amounts required or permitted by GAAP (including, without limitation, in the inventory (including any impact of changes to inventory valuation policy methods, including changes in capitalization of variances), property and equipment, lease, rights fee arrangements, software, goodwill, intangible asset (including customer molds), in-process research and development, deferred revenue, advanced billing and debt line items thereof), resulting from the application of recapitalization accounting or acquisition or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof (including any write-off of in process research and development) and/or (B) the cumulative effect of any change in accounting principles or policies (effected by way of either a cumulative effect adjustment or as a retroactive application, in each case, in accordance with GAAP) (except that, if the Subject Person determines in good faith that the cumulative effects thereof are not material to the interests of the Lenders, the effects of any change in any such principles or policies may be included in any subsequent period after the Fiscal Quarter in which such change, adoption or modification was made);

 

(k)            the income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person or is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such other Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent required for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);

 

(l)            any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release of any valuation allowance related to any such item;

 

(m)            (i) any non-cash deemed finance Charges in respect of any pension liabilities or other provisions and (ii) income (loss) attributable to deferred compensation plans or trusts;

 

(n)            earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments, including in connection with the Transactions, any acquisition or Investment permitted hereunder or in respect of any acquisition consummated prior to the Closing Date;

 

(o)            [reserved];

 

27

 

 

(p)            (A) Transaction Costs, (B) any Charge incurred (1) in connection with any transaction (in each case, regardless of whether consummated), whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization, any merger, consolidation or amalgamation, any option buyout or any repayment, redemption, refinancing, amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or any similar transaction or in connection with becoming a standalone company (including, for no longer than one period of four consecutive Fiscal Quarters in respect of any transition services agreement (it being understood that such period may run at any time during the term of such transition services agreement as elected by the Parent Borrower in its sole discretion) duplicative integration costs or similar duplicate or increased costs in respect of such transition services agreement) and/or (2) in connection with any Qualifying IPO (whether or not consummated), (C) the amount of any Charge that is actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any expense in any future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause (C) above, such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) and/or (D) Public Company Costs;

 

(q)            any Charge incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including in connection with (A) the Transactions and/or any acquisition consummated after the Closing Date (including legal, accounting and other professional fees and expenses incurred in connection with acquisitions and other Investments made prior to the Closing Date), (B) the closing, consolidation or reconfiguration of any facility during such period or (C) one-time consulting costs;

 

(r)            non-cash compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement (including any profits interest or phantom stock), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right, profits interest, phantom stock or similar arrangement or the vesting of any warrant); and

 

(s)            to the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement) in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during such period.

 

In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated Net Income will include the proceeds of business interruption insurance (whether or not received so long as the Subject Person in good faith expects to receive such proceeds within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not so received within the next four Fiscal Quarters)).

 

Consolidated Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries; provided that “Consolidated Secured Debt” shall be calculated after applying or netting (as applicable) the Netted Amounts.

 

28

 

 

Consolidated Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.

 

Consolidated Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance of all Indebtedness of such Person represented by notes, bonds and similar instruments), Finance Leases and purchase money Indebtedness (but excluding, for the avoidance of doubt, undrawn letters of credit), in each case as reflected on a balance sheet of such Person prepared in accordance with GAAP; provided that “Consolidated Total Debt”, “Consolidated First Lien Debt” and “Consolidated Secured Debt” shall in each case (but without duplication) be calculated (for all purposes hereunder, including as a component of the definitions of First Lien Leverage Ratio, Secured Leverage Ratio and Total Leverage Ratio, and any applications of such definitions) (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness, and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included in the calculation of the Unrestricted Cash Amount, (iii) to exclude any obligation, liability or indebtedness of such Person to the extent that, upon or after the issuance thereof, such obligation, liability or indebtedness is secured by the cash proceeds thereof and/or other amounts provided by or on behalf of such Person pursuant to an escrow or similar arrangement, and for so long as such obligation, liability or indebtedness is so secured, such cash proceeds and other amounts are not included in the calculation of the Unrestricted Cash Amount, (iv) to exclude obligations under any Derivative Transaction, any Qualified Receivables Facility, or under any Indebtedness that is non-recourse to such Person and its Restricted Subsidiaries and (v) to exclude obligations under any Non-Finance Lease Obligation (items (i) through (v) of this proviso, the “Netted Amounts”).

 

Consolidated Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.

 

Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations under an