SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT AGREEMENT (as amended from time to time, this
"Second Amendment Agreement"), dated as of August 29, 2002 among GRAND SUMMIT
RESORT PROPERTIES, INC., a Maine corporation, (herein referred to as "GSRP") and
TEXTRON FINANCIAL CORPORATION, a Delaware corporation (herein referred to as
"TFC").
W I T N E S S E T H:
A. WHEREAS, GSRP and TFC entered into that certain Statement of Intention and
Special Additional Financing Agreement dated July 25, 2000 (as amended to but
excluding the date hereof, the "Existing SOI" and, as amended hereunder,
"Amended SOI"), pursuant to which TFC agreed to make subordinated loans to GSRP
in accordance with the terms of the Existing SOI;
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing SOI and in Section 1 of that certain Sixth Amendment
Agreement (the "Sixth Amendment Agreement"), dated as of August 29, 2002, among
GSRP, TFC, as lender and Administrative Agent, and the other lenders that are
parties to that certain Loan and Security Agreement, dated as of September 28,
1998, among GSRP, TFC, as lender and administrative agent, and said other
lenders (as amended to the date here of, the "Existing LSA" and, after giving
effect to the Sixth Amendment Agreement, the "Amended LSA"); and
C. WHEREAS, the parties to the Existing SOI have agreed to certain amendments
to the Existing SOI, as described and set forth below, which amendments are
intended to be coordinated with the Sixth Amendment Agreement and to also
provide additional funding for GSRP under the Amended SOI (in accordance with
the terms and conditions hereinafter set forth);
NOW, THEREFORE, in consideration of TFC's and GSRP's agreements hereunder,
and in consideration of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, TFC and GSRP hereby agree as
follows:
1. Sixth Amendment Agreement. TFC hereby consents to and approves the
Sixth Amendment Agreement and to all actions provided to be taken therein
(subject to the terms and conditions thereof) with respect to GSRP, the
Administrative Agent and the lenders that are parties thereto.
2. Definition of Existing LSA. The "Existing LSA," as such term is
defined in Section 1(a) of the Existing SOI shall be deemed to mean and include
the "Amended LSA," as defined herein.
3. 1997 Projects and Release Prices. The release prices referred to in
Section 1(c) of the Existing SOI in respect of the 1997 Projects and in respect
of the Canyons Project and the Steamboat Project are as set forth in the Amended
LSA.
4. Steamboat Project. TFC and GSRP acknowledge and agree, with respect
to Section 1(e), (f) and (g) of the Existing SOI, that all construction in
respect of the Steamboat Project is completed (apart from the required
improvements to Mount Werner Circle) and that all Commitments under the Existing
LSA and the Existing SOI have been ended or expired or otherwise terminated and
that the outstanding principal amount of the Loan (other than the Subordinated
Loan Tranche Obligations) as of the date hereof is $36,554,705.
5. Section 1(i) of the Existing SOI. Section 1(i) of the Existing SOI
is hereby amended and restated in its entirety as follows:
(i) Special Financing being provided by this Statement of Intention
and Agreement. TFC, in its individual capacity as a Steamboat Construction
Project Advance Lender and not as Administrative Agent (TFC, as the
advancing lender of the facility hereinafter described in this paragraph
1(i) is referred to herein as the "Special Subordinated Lender"), is
prepared to make, subject to the terms and conditions hereinafter set
forth, available to GSRP in conjunction with the Amended LSA a special
subordinated loan facility up to a maximum principal amount of $10,000,000
(the "Subordinated Loan Tranche") for the sole purpose, prior to the
Second Amendment Effective Date, of financing the Construction Costs
necessary to complete all construction of the Steamboat Project in
accordance with the supplemented Plans for such Project (the "Supplemented
Plans"), which shall reflect the originally approved Plans for the
Steamboat Project and such modifications thereto as are described on
Attachment 2 hereto (the "Steamboat Plan Modifications"), and, on and
after the Second Amendment Effective Date, of providing certain
nonconstruction cost financing, inclusive of the Mount Werner Circle
improvement costs and up to $45,000 in previously incurred construction
costs, for GSRP in respect of costs and expenses of GSRP set forth in the
Operating Cash Flow Budget submitted to TFC on an annual basis, as
provided for in the Amended LSA, and in the Schedule of Expenses submitted
to TFC on a monthly basis, as provided for in the Amended LSA
("Nonconstruction Costs"). All Construction Costs for the Steamboat
Project have been paid for prior to the Second Amendment Agreement
Effective Date and this facility shall be exclusively used to fund, on and
after the Second Amendment Effective Date, Nonconstruction Costs.
6. Section 1(j) of the Existing SOI. Section 1(j) of the Existing SOI
is hereby amended and restated in its entirety as follows:
(j) Attachments. The Subordinated Loan Tranche is to be evidenced by
an amendment attachment, substantially in the form of Attachment 4 hereto
(as the same may be further amended), to be executed by GSRP and attached
to the Steamboat Construction Project Note of TFC. Advances in respect of
the Subordinated Loan Tranche ("Subordinated Loan Tranche Advances") would
be deemed by GSRP and TFC to be Steamboat Construction Project Advances
under the Existing LSA and would be secured by all of the Collateral
(including, without limitation, the Steamboat Assignment of Architect's
Contract, the Steamboat Assignment of Contracts, the Steamboat Assignment
of Construction Contract, the Steamboat Assignment of Rents, the Steamboat
Assignment of Declarant's Rights, the Steamboat Assignment of
Property-Related Contracts, the Steamboat Assignment of Rents, the
Steamboat Blanket Mortgage, the Canyons Assignment of Architect's
Contract, the Canyons Assignment of Contracts, the Canyons Assignment of
Construction Contract, the Canyons Assignment of Rents, the Canyons
Assignment of Declarant's Rights, the Canyons Assignment of
Property-Related Contracts, the Canyons Assignment of Rents, and the
Canyons Blanket Mortgage), provided that:
(i) the Subordinated Loan Tranche and all Subordinated Loan
Tranche Advances made thereunder by TFC, as the Special Subordinated
Lender, would not count as, or be construed as being a part of,
Steamboat Construction Project Advance Commitments or any other
Commitments (the undertaking of TFC, as the Special Subordinated
Lender, to make Subordinated Loan Tranche Advances to GSRP being
evidenced solely by this Statement of Intention and Agreement on the
terms and conditions hereinafter set forth),
(ii) the Subordinated Loan Tranche would not be counted as, or
be a part of, Steamboat Loan Exposure or other Loan Exposure under
the Existing LSA,
(iii) TFC, as the Special Subordinated Lender, would not be
counted as, or be a part of, the Steamboat Construction Project
Required Lenders or any other Project Required Lenders and would not
otherwise be counted as or vote as a Lender under the Amended LSA
solely in its capacity as the Special Subordinated Lender hereunder,
provided, however, the Special Subordinated Lender shall have the
right and power to direct the Administrative Agent as the Special
Subordinated Lender after the Senior Obligations (as such term is
hereinafter defined) are paid in full and for so long as the
Subordinated Loan Tranche Obligations are outstanding,
(iv) Except as set forth in Section 8 of the Sixth Amendment
Agreement with respect to cash payment of interest hereunder (which
shall rank pari passu with the payment of interest in respect of the
Steamboat Loan), the Subordinated Loan Tranche and all Collateral
securing the same is and shall be junior and subordinate to (A) the
payment of all Loans and other Obligations under the Existing LSA
(excluding therefrom the Subordinated Loan Tranche Obligations and
the Percentage Sales Fees; such Loans and Obligations subject to
such exclusions are referred to herein, collectively, as the "Senior
Obligations") and (B) the Liens securing the same in the Collateral;
it is the intention of GSRP and TFC, as the Special Subordinated
Lender, that the rights of the Lenders under the Existing LSA shall
not be impaired or prejudiced in any way by this Statement of
Intention and Agreement and it is further the view of GSRP and TFC,
as the Special Subordinated Lender, that the availability of the
Subordinated Loan Tranche is essential to the completion of the
construction of the Steamboat Project, the repayment of the
Steamboat Loan and the continued performance by GSRP of all of its
other undertakings and agreements in the Amended LSA and,
accordingly, directly benefits the Lenders under the Amended LSA,
and
(v) GSRP will collaterally assign to the Special Subordinated
Lender (pursuant to an assignment substantially in the form of
Attachment 5 hereto as the same may be amended from time to time)
all of its right, title and interest in and to the "Free and Clear
Proceeds" described in Paragraph 2(b)(iii)(6) below and GSRP shall
authorizes the Administrative Agent to pay such amounts to the
Special Subordinated Lender as provided for in said Paragraph. Until
all Senior Obligations under the Existing LSA have been paid in
full, no proceeds of the Collateral shall be used to repay
outstanding principal or deferred interest in respect of the
Subordinated Loan Tranche Advances as provided for in paragraph 1(k)
hereof; however, to the extent provided for in Section 8 of the
Sixth Amendment Agreement, proceeds of Collateral otherwise payable
to the Lenders in respect of the Steamboat Project under the Amended
LSA shall also be used to pay the "cash interest" due and payable to
TFC under Paragraph 1(k) hereof (said cash portion being 10% per
annum of the therein stated, fixed rate of interest of 20% per
annum), with such cash being paid to TFC hereunder, as the Special
Subordinated Lender, at the same time as interest is being paid to
TFC, as a Lender to the Steamboat Project under the Amended LSA
(with respect to any monthly interest payment due hereunder, the
"Cash Interest Payment").
6. Section 1(k) of the Existing SOI. Section 1(k) of the Existing SOI
is hereby amended and restated in its entirety as follows:
(k) Term Summary. In consideration of TFC's
(i) making the Subordinated Loan Tranche available to the
GSRP,
(ii) not requiring the application of the Steamboat
Construction Project Advances Maturity Date to the Subordinated Loan
Tranche but rather establishing a separate maturity date with
respect thereto of September 30, 2004 (the "Subordinated Loan
Tranche Maturity Date"); it being the intention of the parties
hereto that the outstanding principal balance of the Subordinated
Loan Tranche shall be payable (other than on said maturity date or
in the instance of an acceleration of the Subordinated Loan Tranche
Obligations, as hereinafter defined) only in connection with the
receipt by GSRP of "Free and Clear Proceeds" referred to below in
Paragraph 2(b)(iii)(6),
(iii) making such Subordinated Loan Tranche junior and
subordinate to the Loans under the Existing LSA, as provided in
Paragraph 2(b)(i) hereof,
(iv) not requiring the application of the Default Rate to the
Subordinated Loan Tranche,
(v) providing for the deferral of interest payments and
(vi) allowing the voluntary prepayment of the Subordinated
Loan Tranche Advances, in whole (but not in part) at any time, at
the sole election of GSRP, and without prepayment or premium of any
kind other than the Final Payment Fee and the Sixth Amendment Fees
owing to the Special Subordinated Lender and its affiliates together
with all other Subordinated Loan Tranche Obligations (upon the
prepayment in full of the Subordinated Loan Tranche Advances, no
further Subordinated Loan Tranche Advances shall be obtainable
hereunder),
GSRP agrees, as more particularly set forth below,
(A) to pay interest on the principal balance of the
Subordinated Loan Tranche from time to time outstanding at a rate of
interest of twenty percent (20%) per annum, payable monthly in
arrears on the 10th day of the month following the month for which
such interest accrued (or, if such day is not a Business Day, on the
first Business Day thereafter), provided that only 50% of the amount
of such interest accrued in respect of any month shall be due and
payable in cash on such 10th day and the other 50% of such amount of
such interest shall automatically be deferred (without the accrual
of any further interest thereon) until the Final Payment Date (as
defined in subclause (B) immediately below), if no Default or Event
of Default under the Existing LSA or default or event of default
hereunder shall exist, except that such deferral shall nonetheless
still occur notwithstanding the existence of such a Default or Event
of Default or such default hereunder if the Senior Obligations shall
have not been paid in full; on the Final Payment Date such deferred
amount (together with all other deferred amounts of interest
hereunder) and all other accrued and unpaid interest shall become
due and payable and,
(B) to pay the Special Subordinated Lender
(1) in installments as provided in Paragraph
2(b)(iii)(3) hereof, a fee of $1,000,000 or such lesser
amount as may be required by Paragraph 6(a) hereof (the
"Syndication Fee") and
(2) in one lump sum a final payment fee (the
"Final Fee"), which shall be payable on the earlier of
the Subordinated Loan Tranche Maturity Date or the date
on which all principal of the Subordinated Loan Tranche
is fully paid (such date is referred to herein as the
"Final Payment Date"), equal to the sum of the Final Fee
Component Amounts for each of the Subordinated Loan
Tranche Advances, where a "Final Fee Component Amount"
for a Subordinated Loan Tranche Advance shall equal the
difference between the original outstanding principal
amount of such Subordinated Loan Tranche Advance minus
the discounted net present value of each payment of
interest and principal in respect of such Subordinated
Loan Tranche Advance determined in accordance with
customary financial practice by using a discount period
of one month and a monthly interest rate equal to
2.083333% (or such lesser rate as may be required by
Paragraph 6(a) hereof) and by discounting each such
payment of principal and interest from the date on which
such payment was made to the date when such Subordinated
Loan Tranche Advance was originally extended by the
Special Subordinated Lender (for purposes of determining
interest to be discounted in respect of any Subordinated
Loan Tranche Advance, only the interest payments
accruing at 20% per annum thereon shall be included
therein and such interest payments shall be deemed paid
on the dates on which they are actually paid in cash and
any of such interest payments that are deferred, in
accordance with the terms hereof, to the Final Payment
Date shall be deemed, for purposes of this
determination, to have been paid in cash on the First
Amendment Effective Date; any other cash payments made
in respect of the principal amount of any outstanding
Subordinated Loan Tranche Advance made after the First
Amendment Effective Date shall be deemed to have been
made on the First Amendment Effective Date for purposes
of calculating the Final Fee Component Amount in respect
of such Subordinated Loan Tranche Advance); no interest
shall accrue on the unpaid portion of the Final Fee;
(C) Pursuant to the Second Amendment Agreement, the
Subordinated Lender eliminated the "Participation/Syndication
Costs" and "Steamboat/Canyons Construction Loan
Participation/Syndication Costs," under, and as defined in,
the First Amendment Agreement.
7. Section 1(l) of the Existing SOI. Section 1(l) of the Existing SOI
is hereby amended and restated in its entirety as follows:
(l) Conditions for Subordinated Loan Tranche Advances;
Waiver of Reserve. The Subordinated Loan Tranche shall be available,
subject to the satisfaction of the conditions precedent applicable
to a withdrawal request in respect of Excess Projects' Cash Proceeds
under the Sixth Amendment Agreement and the other conditions
precedent set forth below in this Statement of Intention and
Amendment, in multiple Subordinated Loan Tranche Advances. The
proceeds of such Advances shall be used to pay for Noncontruction
Costs in the applicable Schedule of Expenses; any repayment of
principal of any Subordinated Loan Tranche Advance shall not be
available to be reborrowed hereunder. The Special Subordinated
Lender hereby waives any requirement of a Reserve as otherwise
required under the Existing SOI.
8. Section 2(a) of the Existing SOI. Section 2(a) of the Existing SOI
is amended and restated in its entirety as follows:
Subject to the satisfaction of all conditions precedent to any
withdrawal request by GSRP under Section 6 of the Sixth Amendment
Agreement and subject to the other conditions precedent set forth in
Paragraph 3 hereof, the Special Subordinated Lender agrees to make
Subordinated Loan Tranche Advances to GSRP from the date hereof to
and including February 28, 2003 (x) in an aggregate principal amount
at any one time outstanding not to exceed $10,000,000, (y) with
respect to Subordinated Loan Tranche Advances made on or after the
Second Amendment Effective Date, in an aggregate principal amount at
any one time outstanding not to exceed for the period on or prior to
October 31, 2002, $3,800,000 (less the Inventory Holding Cost
Reserve) and for the period after October 31, 2002 and on or prior
to February 28, 2003, $4,490,932 (less the Inventory Holding Cost
Reserve)(the dollar amount limits for any of the foregoing periods
are in respect of the aggregate amount of Subordinated Loan Tranche
Advances made at any time on or after the Second Amendment Effective
Date) , and (z) in an aggregate principal amount that, when
aggregated with the outstanding principal amount of the Senior
Obligations owing to the Special Subordinated Lender, does not
exceed $46,554,705 at any time. Each Subordinated Loan Tranche
Advance shall be a part of the Subordinated Loan Tranche and the
Subordinated Loan Tranche shall be deemed to be a part of the credit
extended to GSRP under the Steamboat Loan by the Special
Subordinated Lender (as a Steamboat Construction Project Advance
Lender) pursuant to the Existing LSA, and GSRP shall execute and
deliver to the Special Subordinated Lender an amendment attachment
(substantially in the form of Attachment 4 hereto, as amended from
time to time) to its Steamboat Note (to be affixed thereto by the
Special Subordinated Lender) to evidence such Subordinated Loan
Tranche and each Subordinated Loan Tranche Advance to be made
thereunder, provided that
(a) Limitations of Subordinated Loan Tranche Advances --
no principal advanced by the Special Subordinated Lender in
respect of the Subordinated Loan Tranche shall
(i) qualify as Steamboat Loan Exposure,
(ii) count as Steamboat Construction Project
Advance Commitments,
(iii) be included in any determination as to
whether the Steamboat Loan or the Steamboat Project
Construction Advances have, in the aggregate, exceeded
the Steamboat Construction Project Borrowing Base,
(iv) entitle the Special Subordinated Lender to
vote any principal amount or other amounts outstanding
in respect of the Subordinated Loan Tranche for any
purpose under the Existing LSA (unless all of the Senior
Obligations under the Existing LSA have been fully and
finally paid),
(v) enable the Special Subordinated Lender, as
such, to claim the status as being one of the Steamboat
Required Lenders, one of the Required Parties or the
right to vote on any issue requiring unanimous consent
of all Lenders or Steamboat Construction Project Lenders
under the Existing LSA (unless all of the Senior
Obligations under the Existing LSA have fully and
finally been paid),
(vi) claim any fees or rights to be reimbursed for
any costs and expenses as a Steamboat Lender or a Lender
under the Existing LSA (unless all of the Senior
Obligations under the Existing LSA have fully and
finally been paid),
(vii) enable the Special Subordinated Lender to be
able to claim a share of the Collateral or any proceeds
in respect thereof except as it otherwise would be
entitled to claim as a Lender or the Administrative
Agent under the Existing LSA or as set forth in
Paragraph 2(b)(ii), Paragraph 2(b)(iii)(6) or Paragraph
2(b)(iii)(8) below or as otherwise allowed under Section
8 of the Sixth Amendment Agreement, or
(viii) cause the outstanding principal balance of
the Loans (including the outstanding principal balance
of the Subordinated Loan Tranche) to exceed the Maximum
Outstanding Loan Limit under the Amended LSA.
"Inventory Holding Cost Reserve" means $2,500,000, provided that on
and after the date on which the Special Subordinated Lender shall
have extended a Subordinated Loan Tranche Advance to GSRP in respect
of inventory holding costs for unsold Quartershare Interests held by
GSRP, $0. The Special Subordinated Lender may, in its sole
discretion, determine at any time that the "Inventory Holding Cost
Reserve" shall be deemed to be $0.
9. Section 2(b) of the Existing SOI. Section 2(b) of the Existing SOI
is amended and restated in its entirety as follows:
(b) Certain Terms Applicable to Subordinated Loan
Tranche Advances --subject to the limitations and restrictions
set forth in subclause (a) above and in this subclause (b),
(i) the principal, interest, fees (including the
Syndication Fee) and other costs and expenses incurred
in connection with the Subordinated Loan Tranche
(collectively, the "Subordinated Loan Tranche
Obligations") are intended to be and qualify as
Steamboat Obligations, to be secured by all of the
Collateral (including, without limitation, the Steamboat
Assignment of Architect's Contract, the Steamboat
Assignment of Contracts, the Steamboat Assignment of
Construction Contract, the Steamboat Assignment of
Rents, the Steamboat Assignment of Declarant's Rights,
the Steamboat Assignment of Property-Related Contracts,
the Steamboat Assignment of Rents, the Steamboat Blanket
Mortgage, the Canyons Assignment of Architect's
Contract, the Canyons Assignment of Contracts, the
Canyons Assignment of Construction Contract, the Canyons
Assignment of Rents, the Canyons Assignment of
Declarant's Rights, the Canyons Assignment of
Property-Related Contracts, the Canyons Assignment of
Rents, and the Canyons Blanket Mortgage), to be
evidenced by the Steamboat Note of the Special
Subordinated Lender pursuant to an amendment attachment
to be affixed thereto (as set forth in Attachment 4
hereto as amended from time to time) and to be junior
and subordinate in payment to the Senior Obligations
(except as provided for in Section 8 of the Sixth
Amendment Agreement regarding Cash Interest Payments)
and in Lien to the Liens in and to the Collateral
securing such Senior Obligations, as more particularly
provided for in Attachment 6 hereto;
(ii) the Administrative Agent shall act on behalf
of the Special Subordinated Lender, to the same extent
as it would act under the Existing LSA as Administrative
Agent, for purposes of securing, perfecting, asserting,
and/or enforcing Liens and security interests in and to
the Collateral as security for the Subordinated Loan
Tranche Obligations (except that the Special
Subordinated Lender shall have no right to instruct the
Administrative Agent or to participate in any
instructions being given to the Administrative Agent
unless and until all of the Senior Obligations under the
Existing LSA have fully and finally been paid; for the
avoidance of doubt and subject to the terms and
provisions of Paragraph 2(b)(i) hereof, GSRP hereby
grants to the Administrative Agent on behalf of the
Special Subordinated Lender a security interest and Lien
in and to the Collateral to secure the payment and/or
performance of all of the Subordinated Loan Tranche
Obligations;
(iii) the Subordinated Loan Tranche Obligations
shall be, and be deemed to be, part of the, Steamboat
Obligations, except that
(1) the rate of interest payable in respect
thereof, the amount of fees payable thereon
(including, without limitation, the Syndication Fee
and the Final Payment Fee) and all other
Subordinated Loan Tranche Obligations shall be
payable only to the Special Subordinated Lender in
accordance with the terms hereof and out of Free and
Clear Proceeds,
(2) the Subordinated Loan Tranche Advances and
the Subordinated Loan Tranche Obligations shall
mature on the Subordinated Loan Tranche Maturity
Date, provided that, in any case, the Subordinated
Loan Tranche Obligations shall be subject to
acceleration as set forth in the last paragraph of
Paragraph 2(b)(iii)(7) hereof,
(3) subject to Paragraph 2(b)(i) hereof, (aa)
GSRP shall pay to the Special Subordinated Lender
the Syndication Fee in installments, each such
installment being payable whenever after October 1,
2000 Free and Clear Proceeds (as defined in the
Existing SOI without giving effect to the Second
Amendment Agreement) are available, with each such
installment being in an amount equal to 30% of the
amount of such Free and Clear Proceeds; if the full
Syndication Fee shall have not been paid on or prior
to December 31, 2000, it shall become due and
payable in full on such date; the Special
Subordinated Lender and GSRP acknowledge that the
Syndication Fee has been paid in full, and (bb) GSRP
shall pay to the Special Subordinated Lender on the
Final Payment Date the Final Payment Fee, as
determined in respect of such Final Payment Date as
calculated pursuant to Paragraph 1(k)(B) hereof,
(4) Intentionally Omitted;
(5) as additional consideration for the fees
and rate of interest set forth above, the Special
Subordinated Lender agrees that no Default Rate of
interest shall be applicable to the Subordinated
Loan Tranche Obligations;
(6) the following proceeds of Collateral or
payments from GSRP shall be designated as "Free and
Clear Proceeds" and shall be applied to the payment
of the Subordinated Loan Tranche Obligations: (aa)
while the Senior Obligations are still outstanding,
any payments of the Cash Interest Payment provided
for hereunder and as otherwise permitted to be paid
to Special Subordinated Lender under Section 8 of
the Sixth Amendment Agreement, (bb) after the Senior
Obligations have been paid in full and for so long
as no Default or Event of Default exists, all
Obligation-Servicing Projects' Cash Proceeds, all
payments under Section 2.5(c)(iii) of the Existing
LSA, all payments under Section 3.5 of the Existing
LSA and all payments under Section 3.6 of the
Existing LSA and (cc) after the Senior Obligations
shall have been paid in full and for so long as a
Default or Event of Default exists, all Projects'
Cash Proceeds. Sections 4, 5, and 6 of the Sixth
Amendment Agreement shall remain in effect and shall
function hereunder after the Senior Obligations have
been paid in full and for so long as any of the
Subordinated Loan Tranche Obligations shall have not
been fully and finally paid. Free and Clear Proceeds
shall be applied to the Subordinated Loan Tranche
Obligations as follows:
first, for so long as Senior Obligations
are outstanding and with respect to any Cash
Interest Payment provided for hereunder and as
otherwise permitted to be paid to the Special
Subordinated Lender under Section 8 of the
Sixth Amendment Agreement, the portion of such
Free and Clear Proceeds consisting of such
Cash Interest Payment shall be used to pay
such Cash Interest Payment;
second, after the Senior Obligations
have been paid in full, in the following
order:
-- first, towards the costs and
expenses incurred by the Special
Subordinated Lender under this Statement
of Intention and Agreement, including,
without limitation, any Loan Costs in
respect of the Subordinated Loan Tranche
and all other fees, costs and expenses
set forth in Paragraph 6(c) hereof;
-- second, towards the accrued and
unpaid interest on the Subordinated Loan
Tranche Advances (other than the portion
thereof that shall have been deferred to
the Final Payment Date);
-- third, towards the then-
outstanding principal amount of the
Subordinated Loan Tranche Advances,
and
-- fourth, any other Subordinated
Loan Tranche Obligations.
For the avoidance of doubt and for so long as the Subordinated
Loan Tranche Obligations are outstanding, GSRP's only right to
obtain cash in respect of the Collateral shall be in respect
of Excess Projects' Cash Proceeds under, and pursuant to,
Section 6 of the Sixth Amendment Agreement. At such time as
the Subordinated Loan Tranche Obligations have been fully and
finally paid, the Special Subordinated Lender shall have no
further rights in and to the Free and Clear Proceeds. For the
further avoidance of doubt, after the full and final payment
of the Subordinated Loan Tranche Obligations, GSRP shall still
be obligated to Textron Financial Corporation, as a Lender
under the Amended LSA, to pay the Percentage Sales Fee under
the Amended LSA.
(7) the following shall be additional Events of Default
applicable to just the Subordinated Loan Tranche:
(i) the failure by GSRP to comply with any of its
undertakings in the Colorado First/PCL Promissory Note
and/or in the Colorado First/PCL Deed of Trust
(including, without limitation, the failure to pay in
full all obligations in respect of the Colorado
First/PCL Promissory Note on the stated maturity date
thereof).
The Subordinated Loan Tranche Obligations may, at the option
of the Special Subordinated Lender, be declared immediately
due and payable by the Special Subordinated Lender, with or
without written notice or demand to GSRP, upon the occurrence
of any Event of Default under the Amended LSA or the
above-listed additional Event of Default and such Subordinated
Loan Tranche Obligations (together with the Syndication Fee
and the Final Payment Fee and all deferred and unpaid
interest) shall immediately become due and payable and, in
connection therewith, all obligations of the Special
Subordinated Lender to make Subordinated Loan Tranche Advances
hereunder shall terminate. The Final Payment Fee shall be
determined as of the date of the aforesaid acceleration as if
all Subordinated Loan Tranche Advances had then been paid in
full and, if said Fee is not paid on such date, it shall bear
interest hereunder at a rate per annum of 20% (subject to
Paragraph 6(a) hereof).
(8) after the full and final repayment of all Senior
Obligations, the Special Subordinated Lender shall have the
full right, in accordance with the terms hereof and of the
Amended LSA, to instruct the Administrative Agent to foreclose
on all or any of the Collateral and to apply all proceeds from
all Collateral to the Subordinated Loan Tranche Obligations as
follows:
first, towards the costs and expenses incurred by
the Special Subordinated Lender under this Statement of
Intention and Agreement, including, without limitation,
any Loan Costs in respect of the Subordinated Loan
Tranche and all other fees, costs and expenses set forth
in Paragraph 6(c) hereof;
second, towards the accrued and unpaid interest on
the Subordinated Loan Tranche Advances;
third, towards the then-outstanding principal
amount of the Subordinated Loan Tranche Advances,
fourth, to the payment of the Final Payment Fee
and the Syndication Fee, and
sixth, to any other Subordinated Loan Tranche
Obligations.
The aforesaid right shall not be prejudiced or impaired by any
Percentage Sales Fee that remains unpaid.
10. Section 3 of the Existing SOI. Section 3 of the Existing SOI is
amended and restated in its entirety as follows:
3. CONDITIONS TO MAKING OF SUBORDINATED LOAN TRANCHE ADVANCES.
The conditions precedent set forth in Section 6 of the Sixth
Amendment Agreement shall apply to the making of Subordinated Loan Tranche
Advances except that references therein to a "withdrawal request" or
similar language shall be deemed references to a request for a
Subordinated Loan Tranche Advance; to the extent that such conditions are
inconsistent with any one or more of the conditions set forth below, the
conditions set forth below shall govern; and each of the conditions set
forth below shall also be applicable to the making of Subordinated Loan
Tranche Advances:
(a) Title Insurance Endorsement. GSRP shall have delivered to the
Administrative Agent title insurance endorsements to the Title Insurance
Policy {Blanket} in respect of such Subordinated Loan Tranche Advance and
each of the Canyons Project and the Steamboat Project in form and
substance reasonably satisfactory to the Administrative Agent.
(b) Sufficiency -- no Subordinated Loan Tranche Advance shall be
made if the proceeds thereof together with the proceeds of any Excess
Projects' Cash Proceeds to be released under Section 6 of the Sixth
Amendment Agreement at the same time as the making of such Subordinated
Loan Tranche Advance are insufficient to fully pay the expenses set forth
on the applicable Schedule of Expenses; GSRP shall coordinate its requests
for Subordinated Loan Tranche Advances and its withdrawal requests for
Excess Projects' Cash Proceeds to the reasonable satisfaction of the
Special Subordinated Lender;
(c) Defaults -- no Subordinated Loan Tranche Advance shall be made
if a Default or Event of Default exists under the Existing LSA or a
default or event of default exists under this Statement of Intention and
Agreement or, unless waived by the Special Subordinated Lender, the sixty
(60) day period referred to in Section 12 of the Second Amendment
Agreement shall have commenced and not have expired;
(d) Limits-- no Subordinated Loan Tranche Advance shall be made if
the dollar limits under Paragraph 2 hereof would be exceeded after giving
effect to such Advance;
(e) Representations - the warranties and representations contained
in this Statement of Intention and Agreement and in the Amended LSA shall
be true in all material respects as of date of the making of such
Subordinated Loan Tranche Advance;
(f) Other Actions - All actions taken in connection with such
Subordinated Loan Tranche Advance shall be reasonably satisfactory to the
Special Subordinated Lender and its counsel and no event or circumstance
shall have occurred which, in the reasonable opinion of the Special
Subordinated Lender, is reasonably likely to have a material adverse
effect on GSRP, any of the Projects or the ability of GSRP to pay in full
the Subordinated Loan Tranche Obligations; and
(g) Inventory Holding Costs - Unless this subclause (g) shall have
been waived by the Special Subordinated Lender, no Subordinated Loan
Tranche Advance shall be requested by GSRP or may be made hereunder if the
proceeds thereof are to be used for the purpose of paying inventory
holding costs of unsold Quartershare Interests (including, without
limitation, real property taxes and assessments in respect thereof) for so
long as the now currently pending Fleet/ASCRP Loan Defaults/Acceleration
under the Fleet/ASCRP Loan Documents have not been resolved to the
reasonable satisfaction of the Subordinated Lender.
11. Attachment 6. Attachment 6 of the Existing SOI is hereby amended and
restated in its entirety as follows:
(a) If a Default or Event of Default under the Amended LSA shall
exist, no payment of any Subordinated Loan Tranche Obligation (other than
Cash Interest Payments) shall be made for so long as any Obligation under
the Amended LSA (other than Subordinated Loan Tranche Obligations and the
Payment Sales Fees; such Obligations other than the Subordinated Loan
Tranche Obligations and Payment Sales fee are referred to in this
Attachment as the "Senior Obligations") shall be outstanding.
(b) Intentionally Omitted.
(c) To the extent that a Lien in and to the Collateral under the
Amended LSA secures, in whole or part, a Subordinated Loan Tranche
Obligation, such Lien (to the extent of such Subordinated Loan Tranche
Obligation) shall be junior and subordinate to any Lien in such Collateral
that secures a Senior Obligation, subject, in each case, to the cash
proceeds of such Collateral being used to pay the Cash Interest Payments
as provided for in Section 8 of the Sixth Amendment Agreement.
(d) In the event of
(i) any insolvency or bankruptcy case or proceeding under the
Federal Bankruptcy Code or any state bankruptcy or similar law, or
any receivership, liquidation, arrangement, relief, reorganization
or other similar case or proceeding in connection therewith,
relative to the Borrower or to its assets, or
(ii) any liquidation, dissolution, reorganization, compromise,
arrangement, adjustment, protection, composition, relief or other
winding up of the Borrower or its debts, whether voluntary or
involuntary and whether or not involving any insolvency or
bankruptcy or any case or proceeding of any kind, or
(iii) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Borrower,
then and after each such event the Senior Obligations shall be entitled to
receive payment in full in cash of all amounts due or to become due
thereon or in respect thereof before any payments are made in respect of
the Subordinated Loan Tranche Obligations or any distribution of any kind
or character (whether in cash, securities or other property) is made in
respect of the Subordinated Loan Tranche Obligations (other than with
respect to the Cash Interest Payments, which shall be pari passu with the
rights of the Lenders in respect of the Steamboat Project to receive
payments in respect of their Steamboat Obligations), and, to that end, it
is hereby agreed that, after any such event, all payments or distributions
(whether in cash, securities or other property) in respect of the
Subordinated Loan Tranche Obligations (other than with respect to the Cash
Interest Payments) shall be paid over or delivered for application to the
Senior Obligations. The holders of the Subordinated Loan Tranche
Obligations shall duly and promptly take such action as is reasonably
necessary to file appropriate claims or proofs of claims in any such
proceedings referred to in this clause and to execute and deliver such
other instruments and take such other actions as may be reasonably
necessary to prove or realize upon such claims and to have the proceeds of
such claims paid as provided in this clause, and, in the event that the
holders of Subordinated Loan Tranche Obligations shall not have made any
such filing on or prior to the date 14 days before the expiration of the
time for such filing or shall not have timely executed or delivered any
such other instruments and taken such other actions, the holders of Senior
Obligations are each hereby irrevocably authorized and empowered (but
shall have no obligation) to, as the agent and attorney-in-fact for the
holders of the Subordinated Loan Tranche Obligations for the specific and
limited purpose set forth in this clause, file such proof of claim for or
on behalf of such holders of Subordinated Loan Tranche Obligations,
execute and deliver such other instruments for or on behalf of such
holders and take such other action necessary under applicable law to
collect any amounts due in respect of such claim in such proceeding.
(e) In the event that, notwithstanding the provisions of this
Attachment and in contravention thereof, the Borrower shall make, or the
holders of Subordinated Loan Tranche Obligations shall receive or retain,
any payment or distribution of the Borrower's assets of any kind or
character, whether in cash, securities or other property, then and in such
event such payment or distribution shall be received and held by such
holder in trust for the benefit of the holders of the Senior Obligations
and shall be paid over or delivered to such holders of Senior Obligations
for application to the payment to the Senior Obligations, provided that
nothing in this clause (e) shall apply to the Cash Interest Payments.
(f) No right of any holder of Subordinated Loan Tranche Obligations
to enforce its rights in respect of the Subordinated Loan Tranche
Obligations shall at any time or in any way be prejudiced or impaired by
any act or failure to act on the part of such holder, or by any
non-compliance by GSRP with the terms, provisions and covenants of this
Attachment, regardless of any knowledge thereof that such holder may have
or be otherwise charged with. Nothing herein shall prohibit or prevent any
holder of Subordinated Loan Tranche Obligations from enforcing any right
or remedy hereunder or at law or equity in respect of Subordinated Loan
Tranche Obligations (subject to the obligations hereunder of such holder
to turn over the net proceeds therefrom to the holders of the Senior
Obligations).
(g) Without in any way limiting the generality of the foregoing
paragraph, the holders of the Senior Obligations may, at any time and from
time to time (without the consent of or notice to any holder of
Subordinated Loan Tranche Obligations, without incurring responsibility to
the holders of Subordinated Loan Tranche Obligations, without impairing or
releasing the subordination provided in this Attachment and without
releasing the obligations hereunder of GSRP or any such holder of
Subordinated Loan Tranche Obligations), (1) amend or modify in any way or
manner any payment, provision, document or covenant relating to the Senior
Obligations (whether or not such payment, provision, document or covenant
also relates to the Subordinated Loan Tranche Obligations), (2) sell,
exchange, release or otherwise deal with any Property pledged, assigned or
mortgaged to secure, or otherwise securing, the Senior Obligations, or any
guarantee of the Senior Obligations (whether or not such property also
relates to the Subordinated Loan Tranche Obligations); and (3) exercise or
refrain from exercising any rights against GSRP, the Collateral under the
Existing LSA and any other Person (whether or not such rights also relate
to the Subordinated Loan Tranche Obligations), provided that nothing in
this sentence shall authorize such holders to modify any rights that the
Special Subordinated Lenders may have under Section 8 of the Sixth
Amendment Agreement without its prior written consent. The Borrower and
each other holder of Subordinated Loan Tranche Obligations waive any right
to require the holders of the Senior Obligations to marshal any assets in
favor of the holders of Subordinated Loan Tranche Obligations or against
or in payment of any or all of the Senior Obligations.
(h) No holder of Subordinated Loan Tranche Obligations shall be
subrogated to the rights of any holder of Senior Obligations to receive
payments and distributions of cash, securities or other property
applicable to the Senior Obligations until all amounts payable for or on
account of the Senior Obligations shall have been indefeasibly paid in
full.
(i) The provisions of this Attachment shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any
Senior Obligations is rescinded or must otherwise be returned by the
holders thereof upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
(j) Each holder of Subordinated Loan Tranche Obligations, by its
acceptance thereof, agrees to take such action as may be reasonably
necessary or appropriate to effectuate, as among the holders of Senior
Obligations, the holders of Subordinated Loan Tranche Obligations and the
Borrower, the subordination provided in this Attachment.
(k) The provisions of this Attachment may not be amended, modified
or waived without the prior written consent of the holders of Senior
Obligations. The provisions set forth in this Attachment constitute a
continuing agreement and shall (A) be and remain in full force and effect
at any time, and from time to time, during which any Senior Obligation
shall remain outstanding, (B) be binding upon the Borrower and each holder
of Subordinated Loan Tranche Obligations and their respective successors,
transferees and assigns, and (C) inure to the benefit of, and be
enforceable, in accordance with the terms hereof, directly by, the holders
of Senior Obligations and their respective successors, transferees and
assigns, against each holder of Subordinated Loan Tranche Obligations and
the Borrower.
12. Waiver. Upon this Second Amendment Agreement becoming effective on the
Second Amendment Effective Date and subject to the proviso to this sentence,
each Default and/or Event of Default existing on the Second Amendment Effective
Date and arising from or otherwise in respect of (a) the default or defaults
occurring or arising under or in respect of the Fleet/ASCRP Loan Documents prior
to the Second Amendment Effective Date, (b) the acceleration of the loans under
the Fleet/ASCRP Loan Documents that occurred prior to the Second Amendment
Effective Date (such defaults under the Fleet/ASCRP Loan Documents and such
acceleration of the loans thereunder are referred to herein as the "Fleet/ASCRP
Loan Defaults/Acceleration") and/or (c) the obligations under the Colorado
First/PCL Promissory Note not having been paid in full by May 17, 2002 are, in
each case, hereby waived, provided that (i) if there shall be a material
undertaking or action on the part of any one or more of the lenders or any agent
on their behalf under the Fleet/ASCRP Loan Documents to enforce the same or any
agreement or instrument thereunder or to realize upon any collateral therefor
(other than in respect of that certain notice of default dated July 3, 2002
given to the Parent by the agent under the Fleet/ASCRP Loan Documents in respect
of certain real property of the Parent located in Utah and that certain amended
notice of default dated July 18, 2002 given to the Parent by the agent under the
Fleet/ASCRP Loan Documents in respect of certain real property of the Parent
located in Utah referred to in the aforesaid July 3, 2002 notice and certain
additional real property of the Parent located in Utah), in each case in respect
of the Fleet/ASCRP Loan Defaults/Acceleration, the Special Subordinated Lender,
after the expiration of a period of sixty (60) days after the commencement of
any such undertaking or action, may elect, in its sole and absolute discretion,
to treat the Fleet/ASCRP Loan Defaults/Acceleration as having come immediately
back into existence and the same shall immediately constitute an Event of
Default under the Amended SOI upon written notice of such election being sent to
GSRP by the Special Subordinated Lender or the Administrative Agent and (ii) if
there shall be a material undertaking or action on the part of Colorado
First/PCL to enforce the Colorado First/PCL Promissory Note, the Colorado
First/PCL Deed of Trust or any of the other Colorado First/PCL Obligations, the
Special Subordinated Lender may elect, in its sole and absolute discretion, to
treat the default in respect of the obligations under the Colorado First/PCL
Promissory Note not having been paid in full by May 17, 2002 (as provided for in
the Existing SOI) as having come immediately back into existence and the same
shall immediately constitute an Event of Default under the Amended SOI upon
written notice of such election being sent to GSRP by the Special Subordinated
Lender. No other Default or Event of Default (whether occurring prior to the
date hereof or hereafter) shall be deemed waived, and the Special Subordinated
Lender reserves all of its rights and remedies under the Amended LSA, the other
Security Documents, the Amended SOI, at law and in equity with respect thereto.
13. 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 SOI:
13.1 Except as set forth in Schedule 1 hereto, each of the
representations and warranties contained in Section 4 of the Existing SOI
is true and correct as of the date hereof.
13.2 Except with respect to the Permitted Exceptions and liens for
taxes and association dues in respect of unsold Quartershare Interests at
the Canyons Project and/or the Steamboat Project, all Liens granted to TFC
under the Existing SOI 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.
13.3 The execution and delivery of this Second Amendment Agreement,
the Sixth Amendment Agreement, the Modification Documents and the other
documents and instruments contemplated herein and in the Sixth Amendment
Agreement, and compliance by GSRP with all of the provisions of this
Second Amendment Agreement, the Existing SOI, as amended hereby, and each
of the other documents set forth above are:
(i) within the corporate powers of GSRP;
(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.
13.4 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
Second Amendment Agreement and the other documents contemplated in
connection herewith, nor the operation of any Project and the sale, or
offering for sale, of any 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 Second Amendment Agreement, the Sixth Amendment Agreement, and the
other documents contemplated in connection herewith.
13.5 GSRP will not be, on or after the date hereof, a party to any
contract or agreement which restricts its right or ability to incur
indebtedness under, or prohibits the execution of, or compliance with,
this Second 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 and all Liens in favor of TFC in respect of such Collateral
remain in full force and effect.
13.6 GSRP is not entering into this Second Amendment Agreement and
the transactions contemplated hereby, and does not intend to incur any
obligations hereunder or otherwise make any transfers in connection
herewith, with the actual intent to hinder, delay or defraud either
present or future creditors. After giving effect to the consummation of
the transactions contemplated by this Second Amendment Agreement and the
making of the advances contemplated hereunder (without giving effect to
the Inventory Holding Cost Reserve), (a) the assets of GSRP at a fair
valuation thereof on a going concern basis will not be less than its
debts, (b) GSRP is not currently engaged in or about to engage in a
business or transaction for which its remaining assets are unreasonably
small in relation to such business or transaction, and (c) GSRP will be
able to pay its respective debts as they become due. "Debt" for purposes
of this Section 12.6 means any liability on a claim, and "claim" means (i)
any right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, or (ii) any right to
an equitable remedy for breach of performance if such breach gives rise to
a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured.
13.7 After giving effect to this Second Amendment Agreement, no
Default or Event of Default has occurred or is continuing, 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 TFC. The Obligations continue to be Senior Debt under, and as defined
in, the ASC Indenture and no default or event of default exists under such
Indenture and 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, other than its guaranty of the
ASC Indenture, which by its own terms is junior and subordinated to the
Obligations.
14. Conditions to Effectiveness. This Second Amendment Agreement shall
become effective on the date (the "Second Amendment Effective Date") on which
the parties hereto shall have executed this Second Amendment Agreement and each
of the following conditions shall have been satisfied:
14.1 Warranties and Representations True as of First Amendment
Effective Date. The warranties and representations contained or referred
to in this Second Amendment Agreement shall be true in all material
respects on the Second Amendment Effective Date with the same effect as
though made on and as of that date. TFC shall have received a certificate,
in form and substance satisfactory to TFC, dated as of the Second
Amendment Effective Date, signed by an Executive Vice-President or Vice
President of GSRP and certifying that the warranties and representations
of GSRP contained in this Second Amendment Agreement are true in all
material respects on the Second Amendment Effective Date.
14.2 Secretary's Certificates.
TFC shall have received a certificate of the Secretary or any
Assistant Secretary of GSRP, in form and substance reasonably satisfactory
to TFC, dated as of the Second Amendment Effective Date, certifying
(i) the adoption by the Board of Directors of GSRP of a
resolution authorizing GSRP to enter into this Second Amendment
Agreement, the Sixth Amendment Agreement, and the transactions and
instruments contemplated hereby and thereby, and
(ii) the incumbency and authority of, and verifying the
specimen signatures of, the officers of GSRP authorized to execute
and deliver this Second Amendment Agreement, the Sixth Amendment
Agreement, the Modification Agreements (referred to below), and the
other documents contemplated hereunder.
14.3 Legal Opinion. GSRP shall have delivered to TFC a legal opinion
from its General Counsel in form and substance reasonably satisfactory to
the Lenders and TFC.
14.4 Expenses. GSRP shall have paid all fees and expenses required
to be paid by it pursuant to Section 6(c) of Existing SOI pursuant to
invoices or other bills submitted to GSRP.
14.5 Sixth Amendment Agreement. The Sixth Amendment Agreement shall
be in full force and effect.
14.6 Proceedings. All actions taken in connection with the execution
of this First Amendment Agreement and all documents and papers relating
thereto shall be satisfactory to TFC and its counsel. TFC 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 TFC and its counsel.
14.7 Other Documents.
(a) GSRP shall have executed and delivered to TFC
(A) the modification agreement to the Canyons Blanket
Mortgage and the Canyons Assignment of Rents, in form and
substance satisfactory to TFC,
(C) a modification to the assignment of Free and Clear
Proceeds, in form and substance satisfactory to TFC (together
with appropriate UCC-3 financing statements in respect
thereof) and
(C) the Modifications, as such term is defined in the
Sixth Amendment Agreement and
(b) GSRP shall have delivered to the Administrative Agent a
date-down endorsement in respect of the Steamboat Blanket Mortgage
and the Canyons Blanket Mortgage and such endorsement shall show no
Liens in and to the Steamboat Project or the Canyons Project other
than Permitted Exceptions.
15. Miscellaneous.
15.1 This Second Amendment Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
15.2 This Second Amendment Agreement shall be governed by the
internal laws of the State of Maine. To the extent any provision of this
Second 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 Second Amendment Agreement.
15.3 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 Second Amendment Agreement as a whole and not to
any particular Section or other subdivision.
15.4 All warranties, representations and covenants made by GSRP
herein or in the Existing SOI or in any certificate or other instrument
delivered by it or on its behalf under this Agreement or in the Existing
SOI shall be considered to have been relied upon by TFC and shall survive
the execution and delivery of this Second Amendment Agreement.
15.5 Except as explicitly amended by, or otherwise provided for in,
this Second Amendment Agreement , the Existing SOI, 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 Second Amendment Agreement, and GSRP hereby affirms all of its
obligations thereunder.
15.6 This Second 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 Second 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.
15.7 GSRP hereby releases, remises, acquits and forever discharges
the Administrative Agent and TFC 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 SOI, the Amended LSA,
the Steamboat Note of TFC or the other Notes or Security Documents, as
amended from time to time (including, without limitation, this Second
Amendment Agreement and the Sixth Amendment Agreement), (b) the
Subordinated Loan Tranche, or (c) the Instructions Regarding Cash Flow
Proceeds of Collateral dated June 3, 2002 (all of the foregoing
hereinafter called the "Released Matters"). GSRP hereby acknowledges that
the agreements set forth in this Second 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 TFC 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.
15.8 The parties hereto agree that the Existing SOI, as amended
hereby, and the Amended LSA, as amended by the Sixth Amendment Agreement,
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 Second Amendment
Agreement as of the day and year first above written.
GSRP: TFC:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇. Fair By: /s/A.A.J. ▇▇▇▇▇▇▇▇▇
-------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair Name: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CEO/President Title:AVP-Loan Manager
The undersigned confirms that all indebtedness of GSRP owing to the undersigned
is junior and subordinate to all indebtedness of GSRP owing to TFC under the
Amended SOI pursuant to that certain Subordination Agreement dated as of
September 1, 1998, as amended. All of such indebtedness of GSRP owing to TFC
under the Amended SOI shall qualify as "Senior Debt" under the Amended SOI.
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By: /s/▇▇▇▇▇▇▇ ▇. Fair
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
Schedule 1
With respect to Section 4(a) of the Existing SOI, all representations and
warranties of the Existing LSA are subject to the same exceptions and carve-outs
as are set forth in the Sixth Amendment Agreement.
