LOAN SETTLEMENT AGREEMENT
THIS LOAN SETTLEMENT AGREEMENT (this "Agreement") is made and entered
into as of March 31, 2004, by and among Fleet National Bank ("Fleet"), as Agent
for the lenders a party to the Credit Agreement (as hereinafter defined)
("Agent"), Fleet, as a Tranche A Lender and a Tranche B Lender, Ski Partners
LLC, a Delaware limited liability company (f/k/a Ski Partners 2000, a Delaware
general partnership), as a Tranche A Lender and a Tranche B Lender ("Ski 2000";
Fleet and Ski 2000 are hereinafter referred to collectively as the "Lenders"),
Oak Hill Capital Partners, L.P., a Delaware limited partnership, as a former
Tranche C Lender ("Oak Hill"), OHSF ASTC, LLC, a Delaware limited liability
company, as a former Tranche C Lender ("OHSF"; and Oak Hill and OHSF are
hereinafter referred to collectively as the "Former Tranche C Lenders"),
American Skiing Company Resort Properties, Inc., a Maine corporation
("Borrower"), The Canyons Resort Properties, Inc., a Maine corporation
("Canyons"), Killington, Ltd., a Vermont corporation ("KLTD"), and SP Land
Company, LLC, a Delaware limited liability company ("SPLC"; and Borrower,
Canyons, KLTD and SPLC are hereinafter referred to collectively as the "Borrower
Parties").
STATEMENT OF BACKGROUND
On July 31, 2000 Borrower, Agent, the Lenders, Senior Debt Portfolio,
Xxxxx Xxxxx Senior Income Trust and Oak Hill (collectively, the "Original
Lenders") entered into that certain Second Amended and Restated Credit
Agreement, as amended by that certain First Amendment to Second Amended and
Restated Credit Agreement dated as of August 20, 2001 by and among Borrower, the
Original Lenders party thereto and Agent, that certain Second Amendment to
Second Amended and Restated Credit Agreement dated as of March 29, 2002 by and
among Borrower, the Original Lenders a party thereto and Agent and that certain
Waiver of Events of Default (the "Conditional Waiver Agreement") executed as of
April 2, 2002 by and among Borrower, the Original Lenders a party thereto and
Agent (as amended, and as affected by the Conditional Waiver Agreement, the
"Credit Agreement"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to the Credit Agreement the Original Lenders made a loan to
Borrower (the "Loan"). On or about August 31, 0000, Xxx Xxxx assigned a
$246,667.67 portion of its interest in the Loan to OHSF. The Loan is currently
evidenced by the notes described on Exhibit A attached hereto and by this
reference incorporated herein (collectively, the "Notes"). The Loan is currently
secured by, among other things, the documents described on Exhibit B attached
hereto and incorporated herein (collectively, the "Security Documents"; the
Credit Agreement, the Notes, the Security Documents, and all other documents or
instruments now or heretofore evidencing, securing or in any way relating to the
Loan are sometimes hereinafter referred to collectively as the "Loan Documents";
and the real and personal property encumbered by the Loan Documents is
hereinafter referred to collectively as the "Collateral").
As Borrower acknowledged in the Conditional Waiver Agreement, an Event
of Default occurred under the Credit Agreement as a result of (a) the Borrower's
failure to pay to Agent, for the benefit of the Lenders, the mandatory principal
payment in the amount of $3,750,000.00 due on or before March 30, 2002 pursuant
to Section 2.2(a)(i) of the Credit Agreement (the "Payment Event of Default")
and (b) the failure of Grand Summit Resort Properties, Inc. ("GSRP"), a
subsidiary of Borrower, to pay in full on its maturity sums due under that
certain note dated August 20, 2001 to Colorado First/PCL, a Joint Venture (the
"GSRP Default"; the Payment Event of Default and the GSRP Default are referred
to collectively as the "Designated Events of Default"). Pursuant to the
Conditional Waiver Agreement, Agent and the A/B Lenders waived (the "Waiver")
the Events of Default under the Credit Agreement which occurred as a result of
the Designated Events of Default on and subject to the terms and conditions set
forth in the Conditional Waiver Agreement.
By letter to Borrower from Agent dated May 1, 2002 (the "Demand
Letter") Borrower was notified that, pursuant to Paragraph 1 of the Conditional
Waiver Agreement, Agent, on behalf of the A/B Lenders, rescinded the Waiver and
that, in accordance with the terms of the Conditional Waiver Agreement, each of
the Designated Events of Default would automatically be deemed Events of Default
as of May 3, 2002. Pursuant to the Demand Letter, Borrower was also notified
that Events of Default (collectively, the "Interest Payment Default"; the
Designated Events of Defaults and the Interest Payment Default are hereinafter
referred to collectively, as the "Existing Defaults") had occurred under the
Credit Agreement as a result of Borrower's failure to pay the monthly interest
payment due under Credit Agreement on April 1, 2002, in the amount of
$324,552.78 on account of accrued interest for March, 2002 and the monthly
interest payment due under the Credit Agreement on April 30, 2002, in the amount
of $314,083.32 on account of accrued interest for April 2002. In the Demand
Letter, Agent further notified Borrower that the A/B Lenders agreed that,
notwithstanding anything to the contrary contained in Paragraph 3 of the
Conditional Waiver Agreement or the Loan Documents, Borrower had the right to
cure the Existing Defaults at any time on or before 5:00 p.m. (Atlanta, Georgia
time) on May 17, 2002 (the "Cure Period Expiration Time") and Agent demanded,
among other things, that Borrower cure the Existing Defaults on or prior to the
Cure Period Expiration Time.
Borrower failed to cure the Existing Defaults on or prior to the Cure
Period Expiration Time. By letter to Borrower from Agent dated May 31, 2002 (the
"Acceleration Letter") Borrower was notified that the indebtedness evidenced by
the Credit Agreement, the Notes and the other Loan Documents had been and was
thereby accelerated and declared immediately due and payable in full and that
Agent and the Original Lenders were entitled to exercise any or all of Agent's
and/or Original Lenders' rights and remedies under the Loan Documents, at law or
in equity in connection with the Existing Defaults.
On July 3, 0000, Xxxx X. Xxxxxx, Xxx., as Trustee (the "Utah Trustee"),
for the benefit of Agent filed that certain Notice of Default and Election to
Sell dated and recorded on July 3, 2002 in the official records of the Summit
County, Utah Recorder as Entry No. 623986, in Book 1458, at Page 1360-1363 (the
"Sundial Notice of Default") with respect to that certain Deed of Trust,
Assignment of Leases and Rents, Fixture Filing and Security Agreement listed as
Item 1 on Exhibit A attached hereto (the "Sundial Deed of Trust"), and that
certain Notice of Default and Election to Sell dated and recorded on July 3,
2002 in the aforesaid records as Entry No. 623984, in Book 1458, at Pages
1350-1355, as amended by Amended Notice of Default and Election to Sell dated
July 18, 2002 and recorded on July 22, 2002 in the aforesaid records as Entry
No. 625688, in Book 1461, at Pages 544-567 (as amended, the "A-2 Notice of
Default"; the Sundial Notice of Default and the A-2 Notice of Default are
hereinafter referred to collectively as the "Notices of Default") with respect
to that certain Deed of Trust, Assignment of Leases and Rents, Fixture Filing
and Security Agreement listed as Item 8 on Exhibit A attached hereto (the "A-2
Deed of Trust"; the Sundial Deed of Trust and the A-2 Deed of Trust are
hereinafter referred to collectively as the "Utah Deeds of Trust").
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On September 16, 2002, the following documents were provided to the
Routt County, Colorado Public Trustee (the "Colorado Trustee") in connection
with that certain Deed of Trust, Assignment of Leases and Rents, Fixture Filing
and Security Agreement dated September 4, 1998 between Borrower and Agent
recorded December 11, 1998 at Reception No. 503248 in Deed Book 000, Xxxx 000,
Xxxxx Xxxxxx, Xxxxxxxx records (as amended, the "Steamboat Deed of Trust"): (a)
Certificate of Ownership pursuant to C.R.S. ss.38-38-101(1)(d), (b) Affidavit re
Principal Balance pursuant to C.R.S. ss.38-38-101(1)(e), (c) Notice of Public
Trustee's Sale, (d) Public Trustee Certificates of Mailing re Notice of Sale,
(e) "Sale/Rule 120 Notice Mailing List", (f) Notice of Rights to Cure or Redeem
("Cure Notice"), (g) Public Trustee Certification of Mailing, and (h) "Rights
Notice Mailing List" (collectively, the "Initial Colorado Foreclosure
Documents"). On September 30, 2002, the Colorado Trustee issued the Cure Notice.
On October 14, 2002 the following documents were provided to the Colorado
Trustee in connection with the Steamboat Deed of Trust: (a) Amended Notice of
Public Election and Demand for Sale by Public Trustee, (b) Affidavit Re
Principal Balance, and (c) Notice of Public Trustee's Sale (collectively, the
"Amended Colorado Foreclosure Documents"; the Initial Colorado Foreclosure
Documents and the Amended Colorado Foreclosure Documents are hereinafter
referred to collectively as, the "Colorado Foreclosure Documents"). On October
27, 2002, November 3, 2002, November 10, 2002 and November 17, 2002 the Colorado
Trustee published the notice of the trustee's foreclosure sale pursuant to the
Steamboat Deed of Trust in the Steamboat Pilot (the "Colorado Foreclosure
Notice").
On or about December 11, 2003, Senior Debt Portfolio and Xxxxx Xxxxx
Senior Income Trust assigned their respective Tranche A Promissory Notes to Ski
2000.
On or about December 26, 2003, in connection with the sale by Borrower
of the property encumbered by the Steamboat Deed of Trust and contemporaneous
payment of a portion of the indebtedness under the Loan Documents, Agent
withdrew the foreclosure action with respect to the Steamboat Deed of Trust and
requested that the Colorado Trustee reconvey the property encumbered by the
Steamboat Deed of Trust (the "Steamboat Property").
The Borrower Parties, Agent, the Lenders and the Former Tranche C
Lenders have reached a settlement with respect to the Borrower's obligations
under the Loan Documents pursuant to which, among other things, (a) the Former
Tranche C Lenders agreed to, and immediately prior to the effectiveness of this
Agreement have, refinanced all of Borrower's obligations to the Former Tranche C
Lenders under that certain Tranche C Promissory Note dated July 31, 2000 from
Borrower to the order of OHSF ASTC, LLC in the original principal amount of TWO
HUNDRED FORTY SIX THOUSAND SIX HUNDRED SIXTY SIX and 67/100 Dollars
($246,666.67); and that certain Tranche C Promissory Note dated July 31, 2000
from Borrower to the order of Oak Hill Capital Partners, L.P. in the original
principal amount of ELEVEN MILLION SEVEN HUNDRED FIFTY THREE THOUSAND THREE
HUNDRED THIRTY THREE and 33/100 Dollars ($11,753,333.33) (collectively, the
"Tranche C Notes") and the other Loan Documents, (b) Ski 2000 and Fleet have
agreed to waive certain late fees and interest relating to the indebtedness
owing by Borrower to Ski 2000 and Fleet under the Loan Documents, (c) Ski 2000
has agreed to release Borrower from personal liability on account of the
indebtedness owing to Ski 2000 under the Loan Documents, (d) Borrower and KLTD
have agreed to convey certain assets to SPLC (in the case of the assets being
conveyed by Borrower, such conveyance being made subject to the lien and
encumbrance of the Loan Documents) in consideration for equity interests in
SPLC, (e) Ski 2000 has agreed to substitute as collateral for the indebtedness
and obligations of Borrower to Ski 2000 under the Loan Documents the membership
interests of Borrower in SPLC, (f) Ski 2000 has agreed to exchange the
indebtedness owing to Ski 2000 under the Loan Documents for a 75% preferred
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membership interest in SPLC, (g) SPLC has agreed to assume Borrower's
obligations under the Loan Documents and to grant to Agent a mortgage on the
real property contributed to SPLC by Borrower and KLTD to secure the obligations
to Agent and Fleet under the Loan Documents, and (h) in connection with the
foregoing assumption, Agent and the Lenders have agreed (i) to release all
Collateral that is not being conveyed to SPLC and (ii) to release Borrower and
Canyons from certain obligations under the Loan Documents, all in accordance
with the terms of this Agreement and the other documents and instruments set
forth on Schedule 1 attached hereto and made a part hereof (collectively, the
"Settlement Documents"). Additionally, Fleet has agreed to provide a new senior
secured term loan and revolving credit facility to SPLC (as reconstituted and
owned 75% by Ski 2000) in order to refinance the indebtedness owning to Fleet
under the Loan Documents and provide SPLC with working capital.
STATEMENT OF AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00)
in hand paid, the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, do covenant and agree as
follows:
ARTICLE I
ACKNOWLEDGMENTS, WARRANTIES & REPRESENTATIONS
1.01 Authority.
(a) Authority of Borrower. Borrower acknowledges, agrees, warrants and
represents to Agent and the Lenders that Borrower is a duly organized, validly
existing corporation in good standing under the laws of the State of Maine; that
Borrower has the power and authority to execute, deliver, and perform its
obligations under this Agreement and the other Settlement Documents to which it
is a party; that the execution, delivery, and performance of this Agreement and
the other Settlement Documents to which it is a party by Borrower have been duly
authorized pursuant to all requisite corporate action on behalf of Borrower and
consented to and approved by all necessary parties; that the execution, delivery
and performance of this Agreement and the other Settlement Documents to which it
is a party by Borrower does not and will not (i) violate any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination,
or award presently in effect having applicability to Borrower, or (ii) result in
a breach or constitute or cause a default under any indenture, agreement, lease,
or instrument to which Borrower is a party; and that Borrower is not in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination, or award or, to the best of the Borrower's knowledge and belief,
any indenture, agreement, lease, or instrument pertaining to or affecting the
"ASCRP/SPLC Assets" (as hereinafter defined), except for the matters set forth
on Exhibit "C" attached hereto and made a part hereof.
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(b) Authority of Canyons. Canyons acknowledges, agrees, warrants and represents
to Agent and the Lenders that Canyons is a duly organized, validly existing
corporation in good standing under the laws of the State of Maine; that Canyons
has the power and authority to execute, deliver, and perform its obligations
under this Agreement; that the execution, delivery, and performance of this
Agreement by Canyons have been duly authorized pursuant to all requisite
corporate action on behalf of Canyons and consented to and approved by all
necessary parties; that the execution, delivery and performance of this
Agreement by Canyons does not and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to Canyons, or (ii) result in a
breach or constitute or cause a default under any indenture, agreement, lease,
or instrument to which Canyons is a party; and that Canyons is not in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination, or award, except for the matters set forth on Exhibit "C"
attached hereto and made a part hereof.
(c) Authority of KLTD. KLTD acknowledges, agrees, warrants and represents to
Agent and the Lenders that KLTD is a duly organized, validly existing
corporation in good standing under the laws of the State of Vermont; that KLTD
has the power and authority to execute, deliver, and perform its obligations
under this Agreement and the other Settlement Documents to which it is a party;
that the execution, delivery, and performance of this Agreement and the other
Settlement Documents to which it is a party by KLTD have been duly authorized
pursuant to all requisite partnership action on behalf of KLTD and consented to
and approved by all necessary parties; that the execution, delivery and
performance of this Agreement and the other Settlement Documents to which it is
a party by KLTD does not and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination, or
award presently in effect having applicability to KLTD, or (ii) result in a
breach or constitute or cause a default under any indenture, agreement, lease,
or instrument to which KLTD is a party; and that KLTD is not in default under
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination, or award or, to the best of KLTD's knowledge and belief, any
indenture, agreement, lease, or instrument material to the operation of the
KLTD's business taken as a whole or pertaining to or affecting the "KLTD/SPLC
Assets" (as hereinafter defined), except for the matters set forth on Exhibit
"C" attached hereto and made a part hereof.
(d) Authority of SPLC. SPLC acknowledges, agrees, warrants and represents to
Agent and the Lenders that SPLC is a duly organized, validly existing limited
liability company in good standing under the laws of the State of Delaware and
is duly qualified to do business in the State of Vermont; that SPLC has the
power and authority to execute, deliver, and perform its obligations under this
Agreement and the other Settlement Documents to which it is a party; that the
execution, delivery, and performance of this Agreement and the other Settlement
Documents to which it is a party by SPLC have been consented to and approved by
all necessary parties; that the execution, delivery and performance of this
Agreement and the other Settlement Documents to which it is a party by SPLC does
not and will not (i) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination, or award presently in effect
having applicability to SPLC, or (ii) result in a breach or constitute or cause
a default under any indenture, agreement, lease, or instrument to which SPLC is
a party; and that SPLC is not in default under any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination, award, indenture,
agreement, lease, or instrument material to the operation of the SPLC's
business.
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1.02 Status of Loan. Each of Borrower and Canyons, jointly and severally,
acknowledges, agrees, warrants, and represents to Agent and the Lenders as
follows:
(a) Loan Documents. That, as of the date of this Agreement and prior to giving
effect to the transactions contemplated hereby, the Loan Documents constitute
valid and legally binding obligations of Borrower and Canyons and are
enforceable against Borrower and Canyons and the Collateral in accordance with
their terms; that, except as expressly provided in this Agreement or the other
Settlement Documents, neither this Agreement nor any of the other Settlement
Documents is intended to be, and none shall be deemed or construed to be, a
modification, amendment, or waiver of the Loan or the Loan Documents, or any of
them; that neither Borrower nor Canyons has any defenses, setoffs, objections,
claims, counterclaims, or causes of action of any kind or nature whatsoever with
respect to the Loan or the Loan Documents or the indebtedness evidenced and
secured thereby or with respect to the administration of the Loan; and that
Borrower and Canyons do hereby expressly waive, release, and relinquish any and
all such defenses, setoffs, objections, claims, counterclaims, and causes of
action.
(b) Indebtedness. That, as of the date of this Agreement and prior to (i) the
refinance of the indebtedness owing to the Former Tranche C Lenders, (ii) the
forgiveness of certain late fees and accrued interest by Ski 2000 and Fleet as
contemplated herein, and (iii) the exchange of the indebtedness owing to Ski
2000 under the Loan Documents for a preferred membership interest in SPLC as
contemplated herein, (A) the outstanding principal balance of the Loan was
$47,957,915.53, and (B) interest, default charges and late fees in the aggregate
amount of $29,361,071.06 had accrued and remained outstanding under the Loan
Documents.
(c) No Satisfaction, Novation, Release or Waiver. That an Event of Default has
occurred and is continuing under the Credit Agreement as a result of the
Existing Defaults and as a result of the maturity of the Loan without payment in
full of the amounts due and owing under the Loan Documents, that the Loan is now
due and payable in full, that Agent was authorized to and has properly initiated
foreclosure proceedings under the Utah Deeds of Trust and that any and all
notices thereof required to be sent to the Borrower and/or Canyons, under the
Loan Documents and applicable law have been properly and timely provided by the
sending of the Demand Letter and the Acceleration Letter and the mailing and
recording and service of the Notices of Default; that the three (3) month
statutory reinstatement period that commenced with the filing of the Notices of
Default has expired; that, except as expressly provided in this Agreement and
the "Assumption Agreement" (as hereinafter defined), neither this Agreement nor
any of the Settlement Documents is intended to be, and shall not be deemed or
construed to be, a cure, satisfaction, reinstatement, novation, or release of
the Loan or the Loan Documents, or any of them, or a waiver by Agent or the
Lenders of any of the rights of Agent or the Lenders under the Loan Documents,
or any of them, or at law or in equity; and that, except as otherwise expressly
provided in this Agreement, Agent and the Lenders reserve all of their rights
and remedies under the Loan Documents, at law, and in equity in connection with
the Existing Defaults and any other Defaults or Events of Default that may now
or hereafter exist.
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(d) Assignment of Leases and Rents. That, as of the date hereof and prior to
giving effect to the transactions contemplated herein, the documents listed as
Items 1, 4, 8, 10, 11, and 12 on Exhibit B attached hereto constitute an
unconditional, current, perfected assignment of rents, issues, and profits from
the Collateral encumbered by such Security Documents, and all actions, if any,
taken by Agent to exercise or invoke its rights to collect such rents, issues,
and profits have been duly and properly taken by Agent; that, except as
expressly provided in this Agreement, neither this Agreement nor any actions
taken by any parties pursuant to this Agreement shall be deemed in any way
whatsoever to revoke any such actions or to reinstate any rights of Borrower to
collect such rents, it being the express intent of Borrower and Agent that
Agent's security interests in such rents pursuant to such Security Documents
remain and shall at all times remain perfected; and that Agent's rights under
such Security Documents remain and shall at all times remain duly and properly
exercised to the extent so exercised.
1.03 Title to Collateral and Legal Proceedings.
(a) ASCRP/SPLC Assets. Borrower hereby acknowledges, agrees, warrants and
represents to Agent and the Lenders that, except for the liens created under the
Loan Documents and the other encumbrances described in Exhibit "E" attached
hereto and made a part hereof and, except for the pending litigation matters
described on Exhibit "C" attached hereto and made a part hereof, there are no
pending or threatened suits, judgments, arbitration proceedings, administrative
claims, executions, or other legal or equitable actions or proceedings against
the Borrower Parties, or any of the ASCRP/SPLC Assets or any liens, claims of
lien, or other encumbrances against any of the ASCRP/SPLC Assets, or any pending
or threatened condemnation proceedings or annexation proceedings affecting any
of the ASCRP/SPLC Assets, or any agreements to convey any portion of any of the
ASCRP/SPLC Assets, or any rights thereto to any person or entity other than SPLC
as contemplated hereby, including, without limitation, any government or
governmental agency.
(b) KLTD/SPLC Assets. KLTD hereby acknowledges, agrees, warrants and represents
to Agent and the Lenders that, except for the encumbrances described in Exhibit
"F" attached hereto and made a part hereof and, except for the pending
litigation matters described on Exhibit "C" attached hereto and made a part
hereof, there are no pending or threatened suits, judgments, arbitration
proceedings, administrative claims, executions, or other legal or equitable
actions or proceedings against KLTD, or any of the KLTD/SPLC Assets or any
liens, claims of lien, or other encumbrances against any of the KLTD/SPLC
Assets, or any pending or threatened condemnation proceedings or annexation
proceedings affecting any of the KLTD/SPLC Assets, or any agreements to convey
any portion of any of the KLTD/SPLC Assets, or any rights thereto to any person
or entity other than SPLC as contemplated hereby, including, without limitation,
any government or governmental agency.
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1.04 Financial Statements.
(a) Borrower's Financials. Borrower hereby acknowledges, agrees, warrants and
represents to Agent and the Lenders that Borrower's unaudited financial
statements, dated as of February 22, 2004, which have been delivered to Fleet
and Ski 2000 in connection with the execution and delivery of this Agreement,
are true, complete, and accurate in all material respects and accurately
represent Borrower's financial condition as of the date thereof (specifically
including, but not limited to, the demarcation of any and all assets jointly
owned or jointly titled with any other person), in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
period involved, and contain no material misrepresentations, over-valuations, or
omissions; that Borrower's financial condition has not materially or adversely
changed between the date of said financial statements and the date of this
Agreement; and that said financial statements have been provided to Fleet and
Ski 2000 to induce Fleet and Ski 2000 to enter into this Agreement and the other
Settlement Documents and to settle and compromise the Loan and are being relied
upon by Fleet and Ski 2000 for such purposes.
(b) KLTD's Financials. KLTD hereby acknowledges, agrees, warrants and represents
to Agent and the Lenders that KLTD's unaudited financial statements, dated as of
February 22, 2004, which have been delivered to Fleet and Ski 2000 in connection
with the execution and delivery of this Agreement, are true, complete, and
accurate in all material respects and accurately represent KLTD's financial
condition as of the date thereof (specifically including, but not limited to,
the demarcation of any and all assets jointly owned or jointly titled with any
other person), in accordance with generally accepted accounting principles
applied on a consistent basis throughout the period involved, and contain no
material misrepresentations, over-valuations, or omissions; that KLTD's
financial condition has not materially or adversely changed between the date of
said financial statements and the date of this Agreement; and that said
financial statements have been provided to Fleet and Ski 2000 to induce Fleet
and Ski 2000 to enter into this Agreement and the other Settlement Documents and
to settle and compromise the Loan and are being relied upon by Fleet and Ski
2000 for such purposes.
1.05 Status of Killington Land. Each of Borrower and KLTD hereby acknowledges,
agrees, warrants and represents to Agent and the Lenders as follows (provided,
however, that the Agent and the Lenders acknowledge and agree that the following
acknowledgements, agreements, warranties and representations made by KLTD only
apply to KLTD and to the portion of the real property described on Exhibit "D"
attached hereto and made a part hereof (the "Killington Land") owned by KLTD and
do not apply to Borrower or the portion of the Killington Land owned by
Borrower):
(a) Taxes. All payments of ad valorem taxes assessed against the Killington Land
due and payable through the date of this Agreement and all other taxes,
assessments, levies, license fees, permit fees, and other charges levied,
assessed, confirmed, or imposed upon, or in respect of, the Killington Land, due
and payable through the date of this Agreement, have been paid in full.
(b) Environmental Liability. Neither Borrower nor KLTD has any knowledge of (i)
the existence on or at the Killington Land of any "hazardous substance" (as that
term is defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Super Fund Amendments and
Reauthorization Act of 1986, 42 U.S.C. ss. 601, et seq.) or any other substance
or material defined, designated, classified, or considered as toxic waste,
hazardous, or toxic material or a hazardous, toxic, radioactive, or dangerous
substance under any law relating to any hazardous substance at levels that
violate applicable laws; or (ii) any investigation, inquiry, order, hearing,
action, or other proceeding by or before any governmental agency in connection
with any actual or alleged use, storage, holding, existence, release, emission,
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discharge, generation, processing, abatement, removal, disposition, handling, or
transportation of any hazardous substance on or at the Killington Land at levels
that violate applicable laws; and the Killington Land complies in all material
respects with all applicable environmental laws and regulations, including those
relating to air, soil, and water quality and storage, handling, and disposal of
hazardous substances and waste.
(c) Payables and Receivables Statements. Except for property taxes not yet due
and payable, there are no accounts payable which Borrower or KLTD has incurred
with respect to the Killington Land as of the date of this Agreement; and there
are no accounts receivable related to the Killington Land as of the date of this
Agreement.
(d) Leases, Etc. Except as set forth on Schedule 1.05(d) attached hereto and
made a part hereof, there are no leases, licenses or other agreements for the
use or occupancy of the Killington Land, or any portion thereof (any such lease,
license or agreement being herein referred to collectively as the "Leases");
Borrower has delivered to Fleet and Ski 2000, prior to the date hereof, true and
correct copies of the Leases, including all amendments thereto or modifications
thereof; there are no agreements between Borrower or KLTD and any person or
entity concerning the use or occupancy of the Killington Land by any person or
entity other than as set forth in the Leases; and there is no notice of default
with respect to any Lease outstanding by either Borrower, KLTD or any of the
other parties under any Lease, and to the best of Borrower's and KLTD's
knowledge, there exist no defaults by Borrower, KLTD or any of the other parties
under such Leases or any event or condition which, with the giving of notice or
the passage of time or both, would constitute a default under any of such
Leases.
(e) Compliance with Laws. There is no existing violation of any law, ordinance,
regulation, license, permit, or authorization issued with respect to the
Killington Land or the operations of the facilities and services thereon; and
neither Borrower nor KLTD has received any written notice from any governmental
entity claiming that Borrower, KLTD or the Killington Land is not presently in
compliance with any such law, ordinance, regulation, license, permit, or
authorization.
(f) Restrictive Covenants. That, except for the matters described in Exhibit "E"
and Exhibit "F" attached hereto and made a part hereof, there are no restrictive
covenants, easement agreements, development agreements or other agreements that
restrict or limit development of the Killington Land, or any portion thereof;
that neither Borrower nor KLTD has received any written notice asserting that
the Killington Land, or any portion thereof, does not presently fully comply
with all applicable requirements of all restrictive covenants, easement
agreements, development agreements, or other agreements relating to the
Killington Land, or any portion thereof, and no sum is owed by any of Borrower
or KLTD to any other party under any such covenants or agreements; and that
neither Borrower nor KLTD has received any written notice asserting that there
is any breach or default, or any circumstance, event, or condition which, with
notice or the lapse of time, or both, would become a breach or default, by any
of Borrower or KLTD or any other party under or with respect to any restrictive
covenant, easement agreement, development agreement, or other agreement
pertaining to the Killington Land, or any portion thereof.
9
(g) Construction Obligations. That neither Borrower nor KLTD has any obligation
to any person or entity (including any government or governmental agency) to
construct any improvements of any kind or nature whatsoever either on the
Killington Land or otherwise on account of its ownership of the Killington Land
other than those obligations imposed by the zoning ordinances affecting the
Killington Land and 10 V.S.A., Section 6001 et. seq. (commonly referred to as
"Act 250"), which obligations shall only arise as a result of the voluntary
election by the owner of the Killington Land, or a portion thereof, to construct
improvements on the Killington Land, or a portion thereof.
(h) Other Killington Property. That, as of the date hereof and after giving
effect to the transactions contemplated by this Agreement, Borrower and/or KLTD
own (i) all land within PUD 408 (as depicted on Schedule 1.05(h) attached
hereto) other than land owned by SPLC; and (ii) all land within PUD 400 (as
depicted on Schedule 1.05(h) attached hereto) less (a) land owned by SPLC, and
(b) land owned by third parties not affiliated with KLTD or Borrower.
ARTICLE II
COVENANTS OF BORROWER PARTIES
2.01 Notice of Proceedings. Each of the Borrower Parties, severally, covenants
and agrees with Agent and the Lenders that, for a period of thirteen (13)
calendar months after the date of this Agreement, the Borrower Parties shall
notify Agent and the Lenders in writing, promptly upon learning of the
institution of any suit, administrative proceeding, adversary proceeding, or
other legal proceedings which, if adversely determined, may materially and
adversely affect the settlement of the Loan effectuated by this Agreement and
the other Settlement Documents, or the financial condition of Borrower.
2.02 Further Assurances. Each of the Borrower Parties, severally, covenants and
agrees with Agent and the Lenders that the Borrower Parties, and each of them,
shall execute and deliver to Agent and the Lenders such agreements, instruments,
documents, and other writings as may be requested from time to time by Agent or
the Lenders to consummate the transactions contemplated by this Agreement and
the other Settlement Documents.
2.03 Modifications. Each of the Borrower Parties, severally, covenants and
agrees with Agent and the Lenders that none of the Borrower Parties shall
directly or indirectly take any action of any kind or nature whatsoever seeking
in whole or in part to modify, alter, or diminish the force or effect of any of
the terms and conditions of this Agreement or any of the terms and conditions of
any of the other Settlement Documents.
10
ARTICLE III
REFINANCE OF TRANCHE C LOANS; AGREEMENTS OF FORMER TRANCHE C LENDERS
3.01 Refinance of Tranche C Loans. Each of the Former Tranche C Lenders hereby
acknowledges and agrees with Agent and the Lenders (a) that the indebtedness and
obligations owing by Borrower to the Former Tranche C Lenders under the Tranche
C Notes and the other Loan Documents has been refinanced pursuant to (i) the
Promissory Note dated March 31, 2004 between the Borrower and Oak Hill (the "Oak
Hill Refinance Note") and (ii) the Promissory Note dated March 31, 2004 between
the Borrower and OHSF (the "OHSF Refinance Note" and, together with the Oak Hill
Refinance Note, the "Refinance Notes"), (b) that the Borrower's obligations
under the Refinance Notes (the "Refinance Loan") are not secured by any of the
Collateral or any other real or personal property, and (c) that neither of the
Former Tranche C Lenders has any further rights of any kind or nature whatsoever
under the Credit Agreement or the other Loan Documents or otherwise against
Agent or the Lenders or in or to the Collateral. Each of the Former Tranche C
Lenders, for itself and on behalf of its successors and assigns, does hereby
waive, release and relinquish any and all rights of any kind or nature
whatsoever that the Former Tranche C Lenders, or either of them, may have
against Agent or the Lenders or in or to the Collateral under or in connection
with the Credit Agreement or the other Loan Documents. The Former Tranche C
Lenders further acknowledge and agree that neither of them constitute "Lenders"
under the Credit Agreement or any of the other Loan Documents and that none of
Agent or the Lenders has any further obligation to any Former Tranche C Lender
of any kind or nature whatsoever on account of the Loan or under the Loan
Documents or any other agreement between Agent, the Lenders and the Former
Tranche C Lenders relating to the Loan. Each of the Agent and the Lenders hereby
confirm their consent to the refinance of the indebtedness and obligations owing
by Borrower to the Former Tranche C Lenders under the Tranche C Notes and the
other Loan Documents pursuant to the Refinance Loan.
3.02 Release and Covenant Not To Xxx By Former Tranche C Lenders. The Former
Tranche C Lenders, and each of them, jointly and severally, on behalf of
themselves and all of their respective successors and assigns, do hereby remise,
release, acquit, waive, satisfy, and forever discharge Agent and the Lenders,
their predecessors-in-interest, their respective subsidiaries and affiliates,
and all of their respective past, present, and future officers, directors,
employees, agents, representatives, servicers, attorneys, participants, heirs,
successors, and assigns (collectively, the "A/B Lender Parties") from any and
all manner of debts, accountings, bonds, warranties, representations, covenants,
promises, contracts, controversies, agreements, liabilities, obligations,
expenses, damages, judgments, executions, objections, defenses, setoffs,
actions, claims, demands, and causes of action of any nature whatsoever, whether
at law or in equity, whether known, or unknown, either now accrued or hereafter
maturing, which the Former Tranche C Lenders, or any of them, now has or
hereafter can, shall, or may have by reason of any matter, cause, or thing from
the beginning of the world to and including the date of this Agreement arising
out of or relating to (a) the Loan, including, but not limited to, the
administration or funding thereof, (b) the Loan Documents or the indebtedness
evidenced and secured thereby, (c) the Collateral or the development, financing,
and operation thereof, (d) the settlement contemplated and effectuated hereby
and the other Settlement Documents, and (e) any other agreement or transaction
between the Former Tranche C Lenders, or any of them, and Agent or the Lenders
or any subsidiary or affiliate of Agent or the Lenders relating to the Loan; and
the Former Tranche C Lenders, jointly and severally, for themselves and all of
their respective heirs, successors, and assigns, hereby covenant and agree never
to institute or cause to be instituted or continue prosecution of any suit or
other form of action or proceeding of any kind or nature whatsoever against any
of the A/B Lender Parties by reason of or in connection with any of the
foregoing matters, claims, or causes of action.
11
3.03 Covenants of NonInterference. The Former Tranche C Lenders, and each of
them, jointly and severally, covenant and agree with Agent and the Lenders that
none of the Former Tranche C Lenders shall take any action of any kind or nature
whatsoever, either directly or indirectly, to oppose, impede, obstruct, hinder,
enjoin, or otherwise interfere with the settlement transactions contemplated
hereby and by the other Settlement Documents. The Former Tranche C Lenders, and
each of them, jointly and severally, further covenant and agree with Agent and
the Lenders that, for a period of two (2) years from and after the date of this
Agreement, none of the Former Tranche C Lenders, shall, directly or in concert,
collusion, or cooperation with others (a) cause Borrower or KLTD to file a
voluntary petition under any chapter of the United States Bankruptcy Code, 11
U.S.C. ss.101, et seq. (the "Bankruptcy Code"), or to file any petition for
dissolution or liquidation, or in any manner seek any relief under any local,
state, federal or other insolvency laws or other laws providing for relief of
debtors, or (b) cause any involuntary petition under any chapter of the
Bankruptcy Code to be filed against Borrower or KLTD, or (c) cause Borrower or
KLTD to become the subject or any dissolution, liquidation or insolvency
proceeding or any other proceeding pursuant to any local, state, federal, or
other insolvency laws or other laws providing for relief of debtors; provided,
that if a Tranche C Lender shall take any action described in this sentence with
respect to American Skiing Company or any of American Skiing Company's
affiliates or subsidiaries (other than the Borrower, Canyons or KLTD), such
action or actions shall not be deemed to be in breach or violation of this
Section 3.03, whether or not the Borrower, Canyons or KLTD becomes subject to a
proceeding that is consolidated with a proceeding of American Skiing Company or
such affiliate or subsidiary.
3.04 Authority of Oak Hill. Oak Hill warrants and represents to Agent and the
Lenders that Oak Hill is a duly organized, validly existing limited partnership
in good standing under the laws of the State of Delaware; that Oak Hill has the
power and authority to execute, deliver, and perform its obligations under this
Agreement; that the execution, delivery, and performance of this Agreement by
Oak Hill have been duly authorized pursuant to all requisite partnership action
on behalf of Oak Hill and consented to and approved by all necessary parties;
that the execution, delivery and performance of this Agreement by Oak Hill does
not and will not (i) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination, or award presently in effect
having applicability to Oak Hill, or (ii) result in a breach or constitute or
cause a default under any indenture, agreement, lease, or instrument to which
Oak Hill is a party; and that, as of the date hereof and prior to giving effect
to the Refinance Note to Oak Hill, Oak Hill has not transferred, assigned or
otherwise disposed of any interest in its Tranche C Note or any of the other
Loan Documents and that Oak Hill and OHSF are the only Tranche C Lenders under
the Credit Agreement.
3.05 Authority of OHSF. OHSF warrants and represents to Agent and the Lenders
that OHSF is a duly organized, validly existing limited liability company in
good standing under the laws of the State of Delaware; that OHSF has the power
and authority to execute, deliver, and perform its obligations under this
Agreement; that the execution, delivery, and performance of this Agreement by
OHSF have been duly authorized pursuant to all requisite limited liability
company action on behalf of OHSF and consented to and approved by all necessary
parties; that the execution, deliver and performance of this Agreement by OHSF
does not and will not (i) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination, or award presently in
effect having applicability to OHSF, or (ii) result in a breach or constitute or
cause a default under any indenture, agreement, lease, or instrument to which
OHSF is a party; and that, as of the date hereof and prior to giving effect to
the Refinance Note to OHSF, OHSF has not transferred, assigned or otherwise
disposed of any interest in its Tranche C Note or any of the other Loan
Documents and that Oak Hill and OHSF are the only Tranche C Lenders under the
Credit Agreement.
12
ARTICLE IV
RESTRUCTURING OF LOAN AND SETTLEMENT
4.01 Agreements Regarding Indebtedness.
(a) Waiver of Late Fees and Interest by Ski 2000. Borrower, SPLC and Ski 2000
acknowledge and agree that, as of and including the date hereof, the
indebtedness owing to Ski 2000 on account of principal, interest (both default
rate and regular interest) and late fees on the Loan is $39,212,200.20. Ski 2000
hereby acknowledges that, pursuant to the terms of a separate letter agreement,
Ski 2000 is agreeing to waive its right to receive certain amounts that have
heretofore accrued and are owing to Ski 2000 under the Loan Documents on account
of principal, interest or late charges (the amount equal to the difference
between $39,212,200.20 and the amount being waived by Ski 2000 is hereinafter
referred to as the "Ski 2000 Indebtedness"). Borrower and SPLC acknowledge and
agree that interest shall continue to accrue on the outstanding principal
balance of the Ski 2000 Indebtedness at the rate of $13,181.91 per day until the
Ski 2000 Indebtedness is satisfied in full. Additionally, Borrower remains
obligated to reimburse Ski 2000 for an amount equal to the fees and expenses
incurred by Ski 2000 in connection with the settlement of the Loan, including
attorneys fees and expenses.
(b) Waiver of Late Fees and Interest by Fleet. Borrower, SPLC and Fleet
acknowledge and agree that, as of and including the date hereof, the
indebtedness owing to Fleet on account of principal, interest (both default rate
and regular interest) and late fees on the Loan is $14,633,494.16. Fleet hereby
acknowledges that, pursuant to the terms of a separate letter agreement, Fleet
is agreeing to waive its right to receive certain amounts that have heretofore
accrued and are owing to Fleet under the Loan Documents on account of principal,
interest or late charges (the amount equal to the difference between
$14,633,494.16 and the amount being waived by Fleet is hereinafter referred to
as the "Fleet Indebtedness"). Borrower and SPLC acknowledge and agree that
interest shall continue to accrue on the outstanding principal balance of the
Fleet Indebtedness at the rate of $909.21 per day until the Fleet Indebtedness
is repaid in full.
(c) Exchange of Collateral for Ski 2000 Indebtedness. Ski 2000 hereby agrees
that, notwithstanding anything to the contrary contained in the Loan Documents,
Borrower's obligations to Ski 2000 on account of the Ski 2000 Indebtedness shall
be secured solely by the membership interest and rights related thereto of
Borrower in SPLC collaterally assigned to Ski 2000 pursuant to that certain
Pledge Agreement of even date herewith made by Borrower in favor of Ski 2000 and
Ski 2000 shall have no further interest in any of the Collateral for the Loan.
After giving effect to the foregoing transaction and prior to giving effect to
the transactions contemplated by Section 4.05 below, Borrower acknowledges that
Agent and Fleet shall continue to have the right to exercise any and all rights
and remedies against Borrower and the Collateral (and any additional collateral
granted to Agent for the benefit of Agent and Fleet) under the Loan Documents,
at law or in equity on account of the indebtedness and other obligations of
Borrower to Agent and Fleet under the Loan Documents.
13
4.02 Formation of SPLC. Borrower and KLTD represent and warrant to Agent, Fleet
and Ski 2000 that Borrower and KLTD have formed SPLC, that Borrower and KLTD are
the only members of SPLC. In consideration of its ownership interest in SPLC,
Borrower has agreed to transfer to SPLC, and Borrower hereby agrees, immediately
upon the execution and delivery of this Agreement, to transfer to SPLC, the
assets described in Schedule 4.02(a) attached hereto and made a part hereof
(collectively, the "ASCRP/SPLC Assets"), which ASCRP/SPLC Assets shall be
transferred to SPLC subject to the Loan and the Loan Documents including,
specifically, the liens and security interests created by the Loan Documents, as
applicable. Borrower and Canyons acknowledge and agree that, prior to the
assumption by SPLC of the Loan and Borrower's obligations under the Loan
Documents and the release by Agent of a portion of the Collateral as
contemplated in Section 4.05(c) below, (a) Borrower and Canyons shall remain
fully liable to Agent and the Lenders for their respective obligations to Agent
and the Lenders under the Loan Documents, as such obligations have been modified
pursuant to Section 4.01, and (b) all assets of Borrower and Canyons securing
the Loan and the other obligations of Borrower under the Loan Documents to Agent
and the Lenders shall continue to secure the Loan and such other obligations. In
consideration of its ownership interest in SPLC, KLTD has agreed to transfer to
SPLC, and KLTD hereby agrees, immediately upon the execution and delivery of
this Agreement, to transfer to SPLC, the assets described on Schedule 4.02(b)
attached hereto and made a part hereof (collectively, the "KLTD/SPLC Assets"),
which KLTD/SPLC Assets shall be conveyed to SPLC free and clear of any and all
liens and encumbrances except for those encumbrances described on Exhibit "F"
attached hereto and made a part hereof.
4.03 Formation of Xxxxxx Xxxxx Entity. Immediately following the transfer of the
KLTD/SPLC Assets to SPLC, SPLC shall transfer to Xxxxxx Xxxxx Associates LLC, a
Delaware limited liability company (the "Xxxxxx Xxxxx Entity"), its undivided
50% interest in the real property described on Exhibit "G" attached hereto and
made a part hereof (the "Xxxxxx Xxxxx Property") and KLTD shall transfer to the
Xxxxxx Xxxxx Entity its undivided 50% interest in the Xxxxxx Xxxxx Property. The
Xxxxxx Xxxxx Entity shall be a Delaware limited liability company owned fifty
percent (50%) by SPLC and fifty percent (50%) by KLTD. The operating agreement
for the Xxxxxx Xxxxx Entity shall be in the form of Exhibit "H" attached hereto
and made a part hereof.
4.04 Exchange of Ski 2000 Debt For SPLC Interests. Immediately following the
conveyance of the ASCRP/SPLC Assets and the KLTD/SPLC Assets to SPLC and the
conveyance by SPLC and KLTD of their respective interests in the Xxxxxx Xxxxx
Property to the Xxxxxx Xxxxx Entity, Ski 2000, Borrower and KLTD shall enter
into an Exchange Agreement in form and substance reasonably acceptable to
Borrower and Ski 2000 (the "Exchange Agreement") and that certain Amended and
Restated Limited Liability Company Agreement of SP Land Company, LLC in the form
of Exhibit "J" attached hereto (the "Restated SPLC Operating Agreement"),
pursuant to which, among other things, Ski 2000 shall exchange the Ski 2000
Indebtedness for a seventy-five percent (75%) preferred ownership interest in
SPLC having the rights and preferences set forth in the Restated SPLC Operating
Agreement (the foregoing exchange being referred to as the "Exchange"). Each of
Ski 2000, Borrower, KLTD and SPLC agree that the consummation of the Exchange
shall result in the extinguishment of the Ski 2000 Indebtedness and that upon
consummation of the Exchange the Ski 2000 Indebtedness shall be deemed paid and
satisfied in full, that neither Ski 2000 nor SPLC shall have any right, title or
interest as a "Lender" in, to or under the Loan or the Loan Documents or any
Collateral for the Loan, and that neither Agent nor Fleet shall have any duty or
obligation of any kind or nature whatsoever to Ski 2000 or SPLC under or on
account of the Loan or the Loan Documents including, specifically, but without
limitation, any obligation to remit any portion of any payment received or
applied by Agent or Fleet against the indebtedness and other obligations owing
14
under the Loan Documents. In furtherance of the foregoing, each of Ski 2000,
Borrower, KLTD, SPLC and the Former Tranche C Lenders agree that, upon the
consummation of the Exchange, among other things, Fleet shall be the Agent and
sole "Lender" under the Loan Documents, SPLC shall be owned 75% by Ski 2000, 24%
by KLTD and 1% by Borrower and SPLC shall be the owner of (i) the ASCRP/SPLC
Assets, (ii) the KLTD/SPLC Assets (other than the undivided 50% interest in the
Xxxxxx Xxxxx Property which will have theretofore been transferred to the Xxxxxx
Xxxxx Entity) and (iii) a 50% membership interest in the Xxxxxx Xxxxx Entity.
4.05 Assumption of Loan by SPLC; Release of Borrower and Collateral.
(a) Assumption. Immediately prior to the consummation of the Exchange, SPLC,
Borrower, Agent and Fleet shall execute and deliver a Consent and Assumption
Agreement in the form of Exhibit "K" attached hereto (the "Assumption
Agreement") pursuant to which, among other things, SPLC shall assume the Loan
and all obligations of Borrower under the Loan Documents. In connection with the
execution and delivery of the Assumption Agreement, SPLC shall execute and
deliver to Agent that certain Mortgage, Assignment of Leases and Rents,
Financing Statement and Security Agreement (the "SPLC Mortgage") in the form of
Exhibit "I" attached hereto encumbering the Killington Land as security for the
Loan and SPLC's obligations under the Loan Documents. The Borrower Parties
acknowledge and agree that, in addition to the Killington Land, all other assets
of SPLC shall continue to constitute collateral for the Loan and the obligations
of SPLC under the Loan Documents.
(b) Release of Borrower by Fleet. Pursuant to the Assumption Agreement, Fleet
shall release Borrower and Canyons from their respective obligations under the
Loan Documents to the extent provided in the Assumption Agreement.
(c) Release of Collateral. Simultaneously with the execution and delivery by
SPLC of the Assumption Agreement and the SPLC Mortgage, Agent shall execute and
deliver to Borrower release documents in form and substance reasonably
satisfactory to Agent and Borrower pursuant to which Agent shall release its
liens on and security interests in all of the real and personal property owned
by Borrower and Canyons constituting Collateral, other than the ASCRP/SPLC
Assets, including, without limitation, the property located at or relating to
The Canyons in Park City, Utah (the "Canyons Property"), the real and personal
property owned by Borrower at Mount Snow located in Xxxxxxx County, Vermont, the
real property owned by Borrower in Killington, Vermont not constituting a part
of the ASCRP/SPLC Assets and Borrower's stock in Grand Summit Resort Properties,
Inc. and Canyons. Fleet, individually or in its capacity as Agent, as
applicable, covenants and agrees, at Borrower's sole cost and expense, to
execute and deliver such further agreements, instruments, documents and other
writings as Borrower or Canyons may reasonably request to effectuate the release
of the Collateral, other than the ASCRP/SPLC Assets, provided such further
release documents are in form and substance reasonably acceptable to Fleet.
Additionally, Agent and the Lenders agree that Agent shall remit to Borrower
from amounts on deposit in the General Cash Collateral Account, the sum of
$315,231.00 in order to reimburse Borrower for certain real estate tax
liabilities incurred by Borrower relating to the Steamboat Property and the
Canyons Property.
15
4.06 Conditions to Effectiveness. Each of the parties hereto acknowledges and
agrees that the consummation of each of the individual transactions contemplated
by Section 4.01 through and including Section 4.05 of this Agreement is
conditioned upon the consummation of all of the transactions contemplated by
said Sections and that the consummation of each such transaction is intended to
occur in the order contemplated herein and to be effective as of the date
hereof. Notwithstanding the foregoing, the parties hereto further acknowledge
and agree (a) that this Agreement and the other Settlement Documents, as and
when the same are approved and executed by the applicable parties thereto (it
being acknowledged that the Settlement Documents set forth as items 2, 4,
9(b)-(h), 10 and 12 on Schedule 1 attached hereto (collectively, the "Settlement
Documents in Progress") have not yet been finalized), are to be placed in escrow
with Gravel and Xxxx, a Vermont professional corporation ("Escrow Agent") and
held by Escrow Agent pursuant to the terms of that certain Escrow Agreement of
even date herewith among Agent, the Lenders, the Borrower Parties and Escrow
Agent (the "Escrow Agreement") pending the satisfaction of the conditions
precedent to the release of this Agreement and the other Settlement Documents
from escrow set forth in the Escrow Agreement, (b) that neither this Agreement,
the other Settlement Documents nor the transactions contemplated hereby or
thereby shall be of any force or effect unless each condition to the release of
this Agreement and the other Settlement Documents from escrow set forth in the
Escrow Agreement has been satisfied (or waived by the party for whose benefit
such condition exists) in accordance with the terms and conditions of the Escrow
Agreement, and (c) that as the Settlement Documents in Progress are approved and
executed, the same shall be delivered to Escrow Agent and shall become "Escrowed
Documents" under the Escrow Agreement. Each party hereto agrees that no party to
any of the Settlement Documents in Progress shall have any obligation to agree
on the terms of any of the Settlement Documents in Progress and none of the
Settlement Documents in Progress shall be approved or deemed approved until such
time, if any, as each of the applicable parties thereto have approved the terms
thereof (inclusive of all schedules and exhibits thereto), in each case in their
sole and absolute discretion. Additionally, none of the Settlement Documents in
Progress shall be approved or deemed approved unless the "mortgagee protection"
provisions thereof, or reasonably requested by Fleet to be included therein
based upon Fleet's review of such document, have been reviewed and approved by
Fleet in writing. In the event the parties are not able to agree upon the
Settlement Documents in Progress or the conditions to the release of this
Agreement and the other Settlement Documents from escrow are not satisfied in
accordance with the terms of the Escrow Agreement within the time period
provided in the Escrow Agreement (i) the parties hereto shall be restored to
their former positions and rights, (ii) all rights, powers and remedies of
Agent, the Lenders and the Former Tranche C Lenders shall continue as if neither
this Agreement nor any other Settlement Document had been executed or delivered
in escrow, (iii) each and every Default and Event of Default under the Credit
Agreement and the other Loan Documents declared or occurring prior or subsequent
to the date hereof shall be deemed to be a continuing Default and Event of
Default; and (iv) neither the Loan, the Credit Agreement, the Notes, nor any
other Loan Document shall be or shall be deemed to have been reinstated or
otherwise affected by this Agreement or any of the other Settlement Documents
and the Loan shall remain immediately due and payable in full; and the Borrower
Parties and the Former Tranche C Lenders hereby expressly waive the benefit of
any statute or rule of law now provided, or which may hereafter be provided,
which would produce a result contrary to or in conflict with this sentence.
16
ARTICLE V
RELEASES AND COVENANTS NOT TO XXX
5.01 Release and Covenant Not To Xxx by Borrower and Canyons. The Borrower and
Canyons, and each of them, jointly and severally, on behalf of themselves and
all of their respective heirs, successors, and assigns, do hereby remise,
release, acquit, waive, satisfy, and forever discharge Agent, the Original
Lenders and OHSF, their predecessors-in-interest, their respective subsidiaries
and affiliates, and all of their respective past, present, and future officers,
directors, employees, agents, representatives, servicers, attorneys,
participants, heirs, successors, and assigns (collectively, the "Lender
Parties") from any and all manner of debts, accountings, bonds, warranties,
representations, covenants, promises, contracts, controversies, agreements,
liabilities, obligations, expenses, damages, judgments, executions, objections,
defenses, setoffs, actions, claims, demands, and causes of action of any nature
whatsoever, whether at law or in equity, whether known or unknown, either now
accrued or hereafter maturing, which the Borrower Parties, or any of them, now
has or hereafter can, shall, or may have by reason of any matter, cause, or
thing from the beginning of the world to and including the date of this
Agreement, including specifically, but without limitation, matters arising out
of or relating to (a) the Loan, including, but not limited to, the
administration or funding thereof, (b) the Loan Documents or the indebtedness
evidenced and secured thereby, (c) the Collateral or the development, financing,
and operation thereof, (d) the settlement contemplated and effectuated hereby
and the other Settlement Documents, and (e) any other agreement or transaction
between the Borrower Parties, or any of them, and Agent or the Lenders or any
subsidiary or affiliate of Agent or the Lenders; and the Borrower and Canyons,
jointly and severally, for themselves and all of their respective heirs,
successors, and assigns, hereby covenant and agree never to institute or cause
to be instituted or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any of the Lender Parties by
reason of or in connection with any of the foregoing matters, claims, or causes
of action. Notwithstanding the foregoing, Agent and the Lenders acknowledge and
agree that the foregoing release and covenant not to xxx does not apply to any
claims or causes of action arising out of or resulting from any breach by the
Agent or the Lenders of any of their respective agreements under this Agreement
or any of the other Settlement Documents.
5.02 Release and Covenant Not To Xxx by KLTD. KLTD, on behalf of itself and all
of its successors and assigns, does hereby remise, release, acquit, waive,
satisfy, and forever discharge each of the Lender Parties from any and all
manner of debts, accountings, bonds, warranties, representations, covenants,
promises, contracts, controversies, agreements, liabilities, obligations,
expenses, damages, judgments, executions, objections, defenses, setoffs,
actions, claims, demands, and causes of action of any nature whatsoever, whether
at law or in equity, whether known or unknown, either now accrued or hereafter
maturing, which KLTD now has or hereafter can, shall, or may have by reason of
any matter, cause, or thing from the beginning of the world to and including the
date of this Agreement arising out of or relating to (a) the Loan, including,
but not limited to, the administration or funding thereof, (b) the Loan
Documents or the indebtedness evidenced and secured thereby, (c) the Collateral
or the development, financing, and operation thereof, (d) the settlement
contemplated and effectuated hereby and the other Settlement Documents, and (e)
any other agreement or transaction between the Borrower Parties, or any of them,
and Agent or the Lenders or any subsidiary or affiliate of Agent or the Lenders
relating to the Loan; and KLTD, for itself and all of its successors and
assigns, hereby covenants and agrees never to institute or cause to be
instituted or continue prosecution of any suit or other form of action or
17
proceeding of any kind or nature whatsoever against any of the Lender Parties by
reason of or in connection with any of the foregoing matters, claims, or causes
of action. Notwithstanding the foregoing, Agent and the Lenders acknowledge and
agree that the foregoing release and covenant not to xxx does not apply to any
claims or causes of action arising out of or resulting from any breach by the
Agent or the Lenders of any of their respective agreements under this Agreement
or any of the other Settlement Documents.
5.03 Release and Covenant Not To Xxx By Ski 2000. Ski 2000, on behalf of itself
and all of its successors and assigns, does hereby remise, release, acquit,
waive, satisfy, and forever discharge Fleet, individually and in its capacity as
Agent, its predecessors-in-interest, subsidiaries and affiliates, and all of its
past, present, and future officers, directors, employees, agents,
representatives, servicers, attorneys, participants, heirs, successors, and
assigns (collectively, the "Fleet Parties") from any and all manner of debts,
accountings, bonds, warranties, representations, covenants, promises, contracts,
controversies, agreements, liabilities, obligations, expenses, damages,
judgments, executions, objections, defenses, setoffs, actions, claims, demands,
and causes of action of any nature whatsoever, whether at law or in equity,
whether known or unknown, either now accrued or hereafter maturing, which Ski
2000 now has or hereafter can, shall, or may have by reason of any matter,
cause, or thing from the beginning of the world to and including the date of
this Agreement arising out of or relating to (a) the Loan, including, but not
limited to, the administration or funding thereof, (b) the Loan Documents or the
indebtedness evidenced and secured thereby, (c) the Collateral or the
development, financing, and operation thereof, (d) the settlement contemplated
and effectuated hereby and the other Settlement Documents, and (e) any other
agreement or transaction between Ski 2000, and Fleet, individually or in its
capacity as Agent, relating to the Loan; and Ski 2000, for itself and all of its
successors and assigns, hereby covenants and agrees never to institute or cause
to be instituted or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any of the Fleet Parties by
reason of or in connection with any of the foregoing matters, claims, or causes
of action. Notwithstanding the foregoing, Fleet acknowledges and agrees that the
foregoing release and covenant not to xxx does not apply to any claims or causes
of action arising out of or resulting from any breach by Fleet of any of its
agreements under this Agreement or any of the other Settlement Documents.
5.04 Release and Covenant Not To Xxx By Fleet. Fleet, on behalf of itself and
all of its successors and assigns, does hereby remise, release, acquit, waive,
satisfy, and forever discharge Ski 2000 in its capacity as a "Lender" under the
Credit Agreement, its predecessors-in-interest, subsidiaries and affiliates, and
all of its past, present, and future officers, directors, employees, agents,
representatives, servicers, attorneys, participants, heirs, successors, and
assigns (collectively, the "Ski 2000 Parties") from any and all manner of debts,
accountings, bonds, warranties, representations, covenants, promises, contracts,
controversies, agreements, liabilities, obligations, expenses, damages,
judgments, executions, objections, defenses, setoffs, actions, claims, demands,
and causes of action of any nature whatsoever, whether at law or in equity,
whether known or unknown, either now accrued or hereafter maturing, which Fleet
now has or hereafter can, shall, or may have by reason of any matter, cause, or
thing from the beginning of the world to and including the date of this
Agreement arising out of or relating to (a) the Loan, (b) the Loan Documents,
(c) the Collateral, (d) the settlement contemplated and effectuated hereby and
the other Settlement Documents, and (e) any other agreement or transaction
between Fleet, individually or in its capacity as Agent, and Ski 2000 relating
to the Loan; and Fleet, for itself and all of its successors and assigns, hereby
covenants and agrees never to institute or cause to be instituted or continue
prosecution of any suit or other form of action or proceeding of any kind or
nature whatsoever against any of the Ski 2000 Parties by reason of or in
connection with any of the foregoing matters, claims, or causes of action.
Notwithstanding the foregoing, Ski 2000 acknowledges and agrees that the
foregoing release and covenant not to xxx does not apply to any claims or causes
of action arising out of or resulting from any breach by Ski 2000 of any of its
agreements under this Agreement or any of the other Settlement Documents.
18
5.05 Release and Covenant Not to Xxx By Agent and Lenders. The Agent and the
Lenders, and each of them, jointly and severally, on behalf of themselves and
all of their respective successors and assigns, do hereby remise, release,
acquit, waive, satisfy, and forever discharge the Former Tranche C Lenders in
their capacity as "Tranche C Lenders" under the Credit Agreement, their
predecessors-in-interest, their respective subsidiaries and affiliates (other
than Borrower, Canyons, KLTD and any affiliate of Borrower, Canyons or KLTD),
and all of their respective past, present, and future officers, directors,
employees, agents, representatives, servicers, attorneys, participants, heirs,
successors, and assigns (collectively, the "Former Tranche C Lender Parties")
from any and all manner of debts, accountings, bonds, warranties,
representations, covenants, promises, contracts, controversies, agreements,
liabilities, obligations, expenses, damages, judgments, executions, objections,
defenses, setoffs, actions, claims, demands, and causes of action of any nature
whatsoever, whether at law or in equity, whether known or unknown, either now
accrued or hereafter maturing, which the Agent or the Lenders, or any of them,
now has or hereafter can, shall, or may have by reason of any matter, cause, or
thing from the beginning of the world to and including the date of this
Agreement arising out of or relating to (a) the Loan, including, but not limited
to, the administration or funding thereof, (b) the Loan Documents or the
indebtedness evidenced and secured thereby, (c) the Collateral or the
developments, financing, and operation thereof, (d) the settlement contemplated
and effectuated hereby and the other Settlement Documents, and (e) any other
agreement or transaction between the Agent and the Lenders, or any of them, and
the Former Tranche C Lenders solely relating to the Loan; and the Agent and the
Lenders, jointly and severally, for themselves and all of their respective
heirs, successors, and assigns, hereby covenant and agree never to institute or
cause to be instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against any of the Former
Tranche C Lender Parties by reason of or in connection with any of the foregoing
matters, claims, or causes of action. Notwithstanding the foregoing, each of the
Former Tranche C Lenders acknowledges and agrees that the foregoing release and
covenant not to xxx does not apply to any claims or causes of action arising out
of or resulting from any breach by any of the Former Tranche C Lenders of any of
their agreements under this Agreement or any of the other Settlement Documents.
19
ARTICLE VI
BANKRUPTCY
6.01 Material Inducement. The Borrower Parties, and each of them, jointly and
severally, acknowledge and agree that the representations, warranties,
covenants, and agreements contained in this Article VI constitute a material
inducement to Agent and the Lenders to enter into this Agreement and the
transactions contemplated hereby and that without the inclusion of this Article
VI herein Agent and the Lenders would not have entered into this Agreement.
6.02 No Fraudulent Intent. The Borrower Parties, and each of them, jointly and
severally, hereby acknowledge, warrant, represent, and agree that neither the
execution and delivery of this Agreement or any of the other Settlement
Documents nor the performance of any actions required hereunder or thereunder is
being consummated by the Borrower Parties, or any of them, with or as a result
of any actual intent by the Borrower Parties, or any of them, to hinder, delay,
or defraud any entity to which the Borrower Parties, or any of them, are now or
will hereafter become indebted.
6.03 No Bankruptcy Intent. Each of the Borrower Parties acknowledge, warrants,
represents, covenants, and agrees that neither Borrower, nor such Borrower
Party, has any present intent: (i) to file any voluntary petition in bankruptcy
under any chapter of the Bankruptcy Code or in any manner to seek relief,
protection, reorganization, liquidation, dissolution, or similar relief for
debtors under any local, state, federal, or other insolvency laws or laws
providing for relief of debtors, or in equity, or directly or in concert,
collusion, or cooperation with others to cause any of the Borrower Parties to
file any such petition or to seek any such relief either at the present time or
at any time hereafter; or (ii) directly or in concert, collusion, or cooperation
with others to cause any involuntary petition under any chapter of the
Bankruptcy Code to be filed against any of the Borrower Parties or directly or
in concert, collusion, or cooperation with others to cause any of the Borrower
Parties to become the subject of any proceedings pursuant to local, state,
federal, or other insolvency laws or laws providing for relief of debtors, or in
equity, either at the present time or at any time hereafter; or (iii) directly
or in concert, collusion, or cooperation with others to cause any of the
Collateral or any of the Killington Land or any interest of any of the Borrower
Parties in the Collateral or the Killington Land to become the property of any
bankruptcy estate or the subject of any local, state, federal, or other
bankruptcy, dissolution, liquidation, or insolvency proceedings either at the
present time or at any time hereafter.
6.04 Settlement in Best Interests; Consideration. Each of the Borrower Parties
acknowledges, warrants, represents, covenants, and agrees (a) that the
settlement evidenced by this Agreement and the other Settlement Documents is in
the best interests of Borrower, KLTD and Canyons and the respective creditors of
Borrower, KLTD and Canyons in that, among other things, the settlement (i) will
resolve Agent's and the Lenders' claims against Borrower and Canyons in a manner
which is fair and reasonable in all respects and which will permit Borrower,
Canyons, KLTD and their respective affiliates to avoid the adverse public
notoriety of a foreclosure against the Collateral, (ii) will permit Borrower and
Canyons to avoid the costs, expenses, and burdens of litigation with Agent and
the Lenders, (iii) will permit KLTD to obtain fee and leasehold title to certain
real property located in Killington, Vermont that is materially beneficial to
KLTD's business operations in the short term (KLTD acknowledging and agreeing
that avoiding a foreclosure by Agent upon the land in Killington, Vermont
constituting a portion of the Collateral would permit KLTD to maintain a
significant portion of its day-skier parking areas, a portion of its
ski-teaching slopes and certain other property critical to its operations) and
(iv) will provide KLTD with a twenty-four percent (24%) ownership interest in
SPLC and Borrower with a one percent (1%) ownership interest in SPLC, and (b)
that the benefits which inure to Borrower, KLTD and Canyons pursuant to this
Agreement and the other Settlement Documents constitute more than "reasonably
equivalent value" (as such term is used in Section 548 of the Bankruptcy Code)
in exchange for the benefits to be provided by Borrower, KLTD and Canyons to
Agent and the Lenders pursuant to this Agreement and the other Settlement
Documents.
20
6.05 No Equity in Project; No Prospects for an Effective Reorganization. Each of
the Borrower and Canyons acknowledges, warrants, represents, covenants, and
agrees that as of the date hereof, but prior to giving effect to the
transactions contemplated hereby and the other Settlement Documents (a) the
aggregate fair market value of the Collateral as of the date hereof is less than
the amount of the indebtedness evidenced and secured by the Loan Documents; (b)
Borrower and Canyons have no equity in the Collateral owned by it, as the term
"equity" is used in Section 362(d)(2) of the Bankruptcy Code; and (c) Borrower
does not have the ability to achieve an effective reorganization within the
meaning of Section 362(d)(2) of the Bankruptcy Code. The Borrower Parties
covenant and agree that in any subsequent bankruptcy proceeding involving any of
the Borrower Parties or any other person or entity, or the Collateral or the
Killington Land, the Borrower Parties shall not make any claim or assertion that
is contrary to the foregoing statements contained in this Section 6.05.
6.06 Solvency of KLTD. KLTD warrants, represents, covenants and agrees that (a)
KLTD is not insolvent, and the consummation of the settlement transaction
contemplated hereby shall not render KLTD insolvent, on a balance sheet basis
whereby the sum of KLTD's liabilities equals or exceeds the sum of KLTD's
assets, (b) KLTD is able to pay its debts as they become due, and (c) KLTD has
sufficient capital to carry on its business.
ARTICLE VII
MISCELLANEOUS
7.01 Agent and Lenders. Each of Ski 2000 and the Former Tranche C Lenders
represents and agrees that all actions heretofore taken by Agent in connection
with the Loan, including without limitation the administration of the Loan, the
enforcement of rights and remedies, and the negotiation of this Agreement and
the other Settlement Documents have been taken at the direction of, or with the
consent of, the Required Lenders and otherwise in accordance with the terms of
the Loan Documents, that neither Ski 2000 nor any Former Tranche C Lender has
any claim or cause of action against Agent in connection with or relating to the
Loan or the administration or settlement thereof, and that neither of the Former
Tranche C Lenders has any claim or cause of action against Ski 2000 in
connection with or relating to the Loan or the administration or settlement
thereof.
7.02 Survival of Provisions. Except as expressly herein provided, the covenants,
acknowledgments, representations, agreements, and obligations contained in this
Agreement shall survive the consummation of the transactions contemplated by
this Agreement.
21
7.03 No Waivers. Except as specifically and expressly set forth in this
Agreement, nothing contained in this Agreement shall constitute a waiver of any
rights or remedies of any party under the Loan Documents or at law or in equity.
No delay or failure on the part of any party hereto in the exercise of any right
or remedy hereunder shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy hereunder shall preclude other or further
exercise thereof or the exercise of any other right or remedy. No action or
forbearance by any party contrary to the provisions of this Agreement shall be
construed to constitute a waiver of any of the express provisions hereof. Any
party may in writing expressly waive any of such party's rights under this
Agreement without invalidating this Agreement or any portion hereof.
7.04 No Partnership, Joint Venture, or Agency. This Agreement shall not in any
respect be interpreted, deemed, or construed as making Agent or Fleet a partner
or joint venturer with the Borrower Parties or any of them, nor shall it be
interpreted, deemed, or construed as making Agent or Fleet the agent or
representative of any of the Borrower Parties. In no event shall Agent or the
Lenders be liable for debts or claims accruing or arising against the Borrower
Parties or any of them. Except with respect to Ski 2000 following the Exchange,
the relationship of Agent and the Lenders to Borrower is that of "lender" and
"borrower."
7.05 Successors or Assigns. Whenever in this Agreement any party is named or
referred to, the heirs, executors, legal representatives, successors,
successors-in-title, and assigns of such parties shall be included, and all
covenants and agreements contained in this Agreement shall bind and inure to the
benefit of their respective heirs, executors, legal representatives, successors,
successors-in-title, and assigns, whether so expressed or not.
7.06 Construction of Agreement. Each party to this Agreement acknowledges that
such party has participated in the negotiation of this Agreement and the other
Settlement Documents to which it is a party and no provision of this Agreement
or any of the other Settlement Documents shall be construed against or
interpreted to the disadvantage of any party hereto or thereto by any court or
other governmental or judicial authority by reason of such party's having or
being deemed to have structured, dictated, or drafted such provision; that the
Borrower Parties, and each of them, at all times have had access to an attorney
in the negotiation of the terms of and in the preparation and execution of this
Agreement and the other Settlement Documents, and the Borrower Parties, and each
of them, has had the opportunity to review and analyze this Agreement and the
other Settlement Documents for a sufficient period of time prior to the
execution and delivery thereof; that no representations or warranties have been
made by or on behalf of Agent or the Lenders, or relied upon by the Borrower
Parties, or any of them, pertaining to the subject matter of this Agreement,
other than those that are set forth in this Agreement and the other Settlement
Documents, and all prior statements, representations, and warranties, if any,
are totally superseded and merged into this Agreement and the other Settlement
Documents, which represent the final and sole agreement of the parties with
respect to the matters which are the subject hereof; that all of the terms of
this Agreement and the other Settlement Documents were negotiated at arm's
length and that this Agreement and the other Settlement Documents were prepared
and executed without fraud, duress, undue influence, or coercion of any kind
exerted by any of the parties upon the others; and that the execution and
delivery of this Agreement and the other Settlement Documents to which any of
them are a party is the free and voluntary act of such Borrower Party(ies).
22
7.07 No Admissions. Each of the Borrower Parties, the Former Tranche C Lenders,
the Agent and the Lenders expressly acknowledges and agrees that the waivers,
estoppels, releases, and covenants not to xxx contained in this Agreement shall
not be construed as an admission of wrongdoing, liability, or culpability on the
part of Agent, the Lenders or the Former Tranche C Lenders or as an admission by
Agent, the Lenders or the Former Tranche C Lenders of the existence of any
claims against Agent, the Lenders or the Former Tranche C Lenders.
7.08 Notices. Unless and except as otherwise specifically provided herein, any
and all notices, elections, approvals, consents, demands, requests, and
responses thereto (individually, "Communication") permitted or required to be
given under this Agreement shall be in writing, signed by or on behalf of the
party giving the same, and shall be deemed to have been properly given and shall
be effective upon the earlier of receipt thereof or deposit thereof in the
United States mail, postage prepaid, and certified with return receipt requested
to the other party at the address of such other party set forth hereinbelow or
at such other address within the continental United States as such other party
may designate by notice specifically designated as a notice of change of address
and given in accordance herewith. Any Communication, if given to Agent or Fleet,
must be addressed as follows, subject to change as provided hereinabove:
Fleet National Bank
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
Facsimile: (000) 000-0000
And with a copy to:
Xxxxx Xxxxxx, Esq.
XxXxxxx, Long & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
and, if given to Ski 2000 or SPLC must be addressed as follows, subject to
change as provided hereinabove:
23
[Insert applicable entity]
c/o Eiger, Inc.
Suite 300
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxxxx III
Telecopy No.: (000) 000-0000
and
[Insert applicable entity]
c/o Eiger, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
And with a copy to:
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxx X. Xxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
and, if given to any of Borrower, Canyons or KLTD, must be addressed as follows,
subject to change as provided hereinabove:
[Insert applicable entity]
c/o American Skiing Company
000 Xxxxx Xxxxxx, #000
Xxxx Xxxx, Xxxx 00000
Attn: Xx. Xxxxxxx Fair
With a copy to:
American Skiing Company
Xxx Xxxxxxxx Xxx, 0xx Xxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx, General Counsel
7.09 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without reference to the
choice of laws provisions thereof).
24
7.10 Waiver of Trial by Jury. AS PART OF THE CONSIDERATION FOR THE COVENANTS AND
AGREEMENTS THIS DAY ENTERED INTO BY THE PARTIES HERETO, EACH OF THE PARTIES
HERETO HEREBY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE OTHER SETTLEMENT DOCUMENTS.
7.11 Headings. The headings of the articles, sections, and subsections of this
Agreement are for the convenience of reference only, are not to be considered a
part hereof, and shall not limit or otherwise affect any of the terms hereof or
thereof.
7.12 Modifications. The terms of this Agreement may not be changed, modified,
waived, discharged, or terminated orally but only by an instrument or
instruments in writing and signed by the party against whom the enforcement of
the change, modification, waiver, discharge, or termination is asserted.
7.13 Time of Essence. Time is of the essence of this Agreement.
---------------
7.14 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, and all such counterparts together shall
constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
25
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement under seal, as of the day and year first above written.
AGENT:
FLEET NATIONAL BANK, as Agent
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Group Manager
LENDERS:
FLEET NATIONAL BANK, as a Tranche A Lender and
a Tranche B Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Group Manager
SKI PARTNERS LLC, a Delaware limited liability
company (f/k/a Ski Partners 2000, a Delaware
general partnership)as a Tranche A Lender and
a Tranche B Lender
By: Eiger Inc., a Delaware corporation, its
managing member
By: /s/ X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
FORMER TRANCHE C LENDERS:
OAK HILL CAPITAL PARTNERS, L.P., a Delaware limited
partnership
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
OHSF ASTC, LLC, a Delaware limited liability company
By: Oak Hill Securities Fund, L.P., its member
By: Oak Hill Securities GenPar, L.P., its
general partner
By: Oak Hill Securities MGP, Inc., its
general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
BORROWER:
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC., a Maine
corporation
By: /s/ Xxxxxxx X. Fair
Name: Xxxxxxx X. Fair
Title: President
[CORPORATE SEAL]
CANYONS:
THE CANYONS RESORT PROPERTIES, INC., a Maine corporation
By: /s/ Xxxxxxx X. Fair
Name: Xxxxxxx X. Fair
Title: President
[CORPORATE SEAL]
KLTD:
KILLINGTON, LTD., a Vermont corporation
By: /s/ Xxxxxxx X. Fair
Name: Xxxxxxx X. Fair
Title: President
[CORPORATE SEAL]
SPLC:
SP LAND COMPANY, LLC, a Delaware limited liability
company
By: Killington, Ltd., a Delaware limited liability
company, managing member
By: /s/ Xxxxxxx X. Fair
Name: Xxxxxxx X. Fair
Title: President
