CREDIT AGREEMENT
Dated as of September 4, 1998
Among
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
as Borrower,
THE LENDERS PARTY HERETO,
and
BANKBOSTON, N.A.
as Agent for the Lenders
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of September 4,1998 by and
among AMERICAN SKIING COMPANY RESORT PROPERTIES, INC., a Maine corporation
("Borrower"), the lenders from time to time party hereto, and BANKBOSTON, N.A.,
a national banking association, as Agent for the lenders from time to time party
hereto (the "Agent").
RECITALS
Borrower desires to arrange for a credit facility in the amount of $30,
000, 000, on the terms and conditions set forth herein, the proceeds of which
will be used (a) to fund certain capital expenditures and (b) to provide for
on-going working capital and other specified needs. The Lenders are willing to
provide such additional financing on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Agent and the
Lenders agree hereby as follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 DEFINITIONS. In addition to the terms defined elsewhere in
this Agreement, unless otherwise specifically provided herein, the following
terms shall have the following meanings for all purposes when used in this
Agreement, and in any note, agreement, certificate, report or other document
made or delivered in connection with this Agreement:
"AFFILIATE" shall mean (a) any director or executive officer of American
Ski or any of its Subsidiaries or any Person owning more than 5% of the
outstanding common stock of American Ski or any of its Subsidiaries and (b) any
Person that controls, is controlled by or is under common control with such a
Person or any Affiliate of such Person. For purposes of this definition,
"control" of a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.
"AGENT" shall mean BankBoston, N.A., in its capacity as agent for the
Lenders, and its successors in that capacity.
"AGREEMENT" shall mean this Credit Agreement, as amended or supplemented
from time to time. References to Articles, Sections, Exhibits, Schedules and the
like refer to the Articles, Sections, Exhibits, Schedules and the like of this
Agreement, unless otherwise indicated, as amended and supplemented from time to
time.
"AMERICAN SKI" shall mean American Skiing Company, a Maine corporation.
"APPRAISAL" shall mean an appraisal of the fair market value of property
and business, accepted and approved by the Agent, performed by an independent
appraiser selected by the Agent who is not employed by American Ski, any of its
Subsidiaries or the Agent, the form of such appraisal and the identity of the
appraiser to be acceptable to the Agent.
"APPRAISED VALUE" shall mean the fair market value of the subject
property determined by the most recent Appraisal.
"APPROVED FUND" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed by the same investment advisor as such Lender or by an affiliate of
such investment advisor.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" See Section 14.2 hereof.
"BORROWERS SUBSIDIARIES" Canyon Resort, Grand Summit, and Heavenly
Resort.
"BUDGET" shall mean the budget attached hereto as Exhibit C.
"BUSINESS DAY" shall mean for all purposes, any day other than a
Saturday, Sunday or legal holiday on which banks in Boston, Massachusetts are
open for the conduct of a substantial part of their commercial banking business.
"CANYONS" shall mean the recreational and resort facilities operated by
American Ski or a Subsidiary located in Summit County, Utah.
"CANYONS RESORT" shall mean Canyons Resort Properties, Inc., a Maine
corporation.
"CAPITAL ASSETS" shall mean fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such as patents,
copyrights, trademarks, franchises and goodwill); PROVIDED, HOWEVER, that
Capital Assets shall not include any item customarily charged directly as an
expense or depreciated over a useful life of twelve (12) months or less in
accordance with generally accepted accounting principles.
"CAPITAL EXPENDITURES" shall mean amounts paid or incurred, including
indebtedness incurred, by Borrower or any of its Subsidiaries in connection with
the purchase or lease by Borrower or any of its Subsidiaries of Capital Assets
that would be required to be or are capitalized and shown on the balance sheet
of Borrower and its Subsidiaries in accordance with generally accepted
accounting principles.
"CAPITALIZED LEASE" shall mean any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with generally
accepted accounting principles and Statement of Financial Accounting Standards
No. 13.
"CAPITALIZED LEASE OBLIGATIONS" shall mean the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with generally accepted accounting
principles and Statement of Financial Accounting Standards No. 13.
"CASH INSURANCE PROCEEDS" shall mean the proceeds received by Borrower
and its Subsidiaries under any key man life insurance or property and casualty
insurance policy carried by Borrower and it Subsidiaries.
"CASH PROCEEDS" shall mean, with respect to any Permitted Disposition,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Permitted
Disposition, but only as and when received) received by Borrower or any of its
Subsidiaries from such Permitted Disposition.
"CLOSING DATE" shall mean the date on which all of the conditions set
forth in Section 3.1 have been satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COLLATERAL" shall mean all of the property, rights and interests of
Borrower and its Subsidiaries that are subject to the security interests,
pledges, and mortgages created by the Security Agreements.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMITMENT PERCENTAGE" shall mean as to each Lender, the sum of its
Term Loan Commitment Percentage as set forth on SCHEDULE I hereto.
"COMPLIANCE CERTIFICATE" shall mean a certificate in a form acceptable
to Agent.
"CONSOLIDATED" and "CONSOLIDATING," when used with reference to any
term, mean that term (or the terms "combined" and "combining," as the case may
be, in the case of partnerships, joint ventures and Affiliates that are not
Subsidiaries) as applied to the accounts of American Ski (or other specified
Person) and all of its Subsidiaries (or other specified Persons), or such of its
Subsidiaries as may be specified, consolidated (or combined) in accordance with
generally accepted accounting principles and with appropriate deductions for
minority interests in Subsidiaries, as required by generally accepted accounting
principles.
"DEFAULT" shall mean an event or condition which with the passage of
time or giving of notice, or both, would become an Event of Default.
"DESIGNATED PROPERTIES" shall mean the real properties and interests
therein owned by Borrower and described on Exhibit B.
"DISTRIBUTION" shall mean: (a) the declaration or payment of any
dividend on or in respect of any shares of any class of capital stock of
Borrower, (b) the purchase, redemption, or other acquisition or retirement of
any shares of any class of capital stock of Borrower, (c) any other
distribution on or in respect of any shares of any class of capital stock of
Borrower, (d) any setting apart or allocating any sum. for the payment of any
dividend or distribution or for the purchase, redemption or retirement of any
shares of capital stock of Borrower and (e) any' payment of principal on or
any retirement or defeasance of Subordinated Indebtedness.
"ELIGIBLE ASSIGNEE(S)" shall mean any entity approved by the Agent.
"ENVIRONMENT" means soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air, and any environmental
medium.
"ENVIRONMENTAL LAW" means any judgment, decree, order, common law rule,
statute, act law, code, ordinance, permit, license, rule or regulation
pertaining to environmental matters, or any federal, state, county or local
statute, regulation, code, ordinance, order or decree relating to public
health, welfare,, the Environment, or to the storage, handling, treatment,
transportation, use or generation of Hazardous Materials in or at the
workplace, or to worker health or safety, whether now existing or hereafter
enacted.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EVENT OF DEFAULT" See Section 12.1 hereof.
"FEE LETTER" See Section 2.5 hereof.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean generally
accepted accounting principles as defined by controlling pronouncements of the
Financial Accounting Standards Board, as from time to time supplemented and
amended.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GRAND SUMMIT" shall mean Grand Summit Resort Properties, Inc., a Maine
corporation.
"GUARANTY" or "GUARANTEE" or "GUARANTIES" shall include any arrangement
whereby a Person is or becomes liable in respect of any Indebtedness or other
obligation of another and any other arrangement whereby credit is extended to
another obligor on the basis of any promise of a guarantor, whether that
promise is expressed in terms of an obligation to pay the Indebtedness of such
obligor, or to purchase or lease assets under circumstances that would enable
such obligor to discharge one or more of its obligations, or to maintain the
capital, the working capital, solvency or general financial condition of such
obligor, whether or not such arrangement is listed in the balance sheet of the
guarantor or referred to in a footnote thereto.
"HAZARDOUS MATERIAL" means any pollutant, contaminant, toxic substance,
chemical substance or mixture, hazardous waste, hazardous material, or hazardous
substance, or any oil, petroleum, or petroleum product, as defined in or
pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, the Superfund Amendment and Reauthorization Act, as amended, the
Federal Clean Water Act, as amended, the Hazardous Materials Transportation Act,
as amended, the Toxic Substances Control Act, as amended, any regulations
promulgated under these Acts, or any other Environmental Law.
"HEAVENLY RESORT" shall mean Heavenly Resort Properties, LLC, a Nevada
limited liability company.
"INDEBTEDNESS" shall mean, as to any Person, without duplication: (a)
all obligations of such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments) (b) all obligations of such Person for
the deferred purchase price of property or services (including without
limitation deferred payment obligations which are part of the consideration
provided for in agreements not to compete), except trade accounts payable and
accrued liabilities arising in the ordinary course of business which are not
overdue by more than 60 days or which are being contested in good faith by
appropriate proceedings; (c) all capital lease obligations of such Person; (d)
all Indebtedness of others secured by a lien on any properties, assets or
revenues of such person (e) all Indebtedness of others guaranteed by such Person
(except completion Guaranties under which such person has not yet been required
to perform); (f) all net obligations of such Person under interest rate,
commodity, foreign currency and financial markets swaps, options, futures and
other hedging obligations) and (g) all obligations of such Person, contingent or
otherwise, in respect of letters of credit or bankers' acceptances or similar
instruments.
"INDEMNITY AGREEMENTS" shall mean the Hazardous Materials
Indemnification Agreements of even date herewith from Borrower to the Agent.
"INTERCOMPANY DEBT" shall mean the indebtedness by Borrower to American
Ski in the maximum principal amount of $20,289,000.00.
"INVESTMENT" shall mean (a) any stock, evidence of Indebtedness or other
security of another Person, (b) any loan, advance, contribution to capital,
extension of
credit (except for current trade and customer accounts receivable for
inventory sold or services rendered in the ordinary course of business and
payable in accordance with customary trade terms) to another Person, (c) any
purchase of (i) stock or other securities of another Person or (ii) any
business or undertaking of another Person (whether by purchase of assets or
securities), any commitment or option to make any such purchase if, in the
case of an option, the aggregate consideration paid for such option was in
excess of $I 00 or (d) any other investment, in all cases whether existing on
the date of this Agreement or thereafter made.
"LEASES" shall mean all leases and other agreements under which the
Borrower have rights to use or occupy any real property.
"LENDER AGREEMENTS' shall mean this Agreement, the Term Notes, the
Indemnity Agreements, the Security Agreements, and any other present or future
agreement from time to time entered into between Borrower or any of its
Subsidiaries and the Agent or any Lender, each as from time to time amended or
supplemented, and all statements, reports and certificates delivered by
Borrower or any of its Subsidiaries to the Agent or any Lender in connection
therewith.
"LENDER OBLIGATIONS" shall mean all present and future obligations and
Indebtedness of Borrower or any of its Subsidiaries owing to the Agent or the
Lenders under this Agreement or any other Lender Agreement, including, without
limitation, the obligations to pay the Indebtedness from time to time
evidenced by the Term Notes, and obligations to pay interest, commitment fees,
balance deficiency fees, charges, expenses and indemnification from time to
time owed under any Lender Agreement.
"LENDERS" shall mean (a) initially, each lender listed on the signature
pages hereof and designated on Schedule 1, (b) any other Person who becomes a
Successor Lender hereunder in accordance with the terms of Section 14.2 hereof
and (c) the successors and assigns of the Persons described in clauses (a) and
(b).
"LIEN' -- See Section 9.2 hereof.
"LOAN" shall mean all or a portion of the Loans outstanding hereunder
or made to the Borrower by the Lenders pursuant to Article 2 of this
Agreement, and "Loans" means all of such loans, collectively.
"MAJORITY LENDERS" shall mean, at any time, any two or more Lenders
holding at least 51% of the sum of the outstanding principal amount of the
Loans.
"MARRIOTT JOINT VENTURE" shall mean the Purchase and Development
Agreement among American Ski, Marriott Ownership Resorts, Inc. and Borrower
dated July 22, 1998.
"MATERIAL ADVERSE EFFECT" shall mean any adverse change (or occurrence
or condition reasonably likely to produce an adverse change) in the financial
condition, properties, business, operations or prospects which is material to
Borrower and its subsidiaries.
"MORTGAGED PROPERTIES" shall mean all real properties and interests
therein owned by Borrower or any of its Subsidiaries which are subject to
mortgage liens in favor of the Agent.
"MORTGAGES" shall mean the various deeds of trust, mortgages and similar
security instruments executed by the Borrower on even date.
"NET CASH PROCEEDS" shall mean the Cash Proceeds (with respect to any
Permitted Disposition) or Cash Insurance Proceeds (with respect to any casualty)
net of the sum of (a) the amount of such proceeds required to be applied to
repay Indebtedness (other than the Loans) incurred or secured by a lien on any
asset disposed of in connection with such Permitted Disposition; (b) brokerage
commissions, legal fees, accounting fees, investment banking fees, trustee's
fees, finder's fees and other similar fees and commissions, all of which amounts
under this clause (b) shall be reasonable and customary; (c) taxes payable
within one year in connection with or as a result of such transaction; (d)
amounts held in escrow in connection with any such Permitted Disposition (prior
to the release thereof); and (e) other reasonable and customary out-of-pocket
costs incurred in connection therewith.
"NOTES" shall mean the Term Loan Notes.
"XXXX XXXXXXXX" shall mean Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP.
"PENSION PLAN" shall mean an employee benefit plan or other plan
maintained for the employees of Borrower or any Subsidiary as described in
Section 4021 (a) of ERISA.
"PERFECTION EVENT" shall mean the occurrence of an Event of Default
hereunder or the failure of Borrower to pay in full all amounts owing to the
Lenders hereunder and under the Term Loan Notes on or before the Maturity Date.
"PERFECTION REQUIREMENT" shall mean the requirement to file and record
the Security Agreements or other documents in order to perfect the security
interest created thereby.
"PERMITTED CAPITAL EXPENDITURES" shall mean Capital Expenditures of
Borrower and its Subsidiaries permitted under Section hereto.
"PERMITTED FINANCIAL FACILITIES" See Section 9. 1 (e).
"PERMITTED LIENS" See Section 9.2 hereof.
"PERMITTED CONSTRUCTION PROJECTS" shall mean the following hotel
projects: (i) Grand Summit at the Canyons; (ii) Grand Summit at Steamboat; and
(iii) the Sundial Lodge at the Canyons.
"PERSON" shall mean an individual, corporation, partnership, joint
venture, association, estate, joint stock company, trust, organization,
business, or a government or agency or political subdivision thereof.
"PURCHASE MONEY MORTGAGE" shall mean the Purchase Money Mortgages
described in SCHEDULE 2 attached hereto.
"PURCHASE MONEY INDEBTEDNESS" shall mean indebtedness affecting real
property known as Parcel A-2 at the Canyons being more particularly set forth
as:
1 . $300,000 mortgage loan from IRJ Enterprises, Inc.
2. $1,000,000 mortgage loan from Songbird Enterprises
3. $500,000 mortgage loan from Xxxxxxx X. Xxxxx
4. $1,720,000 mortgage loan from Wolf Mountain Resorts, L.C.
"PURCHASE OPTION" shall mean the Option to Purchase in that certain
Ground Lease Agreement dated July 3, 1997 between Wolf Mountain Resorts, L.C.
and NSC Utah, Inc., as assigned to Borrower pursuant to that certain
Assignment of Purchase Option Interest dated September 4, 1998 between ASC
Utah, Inc. and Borrower with respect to the real property commonly known as
the Canyons located in Utah.
"REPORTABLE EVENT" shall mean an event reportable to the Pension
Benefit Guaranty Corporation under Section 4043 of Title IV of ERISA.
"SECURITY AGREEMENTS" shall mean:
(a) The Mortgages;
(b) The Assignment of Trademarks ("Trademark Security
Agreements") from Borrower to the Agent;
(c) The Assignments of Licenses, Contracts and Permits
("Assignments of Licenses") from Borrower to the Agent; and
(d) All other security agreements, pledge agreements, mortgages, assignments
and other instruments by which Borrower grants or pledges to the Agent a lien
on, security interest in, or pledge or mortgage or assignment of any of its
assets.
"SENIOR FACILITY" The senior secured credit facility in favor of
American Ski and related entities by BankBoston, N.A., as Agent se set forth
in the Amended and Restated Credit Agreement dated as of November 12, 1997.
"SOLVENT" or "SOLVENCY" shall mean, as to any Person, that such Person
(a) has assets having a fair value in excess of its liabilities, (b) has
assets having a fair value in excess of the amount required to pay its
liabilities on existing debts as such debts become absolute and matured and
(c) has, and expects to continue to have, access to adequate capital for the
conduct of its business and the ability to pay its debts from time to time
incurred in connection with the operation of its business as such debts
mature.
"STATUS MEMORANDUM" shall mean memorandum as to the status of certain
aspects of the Mortgaged Properties set forth on Exhibit D.
"SUBORDINATION AGREEMENT" shall mean the Subordination Agreement
between American Ski, Borrower and Agent dated as of even date.
"SUBSIDIARY" shall mean any Person of which Borrower shall now or
hereafter at the time own, directly or indirectly through one or more
Subsidiaries or otherwise, sufficient voting stock (or other beneficial
interest) to entitle it to elect at least a majority of the board of directors
or trustees or similar managing body.
"TANGIBLE NET WORTH" shall mean the excess of Total Assets over Total
Liabilities.
"TERM LOAN COMMITMENT PERCENTAGE" shall mean as to each Term Loan
Lender, its percentage interest in the Term Loans as set forth on SCHEDULE I
hereto.
,,TERM LOAN LENDERS" shall mean those Lenders so identified on SCHEDULE
I hereto.
"TERM LOAN MATURITY DATE" shall mean December 4,1998.
"TERM LOAN NOTES" shall mean the Term Loan Notes substantially in the
form of EXHIBIT A hereto executed by Borrower in favor of each Term Loan
Lender to evidence the Term Loans.
"TERM LOANS" shall mean the term loans made by the Term Loan Lenders to
Borrower pursuant to Section 2.1 hereof.
"TEXTRON FACILITY" shall mean the existing Construction Loan Facility
provided to Grand Summit from Textron Financial Corporation, as agent and
co-lender and Green Tree Financial Servicing Corporation, as co-lender.
"TITLE COMPANY" shall mean Land America National Title Services, Inc.
or other nationally recognized title insurance company approved by Agent.
"TOTAL ASSETS" shall mean all assets of the Borrower excluding
intangible assets such as goodwill, all determined in accordance with
generally accepted accounting principles.
"TOTAL LIABILITIES" shall mean all liabilities of the Borrower which are
properly accounted for as such in accordance with generally accepted accounting
principles excluding the Intercompany Debt.
"UCC" shall mean the Uniform Commercial Code in effect in the applicable
jurisdiction, as amended from time to time.
"WHOLLY-OWNED SUBSIDIARY" shall mean any Person of which Borrower shall
now or hereafter at the time own, directly or indirectly through one or more
Subsidiaries or otherwise, one hundred percent (I 00%) of such Person's capital
stock or other beneficial interest.
Section 1.2 ACCOUNTING TERMS. All accounting terms used and not defined
in this Agreement shall be construed in accordance with generally accepted
accounting principles consistently applied, and all financial data required to
be delivered hereunder shall be prepared in accordance with such principles.
ARTICLE 2. THE CREDIT
Section 2.1 THE TERM LOANS. Subject to the terms and conditions of this
Agreement, on the date hereof, the Term Loan Lenders, severally and not jointly,
shall make term loans (the "Term Loans") to Borrower in an amount equal to each
Term Loan Lender's Ten-n Loan Commitment Percentage of $30,000,000 as set forth
on SCHEDULE I hereto and Borrower shall execute and deliver to each Term Loan
Lender a Term Loan Note to evidence the Term Loan made by such Term Loan Lender
to Borrower hereunder. Advances of the Term Loans shall be made by the Lenders
upon the application by the Borrower setting for the purpose and amounts
provided herein. The Borrower shall be entitled to three Advances including the
Advance at Closing.
Section 2.2 INTEREST ON THE TERM LOANS AND INTEREST RESERVE. (a) The
Borrower shall pay interest on the unpaid, outstanding balance of the Term Loans
at a per annum rate equal to fourteen percent (I 4%). Interest on the Term Loans
shall be payable monthly in arrears on the last day of each month, commencing
September 30, 1998, and continuing until all of the Indebtedness of the Borrower
to the Term Loan Lenders under the Term Loans shall have been paid in full,
(b) Borrower hereby agrees that the Lenders shall reserve the
proceeds of the Loan the sum of $1,500,000.00 ("Interest Reserve"). The Interest
Reserve shall be disbursed by the Lenders to pay: (i) regularly scheduled
installments of accrued and unpaid interest under the Notes prior to the
Maturity Date; or (ii) from and after the Maturity Date, for accrued and unpaid
interest under the Notes at the discretion of the Lenders. The Interest Reserve
may be disbursed for purposes other than the foregoing only with the consent of
the Lenders and upon notification of the Advance to the Borrower.
Section 2.3 ADDITIONAL PAYMENTS. Upon the occurrence and during the
continuance of any Event of Default, the Borrower shall, on demand, pay to the
Agent, for the account of the Lenders, interest on the unpaid principal
balance of the Term Loans, and, to the extent permitted by law, on any overdue
installments of interest, at a rate per annum equal to twenty percent (20%)
per annum.
Section 2.4 COMPUTATION OF INTEREST, ETC. Interest hereunder and under
the Loans shall be computed on the basis of a 360-day year for the number of
days actually elapsed. No interest payment or interest rate charged hereunder
shall exceed the maximum rate authorized from time to time by applicable law.
The outstanding balance of the Term Notes as reflected on the Agent's records
from time to time shall be considered correct and binding on the Borrower and
the Lenders (absent manifest error).
Section 2.5 FEES. Borrower shall pay to the Agent, for the Agent's own
account, such applicable agency fees and, for the account of the Lenders, such
applicable closing fees as are provided in a letter agreement dated as of
September 4, 1998 between Borrower and the Agent (as such letter agreement may
from time to time be amended or supplemented, the "Fee Letter").
Section 2.6 SET-OFF. To the extent not prohibited by applicable law,
the Borrower hereby authorizes the Agent and each Lender, without prior notice
to the Borrower, if and to the extent payment is not promptly made when due
pursuant to the Term Loan Notes or pursuant to any provision hereof or of any
other Lender Agreement, to charge against any account of any Borrower with the
Agent or such Lender, an amount equal to the accrued interest and principal
and other amounts from time to time then due and payable to the Agent and the
Lenders hereunder and under all other Lender Agreements, provided that the
Agent shall notify the Borrower of any such set-off promptly thereafter.
Section 2.7 INCREASED COSTS, ETC.
(a) Anything herein to the contrary notwithstanding, if any changes in
present or future applicable law (which term "applicable law," as used in this
Agreement, includes statutes and rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at
any time or from time to time heretofore or hereafter made upon or otherwise
issued to any Lender by any central bank or other fiscal, monetary or other
authority, whether or not having the force of law), including without
limitation any change according to a prescribed schedule of increasing
requirements, whether or not known or in effect as of the date hereof, shall
(i) subject such Lender to any tax, levy, impost, duty, charge, fee, deduction
or withholding of any nature with respect to this Agreement or the payment to
such Lender of any amounts due to it hereunder, or (ii) materially change the
basis of taxation of payments to such Lender of the principal of or the
interest on the Loans or any other amounts payable to such Lender hereunder,
or (iii) impose or increase or render applicable any special or supplemental
deposit or reserve or similar requirements or assessment against assets held
by, or deposits in or for the account of, or
any liabilities of, or loans by a ' n office of such Lender in respect of the
transactions contemplated herein, or (iv) impose on such Lender any other
condition or requirement with respect to this Agreement or the Term Loans, and
the result of any of the foregoing is (A) to increase the cost to such Lender
of making, funding or maintaining a] I or any part of the Loans or its
commitment hereunder, or (B) to reduce the amount of principal, interest or
other amount payable to such Lender hereunder, or (C) to require such Lender
to make any payment or to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed received by such
Lender from Borrower hereunder, then, and in each such case not otherwise
provided for -hereunder, Borrower will upon demand made by such Lender
promptly following such Lender's receipt of notice pertaining to such matters
accompanied by calculations thereof in reasonable detail, pay to such Lender
such additional amounts as will be sufficient to compensate such Lender for
such additional cost, reduction, payment or foregone interest or other sum;
PROVIDED that the foregoing provisions of this sentence shall not apply in the
case of any additional cost, reduction, payment or foregone interest or other
sum resulting from any taxes charged upon or by reference to the overall net
income, profits or gains of any Lender. In determining the additional amounts
payable hereunder, the Lenders may use any reasonable method of averaging,
allocating or attributing such additional costs, reductions, payments,
foregone interest or other sums among their respective customers.
(b) Anything herein to the contrary notwithstanding, if, after the date
hereof, any Lender shall have determined that any present or future applicable
law, rule, regulation, guideline, directive or request (whether or not having
force of law), including without limitation any change according to a
prescribed schedule of increasing requirements, whether or not known or in
effect as of the date hereof, regarding capital requirements for banks or bank
holding companies generally, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by such Lender with any of the foregoing, either imposes a
requirement upon such Lender to allocate additional capital resources or
increases such Lender's requirement to allocate capital resources or such
Lender's commitment to make, or to such Lender's maintenance of the Term
Loans, which has or would have the effect of reducing the return on such
Lender's capital to a level below that which such Lender could have achieved
(taking into consideration such Lender's then existing policies with respect
to capital adequacy and assuming full utilization of such Lender's capital)
but for such applicability, change, interpretation, administration or
compliance, by any amount deemed by such Lender to be material, such Lender
shall promptly after its determination of such occurrence give notice thereof
to the Borrower accompanied by an opinion of counsel to such Lender with
respect to such matters, the cost of which opinion shall be paid by Borrower.
Borrower and such Lender shall thereafter attempt to negotiate in good faith
an adjustment to the compensation payable hereunder which will adequately
compensate such Lender for such reduction. If Borrower and such Lender are
unable to agree on such adjustment within thirty (30) days of the date on
which Borrower receives such notice, then commencing on the date of such
notice (but not earlier than the effective date of any such applicability,
change, interpretation, administration or compliance), the
fees payable hereunder shall increase by an amount which will, in such Lender's
reasonable determination, evidenced by calculations in reasonable detail
furnished to Borrower, compensate such Lender for such reduction, such Lender's
determination of such amount to be conclusive and binding upon Borrower, absent
manifest error. In determining such amount, such Lender may use any reasonable
methods of averaging, allocating or attributing such reduction among its
customers.
Section 2.8 USE OF PROCEEDS. The proceeds of the Term Loans hereunder
shall be advanced to the Borrower pursuant to the terms of the Agreement and
used by Borrower: (a) to pay the fees and expenses associated with the
transactions contemplated hereby, (b) Permitted Capital Expenditures, (c) to the
extent (a) and (b) are fully reserved for, amounts shown on the Budget; and (d)
such other amounts and payees as the Agent shall approve. Borrower will not,
directly, or indirectly, use any part of such proceeds for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System or to extend credit to any
Person for the purpose of purchasing or carrying any such margin stock. Borrower
may draw up to $2,000,000.00 for the purpose of payment to American Ski in
connection with the capitalization of the Borrower. This payment shall be
permitted as the only Distribution permitted by the Borrower other than
reimbursements to American Ski for payroll expenses of the Borrower and the
Borrower Subsidiaries.. This provision shall control over the provisions of
Section 9.6.
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES
Section 3.1 CONDITIONS TO THE TERM LOANS. The Lenders' obligations to
make the Term Loans shall be subject to compliance by Borrower with its
agreements contained in this Agreement, and to the condition precedent that the
Lenders shall have received each of the following, in form and substance
satisfactory to the Agent and its counsel or in the form attached hereto as an
Exhibit, as the case may be:
(a) NOTES. The Term Loan Notes duly executed by the Borrower.
(b) RESOLUTIONS. Copies of the resolutions of the Board of Directors of
Borrower authorizing the execution, delivery and performance of this Agreement,
the Term Loan Notes, the Security Agreements and the other Lender Agreements to
which the Borrower or any Subsidiary is a party, certified by the Secretary or
an Assistant Secretary (or Clerk or Assistant Clerk) of Borrower and each of its
Subsidiaries (which certificate shall state that such resolutions are in full
force and effect).
(c) INCUMBENCY. A certificate of the Secretary or an Assistant Secretary
(or Clerk or Assistant Clerk) of Borrower certifying the name and signatures of
the officers of Borrower authorized to sign this Agreement, the Term Loan Notes,
the Security Agreements, the other Lender Agreements to which Borrower or any
Subsidiary is a party and the other documents to be delivered by Borrower
hereunder.
(d) CERTIFICATES OF EXISTENCE. Certificates of legal existence,
corporate or partnership good standing and foreign qualification for Borrower of
recent
date issued by the appropriate California, Colorado, Xxxxxxxx, Xxxxx, Xxxxxx,
Xxx Xxxxxxxxx, Xxxx and Vermont Governmental Authorities.
(e) CERTIFICATES OF TAX GOOD STANDING. Certificate of tax good standing
for Borrower, each Borrower and each other Subsidiary of Borrower of recent date
issued by the appropriate California, Colorado, Delaware, Maine, Nevada, Utah
and Vermont Governmental Authorities.
(f) LEGAL OPINIONS. The opinions of counsel to the Borrower, dated the
date of execution of this Agreement, in form acceptable to counsel for the
Lenders.
(g) SATISFACTION OF CONDITIONS. A certificate of the chief operating
officer or chief financial officer of Borrower, dated the Closing Date, to the
effect that all conditions precedent on the part of the Borrower to the
execution and delivery hereof and the making of the Term Loans have been
satisfied.
(h) GOVERNMENTAL APPROVALS. Evidence of the receipt of all necessary
governmental authorizations, consents and approvals for the execution, delivery
and performance by Borrower and its Subsidiaries party thereto of this
Agreement, the Term Loan Notes, the Security Agreements and the other Lender
Agreements.
(i) CLOSING FEE. Receipt by the Agent for the account of the Lenders of
the closing fees due to it pursuant to the Fee Letter.
TITLE. The Designated Properties have been conveyed to Borrower
and Borrower owns fee simple title or other title acceptable to the Lenders with
respect to the Designated Properties.
(k) PURCHASE OPTION. Borrower is the owner, without encumbrance or
other interest, of the Purchase Option.
(1) MARRIOTT. Borrower has assigned a first in priority security
interest (subject to perfection) in the distribution interest of Borrower in the
Marriott Joint Venture.
(in) SECURITY AGREEMENTS. Each of the Security Agreements shall have
been duly and properly authorized, executed and delivered by the parties thereto
and shall be in full force and effect, subject to perfection as provided herein,
and pursuant to the Security Agreements the Borrower shall have granted to the
Agent first valid and binding security interests, liens and encumbrances on all
of the assets of Borrower (other than de minimis or non core assets of the
Borrower and restricted cash balances and investments of the disbursed loan
proceeds) in favor of the Agent (subject only to permitted Liens including
without limitation:
(i) all fee simple and leasehold interests in and to all real
property owned or leased by Borrower, and all buildings and improvements now
located or to be constructed thereon, whether now owned or hereafter acquired;
(ii) all tangible and intangible assets of Borrower, whether now
owned or hereafter acquired, including without limitation all
machinery, equipment, furniture, furnishings, inventory, appliances,
contract rights, deposit accounts, cash collateral, hotel and motel
revenues, instruments, general intangibles, etc., whether now owned or
hereafter acquired, but excluding leasehold personal property interests
which Borrower is prohibited by the lessor from assigning and any
interest in any personal property lease agreement which Borrower is
prohibited from assigning;
(iii) all leases, tenancies, purchase and sale agreements for
the sale of condominium units or other property, operating agreements,
contract and rental agreements for the lease, sale (as permitted
hereunder), rental, occupancy, hire or use of any of Borrower's assets,
including without limitation the Mortgaged Properties, or any portion
thereof together with all income, profits, revenues, cash collateral
and other proceeds thereof, and
(iv) all licenses, permits, trade names, patents, trademarks,
approvals and contracts..
(n) INSURANCE. The Agent shall have received (i) certificates of
insurance as to the liability, hazard and other insurance maintained by Borrower
on the Collateral in conformity with the insurance requirements contained herein
(including flood insurance if necessary) from the insurer or an independent
insurance broker dated as of the Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms all in accordance with the
provisions of the Security Agreements; (ii) certified copies of all policies
evidencing such insurance (or certificates therefor signed by the insurer or an
agent authorized to bind the insurer); and (iii) such further information and
certificates from Borrower, its insurers and insurance brokers as the Agent may
request.
(o) LEASES/SERVICE CONTRACTS The Agent shall have received copies of all
material service contracts and leases affecting any portion of the Mortgaged
Properties.
(p) SUBORDINATION AGREEMENT. The Agent shall have received the executed
Subordination Agreement.
(q) MISCELLANEOUS. The Agent shall have received such other documents,
certificates and opinions as the Agent or the Lenders may reasonably request.
ARTICLE 4. PAYMENT AND REPAYMENT
Section 4.1 MANDATORY REPAYMENTS AND PREPAYMENTS.
Borrower shall repay the Term Loans in full on the Term Loan
Maturity Date.
Section 4.2 VOLUNTARY PREPAYMENTS.
Borrower may make prepayments to the Agent for the
ratable-accounts of the Term Loan Lenders, of any outstanding principal amount
of the Term Loans, at any time.
Section 4.3 PAYMENT OR OTHER ACTIONS ON NON-BUSINESS DAYS. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be. In the case of any other action
the last day for performance of which shall be a day other than a Business Day,
the date for performance shall be extended to the next succeeding Business Day.
Section 4.4 METHOD AND TIMING OF PAYMENTS. Borrower shall make each
payment to be made by Borrower hereunder not later than 3:00 noon (Boston time)
on the day when due in lawful money of the United States to the Agent at its
address set forth in Section 16.1 in immediately available funds. The Agent
will, after its receipt thereof, distribute like funds relating to the payment
of principal, interest or any other amounts payable hereunder ratably to the
Lenders in accordance with their respective Commitment Percentages. Any payment
made by Borrower to the Agent under this Agreement or under the Notes in the
manner provided in this Agreement shall be deemed to be a payment to each of the
respective Lenders, unless the provisions of this Agreement expressly provide
that any such payment shall be solely for the account of the Agent or any
specific Lender.
Section 4.5 CURRENCY. All payments and prepayments provided for under
this Agreement shall be made in lawful currency of the United States of America
in immediately available funds,
Section 4.6 FOREIGN LENDERS. Each Lender (including any Successor
Lender) that is not a citizen or resident of the United, States of America, a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless of the
source of its income (a "Non-U.S. Lender") shall deliver to Borrower and the
Agent (or, in the case of a Credit Participant, to the Lender from which the
related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form I 00 I or Form 4224, or, in the case of a Non-U.
S. Lender claiming exemption from U.S. federal withholding tax under Section 871
(h) or 881 (c) of the Code with respect to payments of "portfolio interest," a
Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, an annual certificate representing that such Non-U.S. Lender is not a
"bank" for purposes of Section 881 (c) of the Code, is not a 10% shareholder
(within the meaning of Section 871 (h)(3)(B) of the Code) of Borrower and is not
a controlled foreign corporation related to Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by Borrower under this Agreement and the
other Lender Agreements. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement (or, in the case of
any Credit Participant, on or before the date such Credit Participant purchases
the related participation), In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 4.6, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this Section 4.6 that such
Non-U.S. Lender is not legally able to deliver.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make the Loans as contemplated hereby,
Borrower hereby makes the following representations and warranties:
Section 5.1 EXISTENCE, CHARTER AND FORMATION DOCUMENTS, ETC. Borrower is
a corporation, and is validly organized, legally existing and in good standing
under the laws of the jurisdiction in which it is organized and has corporate
power to own its properties and conduct its business as now conducted and as
proposed to be conducted by it. Certified copies of the charter documents and
By-Laws of Borrower have been delivered to the Lenders and are true, accurate
and complete as of the date hereof.
Section 5.2 PRINCIPAL PLACE OF BUSINESS: LOCATION OF RECORDS. Borrower's
and each Subsidiary's principal place of business is as described on SCHEDULE
5.2. All of the books and records or true and complete copies thereof relating
to the accounts and contracts of Borrower are and will be kept at such location
and at the other locations designated on SCHEDULE 5.2.
Section 5.3 QUALIFICATION. Borrower and each Subsidiary is duly
qualified, licensed and authorized to do business and is in good standing as a
foreign corporation or partnership in each jurisdiction where its ownership or
leasing of properties or the conduct of its business requires it to be so
qualified except to the extent that any failure to be so qualified would not
have a Material Adverse Effect.
Section 5.4 SUBSIDIARIES.
(a) Borrower has no Subsidiaries except for THE Borrower Subsidiaries.
(b) There are no transactions or relationships between Borrower and
American Ski or its Subsidiaries except for the Intercompany Debt, except as
disclosed on SCHEDULE 5.4.
Section 5.5 POWER. The execution, delivery and performance of this
Agreement, the Term Notes, the Security Agreements and all other Lender
Agreements and other documents delivered or to be delivered by Borrower to the
Agent or the Lenders, and the incurrence of Indebtedness to the Lenders
hereunder or thereunder, now or hereafter owing:
(a) are within the powers of Borrower, having been duly authorized by
its Board of Directors or other similar governing body, and, if required by
law, by its charter documents or by its By-Laws, by its stockholders or
partners;
(b) do not require any approval or consent of, or filing with, any
governmental agency or other Person (except for such approvals and consents
that have been obtained and delivered to the Lenders) and are not in
contravention of law or the terms of the charter documents or By-Laws of
Borrower or any amendment thereof,
(c) do not and will not
(i) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which Borrower or any Subsidiary or American Ski is a
party or by which Borrower or any Subsidiary or American Ski or any of
their respective properties are bound or affected, except for those
breaches or defaults which have been waived or consented to in writing
or which will not in the aggregate result in a Material Adverse Effect,
(ii) result in a violation of or default under any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award having applicability to Borrower or any Subsidiary, or to any of
their respective properties.
Section 5.6 VALID AND BINDING OBLIGATIONS. This Agreement, the Term
Loan Notes, the Security Agreements and all the other Lender Agreements
executed in connection herewith and therewith constitute, or will constitute
when delivered, the valid and binding obligations of Borrower, enforceable in
accordance with their respective terms, except as the enforceability thereof
may be subject to bankruptcy, insolvency, moratorium and other laws affecting
the rights and remedies of creditors and secured parties and to the exercise
of judicial discretion in accordance with general equitable principles,
subject to perfection as provided herein.
Section 5.7 OTHER AGREEMENTS. Borrower is not a party to any indenture,
loan or credit agreement, or any lease or other agreement or instrument, or
subject to any charter or corporate restriction or any judgment, decree, order,
rule or regulation, which is likely to have a Material Adverse Effect, or which
restricts the ability of Borrower to carry out any of the provisions of this
Agreement, the Term Loan Notes, the Security Agreements or any of the Lender
Agreements executed in connection herewith and therewith except for the
compliance by Borrower with the provisions of Section 1 1.2.
Section 5.8 PAYMENT OF TAXES. Borrower has filed all tax--returns which
are required to be filed and has paid, or made adequate provision for the
payment of, all taxes which have or may become due pursuant to said returns or
to assessments received, except such as are being contested in good faith by
appropriate proceedings.
Section 5.9 FINANCIAL STATEMENTS.
(a) All balance sheets, statements and other financial information
furnished to the Agent and the Lenders in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, the pro forma
financial statement dated August 24, 1998, has been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved (except for normal year-end adjustments and for the absence of
footnotes with interim statements) and present fairly the consolidated financial
condition of Borrower and its Subsidiaries reported therein and all such
information so furnished was true, correct and complete as of the date thereof,
in all material respects.
(b) To the best knowledge of Borrower, no facts exist that (individually
or in the aggregate) would result in any material change in any of such
projections.
Section 5.10 OTHER MATERIALS FURNISHED. The written information,
exhibits. memoranda or reports furnished to the Agent or the Lenders by or on
behalf of Borrower in connection with the negotiation of this Agreement, taken
as a whole, does not contain any material misstatement of fact or omit to state
a material fact necessary to make the statements contained therein not
misleading.
Section 5.11 STOCK. As of the date hereof, the issued and outstanding
capital stock of Borrower is as set forth on SCHEDULE 5.4 hereto. There are
presently issued by Borrower and outstanding the shares of capital stock
indicated on SCHEDULE 5.4. Borrower has received the consideration for which
such stock was authorized to be issued and have otherwise complied with all
legal requirements relating to the authorization and issuance of shares of stock
and all such shares are validly issued, fully paid and non-assessable. Borrower
has no other capital stock of any class outstanding.
Section 5.12 CHANGES IN CONDITION. Since the date of formation, there
has been no material adverse change in the business or assets or in the
condition, financial or otherwise, of Borrower and its Subsidiaries taken as a
whole, and neither Borrower nor any Subsidiary have entered into any transaction
outside of the ordinary course of
business which is material to Borrower and its Subsidiaries taken as a whole.
Neither Borrower nor any Subsidiary have, as of the date thereof, any
contingent liabilities of any material amount.
Section 5.13 ASSETS, LICENSES, PATENTS, TRADEMARKS, ETC.
(a) Borrower has good and marketable title to, or valid leasehold
interests in, all of their assets, real and personal, including the Designated
Properties and the Purchase Option, subject to no liens, charges or
encumbrances, except for liens, charges and encumbrances described in SCHEDULE
5.13 and permitted by Section 9.2 hereof.
(b) Borrower owns all material licenses, patents, patent applications,
copyrights, service marks, trademarks, trademark applications, and trade names
necessary to continue to conduct its business.
(c) Except as set forth on SCHEDULE 5.13(C) hereto, no leasehold
personal property interest which Borrower is prohibited by the lessor from
assigning and no interest in any personal property lease agreement which
Borrower is prohibited from assigning is material, or taken as a whole are
material, to the operations of Borrower.
Section 5.14 LITIGATION. There is no litigation, at law or in equity,
or any proceeding before any federal, state, provincial or municipal board or
other governmental or administrative agency pending or, to the knowledge of
Borrower, threatened, or any basis therefor, which involves a material risk of
any judgment or liability which could have a Material Adverse Effect, and no
judgment, decree, or order of any federal, state, provincial or municipal
board or other governmental or administrative agency has been issued against
Borrower or any of its Subsidiaries which has or may have a Material Adverse
Effect.
Section 5.15 PENSION PLANS. No employee benefit plan established or
maintained by Borrower or any of its Subsidiaries or any other Person a member
of the same "control group," as American Ski or any of its Subsidiaries (a
"Pension Affiliate"), within the meaning of Section 302(f)(6)(b) of ERISA,
(including any multi-employer plan to which American Ski or any of its
Subsidiaries contributes) which is subject to Part 3 of Subtitle B of Title I
of the ERISA, had a material accumulated funding deficiency (as such term is
defined in Section 302 of ERISA) as of the last day of the most recent fiscal
year of such plan ended prior to the date hereof, or would have had an
accumulated funding deficiency (as so defined) on such day if such year were
the first year of such plan to which Part 3 of Subtitle B of Title I of ERISA
applied, and no material liability under Title IV of ERISA has been, or is
expected by Borrower or any of its Subsidiaries to be, incurred with respect
to any such plan by Borrower or any of its Subsidiaries or any Pension
Affiliate. The execution, delivery and performance by American Ski and the
Borrower of this Agreement and the other Lender Agreements executed on the
date hereof will not involve any prohibited transaction within the meaning of
ERISA or Section 4975 of the Code. Borrower and its Subsidiaries have no
Pension Plan other than those described on SCHEDULE 5.15.
Section 5.16 OUTSTANDING INDEBTEDNESS. After application of the
proceeds of the Term Loans, the outstanding amount of borrowed money of
Borrower and its Subsidiaries as of the date hereof is correctly set forth on
SCHEDULE 5.16 hereto, and said Schedule correctly describes the credit
agreements, guaranties, leases and other instruments pursuant to which such
Indebtedness has been incurred and all liens, charges and encumbrances
securing such Indebtedness. Said schedule also describes all agreements and
other arrangements pursuant to which Borrower or any of its Subsidiary may
borrow any money.
Section 5.17 ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE
5.17:
(a) Neither Borrower, any Subsidiaries, nor any operator of any of their
respective properties is in violation, or to Borrower's knowledge is in alleged
violation, of any Environmental Law, which violation would have a Material
Adverse Effect.
(b) Neither Borrower, nor any operator of any of their respective
properties has received notice from any third party, including without
limitation any federal, state, county, or local governmental authority, (i) that
it has been identified as a potentially responsible parry under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA") or any equivalent state law, with respect to any site or
location; (ii) that any Hazardous Materials which it has generated, transported
or disposed of, has been found at any site at which a federal, state, county, or
local agency or other third party has conducted or has ordered Borrower, or
another third party or parties (E.G. a committee of potentially responsible
parties) to conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a named party
to any claim, action, cause of action, complaint (contingent or otherwise) or
legal or administrative proceeding arising out of any actual or alleged release
or threatened release of Hazardous Materials. For purposes of this Agreement,
"release" means any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping of any Hazardous Material into the Environment, or the
uncontained presence of any Hazardous Material in the Environment.
(c) (i) Borrower, and each operator of any real property owned or
operated by Borrower is in compliance, in all material respects, with all
provisions of the Environmental Laws relating to the handling, manufacturing,
processing, generation, storage or disposal of any Hazardous Materials; (ii) to
the best of Borrower's knowledge, no portion of property owned, operated or
controlled by Borrower has been used for the handling, manufacturing,
processing, generation, storage or disposal of Hazardous Materials except in
accordance with applicable Environmental Laws; (iii) to the best of Borrower's
knowledge, there have been no releases or threatened releases of Hazardous
Materials on, upon, into or from any property owned, operated or controlled by
Borrower, which releases could have a Material Adverse Effect; (iv) to the best
of Borrower's knowledge, there have been no releases of Hazardous Materials on,
upon, from or into any real property in the vicinity of the real properties
owned, operated or controlled by Borrower which, through soil or groundwater
contamination, may have come to be
located on the properties of Borrower; (v) to the best of Borrower's knowledge,
there have been no releases of Hazardous Materials on, upon, from or into any
real property formerly but no longer owned, operated or controlled by Borrower.
(d) None of the properties of Borrower is or shall be subject to any
applicable environmental cleanup responsibility law or environmental restrictive
transfer law or regulation by virtue of the transactions set forth herein and
contemplated hereby.
Section 5.18 FOREIGN TRADE REGULATIONS. Borrower is not (a) a person
included within the definition of "designated foreign country" or "national" of
a "designated foreign country" in Executive Order No. 8389, as amended, in
Executive Order No. 9193, as amended, in the Foreign Assets Control Regulations
(31 C.F.R., Chapter V, Part 500, as amended), in the Cuban Assets Control
Regulations of the United States Treasury Department (31 C.F.R., Chapter V, Part
515, as amended) or in the Regulations of the Office of Alien Property,
Department of Justice (8 C.F.R., Chapter 11, Part 507, as amended) or within the
meanings of any of the said Orders or Regulations, or of any regulations,
interpretations, or rulings issued thereunder, or in violation of said Orders or
Regulations or of any regulations, interpretations or rulings issued thereunder;
or (b) an entity listed in Section 520. 1 01 of the Foreign Funds Control
Regulations (31 C.F.R., Chapter V, Part 520, as amended).
Section 5.19 GOVERNMENTAL REGULATIONS. Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940, or is a common carrier under the
Interstate Commerce Act, or is engaged in a business or activity subject to any
statute or regulation which regulates the incurring by Borrower of Indebtedness
for borrowed money, including statutes or regulations relating to common or
contract carriers or to the sale of electricity, gas, steam, water, telephone or
telegraph or other public utility services.
Section 5.20 MARGIN STOCK. Borrower does not own any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, or any regulations, interpretations or rulings thereunder, nor
is Borrower engaged principally or as one of its important activities in
extending credit which is used for the purpose of purchasing or carrying margin
stock.
Section 5.21 SOLVENCY. Borrower, before and after giving effect to the
transactions contemplated by this Agreement and the other Lender Agreements is
Solvent.
Section 5.22 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS. EM.
(a) Borrower is not in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could result in a Material Adverse Effect.
(b) Borrower has complied in all respects with the requirements of the
Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement Act of 1976, as amended (the "HSR
Act")
Section 5.23 ABSENCE OF FINANCING STATEMENTS, ETC. To the best
knowledge of Borrower and except with respect to Permitted Liens, there is no
financing statement, security agreement, chattel mortgage, real estate
mortgage or other document filed or recorded with any filing records, registry
or other public office, that purports to cover, effect or give notice of any
present or possible future lien on, or security interest in, any assets or
property of Borrower or any Subsidiary or any rights relating thereto.
Section 5.24 FISCAL YEAR ' Borrower has a fiscal year which is the
twelve-months ending on the last Sunday of July of each year.
Section 5.25 TAX STATUS. Borrower is a "C" corporation for all purposes
under the Code.
Section 5.26 PURCHASE OPTION. The Purchase Option is in full force and
effect and no event of default or default exists thereunder. No consent or
approval of the optionor is required for the pledge of the interest of the
Borrower to Lender thereunder.
Section 5.27 LEASES. The Leases are in full force and effect and no
event of default or default exists thereunder. No consent is required for the
pledge of the interest of the Borrower to the Lender thereunder.
Section 5.28 PENDING FINANCING. Grand Summit and Canyons Resort are
currently negotiating terms for financing of construction of the Permitted
Projects with KeyCorp and Textron Financial Corporation, Borrower has received
term sheets with respect to such financing and Borrower knows of no reason or
condition that would prevent the closing of the foregoing proposed facilities.
Section 5.29 STATUS MEMORANDUM. The information contained in the Status
Memorandum is true and correct in all material respects.
ARTICLE 6. REPORTS AND INFORMATION
Section 6.1 FINANCIAL INFORMATION. Borrower shall provide to Lender
such financial information as the Agent may request. Borrower shall provide to
Lender a monthly Budget variance report.
Section 6.2 NOTICE OF DEFAULTS. As soon as possible, and in any event
within five (5) days after the occurrence of each Default, Borrower shall
furnish to the Agent and each Lender the statement of their chief executive
officers or chief financial officers setting forth details of such Default and
the action which Borrower has taken or propose to take with respect thereto.
Section 6.3 NOTICE OF LITIGATION. Promptly after the commencement
thereof, Borrower shall furnish to the Agent and each Lender written notice of
all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting Borrower, which, if adversely determined, would have a
Material Adverse Effect.
Section 6.4 REPORTABLE EVENTS. At any time that Borrower or any Pension
Affiliate has a Pension Plan, Borrower shall furnish to the Agent and each
Lender, as soon as possible, but in any event within thirty (30) days after
Borrower knows or has reason to know that any Reportable Event with respect to
any Pension- Plan has occurred, the statement of the chief executive officers
or chief financial officers of Borrower setting forth the details of such
Reportable Event and the action which Borrower or any Pension Affiliate h@
taken or proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event to the Pension Benefit Guaranty Corporation.
Section 6.5 COMMUNICATIONS WITH INDEPENDENT PUBLIC ACCOUNTANTS. At any
reasonable time and from time to time upon reasonable request, Borrower shall
provide the Agent and the Lenders and any agents or representatives of the
Agent and the Lenders access to the independent public accountants of Borrower
and its Subsidiaries to discuss their financial condition, including, without
limitation any recommendations of such independent public accountants
concerning the management, finances, financial controls or operations of
Borrower and its Subsidiaries.
Section 6.6 ENVIRONMENTAL REPORTS. In the event that and to the extent
that any of the following provides notice of circumstances, occurrences or
events that have or could reasonably be expected to have a material impact on
the operations of Borrower, the Borrower shall furnish to the Agent and each
Lender: (a) not later than seven (7) days after notice thereof, notice of any
enforcement actions, or, to the knowledge of Borrower, threatened enforcement
actions affecting Borrower or any Subsidiary by any Governmental Authority
related to Environmental Laws; (b) copies, promptly after they are received,
of all orders, notices of responsibility, notices of violation, notices of
enforcement actions, and assessments, and other written communications
pertaining to any such orders, notices, claims and assessments received by
Borrower or any Subsidiary from any Governmental Authority; (c) not later than
seven (7) days after notice thereof, notice of any civil claims or threatened
civil claims affecting Borrower or any Subsidiary by any third party alleging
any violation of Environmental Laws or harm to human health, safety or the
environment: (d) copies of all cleanup plans, site assessment reports,
response plans, remedial proposals, or other submissions of American Ski or
any Subsidiary, other third party (e.g., committee of potentially responsible
parties at a Superfund site), or any combination of same, submitted to a
Governmental Authority in response to any communication referenced in
subsections (a) and (b) herein simultaneously with their submission to such
Governmental Authority; and (e) from time to time, on reasonable request of
the Agent, evidence satisfactory to the Agent of Borrower and its
Subsidiaries' insurance coverage, if any, for any environmental liabilities.
Section 6.7 MISCELLANEOUS. Borrower shall provide the Agent and the
Lenders with such other information as the Agent or the Lenders may from time to
time reasonably request respecting the business, properties, prospects,
condition or operations, financial or otherwise, of Borrower and its
Subsidiaries.
Section 6.8 PURCHASE OPTION AND LEASES. Borrower shall take all actions
necessary to cause the Leases and the Purchase Option to remain in full force
and effect and to cause no event of default to occur or exist thereunder or
under the Purchase Money Mortgage.. Borrower hereby authorizes the Lenders to
take such actions as the Lenders may deem necessary to cause this warranty to
remain true and correct. Lenders may advance sums pursuant to the foregoing in
the from and after the expiration of ten (10) days from the giving of notice to
the Borrower of the intent of the Lender to undertake such action unless either
a Lease or the Purchase Option would terminate without immediate action and
then, in such event, Lenders may take immediate action hereunder. All funds so
advances shall be secured by the Security Agreements, bear interest at the
Default Rate of interest specified in the Notes and shall be immediately due and
payable.
Section 6.9 PERMITS, ZONING AND OTHER DEVELOPMENT RIGHTS. Borrower and
the Lenders acknowledge and recognize that the Mortgaged Properties are in
various stages of permitting for ultimate commercial development. Borrower shall
take such actions as are necessary to cause such permits to be issued and vested
in the Borrower and to be included in the Security Agreements. Borrower shall
provide such additional information and periodic reports as the Lenders may
request concerning the business plan and issuance of the foregoing permits,
zoning and development rights.
Section 6.10 MARRIOTT JOINT VENTURE. Borrower shall cause the Marriott
Joint Venture to remain in full force and effect and to cause no default or
event of default thereunder.
ARTICLE 7. FINANCIAL COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, Borrower shall observe the following covenants:
Section 7.1 MINIMUM TANGIBLE NET WORTH.
Borrower shall maintain a minimum Tangible Net Worth at all
times of not less than the sum of $60,000,000.00.
ARTICLE 8. AFFIRMATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, Borrower will, comply with the following covenants
and provisions:
Section 8.1 REPRESENTATIONS AND WARRANTIES. Borrower shall take all
actions necessary in order to cause the representations and warranties set forth
in this Agreement to be true, accurate and in full force and effect.
Section 8.2 TAXES AND OTHER OBLIGATIONS. Borrower (a) will duly pay and
discharge, or cause to be paid and discharged, before the same shall become in
arrears, all material taxes, assessments and other governmental charges, imposed
upon each of them and its properties, sales and activities, or upon the income
or profits therefrom, as well as the claims for labor, materials, or supplies
which if unpaid might by law result in a lien or charge upon any of its
properties; PROVIDED, HOWEVER, that Borrower may contest any such charges or
claims in good faith so long as (i) an adequate reserve therefor has been
established and is maintained if and as required by generally accepted
accounting principles and (ii) no action to foreclose any such lien has been
commenced and (b) will promptly pay or cause to be paid when due, or in
conformance with customary trade terms (but not later than 60 days from the due
date in the case of trade debt), all material lease obligations, trade debt and
all other Indebtedness incident to its operations. Borrower shall cause all
applicable tax returns and all amounts due thereunder to be filed and paid, as
the case may be, in order to maintain its good standing with the Internal
Revenue Service and state, local and foreign tax authorities.
Section 8.3 MAINTENANCE OF PROPERTIES AND LEASES. Borrower shall
maintain, keep and preserve all of its material properties (tangible and
intangible) including the Mortgaged Properties in good repair and working order,
ordinary wear and tear excepted. Borrower shall replace and improve its material
properties as necessary for the conduct of its business. Borrower and each
Subsidiary shall comply in all material respects with all leases naming it as
lessee.
Section 8.4 INSURANCE. The Borrower will maintain with financially sound
and reputable insurers insurance with respect to its properties and business
against such casualties and contingencies including windstorm and hurricane
insurance and as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas, and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent in accordance with sound business practices. With respect to the
Collateral, all such insurance shall be in such amount, such form, for such
periods and written by such companies as may be reasonably satisfactory to the
Agent and shall be payable to the Agent and to the Borrower, as the case may be,
as their interests may appear. If a Default then exists, the Agent may apply all
proceeds received by it to pay the Obligations hereunder in such order as it
shall determine in its discretion; but if no Default then exists, then the
Borrower shall have the right to determine whether to apply such proceeds
against the Obligations or against the costs of repairing or restoring the
damage to the Mortgaged Property. All policies of
insurance shall provide for a minimum thirty (30) days prior written minimum
cancellation notice to the Agent and shall name the Agent as additional insured
party, and, in the case of the Collateral, shall name the Agent as mortgagee and
loss payee. Certificates of insurance (or, if requested by the Agent, certified
copies of policies) with respect to all renewals or replacements of such
insurance from time to time in force together with evidence of payment of
premiums thereon satisfactory to the Agent shall be delivered to the Agent at
least ten (10) days before the expiration date of then current insurance. No
settlement on account of any loss covered by such insurance shall be made
without the consent of the Agent. In the event of failure to provide and
maintain insurance as herein provided, the Agent may, at its option, after
giving notice to the Borrower, as applicable, provide such insurance and charge
the amount thereof to the Borrower (including by making an Advance therefor).
The Borrower shall furnish to the Agent certificates or other evidence
satisfactory to the Agent of compliance with the foregoing insurance provision.
Without limiting the foregoing, the Borrower will (i) keep all of its physical
property insured against fire and extended coverage risks in amounts and with
deductibles and endorsements acceptable to the Agent (ii) maintain all such
workers' compensation or similar insurance as may be required by law, and (iii)
maintain, in amounts, deductibles and endorsements acceptable to the Agent,
general public liability insurance against claims for bodily injury, death or
property damage occurring on, in or about the properties of the Borrower and
business interruption insurance, and (iv) in the event the Property or any
portion thereof is located in a flood hazard area identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968, as amended by the Flood Disaster Act of 1973 (and any successor Act
thereto), maintain a flood insurance policy as required by the Flood Disaster
Act of 1973. The Borrower shall at all times comply with and conform to all
provisions of each such insurance policy and to all requirements of the insurers
thereunder applicable to Borrower the Property or to the use, occupation,
possession, operation, maintenance or repair of all or any portion of the
Property.
Section 8.5 RECORDS, ACCOUNTS AND PLACES OF BUSINESS. Borrower shall
maintain comprehensive and accurate records and accounts in accordance with
generally accepted accounting principles consistently applied. Borrower shall
maintain adequate and proper reserves. Borrower shall promptly notify the Agent
of (a) any changes in the places of business of Borrower and (b) any additional
places of business which may arise hereafter.
Section 8.6 INSPECTION. At any reasonable time and from time to time,
Borrower shall permit the Agent and the Lenders and any of the Agent's and the
Lenders' agents or representatives to examine and make copies of and abstracts
from the records and books of account of., and visit the properties of, Borrower
and to discuss the affairs, finances and accounts of Borrower with any of their
officers or directors and with American Ski's and its Subsidiaries' independent
accountants. In addition, the Agent shall be entitled, and Borrower shall permit
the Agent, to conduct field examinations of Borrower, at Borrower's sole expense
and at any time or times in the Agent's sole discretion.
Section 8.7 MAINTENANCE OF ACCOUNTS. Borrower shall maintain their
principal concentration and disbursement accounts with the Agent.
Section 8.8 OWNERSHIP OF SUBSIDIARIES. Borrower will maintain legal and
beneficial ownership, directly or indirectly, of I 00% of the equity interests
of each of the Subsidiaries, except for its interest in Heavenly Resort which is
a partial percentage interest.
Section 8.9 DUE DILIGENCE MATTERS. Borrower agrees to provide to the
Lender, upon request, such surveys, evidence of zoning, title insurance
policies, appraisals, copies of permits, environmental reports, evidence of
utilities, and consents of lessors and optionors as the Lenders may request, all
at the sole cost and expense of the Borrower.
ARTICLE 9. NEGATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, Borrower covenants that Borrower will not and
Borrower will take such actions as are necessary to cause the Borrower
Subsidiaries not to:
Section 9.1 RESTRICTIONS ON INDEBTEDNESS. Create, incur, suffer or
permit to exist, or assume or guarantee, either directly or indirectly, or
otherwise become or remain liable with respect to, any Indebtedness, except the
following:
(a) Indebtedness to the Lenders and the Agent under this Agreement,
the Term Loan Notes, and the other Lender Agreements;
(b) the InterCompany Debt;
(c) such other subordinated indebtedness provided that the holder
thereof executes and delivers to the Lenders a Subordination Agreement
acceptable to the Lenders;
(d) the Purchase Money Mortgage;
(e) as to the Subsidiaries of Borrower, the Textron Facility and the
proposed financing facilities for the Permitted Construction Projects, and
indebtedness of a Subsidiary of Borrower associated with the exercise of
Borrower's rights under the Purchase Option (collectively "Permitted Financial
Facilities"); and
(f) the existing indebtedness set forth on Schedule 5.16.
Section 9.2 RESTRICTION ON LIENS. Create or incur or suffer to be
created or incurred or pen-nit to exist any encumbrance, mortgage, pledge, lien,
charge or
other security interest of any kind upon any of its property or assets of any
character, whether now owned or hereafter acquired, or transfer any of such
property or assets for the purposes of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors, or acquire or agree or have an option to acquire any
property or assets upon conditional sale or other title retention agreement,
device or arrangement (including Capitalized Leases) or suffer to exist for a
period of more than 30 days after the same shall have been incurred any
Indebtedness against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over the claims of
its general creditors, or sell, assign, pledge or otherwise transfer for
security any of its accounts, contract rights, general intangibles, or chattel
paper (as those terms are defined in the UCC) with or without recourse (each of
the foregoing, a "Lien"); PROVIDED, HOWEVER, that Borrower may create or incur
or suffer to be created or incurred or permit to exist the following (the
"Permitted Liens"):
(a) The Purchase Money Mortgages;
(b) Deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or other
social security and liens for taxes, assessments or governmental charges or
levies and liens to secure claims for labor, material or supplies and liens
securing obligations to carriers, warehousemen and mechanics to the extent that
payment thereof shall not at the time be required to be made in accordance with
Section 8.2;
(c) Encumbrances in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property which do not
materially detract from the value of such property or impair its use in the
business of the owner or lessee;
(d) Liens (other than judgments and awards) created by or resulting from
any litigation or legal proceeding which has not yet resulted in an Event of
Default; PROVIDED that the execution or other enforcement thereof is effectively
stayed and the claims secured thereby are being actively contested in good faith
by appropriate proceedings satisfactory to the Agent;
(e) Liens arising by operation of law to secure landlords, lessors or
renters under leases or rental agreements made in the ordinary course of
business and confined to the premises or property rented;
(f) Liens in favor of the Agent for the benefit of the Lenders securing
the Lender Obligations, as and when such Liens are established; and
(g) the liens created with respect to the indebtedness set forth at
Section 9. 1 (e).
Nothing contained in this Section 9.2 shall permit Borrower to incur any
Indebtedness or take any other action or permit to exist any other condition
which would be in contravention of any other provision of this Agreement.
Section 9.3 INVESTMENTS. Have outstanding or hold or acquire or make or
commit itself to acquire or make any Investment except the following:
(a) Investments having a maturity of less than one year from the date
thereof by the Borrower or any Subsidiary in: (i) obligations of the Agent or
any of the Lenders; (ii) obligations of the United States of America or any
agency or instrumentality thereof, (iii) repurchase agreements involving
securities described in clauses (i) and (ii) with the Agent or any of the
Lenders; and (iv) commercial paper which is rated not less than prime-one or A-
I or their equivalents by Xxxxx'x Investor Service, Inc. or Standard & Poor's
Corporation, respectively, or their successors.
(b) Investments received as consideration from the sale of assets
other-wise permitted hereunder, which Investments are pledged to the Agent on
terms and conditions acceptable to the Agent.
(c) Investments consisting of advances to employees in the ordinary
course of business.
(d) Investments acquired in connection with the bankruptcy or workout of
account debtors.
(e) The conveyance of sites for the Permitted Construction Projects to
the Subsidiaries of the Borrower and the investments permitted under Section
9.7.
Section 9.4 MERGERS, ACQUISITIONS, ETC.- Enter into any merger or
consolidation with or acquire all or substantially all of the assets of any
Person, or sell. assign, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person.
Section 9.5 TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate, except that Borrower (a) may pay
reasonable salaries, fees and bonuses to their directors, officers and employees
as are usual and customary in Borrower's business, (b) may enter into
transactions among each other on terms that are not materially less favorable to
Borrower than those which could be obtained at the time from Persons who are not
Affiliates and which transactions (to the extent in excess of $250,000 for each
transaction or a series of related transactions) are disclosed to the Agent in
Compliance Certificates, and (c) Borrower may enter into and perform their
obligations under the Lender Agreements.
Section 9.6 DISTRIBUTIONS. Make any Distribution or make any other
payment on account of the purchase, acquisition, redemption, or other retirement
of any shares of stock, whether now or hereafter outstanding. The provisions of
this Section shall not apply to any Borrower Subsidiary.
Section 9.7 CAPITAL EXPENDITURES. Make any Capital Expenditure, except
that Borrower may provide to Grand Summit and Canyons Resort a maximum of
fifteen percent (I 5%) equity on the Permitted Projects and except as provided
in the Budget.
Section 9.8 DISPOSITIONS OF ASSETS. Sell, lease or otherwise dispose of
any assets except for the sale, lease or other disposition of inventory,
including residential real property held for resale, in the ordinary course of
business and sales under the Marriott Joint Venture and dispositions permitted
under Section 9.3(e)..
Section 9.9 ASSUMPTIONS, GUARANTIES, ETC. OF INDEBTEDNESS OF OTHER
PERSONS. Assume, guarantee, endorse or otherwise be or become directly or
contingently liable (including, without limitation, by way of agreement,
contingent or otherwise, to purchase, provide funds for payment, supply funds to
or otherwise invest in any Person or otherwise assure the creditors of any such
Person against loss) in connection with any Indebtedness of any other, Person.
The Permitted Financial Facilities and the completion guaranty to be executed by
Borrower in connection with the proposed facility by KeyCorp as to the Permitted
Construction Project shall be permitted hereunder.
Section 9.10 ERISA. At any time while Borrower or any of its
Subsidiaries has a Pension Plan, permit any accumulated funding deficiency to
occur with respect to any Pension Plan or other employee benefit plans
established or maintained by American Ski or any of its Subsidiaries or to which
contributions are made by Borrower or any of its Subsidiaries (the "Plans"), and
which are subject to the "Pension Reform Act" and the rules and regulations
thereunder or to Section 412 of the Internal Revenue Code, and at all times
comply in all material respects with the provisions of the Act and Code which
are applicable to the Plans. Borrower will not permit the Pension Benefit
Guaranty Corporation to cause the termination of any Pension Plan under
circumstances which would cause the lien provided for in Section 4068 of the
Pension Reform Act to attach to the assets of Borrower or any of its
Subsidiaries.
Section 9.11 SALE AND LEASEBACK. Sell or transfer any of its properties
with the intention of taking back a lease of the same property or leasing other
property for substantially the same use as the property being sold or
transferred.
Section 9.12 RESTRICTIVE OR INCONSISTENT AGREEMENTS. Enter into any
agreement (a) other than the Lender Agreements which, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining or
otherwise imposes any materially adverse or burdensome condition upon, the
declaration or payment of dividends or distributions, the incurrence of
Indebtedness, the granting of liens, the making of loans or advances to Borrower
or the amendment or modification of any of the Lender Agreements or (b)
containing any provision that would be violated or breached by any Loan or the
performance by Borrower of its obligations hereunder or under any of the Lender
Agreements.
Section 9.13 NO AMENDMENT OF MARRIOTT JOINT VENTURE,, INTER COMPANY
DEBT. PURCHASE OPTION AND LEASES. Borrower shall not modify or amend any of the
Marriott Joint Venture, InterCompany Debt, Purchase Money Option and the Leases.
Section 9.14 LIMITATION ON ISSUANCE OF CAPITAL STOCK. Borrower will not
issue any class of preferred stock or any class of redeemable common stock.
Section 9.17 PURCHASE MONEY MORTGAGES. Borrower shall not modify or
amend or permit a default or event of default to exist under any of the Purchase
Money Mortgages. Borrower will obtain the consent of the Mortgagees of each of
the Purchase Money Mortgages to this Agreement.
ARTICLE 10. PERFECTION OF SECURITY AGREEMENTS
Section 10.1 PERFECTION EVENT. Borrower has executed and delivered the
Security Agreements to Xxxx Xxxxxxxx. Borrower hereby authorizes Xxxx Xxxxxxxx
to establish an escrow with the Title Company whereby the Title Company agrees
to record the Security Agreements in the appropriate official records upon the
receipt by the Title Company of a notice by the Agent that a Perfection Event
has occurred. Borrower agrees that Xxxx Xxxxxxxx shall have no obligation with
respect to the Security Agreements other than to deliver them to the Title
Company. Borrower agrees to execute such further documentation as the Title
Company may request in order to establish the procedure required hereunder.
Section 10.2 STATUS OF SECURITY DOCUMENTS. Borrower and the Lenders
acknowledge and recognize that the Security Agreements have been executed and
delivered but not perfected; the Security Agreements are valid and binding and
of full force and effect as of even date; and that the only remaining
requirement that exists with respect to the Security Agreements is the
Perfection Requirement.
ARTICLE 11. DESIGNATED PROPERTIES AND FURTHER ASSURANCES
Section 11.1 SELECTION OF MORTGAGED PROPERTIES. Borrower
and Lenders acknowledge and recognize that the Agent has relied upon certain
representations and warranties summarized in the memorandum attached as Schedule
I 1. I as to the Mortgaged Properties in order for the Agent to designate them
as Designated Properties. In the event any representations or warranties are
inaccurate or events contemplated therein as material to such property's value
as collateral do not materialize, Borrower and Agent shall exercise good faith
and due diligence to identify substitute properties owned by American Ski and
exchange the impaired parcel(s) for the identified parcels as newly Designated
Property, which shall become Mortgaged Property hereunder. Borrower and Agent
agree to undertake all such action as may be reasonably necessary to effect such
exchange.
Section 11.2 FURTHER ASSURANCES. Borrower agrees that except as provided
herein the Mortgaged Properties are to be subject to a first in priority
security interest in favor of the Agent for the benefit of the Lenders. Borrower
shall take such actions as are necessary in order to cause the Security
Agreements to constitute a first in priority security interest on the Mortgaged
Property and related Development Fights and further to deliver to the Agent such
additional due diligence materials as the Lenders may request from time to time
with respect thereto. The provisions of this section shall include the
obligation to obtain within the number of days specified below following the
date hereof the following consents and approvals to the provisions of the Lender
Agreements as they affect the following:
(a) 45 days - assignment of the percentage interest of the Borrower in
and to Heavenly Resort consent of the other member of Heavenly Resort;
(b) 15 days - assignment of the Option to Purchase - consent of the
lessor under the Ground Lease Agreement between Wolf Mountain Resorts, L.C. and
ASC Utah, Inc. as assigned; it being the intent of the parties hereto that the
assignment of the Option to Purchase qualify as a leasehold mortgage permitted
under the foregoing Lease Agreement,
(c) 45 days - consent of the holders of the Purchase Money Mortgages.
ARTICLE 12. EVENTS OF DEFAULT AND REMEDIES
Section 12.1 EVENTS OF DEFAULT. Each of the following events shall be
deemed to be Events of Default hereunder:
(a) Borrower shall fail to make any payment in respect of (i) the
principal of any of the Lender Obligations as the same shall become due, whether
at the stated payment date, required prepayment or by acceleration, demand or
otherwise, or (ii) interest or commitment fees on or in respect of any of the
Lender Obligations as the same shall become due.
(b) Borrower shall fail to perform or observe any of the terms,
covenants, conditions or provisions hereof-, PROVIDED, HOWEVER, that with
respect to the terms, covenants, conditions and provisions of Article 6 only,
the Agent shall notify Borrower of Borrower's failure to provide the required
reports when due and the Agent shall allow Borrower five (5) days to comply with
the terms, covenants, conditions and provisions of Article 6.
(c) Borrower shall fail to perform or observe any other material term,
covenant, condition or provision to be performed or observed by Borrower under
this Agreement or any other Lender Agreement, and such failure shall not be
rectified or cured to the Agent's satisfaction within thirty (30) days after
written notice thereof to Borrower.
(d) Any representation or warranty of Borrower or any Subsidiary herein
or in any other Lender Agreement or any amendment to any thereof shall have
been materially false or misleading at the time made or intended to be
effective.
(e) An event of default or termination shall occur under the Purchase
Money Mortgage, the Marriott Joint Venture, the Leases, or the Purchase
Option, a default under any of the Permitted Financial Facilities or should a
default occur under the Senior Facility.
(f) Borrower shall be involved in financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title 11 of
the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(ii) by its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed against it
commencing an involuntary case under said Title I 1, or seeking,
consenting to or acquiescing in the relief therein provided, or by its
failing to controvert timely the material allegations of any such
petition;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title I 1;
(iv) by its seeking relief as a debtor under any applicable law,
other than said Title I 1, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or by its consenting to or
acquiescing in such relief;
(v) by the entry of an order by a court of competent
Jurisdiction (1) finding it to be bankrupt or insolvent, (2) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors or (3) assuming custody of,
or appointing a receiver or other custodian for all or a substantial
part of its property and such order shall not be vacated or stayed on
appeal or otherwise stayed within 30 days;
(vi) by the filing of a petition against American Ski or any
Subsidiary under said Title 11 which shall not be vacated within 30
days; or
(vii) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for all
or a substantial part of its property.
(g) There shall have occurred a judgment against Borrower or any
Subsidiary in any court which constitutes a Material Adverse Effect.
(h) American Ski shall cease to own, directly or indirectly, of record
and beneficially all of the issued and outstanding capital stock of Borrower.
(i) Any "Event of Default" under any other Lender Agreement.
0) Any of the Lender Agreements shall be canceled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Agent; or any Lender
Agreement, or any Lien granted thereunder, shall (except in accordance with its
terms or the terms of this Agreement), in whole or in part, terminate, cease to
be effective or cease to be the legally valid, binding and enforceable
obligation of any Borrower; or any Lien securing any Lender Obligation shall, in
whole or in part, cease to be a perfected first priority Lien, subject only to
those exceptions expressly permitted by a Lender Agreement or the terms of this
Agreement and except to the extent that any such Lien has ceased to be a
perfected first priority Lien solely due to an act or omission by the Agent or a
Lender; or any action at law suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Lender Agreements or the acquisition of all
or portions of the property affected by the Purchase Option.
(k) Borrower or any Subsidiary shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of Borrower or
such Subsidiary.
Section 12.2 REMEDIES. Upon the occurrence of an Event of Default, in
each and every case, the Agent may, and upon the request of the Majority Lenders
shall, proceed to protect and enforce the rights of the Agent and the Lenders by
suit in equity, action at law and/or other appropriate proceeding either for
specific performance of any covenant or condition contained in this Agreement or
any other Lender Agreement or in any instrument delivered to the Agent or the
Lenders pursuant hereto or thereto, or in aid of the exercise of any power
granted in this Agreement, any Lender Agreement or any such instrument, and
(unless there shall have occurred an Event of Default under Section 12.1 (f), in
which case the unpaid balance of the Lender Obligations shall automatically
become due and payable without notice or demand) by notice in writing to the
Borrower declare all or any part of the unpaid balance of the Lender Obligations
then outstanding to be forthwith due and payable, whereupon such unpaid balance
or part thereof shall become so due and payable without presentation, protest or
further demand or notice of any kind, all of which are hereby expressly waived,
and the Agent may proceed to enforce payment of such balance or part thereof in
such manner as the Agent may elect, and the Agent and each Lender may offset and
apply toward the payment of such balance or part thereof any Indebtedness of the
Agent or any Lender to any Borrower or to any Subsidiary, or to any obligor of
the Lender Obligations, including any Indebtedness represented by deposits in
any general or special account maintained with the Agent or any Lender or with
any other Person controlling, controlled by or under common control with the
Agent or any Lender.
Section 12.3 DISTRIBUTION OF PROCEEDS. Notwithstanding anything to the
contrary contained herein, in the event that following the occurrence or during
the
continuance of any Event of Default, the Agent or any Lender receives any
monies on account of the Lender Obligations from the Borrower or otherwise,
such monies shall be distributed for application as follows:
(a) First, to the payment of or the reimbursement of, the Agent for or
in respect of all costs, expenses, disbursements and losses which shall have
been incurred or sustained by the Agent in connection with the collection of
such monies by the Agent, or in connection with the exercise, protection or
enforcement by the Agent of all or any of the rights, remedies, powers and
privileges of the Agent or the Lenders under this Agreement or any other
Lender Agreement;
(b) Second, to the payment of all interest, including interest on
overdue amounts, and late charges, then due and payable with respect to the
Loans, allocated among the Lenders in proportion to their respective
Commitment Percentages;
(c) Third, to the payment of the outstanding principal balance of the
Loans, allocated among the Lenders in proportion to their respective
Commitment Percentages;
(d) Fourth, to any other outstanding Lender Obligations, allocated
among the Lenders in proportion to their respective Commitment Percentages; and
(e) Fifth, the excess, if any, shall be returned to the Borrower or to
such other Persons as are entitled thereto.
ARTICLE 13. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES
Section 13.1 ACTIONS BY LENDERS. Except as otherwise expressly set
forth in any particular provision of this Agreement, any consent or approval
required or permitted by this Agreement to be given by the Lenders may be
given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance
by Borrower or any Subsidiary of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Borrower and
the Majority Lenders; PROVIDED, HOWEVER, that no amendment of Article 15 may
be made without the consent of the Agent without the written consent of all
Lenders:
(i) no reduction in the interest rates on or any fees
relating to the Loans shall be made;
(ii) no extension or postponement shall be made of the stated
time of payment of the principal amount of, interest on, or fees
payable to the Lenders relating to the Term Loans;
(iii) no change in the principal amount of the Term Loans and
extension of the Maturity Date shall be made;
(iv) no release of all or substantially all of the collateral
security for, or any guarantor of, the Lender Obligations shall be
made; and
(v) no change in the definition of the term "Majority Lenders"
shall be made.
Section 13.2 ACTIONS BY BORROWER. No delay or omission on the Agent's or
the Lenders' part in exercising their rights and remedies against Borrower or
any other interested party shall constitute a waiver. A breach by Borrower of
its obligations under this Agreement may be waived only by a written waiver
executed by the Agent and the Lenders in accordance with Section 13. 1. The
Agent's and the Lenders' waiver of Borrower's breach in one or more instances
shall not constitute or otherwise be an implicit waiver of subsequent breaches.
To the extent permitted by applicable law, Borrower hereby agrees to waive, and
does hereby absolutely and irrevocably waive, (a) all presentments, demands for
performance, notices of protest and notices of dishonor in connection with any
of the Indebtedness evidenced by the Term Loan Notes (b) any requirement of
diligence or promptness on the Agent's or the Lenders' part in the enforcement
of their rights under the provisions of this Agreement or any Lender Agreement
and (c) any and all notices of every kind and description which may be required
to be given by any statute or rule of law with respect to its liability (i)
under this Agreement or m respect of the Indebtedness evidenced by the Term Loan
Notes or (ii) under any other Lender Agreement. No course of dealing between the
Borrower and the Lenders shall waive or modify the terms and conditions hereof.
This Agreement shall be amended only by a written instrument executed by the
Agent and the Lenders in accordance with Section 11.3 making explicit reference
to this Agreement. The Agent's and the Lenders' rights and remedies under this
Agreement and under all subsequent agreements between the Agent, the Lenders and
Borrower shall be cumulative and any rights and remedies expressly set forth
herein shall be in addition to, and not in limitation of, any other rights and
remedies which may be applicable to the Agent and the Lenders in law or at
equity.
ARTICLE 14. SUCCESSORS AND ASSIGNS
Section 14.1 GENERAL. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
(which shall include in the case of the Agent or any Lender any entity resulting
from a merger or consolidation) and assigns, except that (a) Borrower may not
assign its rights or obligations under this Agreement and (b) each Lender may
assign its rights in this Agreement only as set forth below in this Article 14.
Section 14.2 ASSIGNMENTS.
(a) CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same portion of the
Loan at the time
owing to it, and the Notes held by it; provided that (a) the Agent shall have
given its prior written consent to such assignment, (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Agreement, (c) Agent may make partial
or non-voting assignments in amounts it deems appropriate (d) each Lender which
is a Lender on the date hereof shall retain, free of any such assignment, an
amount of its Commitment of not less than $5,000,000.00, and, as long as no
Default exists, Agent shall retain, free of any such assignment, of not less
than $I 5,000,000 provided that the Agent assign greater amounts of its
Commitment with the approval of the Borrower which shall not be unreasonably
withheld; and (e) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), an Assignment
and Acceptance, substantially in the form established by Administrative Agent
(an "Assignment and Acceptance"), together with any Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, but in no event prior to recording (i) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (ii) the assigning
Lender shall, to the extent provided in such assignment and upon payment to the
Agent of the registration fee referred to in Section 14.2.(c), be released from
its further obligations under this Agreement with respect to the interest
assigned.
Subject to the provisions of this Article 14, each Lender may at any
time assign or pledge its Loan or Note to a Federal Reserve Bank, and a Lender
which is a "fund" may at any time assign or pledge all or any portion of its
rights under this Agreement to secure such Lender's indebtedness, in each case
without the prior written consent of the Borrower, provided that each such
assignment shall be made in accordance with applicable law and shall be either
to a Federal Reserve Bank or Eligible Assignee, and no such assignment shall
release a Lender from any of its obligations hereunder. In order to facilitate
any such assignment, the Borrower shall, at the request of the assigning Lender,
duly execute a registered promissory note or notes evidencing the Lender
Obligations made or extended to the Borrower by the assigning Lender hereunder,
provided that the assignment is otherwise in compliance with the terms hereof
For avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this subsection concerning assignments do not prohibit assignments
creating security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law and the terms hereof.
(b) CERTAIN REPRESENTATIONS AND WARRANTIES;
LIMITATIONS; COVENANTS. By executing and delivering an Assignment and
Acceptance, the parties to the assignment thereunder confirm to and agree with
each other and the other parties hereto as follows: (a) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
the other Lender
Agreements or any other instrument or document famished pursuant hereto; (b) the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Person primarily or secondarily liable in respect of any of the Lender
Obligations, or the performance or observance by the Borrower or any other
Person primarily or secondarily liable in respect of any of the Lender
Obligations or any of their obligations under this Agreement or any of the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; (c) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in ss. 8.7 and ss. I 1. 7 and such other documents and information as it has
deemed Appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (d) such assignee will, independently and
without reliance upon the assigning Lender, the Agent or any Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (e) such assignee represents and warrants that it is an Eligible
Assignee; (f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to the Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto; (g)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender; (h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and (i) such assignee
represents that it is acquiring the portion of the Loans assigned to it pursuant
to the Assignment and Acceptance for investment only and not with a view to or
with any intention to resell, distribute, subdivide or fractionalize such
portion in whole or in part, or grant any participation therein.
(c) REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment
Percentages and Commitments of, and principal amount of the Loans owing to the
Lenders from time to time as a condition to the effectiveness thereof. All
assignments of Loans or Commitment must be reported to the Agent to permit
registration in the Register. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and the Lenders at any reasonable time and from
time to time upon reasonable prior notice. Upon each such recordation, (i) the
assigning Lender agrees to pay to the Agent a registration fee in the sum of
$2,500.00; and (ii) the Agent will deliver a copy of the Register to the
Arranger and the Borrower.
(d) NEW NOTES. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (a) record the information contained therein in the
Register, and (b) give prompt notice thereof to the Borrower and the Lenders
(other than the assigning Lender). Within five (5) Business Days after receipt
of such notice, the Borrower, at its own expense, shall execute and deliver to
the Agent, in exchange for
each surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has maintained some
portion of its obligations hereunder, a new Note to the order of the assigning
Lender in an 'amount equal to the amount retained by it hereunder. Such new
Notes shall provide that they are replacements for the surrendered Notes, shall
be in an aggregate principal amount equal to the aggregate principal amount of
the surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the Notes
delivered at the time of execution of this Agreement. Within five (5) Business
Days of issuance of any new Notes pursuant to this Article 14, the Borrower
shall deliver an opinion of counsel, addressed to the Lenders and the Agent,
relating to the due authorization, execution and delivery of such new Notes and
the legality, validity, enforceability and binding effect thereof. The
surrendered Notes shall be canceled and returned to the Borrower.
(e) NO ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Lenders.
(f) DISCLOSURE. Each Lender agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the Borrower and
provided to it by the Borrower, or by the Agent on Borrower's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Borrower, provided that such
source is not bound by a confidentiality agreement with the Borrower known to
the Lender; provided, however, that any Lender may disclose such information (A)
at the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
requirement of law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Lender or their respective
affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Lender's independent auditors and other professional advisors; (G) to
any participant or assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Lenders hereunder, and (H) as to any Lender, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Borrower is party or is deemed party with such
Lender.
(g) WITHHOLDING TAX.
(i) If any Lender is a "foreign corporation, partnership or trust" within
the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the
Code, such Lender agrees with and in favor of the Agent, to deliver to
the Agent:
(1) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly
completed IRS Forms I 00 I and W-8 before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which
interest may be paid under this Agreement;
(2) if such Lender claims that interest paid under this Agreement is
exempt from United States withholding tax because it is
effectively connected with a United States trade or business of
such Lender, two properly completed and executed copies of IRS
Form 4224 before the payment of any interest is due in the first
taxable year of such Lender and in each succeeding taxable year
of such Lender during which interest may be paid under this
Agreement, and IRS Form W-9;
(3) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from,
or reduction of, United States withholding tax; and
(4) in the case of any Lender claiming exemption from U.S.
Withholding Tax under Section 871 (b) or 881 (c) of the Code,
with respect to payments of "Portfolio Interest", a Form W-8, or
any subsequent versions thereof or successors thereto and if the
Lender delivers a Form W-8, a certificate representing that such
Lender is not a bank for purposes of Section 881 (c) of the Code,
is not a ten percent (10%) shareholder (within the meaning of
Section 871 (h)(3)(b) of the Code) of the Borrower thereof, and
is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code). Each such
certificate and form shall be properly completed and duly
executed by such Lender claiming complete exemption from a
reduced rate of U.S. Withholding Tax on payments by the Borrower
under this Agreement and other Loan Documents.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(ii) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by
providing IRS Form I 00 I and such Lender sells,
assigns, grants a participation in, or otherwise
transfers all or part of the Lender Obligations of the
Borrower to such Lender, such Lender agrees to notify
the Agent of the percentage amount in which it is no
longer the beneficial owner of Lender Obligations of
the Borrower to such-Lender. To the extent of such
percentage amount, the Agent will treat such Lender's
IRS Form I 00 I as no longer valid.
(iii) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent,
sells, assigns, grants a participation in, or otherwise
transfers all or part of the Lender Obligations of the
Borrower to such Lender, such Lender agrees to
undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441
and 1442 of the Code.
(iv) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold.
from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or
other documentation required by subsection (a) of this
ss. 19.7 are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Lender
not providing such forms or other documentation an
amount equivalent to the applicable withholding tax.
(v) If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a
claim that the Agent did not properly withhold tax
from amounts paid to or for the account of any
Lender (because the appropriate form was not
delivered, was not properly executed, or because
such Lender failed to notify the Agent of a change
in circumstances which rendered the exemption
from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender
shall indemnify the Agent fully for all amounts
paid, directly or indirectly, by the Agent as tax
or otherwise, including penalties and interest,
and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent
under this Article 14 together with all costs and
expenses (including reasonable attorney's fees and
legal expenses). The obligation of the Lenders
under this subsection (e) shall survive the
payment of all Lender Obligations and the
resignation or replacement of the Agent.
5. Borrower and the Lenders acknowledge and recognize that BankBoston, N.A. is
the agent under the Senior Facility and, in such capacity, may take actions
which may be in conflict with or detrimental to this facility, the Borrower and
the Lenders. Borrower and Lenders agree that such BankBoston, N.A. may serve in
both capacities and take such actions as it deems necessary as the agent of both
this facility and under the Senior Facility.
ARTICLE 15. THE AGENT
Section 15.1 AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Agent to take such action on its behalf and to exercise such
powers under this Agreement and the other Lender Agreements as are delegated to
the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement and the other Lender Agreements (including, without limitation,
enforcement or collection of the Term Loan Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders; PROVIDED, HOWEVER, that the
Agent shall not be required to take any action which exposes the Agent to
liability or which is contrary to this Agreement or the other Lender Agreements
or applicable law. Subject to the foregoing provisions and to the other
provisions of this Article 13, the Agent shall, on behalf of the Lenders: (a)
execute any documents on behalf of the Lenders providing collateral for or
guarantees of the Lender Obligations; (b) hold and apply any collateral for the
Lender Obligations, and the proceeds thereof, at any time received by it, in
accordance with the provisions of this Agreement and the other Lender
Agreements; (c) exercise any and all rights, powers and remedies of the Lenders
under this Agreement or any of the other Lender Agreements, including the giving
of any consent or waiver or the entering into of any amendment, subject to the
provisions of Section 13.1; (d) at the direction of the Lenders, execute,
deliver and file UCC financing statements, mortgages, deeds of trust, lease
assignments and such other agreements in respect of any collateral for the
Lender Obligations, and possess instruments included in the collateral on behalf
of the Lenders; and (e) in the event of acceleration of Borrower's Indebtedness
hereunder, act at the direction of the Lenders to exercise the rights of the
Lenders hereunder and under the other Lender Agreements.
Section 15.2 AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Lenders for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement or the other Lender Agreements, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent: (a) may treat the payee of any Term Loan Note as the
holder thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form required under Article 14
hereof-, (b) may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representations to any
Lender and shall
not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement or the other Lender
Agreements; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Lender Agreements on the part of Borrower or any other
Person or to inspect the property (including the books and records) of Borrower
or any other Person; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or the other Lender Agreements or any other instrument or
document @shed pursuant hereto or thereto; and (f) shall incur no liability
under or in respect of this Agreement or the other Lender Agreements by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopy or telegram) believed by the Agent to be genuine and signed or
sent by the proper party or parties.
Section 15.3 AGENT AS A LENDER AND AGENT UNDER SENIOR FACILITY. With
respect to its interest in its Commitment Percentage of the Loans hereunder,
BankBoston, N.A. shall have the same rights and powers under this Agreement and
the other Lender Agreements as any other Lender and may exercise the same as
though it were not the Agent; and the term "Lender" or "Lender(s)" shall, unless
otherwise expressly indicated, include BankBoston, N.A. in its individual
capacity. BankBoston, N.A. and its affiliates may lend money to, and generally
engage in any kind of business with, Borrower, American Ski, any Affiliate of
American Ski and any Person who may do business with or own securities of
American Ski or any such Affiliate of American Ski, all as if BankBoston, N.A.
were not the Agent and without any duty to account therefor to the Lenders.
Borrower and Lenders hereby acknowledge that BankBoston, N.A. is the agent under
this facility and under the Senior Facility. Borrower and the Lenders agree that
BankBoston, N.A. as the agent under the Senior Facility may take actions adverse
to the Lenders and the Borrower under this facility.
Section 15.4 LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 5.9 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
Section 15.5 INDEMNIFICATION OF AGENT. Each Lender agrees to indemnify
the Agent and its directors, officers, employees and agents (to the extent that
the Agent is not reimbursed by Borrower), ratably according to each Lender's
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent or its directors, officers, employees or
agents in any way relating to or arising out of this Agreement or any other
Lender Agreement or any action taken or omitted by the Agent in such capacity
under this Agreement; PROVIDED that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and each other Lender
Agreement, to the extent that the Agent is not reimbursed for such expenses by
Borrower.
Section 15.6 SUCCESSOR AGENT. Except as provided ' below, the Agent may
resign at any time by giving written notice thereof to the Lenders and Borrower.
Upon any such resignation, the Lenders shall have the right to appoint a
successor Agent which shall be reasonably acceptable to Borrower. If no
successor Agent shall have been so appointed by the Lenders (other than the
resigning Agent), and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank or financial institution organized under the laws of the United
States of America or of any state thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement and the other Lender Agreements. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
15 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement and the other Lender Agreements.
Section 15.7 AMENDMENT OF ARTICLE 15. Borrower hereby agrees that the
foregoing provisions of this Article 15 constitute an agreement among the Agent
and the Lenders (and the Agent and the Lenders acknowledge that except for the
provisions of Section 13.5, Borrower are not parties to or bound by such
foregoing provisions) and that any and all of the provisions of this Article 15
(excepting Section 15.6) may be amended at @y time by the Lenders and the Agent
without the consent or approval of, or notice to Borrower (other than the
requirement of notice to Borrower of the resignation of the Agent and the
appointment of a successor Agent).
ARTICLE 16. MISCELLANEOUS
Section 16.1 NOTICES. All notices and other communications made or
required to be given pursuant to this Agreement shall be in writing and shall be
mailed by United States mail, postage prepaid, or sent by hand, by telecopy or
by nationally-recognized overnight carrier service, addressed as follows:
(a) If to the Agent, BankBoston, N.A., II 0 Xxxxxxxxx Xxxxxx Xxxxx,
X.X., Xxxxx 000, Xxxxxxx, XX and Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,, 000
Xxxxxxxxx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxxx X.
Xxxxxxxxx, or at such other address(es) or to the attention of such other
Person(s) as the Agent shall from time to time designate in writing to
Borrower and the Lenders.
(b) If to Borrower, c/o American Skiing Company, X.X. Xxx 000, Xxxxxx,
XX 00000, or for overnight delivery service, Sunday Xxxxx Xxxx, Xxxxxx, XX
00000, Telecopier No. 207/824-0192, Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.,
Senior Vice President and Chief Administrative Officer and Xxxxxx X.
Xxxxxxxxxx, Chief Financial Officer, with a copy to: Xxxxx X. Xxxxxxxx, Esq.,
Xxxxxx Xxxxxx, One Monument Square, Portland, ME 041 01 or at such other
address(es) or to the attention of such other Person(s) as Borrower shall from
time to time designate in writing to the Agent and the Lenders.
(c) If to any Lender, at the address(es) and to the attention of the
Person(s) specified below such Lender's name on the execution page of this
Agreement (or in the case of a Successor Lender, at the address(es) and to the
attention of the Person(s) specified in the Assignment and Acceptance
Agreement executed by such Successor Lender), or at such other address(es) and
to the attention of such other Person(s) as any Lender shall from time to time
designate in writing to the Agent and Borrower.
Any notice so addressed and mailed by registered or certified mail
shall be deemed to have been given when mailed. Any notice so addressed and
sent by hand, by telecopy or by overnight carrier service shall be deemed to
have been given when received.
A notice from the Agent stating that it has been given on behalf of the
Lenders shall be relied upon by Borrower as having been given by the Lenders.
Section 16.2 MERGER. This Agreement and the other Lender Agreements and
documents contemplated hereby constitute the entire agreement of American Ski,
the Borrower, the Agent and the Lenders and express their entire understanding
with respect to credits advanced or to be advanced by the Lenders to the
Borrower.
Section 16.3 GOVERNING LAW, CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed and enforced under the laws of the State of
Georgia.
Section 16.4 COUNTERPARTS. This Agreement and all amendments to this
Agreement may be executed in several counterparts, each of which shall be an
original. The several counterparts shall constitute a single Agreement.
Section 16.5 EXPENSES AND INDEMNIFICATION.
(a) Borrower agrees to pay, on demand, all of the Agent's reasonable
expenses in preparing, executing, delivering and administering this Agreement,
the Lender Agreements, all related instruments and documents and any requested
amendment, waiver or consent relating hereto or thereto, including, without
limitation,
the reasonable fees and out-of-pocket expenses of the Agent's third-party
consultants, special counsel, Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, and local
counsel in each jurisdiction in which Borrower and or any Subsidiary has assets
and the Agent's and Lenders' reasonable expenses in connection with periodic
audits of Borrower and its Subsidiaries. Borrower also agrees to pay, on demand,
all reasonable out-of-pocket expenses incurred by the Agent and the Lenders,
including, without limitation, reasonable legal, accounting and third-party
consultant fees, in connection with the collection of amounts due hereunder and
under all other Lender Agreements upon the occurrence of a Default hereunder,
the revision, protection or enforcement of any of the Agent's or the Lenders'
rights against Borrower under this Agreement, the Notes, the Guaranty
Agreements, the Security Agreements, and all other Lender Agreements and the
administration of special problems that may arise under this Agreement or any
other Lender Agreement. Borrower also agrees to pay all stamp and other taxes in
connection with the execution and delivery of this Agreement and related
instruments and documents.
(b) Without limitation of any other obligation or liability of Borrower
or right or remedy of the Agent or the Lenders contained herein, Borrower hereby
covenants and agrees to indemnify and hold the Agent, the Lenders, and the
directors, officers, subsidiaries, shareholders, agents, affiliates and Persons
controlling the Agent and the Lenders, harmless from and against any and all
damages, losses, settlement payments, obligations, liabilities, claims,
including, without limitation, claims for finder's or broker's fees, actions or
causes of action, and reasonable costs and expenses incurred, suffered,
sustained or required to be paid by any such indemnified party in each case by
reason of or resulting from any claim, investigation, litigation or other
proceeding related to the entering into of this Agreement or any other Lender
Agreement, the use of the proceeds of any Loans, the consummation of the
transactions contemplated herein, the exercise by the Agent and the Lenders of
their rights and remedies, or otherwise relating to the transactions
contemplated hereby, other than any such claims which are determined by a final,
non-appealable judgment or order of a court of competent jurisdiction to be the
result of the gross negligence or willful misconduct of such indemnified party.
Promptly upon receipt by any indemnified party hereunder of notice of the
commencement of any action against such indemnified party for which a claim is
to be made against Borrower hereunder, such indemnified party shall notify
Borrower in writing of the commencement thereof, although the failure to provide
such notice shall not affect the indemnification rights of any such indemnified
party hereunder unless and only to the extent Borrower demonstrates to the
reasonable satisfaction of such party that such failure to provide notice
prejudiced Borrower in its defense of such claim. Borrower shall have the right,
at its option upon notice to the indemnified parties, to defend any such matter
at its own expense and with their own counsel, except as provided below, which
counsel must be reasonably acceptable to the indemnified parties. The
indemnified party shall cooperate with Borrower in the defense of such matter.
The indemnified party shall have the right to employ separate counsel and to
participate in the defense of such. matter at its own expense. In the event that
(a) the employment of separate counsel by an indemnified party has been
authorized in writing by Borrower, (b) Borrower has failed to assume the defense
of such matter within fifteen (I 5) days of notice thereof from the indemnified
party, or (c) the named parties to any such action (including impleaded parties)
include
any indemnified party who has been advised by counsel that there may be one or
more legal defenses available to it or prospective bases for liability against
it, which are different from those available to or against Borrower, then
Borrower shall not have the right to assume the defense of such matter with
respect to such indemnified party. Borrower shall not compromise or settle any
such matter against an indemnified party without the written consent of the
indemnified party, which consent may not be unreasonably withheld or delayed.
Section 16.6 CONFIDENTIALITY. The Agent and the Lenders agree to use
commercially reasonable efforts to keep in confidence all financial data and
-other information relative to the affairs of Borrower and its Subsidiaries
heretofore furnished or which may hereafter be furnished to them pursuant to the
provisions of this Agreement; PROVIDED, HOWEVER, that this Section 16.6 shall
not be applicable to information otherwise disseminated to the public by
Borrower or any of its Subsidiaries or any of their Affiliates; and PROVIDED
FURTHER, that such obligation of the Agent and the Lenders shall be subject to
the Agent's or the Lenders', as the case may be, (a) obligation to disclose such
information pursuant to a request or order under applicable laws and regulations
or pursuant to a subpoena or other legal process, (b) right to disclose any such
information to bank or other regulatory examiners, affiliates, auditors,
accountants and counsel or to any Person who evaluates, approves, structures or
administers the Loans on behalf of a Lender who agree to keep such information
confidential and (c) right to disclose any such information (i) in connection
with the transactions set forth herein including assignments, so long as such
potential assignees or participants shall agree in writing to be bound by the
terms of this Section 16.6 or (ii) in connection with any litigation or dispute
involving the Agent or any transfer or other disposition by the Agent or the
Lenders, as the case may be, of any of the Lender Obligations; PROVIDED that
information disclosed pursuant to this provision shall be so disclosed subject
to such procedures as are reasonably calculated to maintain the confidentiality
thereof.
Section 16.7 JOINT AND SEVERAL OBLIGATIONS. Borrower waives presentment,
demand, protest, notice of acceptance, notice of indebtedness incurred and all
other notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshaling of assets of Borrower and its Restricted
Subsidiaries, and all suretyship defenses generally.
Section 16.8 WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS, AND
BORROWER AGREE THAT NONE OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A) SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER ACTION
INVOLVING THE AGENT OR ANY LENDER AS A PARTY BASED UPON OR ARISING OUT OF, THIS
AGREEMENT, THE TERM LOAN NOTES, ANY LENDER AGREEMENT, ANY RELATED INSTRUMENTS,
ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM,
OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY DISCUSSED BY EACH OF THE AGENT,THE LENDERS AND BORROWER WITH THEIR
RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NONE
OF THE AGENT, THE LENDERS, OR BORROWER HAVE AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
IN WITNESS WHEREOF, Borrower, the Agent and the Lenders have caused this
Agreement to be executed by their daily authorized officers as of the date set
forth above.
AMERICAN SKIING COMPANY RESORT
PROPERERTIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
[EXECUTION CONTINUED ON FOLLOWING PAGES]
BANKBOSTON N.A., as Agent
By: unable to read signature
-----------------------
[EXECUTION CONTINUED ON FOLLOWING PAGES]
LIST OF SCHEDULES
Schedule I Commitment Percentages, Designated Lenders
Schedule 2 Purchase Money Mortgages
Schedule 5.2 Borrower and each Subsidiary's principal place of business
Schedule 5.4 Intercompany Debt Disclosure
Schedule 5.13 Liens, Charges, and Encumbrances
Schedule 5.15 ERISA
Schedule 5.16 Outstanding Indebtedness
Schedule 5.17 Envirorunental Matters
Schedule 8.8 Legal Ownership of Subsidiaries
SCHEDULE I
Lenders: Commitment Percentage:
BankBoston, N.A. 50%
Xxxxxx Xxxxxxx Senior Funding, Inc. 50%
Schedule 2
1. Trust Deed With Assignment of Rents dated July _, 1996, between WMR
Investment Company, L.L.C., Old Republic Title Company of Utah and Wolf Mountain
Resorts, L.C., recorded in Book 977, Page 736, and Book 1029, Page 177, records
of Summit County, Utah;
2. Trust Deed With Assignment of Rents dated April 23, 199.7, by WMR
Investment Company, L.L.C. and Xxxx X. Xxxxxxx in favor of Xxxxxxx X. Xxxxx
recorded in Book 1041, Page 852, aforesaid records, as assigned by Assignment of
Trust Deed dated January 13, 1998, from Xxxxxxx X. Xxxxx to Xxxxxxx 0. Xxxxx
recorded in Book I I 10, Page 445, aforesaid records;
3. Trust Deed With Assignment of Rents dated July 8, 1996, between WNM
Investment Company, L.L.C., Xxxxxx X. Xxxxxxxx, Esquire, and Songbird
Enterprises recorded in Book 977, Page 728, aforesaid records; and
4. Trust Deed With Assignment of Rents dated April 23, 1997, among WMR
Investment Company, L.L.C., Xxxxxx X. Xxxxxxxx and LRJ Enterprises, Inc.,
recorded in Book 1041, Page 832, aforesaid records.
SCHIEDULE 5.2
Borrower and each Subsidiary's principal place of business. The
principal place of business of the Borrower and each of its Subsidiaries is:
American Siding Company Resort Properties, Inc. Sunday Xxxxx Xxxx X.X. Xxx 000
Xxxxxx, XX 00000 Attention: Xxxxxxxxxxx X. Xxxxxx, Chief Operating Officer
SCHEDULE 5.4(B)
Transactions among Borrower and its Subsidiaries
and American Ski and its Subsidiaries
1. Joint marketing and development efforts under the Marriott Joint
Venture..
2. Reciprocal obligations under Reciprocal Easement Agreement.
3. Leases between Grand Summit Resort Properties, Inc. and resort hosts
with respect to the commercial units at Grand Summit Hotels.
4. Beneficial Improvements Agreement between Grand Summit Resort
Properties, Inc. and Sunday River Skiway Corp. regarding Sunday
River's use of the access road to the Jordan Bowl Grand Summit Hotel.
5. Certain employees of American Ski perform some of their services for
Borrower. and its subsidiaries, for which American Ski is reimbursed
by Borrower and its Subsidiaries.
6. The Borrower and its Subsidiaries guaranty the $120 million Senior
Subordinated Notes due 2006 of the Borrower's parent, ASC East, Inc.,
payment of which is subordinated to the Lender.
SCHEDULE5.13
Liens, Charges, Encumbrances
1. The Purchase Money Mortgage
Schedule 5.1.5
pension plans
1. Massachusetts Financial Services 401(k) Plan, Adopted August 1, 1997
L.B.O. Holding. Inc.
ASC Utah Inc..
Killington Ltd.
Sugarbush Resort Holdings, Inc.
Pico Ski Area Management Company
Sunday River Skiway Corporation
Sugarloaf Mountain Corporation
Mount Snow, Ltd.
2. Welfare. Bcnefit Plan
A. Medical
(1) American Skiing Company Group Medical Expense Plan and Delta
Dental Plan:
L.B.O. Holding, Inc.
ASC Utah, Inc.
Killington, Ltd.
Pico Ski Area Management Company
Mount Snow, Ltd.
Sugarbush Resort Holdings, Inc.
(2) Blue Cross/Blue Shield:
Sugarloaf Mountain Corporation Sunday River Skiway Corporation
B. Life and AD&D
L.B.O. Holding, Inc.
ASC Utah Inc.
Killington, Ltd..
Pico Ski Area Management Company
Mount Snow, Ltd.
Sugarbush Resort Holdings, Inc.
Sugarloaf Mountain Corporation
Sunday River Skiway Corporation
3. Deferred Compensation Plans
American Skiing Company Stock Option Plan adopted August 1, i997
SCHIEDLTLE 5.16
Outstanding Indebtedness
1 $31,071,119.52 under Grand Summit Resort Properties, Inc.'s existing
facility with Textron Financial Corporation
2. The Purchase Money Mortgage
3. The InterCompany debt
4. The Borrower's and its Subsidiaries' guaranty of the $120 million
Senior Subordinated Notes due 2006 of ASC East, Inc., payment of which
is subordinated to the Lender.
SCHEDULE 5.17
Environmental Matters
f None
SCHEDULE 8.8
Legal Ownership of Subsidiaries
Grand Summit Resort Properties, Inc. -, 100% of issued and outstanding common
stock Canyons Resort Properties, Inc. - 100% of issued and outstanding common
stock Heavenly Resort Properties, L.L.C. - Membership Interest in limited
liability company
LIST OF EXHIBITS
Exhibit A Form of Term Loan Notes
Exhibit B Designated Properties
Exhibit C Budget
Exhibit D Status Memorandum
$15,000,000.00
Exhibit "A"
TERM LOAN NOTE
September 4, 0000
Xxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, the undersigned AMERICAN SKIING COMPANY RESORT PROPERTIES,
INC., a corporation organized and existing under the laws of the State of Maine,
with a business address at Sunday River Road, Bethel, Maine 04217(hereinafter
referred to as "Maker"), promises to pay to the order of BANKBOSTON, N.A., as
Agent, a national banking association (hereinafter referred to as "Payee", Payee
and any and all other holders of this Note being hereinafter collectively
referred to as "Holder"), at I 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx 021 1 0 ("Head
Office") or such other place as Holder hereof may designate in writing, the
principal sun of FIFTEEN MILLION AND N01100 DOLLARS (U.S. $15,000,000.00),
pursuant to the Credit Agreement of even date between the Maker and Payee
("Note"), together with interest as provided in this Note, as follows:
I. Interest.
Except as otherwise provided herein, the principal balance outstanding
from time to time hereunder shall bear interest from the date hereof until
repaid in full at the rate of fourteen (14) percent per annum.
Interest shall be computed on the daily outstanding principal balance
hereunder on the basis of a 360 day year, but shall accrue and be payable for
the actual number of days during which funds are outstanding. Accrued but unpaid
interest shall be due and payable monthly in arrears on the first Business Day
of each month for the immediately preceding month, commencing on the thirtieth
day of September, 1998, with a final payment on December 4, 1998, or on such
earlier date on which the maturity hereof is accelerated pursuant to the
provisions of ss. 12.1 of the Credit Agreement (the "Maturity Date").
II. Principal.
Principal shall be payable in the amount and at the time provided in the Credit
Agreement, with the outstanding principal balance hereunder becoming due and
payable in full on the Maturity Date.
This Note is one of several promissory notes that in the aggregate,
evidence a debt obligation in the maximum principal amount of $30,000,000.00,
all of which notes are made pursuant to the terms of the Credit Agreement and
are secured by the Lender Agreements (other than the Term Notes). A default on
any of such notes shall be deemed a default on all such notes.
Notwithstanding any provisions in this Note, or in any instrument
securing this Note, the total liability for payments legally regarded as
interest shall not exceed the maximum limits imposed by applicable law, and any
payment of same in excess of the amount allowed thereby shall, as of the date of
such payment, automatically be deemed to have been applied to the payment of the
principal indebtedness evidenced hereby, or, if same has been fully repaid,
shall be repaid to Maker upon demand. Any notation or record of Holder with
respect to such required application which is inconsistent with the provisions
of this paragraph shall be disregarded for all purposes and shall not be binding
upon either Maker or Holder.
All sums payable under this Note shall be paid not later than 3:00 P.M.
(Local Eastern time) on the day when due in immediately available funds in
lawful money of the United States of America. Whenever any payment to be made
under this Note shall be stated to be due on a day other than a Business Day (as
hereinafter defined), such payment shall be made on the next succeeding Business
Day and such extension of time shall in such case be included in the computation
of payment of interest. "Business Day" means a day (excluding Saturdays and
Sundays) on which Payee is open for the transaction of banking business in
Boston, Boston.
All payments under this Note shall be made to Holder without set-off or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or any taxing or other authority therein
unless Maker is compelled by law to make such deduction or withholding. If any
such obligation to deduct or withhold is imposed upon Maker with respect to any
amount payable by it hereunder, Maker will pay to Holder, on the date on which
such amount becomes due and payable hereunder, such additional amount as shall
be necessary to enable Holder to receive the same amount which it would
have received on such due date had no such obligation been imposed upon Maker.
Maker will deliver promptly to Holder certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments made
by Maker under this Note.
At the option of Holder, Holder may by notice to Maker declare the
entire principal amount outstanding under this Note, together with all accrued
interest thereon and all other sums due under this Note, to be immediately due
and payable in full, whereupon same shall become immediately due and payable
in full, without further notice or demand, if any payment due under this Note
is not paid when due, or if an Event of Default occurs. Failure to exercise
such option shall not constitute a waiver of the right to exercise such option
if Maker is in default hereunder. In the event of any default in the payment
of this Note, and if the same is referred to an attorney at law for collection
or suit is brought hereon, Maker shall pay Holder, in either case, all
expenses and costs of collection, including, but not limited to, court costs
and reasonable attorney's fees and disbursements. Time is of the essence of
this Note.
Any amount of principal of this Note which is not paid when due
(whether at stated maturity, acceleration or otherwise) and, to the extent
permitted by applicable law, any amount of interest under this Note which is
not paid when due, shall bear interest, from the date on which such overdue
amount shall have become due and payable by Maker until payment in full
(whether before or after judgment), payable on demand, at a rate per annum
equal to twenty percent (20%) per annum, plus the Base Rate, or if such
increased rate of interest may not be collected under applicable law, then at
the maximum rate of interest, if any, which may be collected from Maker under
applicable law.
III. Prepayment, Extension, Notices. etc.
Maker may prepay the outstanding principal amount of this Note, or a portion
thereof, only in accordance with the terms of the Credit Agreement.
From time to time, without affecting the obligation of Maker or any
sureties, guarantors, endorsers, accommodation parties or other persons liable
or to become liable on this note to pay the outstanding principal balance of
this Note and observe the covenants of Maker contained herein, without giving
notice to or obtaining the consent of Maker or any such sureties, guarantors,
endorsers, accommodation parties or other persons, and without liability on
the part of Holder, Holder may, at the option of Holder, grant extensions or
postponements of the time for payment of said outstanding principal balance,
interest or any part thereof, release anyone liable on any of said outstanding
principal balance, accept a renewal of this Note, release or accept a
substitution of all or any collateral given to secure this Note, join in any
extension or subordination agreement,
agree in writing with Maker to modify the rate of interest or terms and time of
payment of said outstanding principal balance or period of amortization of this
Note or change the amount of the monthly installments payable hereunder, or
grant any other indulgence or forbearance whatsoever. No one or more of such
actions shall constitute a novation.
Presentment, notice of dishonor, protest and notice of protest and any
and all lack of diligence or delays in collection or enforcement of this Note
are hereby waived by Maker and all sureties, guarantors, endorsers and
accommodation parties hereof and all other persons liable or to become liable on
this Note. This Note shall be the joint and several obligation of Maker and all
sureties, guarantors, endorsers, accommodation parties and all other persons
liable or to become liable on this Note, and shall be binding upon them and
their heirs, legal representatives, successors and assigns.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Note must be in writing and shall be given in the manner
provided in the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, is a
"Term Loan Note" as defined in, and is subject to the provisions of the Credit
Agreement. Any capitalized term not defined herein shall have the defined
meaning set forth in the Credit Agreement. In the event of any conflict between
the terms of this Note and the Credit Agreement, the terms of the Credit
Agreement shall control.
Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, this Note may not be transferred except pursuant to and in
accordance with the registration and other provisions of Article 14 of the
Credit Agreement.
This Note and the obligations of Maker hereunder shall be governed by
and interpreted and determined in accordance with the laws of Georgia.
MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL
JURISDICTION IN GEORGIA OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS
OF ANY STATE 0) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO
JURISDICTION WITHIN GEORGIA OR VENUE IN ANY PARTICULAR FORUM WITHIN GEORGIA, AND
(III) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN ACTUAL DAMAGES. MAKER AGREES
THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO MAKER AT THE ADDRESS SET FORTH ABOVE, AND SERVICE SO MADE
SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING
CONTAINED HEREIN, HOWEVER, SHALL PREVENT HOLDER FROM BRINGING ANY SUIT, ACTION
OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST MAKER,
AND AGAINST ANY PROPERTY OF MAKER, IN ANY OTHER STATE. INITIATING SUCH SUIT,
ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF GEORGIA
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF MAKER AND HOLDER HEREUNDER OR THE
SUBMISSION HEREIN MADE BY MAKER TO PERSONAL JURISDICTION WITHIN GEORGIA.
This Note may not be amended, modified, or changed, nor shall any waiver
of any provision hereof be effective, except only by an instrument in writing
signed by the party against whom amendment, change, modification or discharge
enforcement of any waiver, is sought.
Whenever used herein, the words "Maker", "Payee" and "Holder" shall be
deemed to include their respective heirs, legal representatives, successors and
assigns.
[EXECUTION ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered under seal as of the date first above written.
AMERICAN SKIING COMPANY RESORT PROPERTIES,
INC., a Maine corporation
By:
---------------------------------------
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
TERM LOAN NOTE
$15,000,000.00
FOR VALUE RECEIVED, the undersigned AMERICAN SKIING COMPANY RESORT PROPERTIES,
INC., a corporation organized and existing under the laws of the State of Maine,
with a business address at Sunday River Road, Bethel, Maine 04217(hereinafter
referred to as "Maker"), promises to pay to the order of XXXXXX XXXXXXX SENIOR
FUNDING, INC. (hereinafter referred to as "Payee", Payee and any and all other
holders of this Note being hereinafter collectively referred to as "Holder"), in
care of BANKBOSTON, N.A., as Agent, a national banking association, at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx 021 1 0 ("Head Office") or such other place as
Holder hereof may designate in writing, the principal sum of FIFTEEN MILLION AND
NO/ I 00 DOLLARS (U.S. $15,000,000.00), pursuant to the Credit Agreement of even
date between the Maker and Payee ("Note"), together with interest as provided in
this Note, as follows:
I. Interest.
Except as otherwise provided herein, the principal balance outstanding from time
to time hereunder shall bear interest from the date hereof until repaid in full
at the rate of fourteen (I 4) percent per annum.
Interest shall be computed on the daily outstanding principal balance
hereunder on the basis of a 360 day year, but shall accrue and be payable for
the actual number of days during which funds are outstanding. Accrued but unpaid
interest shall be due and payable monthly in arrears on the first Business Day
of each month for the immediately preceding month, commencing on the thirtieth
day of September, 1998, with a final payment on December 4, 1998, or on such
earlier date on which the maturity hereof is accelerated pursuant to the
provisions of ss. 12.1 of the Credit Agreement (the "Maturity Date").
II. Principal.
Principal shall be payable in the amount and at the time provided in the Credit
Agreement, with the outstanding principal balance hereunder becoming due and
payable in full on the Maturity Date.
This Note is one of several promissory notes that, in the aggregate,
evidence a debt obligation in the maximum principal amount of $30,000,000.00,
all of which notes are made pursuant to the terms of the Credit Agreement and
are secured by the Lender
September 4, 0000
Xxxxxxx, Xxxxxxx
Agreements (other than the Term Notes). A default on any of such notes shall be
deemed a default on all such notes.
Notwithstanding any provisions in this Note, or in any instrument
securing this Note, the total liability for payments legally regarded as
interest shall not exceed the maximum limits imposed by applicable law, and any
payment of same in excess of the amount allowed thereby shall, as of the date of
such payment, automatically be deemed to have been applied to the payment of the
principal indebtedness evidenced hereby, or, if same has been fully repaid,
shall be repaid to Maker upon demand. Any notation or record of Holder with
respect to such required application which is inconsistent with the provisions
of this paragraph shall be disregarded for all purposes and shall not be binding
upon either Maker or Holder.
All sums payable under this Note shall be paid not later than 3:00 P.M.
(Local Eastern time) on the day when due in immediately available funds in
lawful money of the United States of America. Whenever any payment to be made
under this Note shall be stated to be due on a day other than a Business Day (as
hereinafter defined), such payment shall be made on the next succeeding Business
Day and such extension of time shall in such case be included in the computation
of payment of interest. "Business Day" means a day (excluding Saturdays and
Sundays) on which Payee is open for the transaction of banking business in
Boston, Boston.
All payments under this Note shall be made to Holder without set-off or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or any taxing or other authority therein
unless Maker is compelled by law to make such deduction or withholding. If any
such obligation to deduct or withhold is imposed upon Maker with respect to any
amount payable by it hereunder, Maker will pay to Holder, on the date on which
such amount becomes due and payable hereunder, such additional amount as shall
be necessary to enable Holder to receive the same amount which it would have
received on such due date had no such obligation been imposed upon Maker. Maker
will deliver promptly to Holder certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made by
Maker under this Note.
At the option of Holder, Holder may by notice to Maker declare the
entire principal amount outstanding under this Note, together with all accrued
interest thereon and all other sums due under this Note, to be immediately due
and payable in full, whereupon same shall become immediately due and payable in
full, without further notice or demand, if any payment due under this Note is
not paid when due, or if an Event of Default occurs. Failure to exercise such
option shall not constitute a waiver of the right to exercise such option if
Maker is in default hereunder. In the event of any default in the payment of
this Note, and if the same is referred to an attorney at law for collection
or suit is brought hereon, Maker shall pay Holder, in either case, all
expenses and costs of collection, including, but not limited to, court costs
and reasonable attorney's fees and disbursements. Time is of the essence of
this Note.
Any amount of principal of this Note which is not paid when due
(whether at stated maturity, acceleration or otherwise) and, to the extent
permitted by applicable law, any amount of interest under this Note which is
not paid when due, shall bear interest, from the date on which such overdue
amount shall have become due and payable by Maker until payment in full
(whether before or after judgment), payable on demand, at a rate per annum
equal to twenty percent (20%) per annum, plus the Base Rate, or if such
increased rate of interest may not be collected under applicable law, then at
the maximum rate of interest, if any, which may be collected from Maker under
applicable law.
III. Payment, Extension, Notices, etc.
Maker may prepay the outstanding principal amount of this Note, or a portion
thereof, only in accordance with the terms of the Credit Agreement.
From time to time, without affecting the obligation of Maker or any
sureties, guarantors, endorsers, accommodation parties or other persons liable
or to become liable on this note to pay the outstanding principal balance of
this Note and observe the covenants of Maker contained herein, without giving
notice to or obtaining the consent of Maker or any such sureties, guarantors,
endorsers, accommodation parties or other persons, and without liability on
the part of Holder, Holder may, at the option of Holder, grant extensions or
postponements of the time for payment of said outstanding principal balance,
interest or any part thereof, release anyone liable on any of said outstanding
principal balance, accept a renewal of this Note, release or accept a
substitution of all or any collateral given to secure this Note, join in any
extension or subordination agreement, agree in writing with Maker to modify
the rate of interest or terms and time of payment of said outstanding
principal balance or period of amortization of this Note or change the amount
of the monthly installments payable hereunder, or grant any other indulgence
or forbearance whatsoever. No one or more of such actions shall constitute a
novation.
Presentment, notice of dishonor, protest and notice of protest and any
and all lack of diligence or delays in collection or enforcement of this Note
are hereby waived by Maker and all sureties, guarantors, endorsers and
accommodation parties hereof and all other persons liable or to become liable
on this Note. This Note shall be the joint and several obligation of Maker and
all sureties, guarantors, endorsers, accommodation parties and all other
persons liable or to become liable on this Note, and shall be binding upon
them and their heirs, legal representatives, successors and assigns.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Note must be in writing and shall be given in the manner
provided in the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, is a
"Term Loan Note" as defined in, and is subject to the provisions of the Credit
Agreement. Any capitalized term not defined herein shall have the defined
meaning set forth in the Credit Agreement. In -the event of any conflict between
the terms of this Note and the Credit Agreement the terms of the Credit
Agreement shall control.
Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, this Note may not be transferred except pursuant to and in
accordance with the registration and other provisions of Article 14 of the
Credit Agreement.
This Note and the obligations of Maker hereunder shall be governed by
and interpreted and determined in accordance with the laws of Georgia.
MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL
JURISDICTION IN GEORGIA OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO TIES NOTE, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS
OF ANY STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO
JURISDICTION WITHIN GEORGIA OR VENUE IN ANY PARTICULAR FORUM WITHIN GEORGIA, AND
(III) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN ACTUAL DAMAGES. MAKER AGREES
THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER
APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING
MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED
TO MAKER AT THE ADDRESS SET FORTH ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE
FIVE (5) DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING CONTAINED HEREIN,
HOWEVER, SHALL PREVENT HOLDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR
EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST MAKER, AND AGAINST ANY
PROPERTY OF MAKER, IN ANY OTHER STATE. INITIATING SUCH SUIT, ACTION OR
PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A
WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF GEORGIA SHALL GOVERN
THE RIGHTS AND OBLIGATIONS OF MAKER AND HOLDER HEREUNDER OR THE SUBMISSION
HEREIN MADE BY MAKER TO PERSONAL JURISDICTION WITHIN GEORGIA.
This Note may not be amended, modified, or changed, nor shall any waiver
of any provision hereof be effective, except only by an instrument in writing
signed by the party against whom amendment, change, modification or discharge
enforcement of any waiver, is sought.
Whenever used herein, the words "Maker", "Payee" and "Holdee' shall be
deemed to include their respective heirs, legal representatives, successors and
assigns.
[EXECUTION ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered under seal as of the date first above written.
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC., a Maine corporation
By:
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
Attest:
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Name:
Title:
