AMENDED AND RESTATED FORBEARANCE AGREEMENT
THIS AMENDED AND RESTATED FORBEARANCE AGREEMENT ("Agreement") is made
as of the 20th day of April, 1999, between AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC., a Maine corporation ("Borrower") and BANKBOSTON, N.A., as
agent ("Agent");
WITNESSETH:
IN CONSIDERATION of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned Agent and Borrower hereby covenant and agree as
follows:
1. Definitions:
"Advance(s)" means any disbursement of any proceeds of the Loan.
"BkB" means BankBoston, N.A. in its individual capacity and not as
Agent.
"Borrower Subsidiary" means Grand Summit Resort Properties, Inc., a
Maine corporation, any other subsidiary of the Borrower or any subsidiary of
Grand Summit Resort Properties, Inc.
"Canyons Condominium" means the condominium project under construction
at The Canyons affected by the Permitted Construction Loan entered into with
Keybank, N.A. dated as of December 18, 1998, including all amendments and
modifications thereto.
"Canyons Condominium Amount" means the amount designated on the Revised
Budget to be funded with respect to the Canyons Condominium.
"Canyons Grand Summit Project" means as defined in Section 3.
"Consultant" means as defined in Section 8.
"First Amendment" means the First Amendment Agreement Re: Loan And
Security Agreement among Grand Summit, Textron and Green Tree and the Lenders
listed therein, dated as of April 5, 1999, a copy of which is annexed hereto as
Exhibit "A".
" Full Syndication of the Textron Loan" means the occurrence of the
Full Syndication Date as defined in the First Amendment.
"Grand Summit " means Grand Summit Resort Properties, Inc., a Maine
corporation.
"Green Tree" means Green Tree Financial Servicing Corporation.
"March 8 Forbearance Agreement" means the Forbearance Agreement dated
March 8, 1999 between Agent and Borrower.
"Potential Events of Default" means as defined in Section 2.
"Projects" means as defined in Section 3.
"Revised Budget" means the budget for the Projects and for the
operations of the Borrower attached hereto as Exhibit "B" and made a part
hereof.
"Steamboat Project Advance Commitment" means the commitment by Textron
to advance not less than $12,000,000 during the Syndication Period under the
Textron Loan with respect to the funding of the cost of improvements and other
matters set forth on the Revised Budget with respect to the Steamboat Grand
Summit Project, all in accordance with the terms and conditions of the First
Amendment.
"Steamboat Grand Summit Project" means as defined in Section 3.
"Syndication Period" means the period commencing with even date and
continuing to and through the earliest of: (i) July 6 1999; (ii) the termination
of the Forbearance provided in Section 4 hereof; or (iii) the occurrence of the
Full Syndication Date (as such term is defined in the First Amendment).
"Textron" means Textron Financial Corporation.
"Textron Loan" means the existing $145,000,000.00 credit facility
provided by Textron and Green Tree in favor of Borrower Subsidiary with respect
to the financing of the Projects dated as of September 1, 1998, including all
amendments and modifications thereto.
All terms not otherwise defined herein shall have the meaning set
forth in the Amended and Restated Credit Agreement dated as of January 8, 1999
between Borrower and Agent (as amended or modified, the "Credit Agreement").
2. Acknowledgment of Default: Borrower hereby acknowledges and agrees that
certain Defaults exist including, without limitation, the breach of the
representation and warranty set forth at Section 5.28 and the covenants set
forth at Sections 6.12 8.1 and 9.19 of the Credit Agreement. The breach of the
foregoing representation and warranty and covenants are hereby referred to as
the "Potential Events of Default."
3. Cure of Potential Events of Default: Borrower agrees to diligently pursue the
cure of the Potential Events of Default during the Syndication Period. Borrower
acknowledges and recognizes that the cure of the Potential Events of Default
shall mean the closing of financial facilities in an amount and having
conditions sufficient to cause the warranty set forth at Section 5.28 to be true
and correct in all respects and the Borrower to be in compliance with the
covenants at Sections 6.12 and 9.19. Said differently, during the Syndication
Period, Borrower shall diligently pursue obtaining and closing construction and
mezzanine loans sufficient, when combined with the proceeds of the Loan, (i) to
fund the Revised Budget in its entirety and to fiend the completion of the
project generally referred to as Grand Summit at Steamboat, Steamboat, Colorado
("Steamboat Grand Summit Project") and the project referred to as the Grand
Summit at the Canyons, Park City, Utah ("Canyons Grand Summit Project," and with
the Steamboat Grand Summit Project, collectively the "Projects") in accordance
with the plans and specifications previously approved by Textron as agent with
respect to the Permitted Construction Loan for such Projects and (ii) to repay
the $3,044,713 Advance made on or about March 8, 1999 by Agent to Borrower for
disbursement to Grand Summit. The foregoing $3,044,713 amount may, at the sole
option of BkB, rather than being applied immediately to the repayment of said
Advance, be deposited directly in the General Cash Collateral Account.
4. Forbearance: During the Syndication Period, Agent agrees to forebear from (i)
declaring an Event of Default, (ii) accelerating the Maturity of the Loan, (iii)
foreclosing on the Collateral or (iv) exercising any offset rights under Section
12.2 of the Credit Agreement; provided that such forbearance shall automatically
terminate if any of the following occurs:
(a) (i) the declaration of a Default or an Event of Default
under the Textron Loan; or (ii) the failure to fund at least eighty-five (85)
percent of a requested advance of the Steamboat Project Advance Commitment by
the tenth (10th ) day of the month following the month in which a request for
funding was made unless approved by Agent; or (iii) the giving of notice to
either Grand Summit or the Agent that a funding of less than eight-five (85)
percent of a requested advance will occur or that no further advances will occur
under the Steamboat Project Advance Commitment.
(b) The Borrower or any Borrower Subsidiary is involved in any
"financial difficulties" as set forth in Section 12.1(e) of the Credit
Agreement;
(c) The Borrower or any Borrower Subsidiary asserts any claim,
action, cause of action, counterclaim, or allegation in litigation or
arbitration against the Agent; or
(d) Borrower breaches any term, provision or condition of this
Agreement.
5. Revised Budget and Disbursement Procedures. Borrower and Lender hereby agree
that disbursements with respect to the remaining proceeds of the Loan shall be
governed by the Revised Budget. Furthermore, Borrower agrees that all
disbursements of the Steamboat Project Advance Commitment shall also be governed
by the Revised Budget. Borrower agrees not to and shall cause all Borrower
Subsidiaries not to modify the Revised Budget or any other term or condition of
the Textron Loan Documents without the prior consent of the Agent.
From and after even date, all Advances shall be made pursuant to such
disbursement procedures as the Agent may designate. Agent hereby designates the
following conditions precedent to Advances of the Loan which must be satisfied
and which shall apply solely during the Syndication Period:
1. This Agreement shall be in full force and effect;
2. The forbearance provided in Section 4 hereof shall be in effect and
shall not have been terminated;
3. Borrower shall have submitted to the Agent evidence satisfactory to
the Agent which establishes:
(a) the categories of the Revised Budget are, and will
continue to be after the Advance, sufficient to fund
the purposes for which they are established; and
(b) previous Advances of the Loan have been paid to the
payees for the purposes for which the Advances were
made.
4. The draw request is on a form established by the Agent for the draw
request:
5. The conditions precedent to advances with respect to the Steamboat
Project Advance Commitment set forth on Schedule I to the First Amendment are
applicable to advances being made thereunder. Nothing contained herein shall
preclude Textron from waiving any such conditions precedent.
The disbursement procedures shall include but shall not be limited to
the disbursement of all Advances to such title insurance company as the Agent
may designate with the requirement that the disbursements be made directly to
the identified payee for such disbursement.
The Borrower shall not be entitled to receive any Advance during the
pendency of any of the following: (i) the forbearance provided in Section 4
hereof is not in full force and effect for any reason or (ii) eighty five (85)
percent of any requested advance of the Steamboat Project Advance Commitment is
not funded on or before the last day of the month in which it is requested.
Furthermore, the Borrower shall not be entitled to receive any Advance of the
Canyons Condominium Amount until the Agent has determined (which determination
may require written assurance in form and substance acceptable to the Agent)
that the Permitted Construction Loan with respect to the Canyons Condominium is
in full force and effect and the lender thereunder will immediately fund the
proceeds of such Permitted Construction Loan simultaneously with the proposed
advance by Agent.
6. Cash and Proceeds Procedure: Borrower agrees that during the Syndication
Period and thereafter if a Default exists all of the following shall be governed
by Section 12.3.2 of the Credit Agreement:
(a) All cash receipts of the Borrower other than Advances of any loan,
(b) All proceeds of any lease in which the Borrower is the lessor
including any operating lease with American Ski; and
(c) All Net Proceeds from the sale of any real or personal property of
the Borrower.
Borrower acknowledges and agrees that: (i) the provisions of Section 4
hereof do not limit or otherwise waive performance of the provisions of Section
12.3.2 of the Credit Agreement and (ii) the provisions of Section 12.3.2 shall
govern in all respects during the Syndication Period and thereafter if a Default
exists.
Borrower and Agent hereby acknowledge that the following cash proceeds
of Grand Summit are subject to a cash collateral agreement with Textron and,
therefore, shall be subject to the terms of this section only upon the release
of such funds by Textron: (i) all proceeds of the Textron Loan; (ii) cash
proceeds of Grand Summit of the Projects which are collateral for the Textron
Loan; and (iii) all proceeds from the sale of consumer receivables to Textron or
an affiliate thereof by Grand Summit arising from the factoring of contracts by
Grand Summit with respect to the Projects. Borrower hereby warrants that the
liquidity covenant in the Textron Loan requires $2,000,000.00 of cash or cash
equivalents to be retained at Grand Summit as a condition precedent to
distribution or payment of cash or cash equivalents to the Borrower. All amounts
over and above the amounts described above shall continue to be characterized as
Subsidiary Available Cash and be subject to the provisions of the Credit
Agreement with respect thereto.
7. Third Party Financial Consultant: Borrower agrees that the Agent shall have
the right to the immediate engagement of a financial consultant (the
"Consultant") on behalf of the Agent at the Agent's choice and discretion, to
advise Agent with respect to the Borrower, the Projects, the administration of
the Credit Agreement and such other matters as the Agent may from time to time
determine to be appropriate. The scope of the engagement of the Consultant shall
include but shall not be limited to: (i) review of the cost to complete the
Projects and the adequacy of the funds in the Revised Budget and other funds
committed for the construction of the improvements; (ii) periodic review of
categories in the Revised Budget and variances therefrom; (iii) monthly
compliance review of financial covenants in the Credit Agreement; and (iv) cash
flow analysis of the Borrower. The Agent shall also have the right to retain
such inspecting agents as it may deem appropriate to monitor Advances with
respect to the Projects. All fees and out of pocket expenses of the Consultant
and any inspecting agent which may also be engaged by or on behalf of the Agent
shall be promptly paid by the Borrower, and otherwise shall be recoverable costs
and expenses in accordance with Section 16.5 of the Credit Agreement. Borrower
agrees to provide the Consultant and any inspecting agent full and complete
access to the Borrower, the Borrower Subsidiary, the Projects, the officers and
employees of same and all financial and construction related information of
same.
8. Warranty: Borrower warrants and represents to Agent that the
warranty set forth at Section 7 of the March 8 Forbearance -----------------
Agreement remains true and correct as of even date.
9. Amendment of Credit Agreement: This Agreement shall amend any contrary terms
and conditions of the Credit Agreement.
10. Release: As a condition precedent to the effectiveness of this
Agreement,Borrower, Borrower Subsidiary and American Skiing Company shall
execute and deliver to the Agent on even date a general release of all claims.
actions, causes of actions, counterclaims and liabilities whatsoever in form and
substance satisfactory to the Agent.
11. Bankruptcy Relief: Agent is and shall be entitled to relief from the
automatic stay pursuant to 11 U. S.C. ss. 362(d) to pursue all of its rights and
remedies under the Credit Agreement, Lender Agreements and this Agreement and
relevant state law. Borrower shall consent to and shall not oppose relief from
the automatic stay without condition to permit Agent to pursue all of its rights
and remedies under the Credit Agreement, Lender Agreements and this Agreement
and relevant state law.
12. Third Party Beneficiaries: Borrower hereby agrees that any Lender that may
enter into the Credit Agreement from time to time shall automatically be a
beneficiary of this Agreement without the execution of any further documents by
Borrower.
13. Further Assurances: At any time and from time to time, upon request of
Agent, Borrower shall make, execute and deliver or cause to be made, executed
and delivered to Agent any and all documents, including but not limited to,
modifications to the Credit Agreement, which documents may, in the reasonable
opinion of Agent, be necessary or desirable in order to effectuate, complete,
evidence, or perfect (a) the obligations of Borrower under this Agreement, and
(b) the lien and security interests described herein.
14. Time of Essence: Time is of the essence in this Agreement.
15. Governing Laws: This Agreement shall be governed by the laws of the State of
Georgia.
16. Counterparts: This Agreement may be executed in multiple counterparts.
17. Amendment and Restatement: This Agreement amends and restates but does not
terminate the March 8 Forbearance Agreement. ----------------------------------
18. Loan Documents: This Agreement and the March 8 Forbearance Agreement shall
be considered a Loan Document for all purposes and when taken together with the
other Loan Documents reflects the entire understanding of the parties with
respect to the transactions contemplated hereby and shall not be contradicted or
qualified by any other agreement, oral or written, before the date hereof.
19. Effectiveness: This Agreement shall not be effective until the First
Amendment becomes effective.
IN WITNESS WHEREOF, the undersigned Borrower has caused this instrument
to be executed by its duly authorized corporate officer and its seal to be
affixed hereto as of the day and year first above written.
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxxxx Xxxxxx
Executive Vice President
IN WITNESS WHEREOF, the undersigned Agent has caused this instrument to
be executed by its duly authorized officer as of the day and year first above
written.
BANKBOSTON, N.A. as Agent
By: /s/ Xxxx X. XxXxxx
-----------------------------------------
Xxxx X. Xxxxxx
Managing Director
SIGNATURE PAGE TO THE AMENDED AND RESTATED FORBEARANCE AGREEMENT
