EIGHTH AMENDMENT AGREEMENT
THIS EIGHTH AMENDMENT AGREEMENT (this "Eighth Amendment Agreement"),
dated as of June 30, 2005 among GRAND SUMMIT RESORT PROPERTIES, INC., a Maine
corporation, (herein referred to as "GSRP"), the lenders listed on the signature
pages hereof (each individually referred to herein as a "Lender" and,
collectively, as the "Lenders"), and TEXTRON FINANCIAL CORPORATION, a Delaware
corporation, as agent for the Lenders (in such capacity herein referred to as
the "Administrative Agent").
W I T N E S S E T H:
A. WHEREAS, GSRP entered into that certain Loan and Security Agreement with
Textron Financial Corporation, Green Tree Financial Services Corporation and the
Administrative Agent dated as of September 1, 1998 (as amended to but excluding
the date hereof, the "Existing LSA");
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing LSA and in Section 1 of this Eighth Amendment
Agreement; and
C. WHEREAS, the parties to the Existing LSA have agreed to certain amendments to
the Existing LSA as described and set forth below;
NOW, THEREFORE, in consideration of the Administrative Agent's, the
Lenders,' and GSRP's agreements hereunder, and in consideration of other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Administrative Agent, the Lenders and GSRP hereby agree as
follows:
1. Amendments to Definitions. The parties hereto agree that Section 1.1
of the Existing LSA is, and shall be deemed to be, amended and modified as
follows:
1.1 New Definitions. The following new definitions are
hereby added to Section 1.1 of the Existing LSA:
Attitash Commercial Core -- means the Attitash
Commercial Unit and any other property owned by GSRP at the
Attitash Project and not constituting Attitash Residential
Units, Attitash Quartershare Interests, or Attitash Common
Area (such Attitash Commercial Unit and other property are
more particularly described on Schedule 1 to the Eighth
Amendment Agreement).
Canyons/Attitash Additional Commercial Forgiven
Amount - as defined in the definition of Canyons Commercial
Release Price Option in this Section 1.1.
Canyons/Attitash Commercial Core Minimum Release
Price - means as defined in the definition of Canyons
Commercial Release Price Option in this Section 1.1.
Canyons/Attitash Commercial Core Net Proceeds - as
defined in the definition of Canyons Commercial Release Price
Option in this Section 1.1.
Canyons/Attitash Commercial Core Purchaser - as
defined in the definition of Canyons Commercial Release Price
Option in this Section 1.1.
Canyons/Attitash Commercial Core Supplemental Deposit
- as defined in the definition of Canyons Commercial Release
Price Option in this Section 1.1.
Canyons/Attitash Commercial Core Supplemental Release
Price - as defined in the definition of Canyons Commercial
Release Price Option in this Section 1.1.
Canyons/Attitash Commercial Release Price Option -
means one of the following three payment or transfer options
to be selected by GSRP, in writing and in its sole discretion,
on or prior to September 30, 2005 and consummated during the
Commercial Release Price Option Availability Period with
respect to the Canyons Commercial Core (as an entirety) and
the Attitash Commercial Core (as an entirety), each of which
will result in the release of all liens and security interests
of the Administrative Agent, the Lenders and the Subordinated
Lender in and to the Canyons Commercial Core and the Attitash
Commercial Core (such liens and security interests continuing
in the proceeds in respect thereof), the exclusion of the
Canyons Commercial Core and the Attitash Commercial Core from
any covenant restrictions under this Agreement or the other
Security Documents and the adjustment of any other financial
covenants provided for herein or in the other Security
Documents to otherwise permit the transactions to be
consummated as contemplated below with respect to any option
elected by GSRP:
(a) Canyons/Attitash Option #1 - all of the
right, title and interest of GSRP in and to the
Canyons Commercial Core and the Attitash Commercial
Core to be conveyed by GSRP to the Administrative
Agent or to an affiliate of any Lender, as determined
by the Steamboat Required Lenders (the
"Canyons/Attitash Commercial Core Purchaser"), by
general warranty deed and subject only to Permitted
Exceptions in respect of the Canyons Project and the
Attitash Project (or such other exceptions as the
Canyons/Attitash Commercial Core Purchaser may agree
to in its sole discretion) and such conditions and
deliveries to closing as are customary in commercial
real estate transactions of this type (including,
without limitation, the delivery of an owner's title
insurance policy, at the cost of GSRP, in form and
substance reasonably satisfactory to the Canyons
Commercial Core Purchaser and the payment by GSRP of
all real estate transfer fees, dues or assessments,
transfer taxes or fees, and recordation taxes or fees
payable in connection with such conveyance) in return
for the Administrative Agent's, the Lenders' and the
Subordinated Lender's reducing the Steamboat
Obligations by $3,500,000 to be applied as follows:
(i) first, to all then accrued and unpaid interest in
respect of the Steamboat Loan and accrued and unpaid
interest in respect of the Subordinated Loan Tranche
Advances (including, without limitation, any deferred
interest under, and as provided for in, the SOI)(such
application to be ratable based on the amount of
interest accrued on the Steamboat Loan and the amount
of interest accrued on the Subordinated Loan Tranche
Advances and applied first to the "cash portion" of
the interest in respect of the Subordinated Loan
Tranche Advances and then to the "deferred portion"
thereof) and (ii) second, to the aggregate
outstanding principal amount of the Subordinated Loan
Tranche Advances; or
(b) Canyons/Attitash Option #2 - in
connection with GSRP's selling the Canyons Commercial
Core and the Attitash Commecial Core on an
arm's-length basis to a purchaser or purchasers (the
purchase price in respect thereof to be a cash
purchase paid in full at the closing or closings of
such sale or sales and the other terms of such sale
or sales to be reasonable; if more than one sale is
contemplated, all sales shall be closed
contemporaneously with each other) or in connection
with GSRP's obtaining a loan (to be fully extended in
a single cash advance and otherwise subject to
reasonable terms) secured by the Canyons Commercial
Core and the Attitash Commercial Core on an
arm's-length basis from a lender, a payment to the
Administrative Agent on behalf of the Lenders and the
Subordinated Lender equal to the sum of (i)
$3,500,000 (the "Canyons/Attitash Commercial Core
Minimum Release Price"), plus (ii) the least of (A)
the amount by which the gross proceeds of the
aforesaid sale or sales or loan less the reasonable
out-of-pocket costs of GSRP incurred in connection
therewith and which are customarily paid by a seller
or borrower in such transactions (the
"Canyons/Attitash Commercial Core Net Proceeds")
exceeds $3,500,000, (B) $1,500,000 or (C) the
aggregate outstanding amount of the Steamboat
Obligations (such least amount in this subclause (ii)
is referred to herein as the "Canyons/Attitash
Commercial Core Supplemental Release Price"); for the
avoidance of doubt, the sum of the Canyons/Attitash
Commercial Core Minimum Release Price and the
Canyons/Attitash Commercial Core Supplemental Release
Price shall not exceed $5,000,000; the
Canyons/Attitash Commercial Core Minimum Release
Price and the Canyons/Attitash Commercial Core
Supplemental Release Price will be treated as
Projects' Cash Proceeds under the Sixth Amendment
Agreement and will be applied to the Steamboat
Obligations as Obligation-Servicing Projects' Cash
Proceeds, as provided for under the Sixth Amendment
Agreement; for so long as no Default or Event of
Default shall exist, any Canyons/Attitash Commercial
Core Net Proceeds in excess of the Canyons/Attitash
Commercial Core Minimum Release Price and the
Canyons/Attitash Commercial Core Supplemental Release
Price shall constitute Excess Projects' Cash Proceeds
under the Sixth Amendment Agreement and may be
accessed and used by GSRP as provided for in the
Sixth Amendment Agreement; in addition to the
application of the Canyons/Attitash Commercial Core
Minimum Release Price and the Canyons/Attitash
Commercial Core Supplemental Release Price to the
Steamboat Obligations as referred to above, the
Steamboat Obligations will be further reduced by an
amount equal to 50% of the Canyons/Attitash
Commercial Core Supplemental Release Price (the
"Canyons/Attitash Additional Commercial Forgiven
Amount") as follows: (1) 50% of the Canyons/Attitash
Additional Commercial Forgiven Amount will be applied
to, and result in the cancellation and reduction of,
outstanding principal of the Steamboat Loan on a
dollar-for-dollar basis and (2) 50% of the
Canyons/Attitash Additional Commercial Forgiven
Amount will be applied to, and result in the
cancellation and reduction of, accrued and unpaid
interest in respect of the Subordinated Loan Tranche
Advances (including, without limitation, any deferred
interest under, and as provided for in, the SOI) on a
dollar-for-dollar basis (such amounts to be applied
first to the "cash interest" payable); and if the
aforesaid sale or loan closes on or prior to July 31,
2005 and the Canyons/Attitash Commercial Core Minimum
Release Price and the Canyons/Attitash Commercial
Core Supplemental Release Price in respect thereof
are received by the Administrative Agent on behalf of
the Lenders and Subordinated Lender on or prior to
July 31, 2005, then the Subordinated Lender will
reduce the fixed rate of interest in respect of the
Subordinated Loan Tranche from 20% per annum to 10%
per annum prospectively commencing on and after
August 1, 2005 and interest will accrue thereafter at
10% per annum and be payable in cash at such rate
(all accrued and deferred interest under the SOI
would continue to constitute a Subordinated Loan
Tranche Obligation and the calculation of the Final
Fee (as defined in the SOI) will be adjusted to
reflect that interest to be discounted pursuant to
such calculation will accrue at 20% per annum prior
to August 1, 2005 and 10% per annum thereafter); or
(c) Canyons/Attitash Option #3 - in
connection with GSRP's selling the Canyons Commercial
Core and Attitash Commercial Core on an arm's-length
basis to a purchaser or purchasers (the purchase
price in respect thereof to be a cash purchase paid
in full at the closing of such sale and the other
terms of such sale to be reasonable) or in connection
with GSRP's obtaining a loan (to be fully extended in
a single cash advance and otherwise subject to
reasonable terms; if more than one sale is
contemplated, all sales shall be closed
contemporaneously with each other) secured by the
Canyons Commercial Core and the Attitash Commercial
Core on an arm's-length basis from a lender, a
payment equal to the Canyons/Attitash Commercial Core
Minimum Release Price together with a deposit with
the Administrative Agent of the amount by which the
Canyons/Attitash Commercial Core Net Proceeds from
such sale or sales or loan exceeds the
Canyons/Attitash Commercial Core Minimum Release
Price (the "Canyons/Attitash Commercial Core
Supplemental Deposit"); the Canyons/Attitash
Commercial Core Minimum Release Price will be treated
as Projects' Cash Proceeds under the Sixth Amendment
Agreement and will be applied to the Steamboat
Obligations as Obligation-Servicing Projects' Cash
Proceeds, as provided for under the Sixth Amendment
Agreement; the Canyons/Attitash Commercial Core
Supplemental Deposit will constitute Projects' Cash
Proceeds, as provided under the Sixth Amendment
Agreement, and will be used, subject to there being
no Default or Event of Default in existence, (i)
first, as Obligation-Servicing Projects' Cash
Proceeds to pay any unpaid interest in respect of the
Steamboat Loan and then any unpaid interest in
respect of the Subordinated Loan Tranche Advances
accruing and falling due and payable (in cash) after
the consummation of the aforesaid sale or sales or
loan (if any Default or Event of Default shall exist,
such Deposit (or whatever remaining balance may then
exist) will be applied as Projects' Cash Proceeds as
provided for in the Sixth Amendment Agreement), (ii)
second, as Excess Projects' Cash Proceeds to pay any
contractual subsidies required to be paid by GSRP to
any purchasers of Steamboat Quartershare Interests or
Steamboat Residential Units (whose purchases were
consummated on or after the date of the closing of
the aforesaid sale or sales or loan) with respect to,
but only with respect to, Annual Assessments (as
defined in the Steamboat Declaration) assessed by the
Steamboat Association in respect of such Steamboat
Quartershare Interests or Steamboat Residential Units
(but excluding, for the avoidance of doubt, any
Special Assessments (as defined in the Steamboat
Declaration), assessments for capital improvements or
individual assessments) (if any Default or Event of
Default shall exist, such Deposit (or whatever
remaining balance may then exist) will be applied as
Projects' Cash Proceeds as provided for in the Sixth
Amendment Agreement), and (iii) third, as Excess
Projects' Cash Proceeds to pay any Annual Assessments
assessed by the Steamboat Association after the
closing of the aforesaid sale or sales or loan in
respect of any Steamboat Quartershare Interests or
Steamboat Residential Units owned by GSRP (but
excluding, for the avoidance of doubt, any Special
Assessments, assessments for capital improvements or
individual assessments) (if any Default or Event of
Default shall exist, such Deposit (or whatever
remaining balance may then exist) will be applied as
Projects' Cash Proceeds as provided for in the Sixth
Amendment Agreement); and if the aforesaid sale or
sales or loan closes on or prior to July 31, 2005 and
the Canyons/Attitash Commercial Core Minimum Release
Price and the Canyons/Attitash Commercial Core
Supplemental Deposit in respect thereof are received
by the Administrative Agent on behalf of the Lenders
and Subordinated Lender on or prior to July 31, 2005,
then the Subordinated Lender will reduce the fixed
rate of interest in respect of the Subordinated Loan
Tranche from 20% per annum to 10% per annum
prospectively commencing on and after August 1, 2005
and interest will accrue thereafter at 10% per annum
and will be payable in cash at such rate (all accrued
and deferred interest under the SOI will continue to
constitute a Subordinated Loan Tranche Obligation and
the calculation of the Final Fee will be adjusted to
reflect that interest to be discounted pursuant to
such calculation would accrue at 20% per annum prior
to August 1, 2005 and 10% per annum thereafter).
Canyons Commercial Core -- means each of the Canyons
Commercial Units and any other property owned by GSRP at the
Canyons Project and not constituting Canyons Residential
Units, Canyons Quartershare Interests, or Canyons Common
Elements (such Canyons Commercial Units and other property are
more particularly described on Schedule 1 to the Eighth
Amendment Agreement).
Commercial Release Price Option - means the
Canyons/Attitash Commercial Release Price Option and the
Steamboat Commercial Release Price Option.
Commercial Release Price Option Availability Period -
means the period commencing on the Eighth Amendment Effective
Date and ending on December 31, 2005.
Eighth Amendment Agreement -- means that certain
Eighth Amendment Agreement dated as of June 30, 2005 among the
GSRP, the Administrative Agent and the Lenders.
Eighth Amendment Effective Date -- as defined in the
Eighth Amendment Agreement.
Steamboat Commercial Core -- means each of the
Steamboat Commercial Units and any other property owned by
GSRP at the Steamboat Project and not constituting Steamboat
Residential Units, Steamboat Quartershare Interests, or
Steamboat Common Elements (such Steamboat Commercial Units and
other property are more particularly described on Schedule 2
to the Eighth Amendment Agreement). For the avoidance of
doubt, the so-called "Parking Unit" is not owned by GSRP
(having been conveyed to the Steamboat Association) and
accordingly is not part of the Steamboat Commercial Core.
Steamboat Commercial Core Purchaser - as defined in
the definition of Steamboat Commercial Release Price Option in
this Section 1.1.
Steamboat Commercial Core Minimum Release Price -
means as defined in the definition of Steamboat Commercial
Release Price Option in this Section 1.1.
Steamboat Commercial Core Net Proceeds - as defined
in the definition of Steamboat Commercial Release Price Option
in this Section 1.1.
Steamboat Commercial Core Supplemental Release Price
- as defined in the definition of Steamboat Commercial Release
Price Option in this Section 1.1.
Steamboat Additional Commercial Forgiven Amount - as
defined in the definition of Steamboat Commercial Release
Price Option in this Section 1.1.
Steamboat Commercial Core Supplemental Deposit - as
defined in the definition of Steamboat Commercial Release
Price Option in this Section 1.1.
Steamboat Commercial Release Price Option - means one
of the following three payment or transfer options to be
selected by GSRP, in writing and in its sole discretion, on or
prior to September 30, 2005 and consummated during the
Commercial Release Price Option Availability Period with
respect to the Steamboat Commercial Core (as an entirety),
each of which will result in the release of all liens and
security interests of the Administrative Agent, the Lenders
and the Subordinated Lender in and to the Steamboat Commercial
Core (such liens and security interests continuing in the
proceeds in respect thereof), the exclusion of the Steamboat
Commercial Core from any covenant restrictions under this
Agreement or the other Security Documents and the adjustment
of any other financial covenants provided for herein or in the
other Security Documents to otherwise permit the transactions
to be consummated as contemplated below with respect to any
option elected by GSRP:
(a) Steamboat Option #1 - all of the right,
title and interest of GSRP in and to the Steamboat
Commercial Core to be conveyed by GSRP to the
Administrative Agent or an affiliate of one or more
of the Lenders (the "Steamboat Commercial Core
Purchaser"), by general warranty deed and subject
only to Permitted Exceptions in respect of the
Steamboat Project (or such other exceptions as the
Steamboat Commercial Core Purchaser may agree to in
its sole discretion) and such conditions and
deliveries to closing as are customary in commercial
real estate transactions of this type (including,
without limitation, the delivery of an owner's title
insurance policy, at the cost of GSRP, in form and
substance reasonably satisfactory to the Steamboat
Commercial Core Purchaser and the payment by GSRP of
all real estate transfer fees, dues or assessments,
transfer taxes or fees, and recordation taxes or fees
payable in connection with such conveyance) in return
for the Administrative Agent's, the Lenders' and the
Subordinated Lender's reducing the Steamboat
Obligations by $750,000 to be applied as follows: (i)
first, to all then accrued and unpaid interest in
respect of the Steamboat Loan and accrued and unpaid
interest in respect of the Subordinated Loan Tranche
Advances (including, without limitation, any deferred
interest under, and as provided for in, the SOI)(such
application to be ratable based on the amount of
interest accrued on the Steamboat Loan and the amount
of interest accrued on the Subordinated Loan Tranche
Advances and applied first to the "cash portion" of
the interest in respect of the Subordinated Loan
Tranche Advances and then to the "deferred portion"
thereof) and (ii) second, to the aggregate
outstanding principal amount of the Subordinated Loan
Tranche Advances; or
(b) Steamboat Option #2 - in connection with
GSRP's selling the Steamboat Commercial Core on an
arm's-length basis to a purchaser (the purchase price
in respect thereof to be a cash purchase paid in full
at the closing of such sale and the other terms of
such sale to be reasonable) or in connection with
GSRP's obtaining a loan (to be fully extended in a
single cash advance and otherwise subject to
reasonable terms) secured by the Steamboat Commercial
Core on an arm's-length basis from a lender a payment
to the Administrative Agent on behalf of the Lenders
and the Subordinated Lender equal to the sum of (i)
$1,000,000 (the "Steamboat Commercial Core Minimum
Release Price"), plus (ii) the least of (A) the
amount by which the gross proceeds of the aforesaid
sale or loan less the reasonable out-of-pocket costs
of GSRP incurred in connection therewith, including
the legal costs incurred in finalizing and recording
the Second Supplement Plat (the aggregate amount of
which will not exceed $10,000) and any unpaid XXX
xxxx relating to the Steamboat Commercial Core, and
which are customarily paid by a seller or borrower in
such transactions (the "Steamboat Commercial Core Net
Proceeds") exceeds $1,000,000, (B) $500,000 or (C)
the aggregate outstanding amount of the Steamboat
Obligations (inclusive of the Subordinated Loan
Tranche Obligations)(such least amount in this
subclause (B) is referred to herein as the "Steamboat
Commercial Core Supplemental Release Price"); for the
avoidance of doubt, the sum of the Steamboat
Commercial Core Minimum Release Price and the
Steamboat Commercial Core Supplemental Release Price
shall not exceed $1,500,000; the Steamboat Commercial
Core Minimum Release Price and the Steamboat
Commercial Core Supplemental Release Price will be
treated as Projects' Cash Proceeds under the Sixth
Amendment Agreement and will be applied to the
Steamboat Obligations as Obligation-Servicing
Projects' Cash Proceeds, as provided for under the
Sixth Amendment Agreement; for so long as no Default
or Event of Default shall exist, any Steamboat
Commercial Core Net Proceeds in excess of the
Steamboat Commercial Core Minimum Release Price and
the Steamboat Commercial Core Supplemental Release
Price shall constitute Excess Projects' Cash Proceeds
under the Sixth Amendment Agreement and may be
accessed and used by GSRP as provided for in the
Sixth Amendment Agreement; and in addition to the
application of the Steamboat Commercial Core Minimum
Release Price and the Steamboat Commercial Core
Supplemental Release Price to the Steamboat
Obligations as referred to above, the Steamboat
Obligations will be further reduced by an amount
equal to 50% of the Steamboat Commercial Core
Supplemental Release Price (the "Steamboat Additional
Commercial Forgiven Amount") as follows: (1) 50% of
the Steamboat Additional Commercial Forgiven Amount
will be applied to, and result in the cancellation
and reduction of, outstanding principal of the
Steamboat Loan on a dollar-for-dollar basis and (2)
50% of the Steamboat Additional Commercial Forgiven
Amount will be applied to, and result in the
cancellation and reduction of, accrued and unpaid
interest in respect of the Subordinated Loan Tranche
Advances (including, without limitation, any deferred
interest under, and as provided for in, the SOI) on a
dollar-for-dollar basis (such amounts to be applied
first to the "cash interest" payable); or
(c) Steamboat Option #3 - in connection with
GSRP's selling the Steamboat Commercial Core on an
arm's-length basis to a purchaser(the purchase price
in respect thereof to be a cash purchase paid in full
at the closing of such sale and the other terms of
such sale to be reasonable) or in connection with
GSRP's obtaining a loan (to be fully extended in a
single cash advance and otherwise subject to
reasonable terms) secured by the Steamboat Commercial
Core on an arm's-length basis from a lender, a
payment equal to the Steamboat Commercial Core
Minimum Release Price together with a deposit with
the Administrative Agent of the amount by which the
Steamboat Commercial Core Net Proceeds from such sale
or loan exceeds the Steamboat Commercial Core Minimum
Release Price (the "Steamboat Commercial Core
Supplemental Deposit"); the Steamboat Commercial Core
Minimum Release Price will be treated as Projects'
Cash Proceeds under the Sixth Amendment Agreement and
will be applied to the Steamboat Obligations as
Obligation-Servicing Projects' Cash Proceeds, as
provided for under the Sixth Amendment Agreement; the
Steamboat Commercial Core Supplemental Deposit will
constitute Projects' Cash Proceeds, as provided under
the Sixth Amendment Agreement, and will be used,
subject to there being no Default or Event of Default
in existence, (i) first, as Obligation-Servicing
Projects' Cash Proceeds to pay any unpaid interest in
respect of the Steamboat Loan and then any unpaid
interest in respect of the Subordinated Loan Tranche
Advances accruing and falling due and payable (in
cash) after the consummation of the aforesaid sale or
loan (if any Default or Event of Default shall exist,
such Deposit (or whatever remaining balance may then
exist) will be applied as Projects' Cash Proceeds as
provided for in the Sixth Amendment Agreement), (ii)
second, as Excess Projects' Cash Proceeds to pay any
contractual subsidies required to be paid by GSRP to
any purchasers of Steamboat Quartershare Interests or
Steamboat Residential Units (whose purchases were
consummated on or after the date of the closing of
the aforesaid sale or loan) with respect to, but only
with respect to, Annual Assessments assessed by the
Steamboat Association in respect of such Steamboat
Quartershare Interests or Steamboat Residential Units
(but excluding, for the avoidance of doubt, from any
Special Assessments, assessments for capital
improvements or individual assessments) (if any
Default or Event of Default shall exist, such Deposit
(or whatever remaining balance may then exist) will
be applied as Projects' Cash Proceeds as provided for
in the Sixth Amendment Agreement), and (iii) third,
as Excess Projects' Cash Proceeds to pay any Annual
Assessments assessed by the Steamboat Association
after the closing of the aforesaid sale or loan in
respect of any Steamboat Quartershare Interests or
Steamboat Residential Units owned by GSRP (but
excluding, for the avoidance of doubt, any Special
Assessments, assessments for capital improvements or
individual assessments) (if any Default or Event of
Default shall exist, such Deposit (or whatever
remaining balance may then exist) will be applied as
Projects' Cash Proceeds as provided for in the Sixth
Amendment Agreement).
Steamboat Quartershare Interest 2005 Sale -- as
defined in Section 3.15(e) hereof.
Steamboat Residential Additional Forgiven Amount --
as defined in Section 3.15(e) hereof.
Steamboat Residential Unit 2005 Sale -- as defined in
the definition of Release Price in this Section 1.1.
Steamboat Residential Unit 2005 Release Price -- as
defined in the definition of Release Price in this Section
1.1.
1.2 Revised Definitions. The following existing
definitions in the Existing LSA are hereby amended and restated in
their entirety as follows:
Applicable States -- means (i) Colorado, Maine, Utah,
New Hampshire and Vermont, and (ii) any other state in which
GSRP is or becomes qualified to sell Quartershare Interests or
Steamboat Residential Units, provided that acceptable proof of
such qualification has been delivered to the Administrative
Agent.
Contract -- means any purchase contract between one
or more Persons, as purchaser (the "Purchaser"), and GSRP, as
seller, which agreement provides for the sale by GSRP to such
Purchaser of one or more Quartershare Interests in any Project
and shall also include any Steamboat Resort Contract, as
defined in the Note Purchase Agreement.
Note Purchase Agreement - means "New Note Purchase
Agreement," as provided for in the Eighth Amendment Agreement.
Release Price -- means,
(a) in the case of any Steamboat Quartershare
Interests* as follows:
(i) in the case of any Steamboat
Non-Penthouse Quartershare Interest, an all
cash payment equal to the greater of (A)
100% of the minimum release dollar amount
set forth on Schedule 3 hereto that
corresponds to the particular type of
Quartershare Interest listed thereon that is
being sold and (B) 80% of the gross sales
proceeds in respect of the Steamboat
Non-Penthouse Quartershare Interest that is
being sold (the gross purchase price in
respect of such Steamboat Non-Penthouse
Quartershare Interests to be approved by the
Administrative Agent prior to the
consummation thereof); and
(ii) in the case of any Steamboat
Penthouse Quartershare Interest, an all cash
payment equal to the greater of (A) 100% of
the minimum release dollar amount set forth
on Schedule 3 hereto that corresponds to the
particular type of Quartershare Interest
listed thereon that is being sold and (B)
80% of the gross sales proceeds in respect
of the Steamboat Penthouse Quartershare
Interest that is being sold (the gross
purchase price in respect of such Steamboat
Non-Penthouse Quartershare Interests to be
approved by the Administrative Agent prior
to the consummation thereof); and
(iii) "Release Prices" based on
Schedule 3 hereto shall be based on a sale
of 50% of a Steamboat Quartershare Interest
(a so-called "1/8th Steamboat Quartershare
Interest") and such "Release Prices" shall
be multiplied by 200% to obtain the minimum
"Release Price" for a Steamboat Quartershare
Interest for purposes of this definition.
Anything contained in this clause (a) to the
contrary notwithstanding, if unsold Steamboat
Quartershare Interests shall be sold by GSRP other
than in the ordinary course of its business
(including, without limitation, any bulk sales of
such Steamboat Quartershare Interests), the release
price in respect thereof shall be such amount or
amounts as GSRP, the Administrative Agent and the
Steamboat Required Lenders shall have approved.
(b) intentionally omitted;
(c) intentionally omitted;
(d) intentionally omitted;
(e) intentionally omitted;
(f) intentionally omitted;
(g) With respect to the sale of any Commercial Unit,
the release price shall be the payments and/or conveyances
(together with the terms and conditions associated therewith)
provided for in any Commercial Release Price Option applicable
to such Commercial Unit and elected by GSRP (the Commercial
Release Price Option shall only be available for election by
GSRP during the Commercial Release Price Option Availability
Period and all transactions with respect thereto must be
consummated and closed prior to the end of such Period in
accordance with the terms and conditions of such Options), or
such other amounts as shall have been agreed between GSRP and
the Administrative Agent and approved by the Steamboat
Required Lenders;
(h) With respect to the sale of any Steamboat
Residential Unit consummated after the Eighth Amendment
Effective Date and on or prior to December 31, 2005 on an
arm's-length basis with a purchaser(a "Steamboat Residential
Unit 2005 Sale"), the release price shall be 70% of the gross
sales proceeds in respect thereof (a "Steamboat Residential
Unit 2005 Release Price") payable in cash, provided that the
Administrative Agent shall have previously approved the sales
price of such Steamboat Residential Unit 2005 Sale, and, after
December 31, 2005, the release price shall be such other
amount or amounts as shall have been agreed between GSRP and
the Administrative Agent and approved by the Steamboat
Required Lenders. In connection with any Steamboat Residential
Unit 2005 Sale, the Steamboat Residential Unit 2005 Release
Price with respect thereto will be treated as Projects' Cash
Proceeds under the Sixth Amendment Agreement and will be
applied to the Steamboat Obligations as Obligation-Servicing
Projects' Cash Proceeds, as provided for under the Sixth
Amendment Agreement; the excess of the gross sales proceeds of
such Steamboat Residential Unit 2005 Sale over the related
Steamboat Residential Unit 2005 Release Price and the
reasonable out-of-pocket costs of GSRP incurred in connection
with such sale will constitute Projects' Cash Proceeds, as
provided under the Sixth Amendment Agreement, and will be
used, subject to there being no Default or Event of Default in
existence, (i) first, as Obligation-Servicing Projects' Cash
Proceeds to pay any unpaid interest in respect of the
Steamboat Loan and then any unpaid interest in respect of the
Subordinated Loan Tranche Advances accruing and falling due
and payable (in cash), in each case, after the Eighth
Amendment Effective Date (if any Default or Event of Default
shall exist, such excess (or whatever remaining amount thereof
may then exist) will be applied as Projects' Cash Proceeds as
provided for in the Sixth Amendment Agreement), (ii) second,
as Excess Projects' Cash Proceeds to pay any contractual
subsidies required to be paid by GSRP to any purchasers of
Steamboat Quartershare Interests or Steamboat Residential
Units (whose purchases were consummated on or after the Eighth
Amendment Effective Date) with respect to, but only with
respect to, Annual Assessments assessed by the Steamboat
Association (but excluding, for the avoidance of doubt, any
Special Assessments, assessments for capital improvements or
individual assessments) (if any Default or Event of Default
shall exist, such excess (or whatever remaining amount thereof
may then exist) will be applied as Projects' Cash Proceeds as
provided for in the Sixth Amendment Agreement), and (iii)
third, as Excess Projects' Cash Proceeds to pay any Annual
Assessments assessed by the Steamboat Association and any
reasonable costs necessary to sell-out the remainder of the
unsold Steamboat Quartershare Interests or Steamboat
Residential Units after the Eighth Amendment Effective Date in
respect of any Steamboat Quartershare Interests or Steamboat
Residential Units owned by GSRP (but excluding, for the
avoidance of doubt, any Special Assessments, assessments for
capital improvements or individual assessments) (if any
Default or Event of Default shall exist, such excess (or
whatever remaining amount thereof may then exist) will be
applied as Projects' Cash Proceeds as provided for in the
Sixth Amendment Agreement);
(i) Anything contained to the contrary in this
definition of "Release Price," at such time as all of the
Colorado First/PCL Obligations, the Canyons Obligations, the
Steamboat Obligations (other than the Percentage Sales Fee),
the Subordinated Loan Tranche Obligations and all other
Obligations (other than the Percentage Sales Fee) shall have
been paid in full, (i) "Release Price" for a Quartershare
Interest or Commercial Unit shall be equal to the Percentage
Sales Fee due in respect thereof and (ii) to the extent that
any Quartershare Interest or Commercial Unit suffers a
casualty for which there is insurance proceeds or is condemned
for which there is condemnation proceeds distributable, in
each case, to GSRP (without giving effect to Section 3.5 and
3.6 of the Existing LSA, as amended hereby), such insurance or
condemnation proceeds shall be deemed sales proceeds and the
Percentage Sales Fee shall be payable in respect thereof
(after which such remaining insurance or condemnation proceeds
shall be payable to, and retained by, GSRP free and clear of
any Liens, security interests or claims hereunder or under any
other Security Document); and
(j) The Release Price for the so-called "Parking
Unit" at the Steamboat Project shall be (1) the payment to the
Administrative Agent of any cash payment paid to GSRP by the
Steamboat Association in respect thereof, (2) the collateral
assignment to the Administrative Agent of the promissory note
from the Steamboat Association in respect thereof, (3) the
collateral assignment to the Administrative Agent of the
beneficial interest in the deed of trust securing said
promissory note and (4) the payment of all proceeds in respect
thereof (including, without limitation, all payments of
principal and interest) to the Administrative Agent. The
payments of such proceeds (including, without limitation, all
payments of principal and interest) shall be treated as the
payment of a Release Price in respect of a "Steamboat
Commercial Unit" for purposes of Section 2.5(b)(iii) and
Section 2.5(d) hereof.
*For so long as no Default or Event of Default shall exist,
Release Prices shall be adjusted downward by the
"Textron-Sourced 3%/5% Deposits" under, and as defined in, the
Note Purchase Agreement and as otherwise provided for in
Section 3 of the Eighth Amendment Agreement. For the avoidance
of doubt, any reduction in Steamboat Obligations by a "Release
Price" so reduced by such a Deposit shall be only by the net
amount of such "Release Price," after giving effect to such
reduction from such Deposit. "Textron-Sourced 3%/5% Deposits
shall be paid to Textron Business Services, Inc. as provided
in Section 3 of the Eighth Amendment Agreement and Section 2.3
of the Note Purchase Agreement.
Quartershare Note - means any promissory note made
payable to the order of GSRP which provides for payment of the
deferred purchase price of one or more Quartershare Interests
purchased by the Purchaser thereof and shall also include any
Steamboat Resort Note, as defined in the Note Purchase
Agreement.
Quartershare Mortgage - means, with respect to any
Quartershare Note, a mortgage or deed of trust in and to the
Quartershare Interest whose purchase is being financed, in
whole or part, by such Quartershare Note and shall also
include any Steamboat Resort Mortgage, as defined in the Note
Purchase Agreement.
Required Parties -- means the Steamboat Required
Lenders.
Subordinated Lender - means Special Subordinated
Lender as defined in the SOI.
2. Additional Amendments. To the extent that GSRP, in accordance with
the terms hereof, elects to exercise any Commercial Release Price Option and the
terms thereof would require additional amendments or modifications to the
Existing LSA, as amended hereby, the SOI, as amended hereby, and/or the other
Security Documents, the Administrative Agent, the Lenders, the Subordinated
Lender and GSRP agree to reasonably cooperate with each other to effect such
amendments and/or modifications. To the extent that the definitions of Canyons
Commercial Release Price Option, Steamboat Commercial Release Price Option,
Release Price and Section 7 below provide for a different handling, application,
allocation or treatment of proceeds from the sales of Commercial Units,
Residential Units or Quartershare Interests or loans obtained in respect of the
Commercial Units than what is provided for in the Sixth Amendment Agreement or
otherwise in the Existing LSA, the handling, application, allocation or
treatment of such proceeds in said definitions or in Section 7 below shall
govern. For the avoidance of doubt, except to the extent expressly provided for
in the Sixth Amendment Agreement, the liens and security interests under the
Existing LSA shall continue in and to the proceeds of the sale or other
disposition of Commercial Units, Residential Units or Quartershare Interests.
3. New Note Purchase Agreement. The Note Purchase Agreement under, and
as defined in, the Existing LSA has been terminated by GSRP, Textron Financial
Corporation and TBS Business Services, Inc. and GSRP represents and warrants to
the Administrative Agent, the Lenders and the Subordinated Lender that no sales
of Quartershare Notes were made thereunder. The Administrative Agent, the
Lenders and the Subordinated Lender hereby acknowledge and consent to GSRP's
entering into a Note Purchase Agreement dated as of June 30, 2005 with Textron
Business Services, Inc. (as amended from time to time, the "New Note Purchase
Agreement"). All references in the Existing LSA to "Note Purchase Agreement"
shall mean the New Note Purchase Agreement. The penultimate sentence of Section
12 of the Sixth Amendment Agreement is modified to provide that, after the
payment in full of all of the Subordinated Loan Tranche Obligations, any
remaining cash proceeds referred to in said Section 12 would be used to pay any
obligations owing to Textron Business Services, Inc. under the New Note Purchase
Agreement before being paid to GSRP. Any reference in the Existing LSA to
"Required Parties under the Note Purchase Agreement" shall be deemed a reference
to Textron Business Services, Inc. Section 11.17 of the Existing LSA is deleted.
Section 3.18 of the Existing LSA notwithstanding, GSRP hereby irrevocably
instructs Textron Business Services, Inc. to deliver all proceeds of sales of
"Steamboat Resort Notes," whether arising from sales of Steamboat Quartershare
Interests or Steamboat Residential Units, to the Administrative Agent on behalf
of the Lenders and the Subordinated Lender for so long as any Release Prices
(including, without limitation, Percentage Sales Fees) are payable in respect of
any Steamboat Quartershare Interests or Steamboat Residential Units. The
requirement in Section 3.18 of the Existing LSA that the "Note Purchase
Agreement" be in full force and effect by October 31, 1998 is hereby waived. All
of GSRP's right, title and interest in and to any all payments due to it under
the New Note Purchase Agreement shall constitute Collateral under the Existing
LSA, as amended hereby, and GSRP hereby confirms that it has granted a lien and
security interest therein to the Administrative Agent on behalf of the Lenders
and the Subordinated Lender. The Administrative Agent and the Lenders hereby
agree (a) to their respective undertakings under Section 2.3 of the New Note
Purchase Agreement and agree, for so long as there shall be no Default or Event
of Default, to reduce Release Prices in respect of Steamboat Quartershare
Interests and Steamboat Residential Units by the "Textron-Sourced 3%/5% Deposit"
provided for in the New Note Purchase Agreement to the extent that the sale of
such Steamboat Quartershare Interests and Steamboat Residential Units are being
financed by GSRP and the "Steamboat Resort Notes" in respect thereof are being
sold to Textron Business Services, Inc. under the New Note Purchase Agreement;
(b) to pay such "Textron-Sourced 3%/5% Deposits" to Textron Business Services,
Inc., subject to the right of the Administrative Agent and the Lenders to recall
the remaining amount of such Deposits at any time or from time to time and to
treat the same as additional Release Prices and as full Obligation-Servicing
Projects' Cash Proceeds; and (c) that any other Projects' Cash Proceeds in
respect of any such sales of Steamboat Quartershare Interests and Steamboat
Residential Units shall be treated as provided for in the Existing LSA, as
amended hereby and as may be hereafter amended.
4. Sales of Residential Units. The restriction in Section 2.5(b) of the
Existing LSA prohibiting the sales of Residential Units as "whole residential
units" is hereby waived for any Steamboat Residential Unit 2005 Sales. Section 4
of the Sixth Amendment Agreement is hereby amended by including in said Section
all cash downpayments and all other cash payments in respect of sales of any
Steamboat Residential Units and by including the same in the definition of
"Projects' Cash Proceeds." Section 5 of the Sixth Amendment Agreement is hereby
amended by including in said Section all Release Prices in respect of sales of
Steamboat Residential Units and including the same in the definition of
"Obligation-Servicing Projects' Cash Proceeds" as defined therein. In accordance
with the Sixth Amendment Agreement, GSRP shall deliver to the Administrative
Agent all proceeds with respect to any sale of a Steamboat Residential Unit
(including, without limitation, the Release Price due and payable with respect
thereto), provided that GSRP may sell any "Steamboat Resort Notes," as defined
in the New Note Purchase Agreement, arising therefrom to Textron Business
Services, Inc., as provided under the New Note Purchase Agreement. The same
escrow and closing procedures shall apply to GSRP's sales of Steamboat
Residential Units as apply to its sales of Steamboat Quartershare Interests.
Sections 3.10(a), (b), (c), (f), (g), and (h) of the Existing LSA are modified
to apply to sales of Steamboat Residential Units as well as to Steamboat
Quartershare Interests. Sections 3.10(d) and (m) of the Existing LSA are hereby
amended and restated in their entirety as follows:
(d) Timeshare Regimen. With respect to the consummation of
each sale of a Quartershare Interest in respect of any Project to a
Purchaser under a Contract, GSRP shall do all things necessary in order
to preserve the condominium and quartershare regimens in respect of
such Quartershare Interest. With respect to the consummation of each
sale of a Steamboat Residential Unit to a Purchaser under a Contract,
GSRP shall do all things necessary in order to preserve the condominium
regimen in respect of such Steamboat Residential Unit.
(m) Quartershare Interests. GSRP shall subject each of the
Residential Units to the "quartershare interest" regime contemplated
under each of the Declarations (except in the case of any Steamboat
Residential Units permitted to be sold hereunder as a "whole
residential unit"). Each Residential Unit shall have a full kitchen or
kitchenettes, a dining area and a video cassette player. Each Project
shall have a grand ballroom, a conference room, a restaurant, a
three-level atrium lobby, retail space, a health club with an outdoor
pool and other recreational amenities. GSRP shall use its best efforts
to cause each of the Projects to be accepted by Resorts Condominium
International, Inc. into its timeshare exchange program and to maintain
itself and such projects in good standing as participants in such
timeshare exchange program.
5. Section 2.5(f) of the Existing LSA. Section 2.5(f) of the Existing
LSA notwithstanding, GSRP agrees that it shall not sell Steamboat Quartershare
Interests or Steamboat Residential Units other than in the ordinary course of
business unless consented to by the Required Parties. GSRP agrees that it will
not sell any Canyons Commercial Unit, the Canyons Commercial Core, any Steamboat
Commercial Unit or the Steamboat Commercial Core other than as contemplated
pursuant to one of the Commercial Release Price Options unless consented to by
the Required Parties.
6. Section 3.15(a) of the Existing LSA. Section 3.15(a) of the Existing
LSA is amended and restated in its entirety as follows:
(a) Release for Quartershare Interests. Subject to there not
being in existence any Default or Event of Default, the Administrative
Agent agrees to execute and deliver to GSRP or its escrowee the
documents referred to below pursuant to which the security interest and
Lien in and to any Quartershare Interest in any Project created by this
Agreement, the Blanket Mortgages or any other Security Document will be
released if, but only if, all of the following conditions shall have
been fully satisfied:
(i) such Quartershare Interest is being sold
in the ordinary course of GSRP's business,
(ii) the full Release Price in respect of
such Quartershare Interest shall have been paid to
the Administrative Agent or its agent in good,
collected funds and all other proceeds in respect
thereof shall have been delivered to the
Administrative Agent as provided for in the Sixth
Amendment Agreement;
(iii) a request, substantially in the form
of Exhibit G attached hereto, shall have been
completed and executed by GSRP and submitted to the
Administrative Agent not less than 2 Business Days in
advance of the date on which GSRP desires to obtain
such release; and
(iv) a partial release of mortgage
substantially in the form of Exhibit H attached
hereto, and a partial release of security interest,
substantially in the form of Exhibit I attached
hereto, in each case, in respect of such Project,
shall have been completed by GSRP and submitted to
the Administrative Agent with the aforesaid request.
GSRP shall bear the responsibility of recording any and all
documents executed by the Administrative Agent under this
Section. GSRP shall pay all escrow costs and recording and
transfer costs in respect of such documents. GSRP shall
establish an escrow in respect of any release under this
Section. The Administrative Agent shall deposit the documents
to be executed by it pursuant to clause (iv) above in such
escrow if, but only if,
(1) the documentation establishing such
escrow is in form and substance satisfactory to the
Administrative Agent and such documentation shall
have been submitted to the Administrative Agent
together with the written request referred to in
clause (ii) above,
(2) the escrowee under such escrow
documentation is satisfactory to the Administrative
Agent,
(3) such escrow documentation provides that
simultaneously with the release from such escrow of
the documents referred to in clause (iv) above, the
Release Price in respect of such Quartershare
Interest for such Project to be so released shall
have been wired via Federal Reserve Bank wire (in
immediately available funds) to the Administrative
Agent and a confirmation of such wire shall have been
obtained,
(4) such escrow documentation provides that
such escrow will be consummated within 5 Business
Days of the Administrative Agent's depositing of such
release documents therein or such release documents
shall be returned to the Administrative Agent by the
escrowee of such escrow, and
(5) at the time of the depositing of such
documentation into such escrow, all of the conditions
in clauses (ii) through (iv) above shall have been
fully satisfied.
7. Section 3.15 of the Existing LSA. New clauses (c), (d), (e) and (f)
are hereby added to Section 3.15 of the Existing LSA as follows:
(c) Release for Steamboat Residential Units. Subject to there
not being in existence any Default or Event of Default, the
Administrative Agent agrees to execute and deliver to GSRP or its
escrowee the documents referred to below pursuant to which the security
interest and Lien in and to any Steamboat Residential Unit created by
this Agreement, the Blanket Mortgages or any other Security Document
will be released if, but only if, all of the following conditions shall
have been fully satisfied:
(i) such Steamboat Residential Unit is being
sold as a Steamboat Residential Xxxxx 0000 Xxxx,
(xx) the full Release Price in respect of
such Steamboat Residential Unit shall have been paid
to the Administrative Agent or its agent in good,
collected funds and all other proceeds in respect
thereof shall have been delivered to the
Administrative Agent as provided for in the Sixth
Amendment Agreement;
(iii) a request, substantially in the form
of Exhibit G attached hereto, shall have been
completed and executed by GSRP and submitted to the
Administrative Agent not less than 2 Business Days in
advance of the date on which GSRP desires to obtain
such release; and
(iv) a partial release of mortgage
substantially in the form of Exhibit H attached
hereto, and a partial release of security interest,
substantially in the form of Exhibit I attached
hereto, in respect of the Steamboat Project, shall
have been completed by GSRP and submitted to the
Administrative Agent with the aforesaid request.
GSRP shall bear the responsibility of recording any and all
documents executed by the Administrative Agent under this
Section. GSRP shall pay all escrow costs and recording and
transfer costs in respect of such documents. GSRP shall
establish an escrow in respect of any release under this
Section. The Administrative Agent shall deposit the documents
to be executed by it pursuant to clause (iv) above in such
escrow if, but only if,
(1) the documentation establishing such
escrow is in form and substance satisfactory to the
Administrative Agent and such documentation shall
have been submitted to the Administrative Agent
together with the written request referred to in
clause (ii) above,
(2) the escrowee under such escrow
documentation is satisfactory to the Administrative
Agent,
(3) such escrow documentation provides that
simultaneously with the release from such escrow of
the documents referred to in clause (iv) above, the
Release Price in respect of such Steamboat
Residential Unit to be so released shall have been
wired via Federal Reserve Bank wire (in immediately
available funds) to the Administrative Agent and a
confirmation of such wire shall have been obtained,
(4) such escrow documentation provides that
such escrow will be consummated within 5 Business
Days of the Administrative Agent's depositing of such
release documents therein or such release documents
shall be returned to the Administrative Agent by the
escrowee of such escrow, and
(5) at the time of the depositing of such
documentation into such escrow, all of the conditions
in clauses (ii) through (iv) above shall have been
fully satisfied.
(d) Release for Commercial Cores. Notwithstanding any
intervening nonpayment Default or nonpayment Event of Default but
subject to there being no payment Default or Event of Default in
existence (for purposes of the foregoing in this clause (d), any
failure of GSRP to comply with the payment requirements of Section
2.5(c)(iii) hereof on July 31, 2005 shall not be deemed to be a payment
default), the Administrative Agent agrees to execute and deliver to
GSRP or its escrowee the documents referred to below pursuant to which
the security interest and Lien in and to any Steamboat Commercial Core
or Canyons Commercial Core/Attitash Commercial Core created by this
Agreement, the Blanket Mortgages or any other Security Document will be
released if, but only if, all of the following conditions shall have
been fully satisfied:
(i) the disposition or pledging of the
Steamboat Commercial Core or Canyons Commercial
Core/Attitash Commercial Core is pursuant to a
Commercial Release Price Option,
(ii) the full Release Price in respect of
such Commercial Release Price Option shall have been
paid or delivered to the Administrative Agent or its
agent and the terms of the applicable Commercial
Release Price Option otherwise satisfied;
(iii) a request, substantially in the form
of Exhibit G attached hereto, shall have been
completed and executed by GSRP and submitted to the
Administrative Agent not less than 2 Business Days in
advance of the date on which GSRP desires to obtain
such release; and
(iv) a partial release of mortgage
substantially in the form of Exhibit H attached
hereto, and a partial release of security interest,
substantially in the form of Exhibit I attached
hereto, in each case, in respect of such Project,
shall have been completed by GSRP and submitted to
the Administrative Agent with the aforesaid request.
GSRP shall bear the responsibility of recording any and all
documents executed by the Administrative Agent under this
Section. GSRP shall pay all escrow costs and recording and
transfer costs in respect of such documents. GSRP shall
establish an escrow in respect of any release under this
Section. The Administrative Agent shall deposit the documents
to be executed by it pursuant to clause (iv) above in such
escrow if, but only if,
(1) the documentation establishing such
escrow is in form and substance satisfactory to the
Administrative Agent and such documentation shall
have been submitted to the Administrative Agent
together with the written request referred to in
clause (ii) above,
(2) the escrowee under such escrow
documentation is satisfactory to the Administrative
Agent,
(3) such escrow documentation provides that
simultaneously with the release from such escrow of
the documents referred to in clause (iv) above, the
Release Price in respect of such Steamboat Commercial
Core or Canyons Commercial Core/Attitash Commercial
Core to be so released shall have been wired via
Federal Reserve Bank wire (in immediately available
funds) to the Administrative Agent and a confirmation
of such wire shall have been obtained or otherwise
performed and effected by way of delivery of all
necessary instruments and documents with respect
thereto,
(4) such escrow documentation provides that
such escrow will be consummated within 5 Business
Days of the Administrative Agent's depositing of such
release documents therein or such release documents
shall be returned to the Administrative Agent by the
escrowee of such escrow, and
(5) at the time of the depositing of such
documentation into such escrow, all of the conditions
in clauses (ii) through (iv) above shall have been
fully satisfied.
(e) All Cash Steamboat Residential Unit 2005 Sales and
Steamboat Quartershare Interest 2005 Sales: Additional Steamboat
Obligations Reduction. With respect to any Steamboat Residential Unit
2005 Sale for an all cash consideration and with respect to any sale of
any Steamboat Quartershare Interest consummated after the Eighth
Amendment Effective Date and on or prior to December 31, 2005 on an
arm's-length basis with a purchaser (a "Steamboat Quartershare Interest
2005 Sale") for an all cash consideration and as an additional
inducement for GSRP to consummate such sales on or prior to December
31, 2005, the Steamboat Obligations shall be further reduced by the
Administrative Agent, the Lenders and the Subordinated Lender by an
amount equal to 5% of the Release Price actually received by the
Administrative Agent on or prior to December 31, 2005 in connection
with any such Steamboat Residential Unit 2005 Sale or any such
Steamboat Quartershare Interest 2005 Sale (with respect to each such
Steamboat Residential Unit 2005 Sale or Steamboat Quartershare Interest
2005 Sale, such 5% of such Release Price is referred to herein as the
"Steamboat Residential Additional Forgiven Amount") as follows: (i) 50%
of the Steamboat Residential Additional Forgiven Amount shall be
applied to, and result in the cancellation and reduction of, the
outstanding principal amount of the Steamboat Loan on a
dollar-for-dollar basis and (ii) 50% of the Steamboat Additional
Forgiven Amount shall be applied to, and result in the cancellation and
reduction of, accrued and unpaid interest in respect of the
Subordinated Loan Tranche Advances (including, without limitation, any
deferred interest under, and as provided for in, the SOI) on a
dollar-for-dollar basis (such amounts to be applied first to the "cash
interest" payable). The reduction and cancellation of Steamboat
Obligations in the amount or amounts of the Steamboat Residential
Additional Forgiven Amount or Amounts will be in addition to the
reduction of Obligations arising from the application of the Release
Prices paid by GSRP to the Administrative Agent in respect of such
Steamboat Residential Unit 2005 Sales and such Steamboat Quartershare
Interest 2005 Sales.
(f) Steamboat Residential Unit 2005 Sales: Special Fund. With
respect to Steamboat Residential Unit 2005 Sales (whether all cash
sales or partially financed by GSRP), whose total gross sales prices do
not exceed $5,000,000, and as an additional inducement for GSRP to
consummate such sales on or prior to December 31, 2005, the
Administrative Agent, the Lenders and the Subordinated Lender shall
give full effect to the application of any Release Prices received by
the Administrative Agent on or prior to December 31, 2005, as provided
above, with respect to such Steamboat Residential Unit 2005 Sales and,
the Lenders and Subordinated Lender hereby instruct the Administrative
Agent to establish an account (which may be a bank account owned by the
Administrative Agent or a book entry account in the accounting records
of the Administrative Agent) and to deposit therein or credit thereto,
as the case may be, 10% of the Release Price of each Steamboat
Residential Unit 2005 Sale received by the Administrative Agent in
2005. Such bank account or book entry shall be owned by the
Administrative Agent on behalf of the Lenders and Subordinated Lender
and GSRP shall have no right of access thereto, interest therein or
claim on any amounts deposited therein or credited thereto. On terms
and conditions to be established by the Administrative Agent, the
Lenders and the Subordinated Lender in their reasonable discretion, the
Administrative Agent shall pay amounts from such deposit or book entry
account to GSRP pursuant to its instructions for the exclusive purpose
of GSRP's paying (or reimbursing itself for paying) any contractual
subsidies required to be paid by GSRP to purchasers of Steamboat
Residential Units under such Steamboat Residential Unit 2005 Sales with
respect to, but only with respect to, Annual Assessments assessed by
the Steamboat Association in respect of such Steamboat Residential
Units (but excluding, for the avoidance of doubt, any Special
Assessments, assessments for capital improvements or individual
assessments) (if any Default or Event of Default shall exist, such
disbursements shall immediately cease). The Administrative Agent, the
Lenders and the Subordinated Lender will consider, in their sole
discretion, extending the $5,000,000 threshold referred to above as
appropriate; however, none of them shall in any way be obligated to do
so.
8. Section 2.5(c)(iii) of the Existing LSA. Section 2.5(c)(iii) of the
Existing LSA is hereby amended and restated in its entirety as follows:
(iii) If on each of the following test dates the
aggregate outstanding principal amount of all Advances (for
the avoidance of doubt, such Advances shall not include any
Subordinated Loan Tranche Advances) exceeds the maximum
outstanding principal amount of Advances set forth below, GSRP
shall immediately pay the amount of such excess to the
Administrative Agent together with interest accrued thereon to
(but not including) the date of such payment and such amounts
shall be applied by the Administrative Agent when received in
good, collected funds as set forth in Section 2.5(d) hereof
ratably to all Advances:
================================================================================
Test Date Maximum Outstanding Principal Amount of
Advances
-------------------------- -----------------------------------------------------
July 31, 2005 $12,000,000
-------------------------- -----------------------------------------------------
September 30, 2005 $10,000,000
-------------------------- -----------------------------------------------------
December 31, 2005 $8,000,000
-------------------------- -----------------------------------------------------
March 31, 2006 $5,000,000
-------------------------- -----------------------------------------------------
June 30, 2006 $0
================================================================================
9. SOI. Section 8 of the Seventh Amendment Agreement is amended by
making said Section subject to the treatment and allocation of Release Prices
and other proceeds in respect of any disposition or pledging of the Canyons
Commercial Core and/or the Steamboat Commercial Core as provided for in the
Commercial Release Price Option and subject to the treatment and allocation of
Steamboat Residential Unit 2005 Release Prices provided for in the definition of
"Release Price" and Steamboat Residential Additional Forgiven Amount as provided
in Section 3.15(e) of the Existing LSA, as amended hereby.
GSRP acknowledges that all commitments of the Subordinated Lender under
the SOI to extend Subordinated Loan Tranche Advances terminated on the date of
the Canyons Auction Sale.
GSRP agrees that the aggregate outstanding principal amount of
Subordinated Loan Tranche Advances shall not exceed the following amounts at the
following dates:
================================================================================
Test Date Maximum Outstanding Principal Amount of
Subordinated Loan Tranche Advances
-------------------------- -----------------------------------------------------
June 30, 2006 $10,000,000
-------------------------- -----------------------------------------------------
December 31, 2006 $8,000,000
-------------------------- -----------------------------------------------------
March 31, 2007 $5,000,000
-------------------------- -----------------------------------------------------
June 30, 2007 $2,500,000
-------------------------- -----------------------------------------------------
November 30, 2007 $0
========================== =====================================================
10. Representations and Warranties. GSRP hereby represents and warrants
as of the date hereof as follows, which representations and warranties are
hereby incorporated into and made part of the Amended LSA:
10.1 Commercial Core. The Canyons Commercial Core is described
on Schedule 1 attached hereto. The Steamboat Commercial Core is
described on Schedule 2 attached hereto. The Steamboat Host Company
Leases and the Canyons Host Company Leases are in full force and
effect.
10.2 Representations and Warranties. Except as otherwise
disclosed on Schedule 3 attached hereto, each of the representations
and warranties contained in Section 4 of the Existing LSA (other than
Section 4.4 thereof, and other than with respect to matters set forth
on the schedules to the Existing LSA which GSRP warrants were true and
correct as of the date of such schedules) is true and correct as of the
date hereof.
10.3 Liens Perfected. Except with respect to the Permitted
Exceptions (as defined in the Existing LSA), all Liens granted to the
Administrative Agent under the Existing LSA and the other Security
Documents are duly granted, valid, perfected and prior in right to all
other Liens that now or hereafter may be granted to or held by any
other Person.
10.4 Valid and Legal. The execution and delivery of this
Eighth Amendment Agreement and the other documents and instruments
contemplated herein, and compliance by GSRP with all of the provisions
of this Eighth Amendment Agreement, the Existing LSA, as amended
hereby, and each of the other documents set forth above are:
(i) within the corporate powers of GSRP; and
(ii) valid and legal acts and will not conflict with,
or result in any breach in any of the provisions of, or
constitute a default under, or result in the creation of any
Lien upon any Property of GSRP under the provisions of, any
agreement, charter instrument, bylaw or other instrument to
which GSRP is a party or by which its Property may be bound.
10.5 Consents. Neither the nature of GSRP, nor of any of its
businesses or Properties, nor any relationship between GSRP and any
other Person, nor any circumstance in connection with the execution or
delivery of this Eighth Amendment Agreement and the other documents
contemplated in connection herewith, nor the operation of the Canyons
Project nor the Steamboat Project nor the sale or offering for sale of
any Commercial Unit, Residential Unit or Quartershare Interest of any
of the Projects by GSRP is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
governmental authority on the part of GSRP, as a condition of the
execution, delivery or performance of this Eighth Amendment Agreement
and the other documents contemplated in connection herewith.
10.6 Liens on Collateral. GSRP will not be, on or after the
date hereof, a party to any contract or agreement which prohibits the
execution of, or compliance with, this Eighth Amendment Agreement by
GSRP. GSRP has not agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its Property
constituting the Collateral, whether now owned or hereafter acquired,
to be subject to a Lien other than Permitted Exceptions, Liens
contemplated in connection with any Commercial Release Price Option and
all Liens in favor of the Administrative Agent in respect of such
Collateral remain in full force and effect.
10.7 Defaults. After giving effect to this Eighth Amendment
Agreement, no Default or Event of Default exists, nor does any event or
condition exist that would constitute a Default or an Event of Default.
No material adverse change has occurred in or in respect of the
Collateral or any one or more of the Projects that has not been
disclosed to the Administrative Agent and Lenders in writing. , No
defaults or events of default exist under any other agreement for
indebtedness for borrowed money, any financing lease or any guaranty of
any of the foregoing to which GSRP is a party. GSRP has not issued and
is not otherwise obligated in respect of any obligation of the Parent,
American Skiing Company, or any subsidiary of American Skiing Company
for borrowed-money indebtedness, any financing lease, any guaranty or
any other obligation.
10.8 Sale and Offering of Steamboat Residential Units. The
sale and offering of sale of Steamboat Residential Units (a) do not and
will not constitute the sale, or the offering of sale, of Securities
subject to the registration requirements of the Securities Act of 1933,
as amended, or the blue-sky securities laws of any of the Applicable
States, (b) are done and will only be done in the State of Colorado
(and no solicitation and no advertising in respect of the sale of
Steamboat Residential Units that would, in either case, be in violation
of applicable law is done or will be done in any States other than the
Applicable States), (c) do not violate and will not violate any
applicable federal, state or local consumer credit or sale rescission
statute, including, without limitation, any such statute of any State
in which a Purchaser may reside, and (d) do not violate and will not
violate any other applicable federal, state or local law, statute or
regulation (including, without limitation, any condominium or
subdivision law applicable to the Steamboat Project or to the sale of
Steamboat Residential Units and in effect in any Applicable State or in
any other State in which a Purchaser may reside or in which the sale of
any such Residential Unit of such Purchaser was closed).
11. Effectiveness. This Eighth Amendment Agreement shall become
effective on the date (the "Eighth Amendment Effective Date") on which the
parties hereto shall have executed this Eighth Amendment Agreement and each of
the following conditions shall have been satisfied:
11.1 Warranties and Representations True as of Eighth
Amendment Effective Date. The warranties and representations contained
or referred to in this Eighth Amendment Agreement shall be true in all
material respects on the Eighth Amendment Effective Date with the same
effect as though made on and as of that date. The Administrative Agent
shall have received a certificate, in form and substance satisfactory
to the Administrative Agent, dated as of the Eighth Amendment Effective
Date, signed by an Senior Vice-President or Vice President of GSRP and
certifying that the warranties and representations of GSRP contained in
this Eighth Amendment Agreement are true in all material respects on
the Eighth Amendment Effective Date.
11.2 Secretary's Certificates.
The Administrative Agent shall have received a certificate of
the Secretary or any Assistant Secretary of GSRP, in form and substance
reasonably satisfactory to the Administrative Agent, dated as of the
Eighth Amendment Effective Date, certifying
(i) the adoption by the Board of Directors of GSRP of
a resolution authorizing GSRP to enter into this Eighth
Amendment Agreement and the transactions and instruments
contemplated hereby, and
(ii) the incumbency and authority of, and verifying
the specimen signatures of, the officers of GSRP authorized to
execute and deliver this Eighth Amendment Agreement and the
other documents contemplated hereunder.
11.3 Legal Opinion. GSRP shall have delivered to
Administrative Agent and the Lenders a legal opinion from its General
Counsel in form and substance reasonably satisfactory to the Lenders
and Administrative Agent.
11.4 Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 11.2 of Existing LSA
pursuant to invoices or other bills submitted to GSRP.
11.5 Other Documents.
(a) Each of the other Persons that shall have
delivered subordination agreements to the Administrative Agent
in connection with the original closing of the Existing LSA
shall have executed this Eighth Amendment Agreement to show
its consent to the same.
(b) That certain "Fourth Amendment Agreement" to the
SOI shall have been executed and delivered by the parties
thereto and the same shall be in full force and effect except
for any condition therein requiring this Eighth Amendment
Agreement to be in full force and effect.
11.6 Proceedings. All actions taken in connection with the
execution of this Eighth Amendment Agreement and all documents and
papers relating thereto shall be satisfactory to the Administrative
Agent and its counsel. The Administrative Agent and its counsel shall
have received copies of such documents and papers as it or such counsel
may reasonably request in connection therewith, all in form and
substance satisfactory to the Administrative Agent and its counsel.
12. Miscellaneous.
12.1 Successors and Assigns. This Eighth Amendment Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
12.2 Governing Law. This Eighth Amendment Agreement shall be
governed by the internal laws of the State of Maine. To the extent any
provision of this Eighth Amendment Agreement is not enforceable under
applicable law, such provision shall be deemed null and void and shall
have no effect on the remaining portions of this Agreement.
12.3 Headings. The titles of the Sections appear as a matter
of convenience only, do not constitute a part hereof and shall not
affect the construction hereof. The words "herein," "hereof,"
"hereunder" and "hereto" refer to this Eighth Amendment Agreement as a
whole and not to any particular Section or other subdivision.
12.4 Reliance. All warranties, representations and covenants
made by GSRP herein or in the Existing LSA or in any certificate or
other instrument delivered by it or on its behalf under this Eighth
Amendment Agreement or in the Existing LSA, as amended hereby, shall be
considered to have been relied upon by the Lenders and shall survive
the execution and delivery of this Eighth Amendment Agreement.
12.5 Existing LSA and Other Documents. Except as explicitly
amended by, or otherwise provided for in, this Eighth Amendment
Agreement , the Existing LSA, the Notes and the other Security
Documents remain in full force and effect under their respective terms
as in effect immediately prior to the effectiveness of this Agreement,
and GSRP hereby affirms all of its obligations thereunder.
12.6 Counterparts. This Eighth Amendment Agreement may be
executed in any number of counterparts, each of which shall be an
original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed
by less than all, but together signed by all, of the parties hereto.
This Eighth Amendment Agreement may be executed in counterpart by
facsimile signature, which signatures shall be treated as, and shall
have the effect of original and manually executed signatures.
12.7. Release. GSRP hereby releases, remises, acquits and
forever discharges the Administrative Agent and each of the Lenders and
their respective employees, agents, representatives, consultants,
attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing
hereinafter called the "Released Parties"), from any and all actions
and causes of action, judgments, executions, suits, debts, claims,
demands, liabilities, obligations, damages and expenses of any and
every character, whether known or unknown, fixed or contingent,
asserted or unasserted, direct or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter arising for
or because of any matter or things done, omitted or suffered to be done
by any of the Released Parties prior to and including the date of
execution hereof, arising out of or in any way connected with (a) the
LSA, the Notes or the Security Documents, as amended from time to time
(including, without limitation, this Eighth Amendment Agreement) and
(b) the Loan (all of the foregoing hereinafter called the "Released
Matters"). GSRP hereby acknowledges that the agreements set forth in
this Eighth Amendment Agreement are intended to be in full satisfaction
of all or any alleged injuries or damages arising in connection with
the Released Matters. GSRP hereby represents and warrants to
Administrative Agent and the Lenders that GSRP has not purported to
transfer, assign or otherwise convey any of its right, title or
interest in any Released Matter to any other person and that the
foregoing constitutes a full and complete release of all Released
Matters.
12.10 Fourth Amendment Agreement. The parties hereto agree
that the Existing LSA, as amended hereby, and the SOI, as amended by
the Fourth Amendment Agreement thereto of even date herewith, are
intended to be one instrument and agreement, subject to the terms and
conditions hereof and thereof.
[Remainder of page intentionally left blank. Next page is signature page.]
IN WITNESS WHEREOF, the parties have executed this Eighth Amendment
Agreement as of the day and year first above written.
GSRP: Steamboat and Special
Subordinated Lender:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By:/s/Xxxxx Xxxxxxx By:/s/Xxxxxx-Xxx X. Xxxxxxxxx
----------------------- ---------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxx-Xxx X. Xxxxxxxxx
Title:CFO & Senior VP Title:Vice President
Steamboat Lender:
LITCHFIELD FINANCIAL CORPORATION
By:/s/Xxxxxx-Xxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx-Xxx X. Xxxxxxxxx
Title:Vice President
Administrative Agent:
TEXTRON FINANCIAL CORPORATION
By:/s/Xxxxxx-Xxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx-Xxx X. Xxxxxxxxx
Title:Vice President
AGREED AND CONSENTED TO:
MOUNT SNOW, LTD.
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
KILLINGTON, LTD.
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
SUNDAY RIVER SKIWAY CORPORATION
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
L.B.O. HOLDING, INC.
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
ASC UTAH, INC.
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
STEAMBOAT SKI & RESORT CORPORATION
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By:/s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title:CFO & Senior VP
Schedule 1
Attitash and Canyons Commercial Core
Attitash Commercial Unit and Canyons Commercial Units
Schedule 2
Steamboat Commercial Core
Steamboat Commercial Units
Schedule 3
Exceptions to Representation and Warranties
1. With respect to section 4.15 of the Existing LSA, GSRP is subject to
restrictions on the incurrence of indebtedness pursuant to the ASC Indenture
terms. GSRP reconfirms the second paragraph of section 4.15 of the Existing LSA.
2. With respect to section 4.20 of the Existing LSA, the liens of the Lenders
are subject to actual or potential liens (i) to secure the payment of taxes in
respect of unsold Quartershare Interests at the Steamboat Project and Canyons
Project, and (ii) to secure assessments in respect of unsold Quartershare
Interests at the Steamboat Project and Canyons Project.
3. With respect to Section 4.6 of the Existing LSA, there is pending against
GSRP and others a civil action commenced by Mount Snow Grand Summit Hotel and
Crown Club Owners Association, Inc in the Xxxxxxx, Vermont Superior Court.
