OMNIBUS FIRST AMENDMENT TO
PURCHASE AND DEVELOPMENT AGREEMENT
This Omnibus First Amendment to Purchase and Development Agreement
("Amendment") is entered into as of the 6th day of March, 2000 by and among
AMERICAN SKIING COMPANY, a Delaware corporation having an office at Sunday Xxxxx
Xxxx, Xxxxxx, Xxxxx 00000 ("Seller") and AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC., a Maine corporation having an office at Sunday Xxxxx Xxxx,
Xxxxxx, Xxxxx 00000 ("Owner") and MARRIOTT OWNERSHIP RESORTS, INC., a Delaware
corporation having an office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 ("Purchaser").
RECITALS
WHEREAS, Seller, Owner and Purchaser have entered into that certain
Purchase and Development Agreement dated as of the 22nd day of July, 1998
("Contract");
WHEREAS, the multi-faceted Contract contemplates and defines a
relationship among the parties which would result in, among other things, (i)
the sale and purchase of various development sites at ski areas owned by Owner;
(ii) the marketing of Purchasers' Timeshare Interests (as defined in the
Contract) on a system-wide basis at Seller Resorts (as defined); (iii) access to
Purchaser developed and controlled resorts by the Seller for purposes of
marketing Seller Timeshare Interests (as defined); (iv) an exclusive opportunity
for Purchaser to develop additional sites at Seller Resorts, beyond the five (5)
specific sites referred to in Exhibit A of the Contract; and (v) a long term
relationship among the parties relating to the future development of suitable
properties and the sale and marketing of interests therein;
WHEREAS, the parties now desire to modify certain of the terms,
provisions, obligations, benefits and burdens of the Contract as specifically,
and only to the extent, set forth below; the overall objective of the parties in
entering into this Amendment being to (i) reduce the scope and breadth of the
Contract; (ii) eliminate unintended or unforeseen consequences thereof; (iii)
omit terms and provisions which may have been necessary and desirable upon
execution of the Contract, but which have become unnecessary and undesirable at
this time; and (iv) retain, as amended, or as to be further amended as set forth
herein, those terms and provisions of the Contract relative to more site
specific and less "global" acquisition, development and marketing opportunities.
AMENDMENT AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, agreements, covenants and conditions herein
contained, and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, Seller, Owner and Purchaser agree to
amend the Contract as follows:
ARTICLE I
INTRODUCTION
Section 1.1 Recitals. The recital paragraphs set forth above are
incorporated herein by this reference and made a part of this Amendment as if
repeated herein in toto.
Section 1.2 Definitions. All terms used herein shall have the meanings
set forth in the Contract and, in particular, Exhibit B thereto, unless
expressly modified or defined anew herein.
The following definitions are redefined as set forth herein:
Entitlements: The definition of Entitlements is amended by deleting the
second sentence thereof, and is further amended by adding the following language
at the end of such definition: "Notwithstanding the foregoing, Seller may
satisfy its obligation to provide utilities, as part of the Entitlements,
subsequent to Purchaser's certification to Seller that it has completed its due
diligence, but in all cases prior to the conveyance of the specific development
sites. The provision of utilities shall in all cases remain a condition
precedent to Purchaser's obligation to close on the Real Property in question.
Initial Resorts: The definition of Initial Resorts is deleted and replaced
in each instance by the term "Target Seller Resorts."
Liquidated Damages: The definition of Liquidated Damages is amended to
provide as follows: Liquidated Damages means, with respect to each Real Property
parcel, the Fixed Purchase Price for such parcel calculated in accordance with
Section 4.1, exclusive of the Royalty Fee. In the event Purchaser shall, in its
sole discretion, select Liquidated Damages as a remedy against Seller,
Purchaser's right to such Liquidated Damages shall only be exercised via a
reduction in the Purchase Price.
Real Property: The third sentence of the definition of the term Real
Property is hereby deleted. In addition, Exhibit A to the Contract shall be and
hereby is amended and replaced with Exhibit A to this Omnibus First Amendment.
Seller: Seller means American Skiing Company, a Delaware corporation.
Section 1.3 References. References to section or articles set forth
herein shall be deemed and understood to mean references to the corresponding
sections or articles in the Contract, unless specifically described otherwise.
ARTICLE II
PURCHASE AND SALE OF DEVELOPMENT RIGHTS
Section 2.1 Purchase and Sale. While the parties continue to intend
that Development Rights be conveyed from Seller to Purchaser, the conveyance
shall, prospectively, be on a site-by-site basis, at the Target Seller Resorts
as defined and more fully discussed herein. The conveyance and transfer of
Development Rights shall continue to be by an Assignment of Development Rights
(in the form of a recorded Memorandum of Contract or similarly titled document)
which shall be recorded only against the Target Seller Resorts. The three (3)
Seller Resorts where Development Rights are to be conveyed from Seller and/or
Owner to Purchaser are (i) Heavenly Valley, Lake Tahoe, Nevada/California
(exclusive of the Xxxx Xxxxxx Xxxxxxxxxxxxx Xxxxxxxx in South Lake Tahoe), (ii)
Killington, Killington, Vermont, and (iii) Steamboat, Steamboat Springs,
Colorado. These three ski resort areas are hereinafter collectively referred to
as the "Target Seller Resorts". The parties hereto shall exercise their
respective best efforts, for a period of one hundred five (105) days from the
First Amendment Closing Date, as defined in Section 8.4 below, to identify and
resolve all remaining material terms of each respective purchase transaction, to
the extent not specifically and expressly resolved herein. Among those material
terms are, without limitation, the specific boundary lines of each site as well
as those issues identified in Article IX hereof. Upon the identification and
resolution of all such issues, the parties hereto shall execute a Second
Amendment to Purchase and Development Agreement, which when combined with the
provisions set forth herein, together with the unmodified provisions of the
Contract, shall constitute the sale and purchase agreement for each of the
subject Target Seller Resorts. In the event the parties are unsuccessful in
identifying and resolving all remaining issues, with respect to the three (3)
Target Seller Resorts, then the existing Contract shall remain in full force and
effect, except to the extent modified by the terms of this Amendment, and the
parties shall pursue their rights, and be subject to liability, under the terms
thereof, as hereby amended. The parties recognize that, notwithstanding their
respective best efforts to conclude a transaction for sites at all three (3)
Target Seller Resorts, they may succeed in arriving at an agreement on fewer
than all three (3) properties during the one hundred five (105) day period
mentioned above, whereupon the existing Contract, as amended, would remain in
place, with the following additional modifications: (i) should the parties
arrive at an agreement with respect to sites at either one or two Target Seller
Resorts (but not all three) and should Purchaser acquire title to those one or
two sites pursuant to the Contract, as amended, then the remaining Target Seller
Resort(s) (for which there is no agreement as to the acquisition of a site)
shall be released from any encumbrance in the form of a recorded memorandum (or
assignment of development rights, as applicable) of the Contract as amended and
the non-marketing related provisions of the Contract shall terminate as to those
released Target Seller Resorts; (ii) should the parties arrive at an agreement
with respect to sites at either one or two Target Seller Resorts (but not all
three) and should the Purchaser not close on the transfer of title to at least
one site for any reason whatsoever other than a willful breach of the Contract
on its part (as distinguished from the non-satisfaction of a condition
precedent, for example), then the encumbrance created by having recorded a
memorandum of the Contract (or assignment of development rights, as applicable)
shall be released from the Target Seller Resort(s), with the exception of the
specific subject site(s) identified in a second or future Contract amendment, as
to which site(s) the encumbrance shall remain in place, together with the
Contract as amended; (iii) should the parties be unsuccessful in their efforts
to conclude an agreement relative to at least one (1) of the three (3) Target
Seller Resorts, then, notwithstanding any other provision of the Contract,
Seller and Owner may, within the time period set forth below, cancel the
existing Contract, as amended, by notifying Purchaser of their election to
cancel and including with said notice an assurance that they shall deliver the
following certified checks to Purchaser within nine (9) months of the giving of
the notice, whereupon (after receipt of the certified checks), the encumbrance
of the Contract shall be released: (a) $1,500,000.00, representing a Contract
cancellation fee, and (b) $640,000.00 plus interest thereon from the Effective
Date, at the rate of eight percent (8%) per annum, representing the return of
the good faith Deposit, as more fully discussed in Section 4.3 below. Any such
notice from Seller/Owner to Purchaser must be in writing and must be given
within ninety (90) days of the expiration of the ninety (90) day period referred
to above. In the event of cancellation pursuant to clause (iii) of this
paragraph, then, upon Purchaser's receipt of the sums set forth in that clause,
any Collateral in Purchaser's possession shall be returned to Seller, and
Purchaser and Seller shall deliver mutual releases to each other releasing each
party from any further liability hereunder.
Section 2.2 Existing Encumbrances. Subject to the following sentence,
Purchaser shall, at the First Amendment Closing, as defined below, deliver to
Seller executed Releases, in recordable form, of any existing Memoranda of
Contract, signed by Purchaser and pertaining to the Contract, currently
encumbering the non-Target Seller Resorts, as well as the sites commonly
referred to as the "Christie B" and "Tennis Meadow" sites at the Target Seller
Resort known as Steamboat in Colorado. Notwithstanding the foregoing, the
Memoranda of Contract encumbering the Target Seller Resorts (excluding the two
specific Steamboat sites listed in the preceding sentence) shall remain and
continue as an encumbrance on such sites. After the execution of the Second
Amendment to Purchase and Development Agreement, Purchaser shall not
unreasonably withhold its consent to a request from Seller for a release of one
or more sites at the Target Seller Resorts, when such site(s) is being conveyed
for the development of Seller Timeshare Interests or for commercial use. Upon
acquisition (Closing) of a development parcel by Purchaser at a Target Seller
Resort, the Memorandum of Contract shall be released from the remaining Real
Property at such Target Seller Resort.
Section 2.3 Transfer of Plans. For a period of twenty-four (24) months
from the date of this Amendment, Seller/Owner shall have the right, subject to
the terms and conditions set forth in this Section, to purchase from Purchaser
the construction plans and other materials listed on Exhibit B hereto
(collectively, the "Plans"). Such right to purchase the Plans may be exercised
prior to the First Amendment Closing Date or any time thereafter for a period
not to exceed twenty-four (24) months from the date of this Amendment. In the
event Seller/Owner fails to exercise the right to purchase the Plans prior to
the First Amendment Closing Date, Purchaser shall be permitted to sell the Plans
to a third party for any amount Purchaser is willing to accept. In the event
Purchaser agrees to sell the Plans to a third party for a fixed purchase price
(the "Third Party Price"), Purchaser shall first give notice to Seller of its
intention to sell the Plans (which notice shall include a certification as to
the Third Party Price), coupled with an opportunity, not to exceed thirty (30)
days from the receipt of Purchaser's notice, for Seller to notify Purchaser that
Seller will, in fact, proceed with a purchase of the Plans. If Seller so
notifies Purchaser of its intent to purchase the Plans (thereby preventing their
sale to a third party), then (a) Seller shall close on such purchase within
fifteen (15) days of its notice to Purchaser; and (b) Seller shall pay to
Purchaser, in Immediately Available Funds, the lesser of $1,250,000 or the Third
Party Price. If Seller elects to not purchase the Plans, the Purchaser may
proceed to sell them to the third party for not less than the Third Party Price.
In the event Seller notifies Purchaser of its intent to purchase the Plans, but
then fails to do so as required herein, the Seller's right to purchase the
Plans, under any condition, shall be deemed terminated.
2.3.1 The purchase price for the Plans, subject to the
immediately preceding paragraph, shall be $1,000,000
if paid at the First Amendment Closing or $1,250,000
if paid after the First Amendment Closing (and within
twenty-four (24) months from the date of this
Amendment). In all cases, the purchase price for the
Plans shall be paid in Immediately Available Funds.
2.3.2 Absent an acceptable offer to purchase the Plans
received from a third party, as contemplated by
Section 2.3 above, Seller's right to purchase the
Plans shall be exercised by a written notice to
Purchaser, which notice shall include a date for
closing on the transfer (which date shall not be less
than ten (10) nor more than sixty (60) days following
the receipt by Purchaser of Seller's notice). The
Closing shall take place at Purchaser's offices.
2.3.3 At the Closing, Seller shall deliver the purchase
price, as set forth above and Purchaser shall
deliver, by Xxxx of Sale or similar document, title
to the Plans free and clear of any encumbrance or
restrictions, together with all originals (to the
extent in Purchaser's possession) and all copies of
the Plans. Purchaser shall also deliver to Seller
such further instruments and consents as Seller may
reasonably request to effectuate this transfer or
Seller's full use of the Plans.
2.3.4
Seller and Owner hereby acknowledge that they have reviewed,
and are familiar with, the contents of the Plans. Seller and
Owner understand and acknowledge that Purchaser makes no
representation or warranty, expressed or implied, as to the
quality, accuracy, completeness or reliability of the Plans
provided, however, that the Plans delivered to Seller
include not less than those items set forth on Exhibit B.
Seller and Owner agree that Purchaser shall not have any
liability to the Seller or Owner relating to or resulting
from the sale or use of the Plans. Moreover, Seller and
Owner hereby indemnify and save harmless the Purchaser and
any and all persons or entities directly or indirectly
related thereto, from and against any and all claims,
losses, liabilities, damages, judgments, costs expenses
(including, without limitation, attorneys' fees and
disbursements) in connection with the sale or use of the
Plans. Purchaser represents that it is the owner of the
Plans and that no fees or other compensation remain due and
owing thereon, or will be due or owing upon transfer of the
Plans to Seller.
2.3.5 The provisions of this Section shall survive the
termination or expiration of the Contract, as amended
from time to time.
ARTICLE III
PURCHASE AND SALE OF REAL PROPERTY
Section 3.1 Purchase and Sale of Real Property. The parties hereto
shall, in good faith, employ their respective best efforts to identify specific
development sites at the Target Seller Resorts, consistent with Purchaser's
Contemplated Use. The parties expressly acknowledge that the Real Property
parcels identified in Exhibit A to the Contract may not, in each case, be a
suitable development site and Seller, Owner and Purchaser are hereby released
from any specific obligation to convey or acquire those specific parcels. In the
event one or more Target Seller Resort(s) site is identified and agreed upon,
then the conveyance of such site(s) shall be on the terms and conditions set
forth in the Contract, with such exceptions as may be agreed to by Purchaser in
site-specific agreements contemplated in Section 2.1 hereof, including, without
limitation, being subject only to the Permitted Exceptions and the restrictions
set forth in the Contract.
ARTICLE IV
CONSIDERATION
Section 4.1 Purchase Price. The Purchase Price to be paid by Purchaser
to Owner for any development site conveyed pursuant to Section 3.1 above shall
be the sum of Eighteen Thousand Dollars ($18,000.00) per Unit, plus the Royalty
Fee.
Section 4.2 Payment Structure. For each Target Seller Resort site
conveyed by Owner or Seller to Purchaser pursuant hereto, Purchaser shall pay
$720,000.00 in Immediately Available Funds upon the conveyance of title to such
site (Closing) and, in the case of a 200 Unit project, for example, an equal
amount on the first through the fourth anniversary of each such closing until a
total of $3,600,000.00 has been paid for each site. In the case of a development
containing a different number of Units (other than 200), payment shall be made
in five (5) equal annual installments, beginning on the date of Closing, based
on a formula of $18,000.00 per Unit. These payments shall comprise the Fixed
Purchase Price, as defined in the Contract. Subject to Section 4.3 below, all
amounts previously paid by Purchaser to Seller or Owner, including payment by
execution and delivery of a promissory note, shall be returned in full to
Purchaser at or before the First Amendment Closing.
Section 4.3 Xxxxxxx Money Deposit. Pursuant to Section 4.2 of the
Contract, Purchaser has paid to Seller/Owner a cash payment of $1,600,000 as
well as delivering a full recourse promissory note evidencing a debt of
$6,400,000 (the "Note"). Pursuant to Section 8.3.2 hereof, the Note shall be
returned to Purchaser at the First Amendment Closing. With respect to the cash
payment of $1,600,000, the sum of $960,000 shall be returned to Purchaser on or
before the First Amendment Closing, pursuant to Section 8.3.1 hereof. The
remaining $640,000 shall continue to be held (as set forth herein) as an xxxxxxx
money deposit toward the total consideration (and applied against the first
installment of consideration due from Purchaser) for the three (3) development
sites at the Target Seller Resorts (the "Deposit"). Until further refined in the
Second Amendment to the Purchase and Development Agreement, the $640,000 total
Deposit shall be deemed to be equitably allocated amongst the three Target
Seller Resorts, based on the assumptive density of each project. (For example,
if the assumptive densities were 200 Xxxxx, 000 Units and 100 Units, the total
Deposit would be prorated on the basis of the Unit count at each Target Seller
Resort). Seller agrees that on or before the First Amendment Closing, it will
either (i) deliver to Purchaser a clean, irrevocable Letter of Credit, in form
and substance reasonably acceptable to Purchaser, and issued by a commercial
lending institution reasonably acceptable to Purchaser or (ii) place the entire
xxxxxxx money Deposit ($640,000) in an escrow account reasonably acceptable to
Purchaser; the acceptability of which shall be based on the entity designated as
the escrow agent as well as the terms of the escrow agreement with that entity;
or (iii) notify Purchaser of Seller's election to leave the Collateral in the
possession of the Purchaser, as opposed to having it returned to Seller;
provided that Seller may subsequently, at its option, reacquire the Collateral
upon return of the Deposit or a Letter of Credit meeting the requirement of
clause (i) above to Purchaser.
Section 4.4 Collateralizing the Purchase Price. Unless Seller exercises
the option set forth in clause (iii) of Section 4.3 above (directing Purchaser
to retain possession of the Collateral as security for the repayment of the
Deposit), Section 4.4 of the Contract shall, as of the First Amendment Closing
Date, be deemed deleted and the documentation referred to therein and in Section
10.1.12 of the Contract ("Collateral") shall be returned to Seller at or before
such First Amendment Closing.
ARTICLE V
CO-DEVELOPMENT AGREEMENT
Section 5.1 Marketing and Development. The rights, benefits and burdens
set forth in Section 5.2 of the Contract shall be contingent on the parties
mutually identifying, and agreeing to, one or more development site(s) or
parcel(s) at the Target Seller Resorts and shall begin to run from the date such
site(s) becomes the subject of a Second Amendment to Purchase Agreement (as
referred to in Section 2.1 above) or other instrument memorializing the parties
intent relative to such site(s), with the following modifications:
5.1.1 Purchaser's exclusive right to market, promote, rent,
exchange and sell Purchaser's Timeshare Interest
shall be limited to each Target Seller Resort where
the parties have agreed on the conveyance of a
specific development site to Purchaser. Such
exclusive right shall not extend to non-Target Seller
Resorts.
5.1.2 The rights and provisions set forth in Sections
5.2(2), 5.2(4), 5.2(5), 5.2(6), 5.2(8), 5.2(9),
5.2(11), 5.2(13) and 27.1 of the Contract shall apply
solely to those Target Seller Resorts where Purchaser
has "contracted" (by virtue of a Second Amendment to
Purchase Agreement) to acquire (or has acquired) a
development parcel.
Section 5.2 Deletions. The following subsections of Section 5.2 of the
Contract are hereby deemed deleted therefrom: Section 5.2(3), 5.2(7), 5.2 (9),
5.2(12), 5.2(14) and 5.2(16).
Section 5.3 Resort Programs. Section 5.3 of the Contract shall be
deemed, and is hereby, deleted.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Deletions. Section 10.1.12, 13.1.4(B), the last sentence of
Section 17.1, clause (i) of Section 18.1, and all of Section 28.1 of the
Contract shall be deemed, and is hereby, deleted.
Section 6.2 Site Identification. Within one hundred five (105) days of
the First Amendment Closing Date, as defined in Section 8.4 below, the parties
shall make final identification of the Real Property which Purchaser intends to
develop at each of the three (3) Target Seller Resorts.
Section 6.3 Entitlements. From and after the First Amendment Closing
Date, Seller shall use its best efforts to do those things necessary to obtain
the Entitlements with respect to the Real Property. Seller and Purchaser shall
cooperate with one another in Seller's efforts regarding the securing of all
applicable Entitlements and shall provide to one another, on an expedited basis,
all materials (including, without limitation, plans and architectural
renderings) necessary to secure the Entitlements.
Section 6.4 Failure to Secure Entitlements. If Seller, Owner and
Purchaser reasonably believe, following site identification in accordance with
Section 6.2 above and at least six (6) months of diligent efforts on the part of
Seller and Owner to obtain Entitlements, that it would not be possible, without
extraordinary and unforeseeable expense, to secure Entitlements for any
particular parcel of Real Property, Seller or Purchaser may provide written
notice of the same to the other. In such event, Purchaser shall have ninety (90)
days within which to elect whether: a) to attempt to obtain Entitlements itself
for a period of up to 365 days, following which Purchaser shall either acquire
such parcel in accordance herewith, or terminate the Contract with respect to
such Target Seller Resort, in which case (Contract termination) a pro-rata
portion of the Deposit shall be refunded to Purchaser together with all monies
expended or incurred by Purchaser in connection with such Target Seller Resort;
b) to terminate the Contract with respect to such Target Seller Resort, in which
case a pro-rata portion of the Deposit shall be refunded to Purchaser together
with all of the monies expended or incurred by Purchaser in connection with the
Target Seller Resort; or c) to acquire such parcel prior to receipt of
Entitlements, in which case Seller and Owner's obligations to obtain
Entitlements to such parcel shall be relieved.
ARTICLE VII
CROSS DEFAULT
Section 7.1 Deletions. Section 14.1 of the Contract shall be deemed,
and is hereby, deleted.
ARTICLE VIII
CLOSING
Section 8.1 Deletions. Sections 17.2.7, 17.2.8, 17.2.9, 17.2.10,
17.2.11 and 17.2.12 shall be deemed, and are hereby, deleted.
Section 8.2 First Amendment Closing. The term "First Amendment Closing"
shall mean the respective execution and delivery of all required documentation
pursuant to this Amendment, as more particularly set forth in the following
Section.
Section 8.3 Amendment Closing Documentation. At or before the First
Amendment Closing:
A. The Seller or Owner shall execute and/or deliver to Purchaser the
following items:
8.3.1 The sum of $960,000 by wire transfer;
8.3.2 The original promissory note in the amount
of $6,400,000.00 made by Purchaser and
previously delivered to Seller; and
8.3.3 A Release of any and all liability up to the First
Amendment Closing Date, as defined, arising from or
pertaining to the Contract, and the Note, except as
relates to the obligations and burdens set forth
herein and the remaining and unmodified portions of
the Contract.
8.3.4 An Estoppel Certificate certifying that no default of
Purchaser exists under the Contract, as amended
hereby.
8.3.5 A notice, if applicable, pursuant to Section 4.3(iii)
hereof, directing Purchaser to retain possession of
the Collateral.
B. Purchaser shall execute and/or deliver to Seller/Owner the following
items:
8.3.6 A Release of Memoranda of Contract (or Assignment of
Development Rights, as applicable) for the non-Target
Seller Resorts, but not for the Target Seller Resorts
(but including the "Christie B" and "Tennis Xxxxxxx"
sites at the Target Seller Resort commonly known as
Steamboat);
8.3.7 The Collateral, as defined in Sections 4.4 and
10.1.12 of the Contract, unless Purchaser has
received a notice from Seller to retain the
Collateral under Sections 4.3(iii) and 8.3.5 above;
and
8.3.8 A Release of any and all liability up to the First
Amendment Closing Date, as defined, arising from or
pertaining to the Contract, except as relates to the
obligations and burdens set forth herein and the
remaining and unmodified portions of the Contract.
8.3.9 An Estoppel Certificate certifying that no default of
Seller or Owner exists under the Contract, as amended
hereby.
Section 8.4 Amendment Closing Date. The term First Amendment Closing
Date shall mean March 30, 2000, or such earlier date as the parties may mutually
agree.
ARTICLE IX
ADDITIONAL MATERIAL TERMS OF FUTURE (SECOND) AMENDMENT TO PURCHASE AGREEMENT
Section 9.1 As discussed in Section 2.1 above, the parties hereto
hereby express their agreement to execute a supplemental agreement (in the form
of a Second Amendment to Purchase Agreement) setting forth all of the remaining
material terms of the conveyance of specific sites at the three Target Seller
Resorts. This supplemental agreement would substitute for the corresponding
provisions of the Contract, as amended hereby; with the understanding that the
Contract (as modified hereby) would remain in full force and effect if not
supplemented (by a Second Amendment to the Purchase Agreement) as contemplated
herein.
Section 9.2 Among the additional material terms to be resolved between
the parties are, without limitation:
(i) the allocation of the xxxxxxx money Deposits previously paid by
Purchaser for each development site at Target Seller Resorts;
(ii) the purchase of lift tickets, if any, at each of the Target Seller
Resorts where a development site is identified and closed, and the
terms regarding the use thereof;
(iii) a timetable for the accomplishment of various "performance
milestones" by each of the parties hereto;
(iv) a timetable for development of specific development sites by
Purchaser; and
(v) a timetable for development by the Seller of the ski "village"
around The Forum site at Killington. Notwithstanding the foregoing, it
is agreed that the Second Amendment to Purchase and Development
Agreement will contain a due diligence or inspection period, in favor
of the Purchaser, of 180 days from the execution of such Second
Amendment, among other material terms. In the event that Purchaser does
not, following the expiration of such 180 day period, close on any
parcel of real estate within thirty-five (35) days of such expiration,
provided Seller has satisfied all of its obligations to have been
performed on or before said date, pursuant to the Contract, as amended,
the Contract with respect to said parcel shall terminate and Seller
shall refund to the Purchaser the pro-rata portion of the Deposit
applicable to such parcel.
ARTICLE X
AMENDMENTS TO ARTICLE XIII OF THE CONTRACT
Section 10.1 Amendments to Article XIII of the Contract. Article XIII
of the existing Contract is hereby amended as
follows:
(i) In Section 13.1 - add the following sentence to the
end of the paragraph: "Purchaser shall use its best
efforts to complete all due diligence, including,
without limitation, the approval required under
Section 13.1.4A, as soon as reasonably practicable
following identification of the Real Property, and in
any event within 180 days of the execution of a
Second Amendment to the Contract."
(ii) In Section 13.1.4 - delete the following sentence:
"In the event Purchaser's parent does not approve the
Purchaser's acquisition of a particular parcel of
Real Property, the parties will endeavor, in good
faith, to select an alternate parcel or to revise the
terms of the transaction, as they relate to the
disapproved site, so as to gain the approval of
Marriott International, Inc."
(iii) In Section 13.3 - add after the words "timely and
duly performed" on the sixth line of the paragraph,
the following: "provided, however, that Purchaser
must have provided notification pursuant to Section
13.5 of any failure by Seller or Owner to meet the
foregoing requirements in order for such failure to
excuse Purchaser's obligation to close."
(iv) In Section 13.4 - after the first appearance of the
words "termination of this Contract" on line twelve
of the paragraph, add "and to the retention of the
allocable portion of the Deposit."
(v) In Article XIII generally - delete all references to
the Note, the terms of the Note and payments under
the Note.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Definitions. The term "Real Property" as defined in
Exhibit B of the Contract shall be deemed modified to mean those parcels or
sites at Target Seller Resorts which the parties mutually agree to sell and
purchase pursuant to the terms of this Amendment and the unmodified terms of the
Contract. Moreover, the term Real Property may, but shall not necessarily, mean
those parcels at Target Seller Resorts depicted on Exhibit A to the Contract.
All other portions of the definition of Real Property shall remain unchanged.
Section 11.2 Contract in Full Force and Effect. Except as expressly
hereby modified, the remaining terms and provisions of the Contract shall
continue and remain in full force and effect, except that any conflict between
those terms and the provisions set forth herein shall be reconciled in favor of
the terms and provisions set forth herein.
Section 11.3 Further Assurances/Publicity. Each of Seller, Owner and
Purchaser agree that the provisions of Sections 24.1 and 24.5 of the Contract
shall be fully applicable to this Omnibus First Amendment and the First
Amendment Closing as well as to any Second Amendment to Purchase and Development
Agreement, or cancellation of the Contract pursuant to, and in compliance with,
the penultimate sentence of Section 2.1 hereof.
Section 11.4 Counterparts. This Amendment and any document or
instrument executed pursuant hereto may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In addition, receipt of a
signed counterpart of this Amendment by facsimile transmittal shall be
sufficient to constitute an original and binding agreement with respect to the
parties whose signatures appear thereon.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Omnibus First Amendment to Purchase and
Development Agreement has been executed and delivered by Seller, Owner and
Purchaser on the respective dates set forth next to each of their signatures.
SELLER:
AMERICAN SKIING COMPANY
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Attest: /s/ Xxxxxx Xxxxxxx
-------------------------------
Dated: Xxxxx 0, 0000
XXXXX:
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC. a Maine corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Attest: /s/ Xxxxxx Xxxxxxx
-------------------------------
Dated: Xxxxx 0, 0000
XXXXXXXXX:
MARRIOTT OWNERSHIP RESORTS, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Attest: /s/ Xxxxxx Xxxxxx
-------------------------------
Dated: March 10, 2000
