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EXHIBIT 10.21
SECOND AMENDED AND RESTATED
LOAN AGREEMENT
between
SEATTLE-FIRST NATIONAL BANK,
as Lender,
and
CRYSTAL MOUNTAIN, INC.,
as Borrower.
Dated as of the 14th day of September, 1995.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................. 1
Section 1.1 Certain Defined Terms..................................... 1
Section 1.2 Accounting Terms.......................................... 7
ARTICLE II THE LOANS.................................................... 7
Section 2.1 The Loans................................................. 7
Section 2.2 Manner of Initial Borrowing............................... 7
Section 2.3 Repayment of Principal.................................... 8
Section 2.4 Revolving Feature of Loans................................ 9
Section 2.5 Interest.................................................. 9
ARTICLE III GENERAL PROVISIONS........................................... 13
Section 3.1 Promissory Notes.......................................... 13
Section 3.2 Prepayment................................................ 13
Section 3.3 Manner of Payments........................................ 13
ARTICLE IV CONDITIONS OF LENDING........................................ 14
Section 4.1 Conditions to Initial Loan................................ 14
Section 4.2 Conditions to All Loans................................... 15
ARTICLE V REPRESENTATIONS AND WARRANTIES............................... 16
Section 5.1 Corporate Existence and Power............................. 16
Section 5.2 Corporate Authorization................................... 16
Section 5.3 Government Approvals, Etc................................. 16
Section 5.4 Binding Obligations, Etc.................................. 16
Section 5.5 Litigation................................................ 16
Section 5.6 Financial Condition....................................... 17
Section 5.7 Title and Liens........................................... 17
Section 5.8 Taxes..................................................... 17
Section 5.9 Federal Reserve Regulations............................... 18
Section 5.10 ERISA..................................................... 18
Section 5.11 Permit Status............................................. 18
Section 5.12 Representations as a Whole................................ 18
ARTICLE VI AFFIRMATIVE COVENANTS........................................ 18
Section 6.1 Use of Proceeds........................................... 18
Section 6.2 Preservation of Corporate Existence, Etc.................. 18
Section 6.3 Visitation Rights......................................... 19
Section 6.4 Keeping of Books and Records.............................. 19
Section 6.5 Compliance With Laws; Maintenance of
Permits................................................... 19
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Section 6.6 Other Obligations......................................... 19
Section 6.7 Financial Information..................................... 19
Section 6.8 Notification.............................................. 20
Section 6.9 Additional Payments; Additional Acts...................... 20
Section 6.10 Tangible Net Worth........................................ 21
ARTICLE VII NEGATIVE COVENANTS........................................... 21
Section 7.1 Dividends, Purchase of Stock, Etc......................... 21
Section 7.2 Liquidation, Merger, Sale of Assets....................... 22
Section 7.3 Indebtedness.............................................. 22
Section 7.4 Guaranties, Etc........................................... 22
Section 7.5 Investments............................................... 22
Section 7.6 Liens..................................................... 23
Section 7.7 Capital Expenditures...................................... 23
Section 7.8 Operations................................................ 23
ARTICLE VIII EVENTS OF DEFAULT............................................ 23
Section 8.1 Events of Default......................................... 23
Section 8.2 Consequences of Default................................... 26
ARTICLE IX MISCELLANEOUS................................................ 26
Section 9.1 No Waiver; Remedies Cumulative............................ 26
Section 9.2 Governing Law............................................. 27
Section 9.3 Mandatory Arbitration..................................... 27
Section 9.4 Notices................................................... 28
Section 9.5 Assignment................................................ 28
Section 9.6 Severability.............................................. 28
Section 9.7 Conditions Not Fulfilled.................................. 28
Section 9.8 Entire Agreement; Amendment............................... 28
Section 9.9 Release of Collateral..................................... 28
Section 9.10 Construction.............................................. 29
Section 9.11 Counterparts.............................................. 29
Exhibits:
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EXHIBIT A - NOTE
EXHIBIT B - AMENDMENT NUMBER TWO TO DEED OF TRUST,
SECURITY AGREEMENT AND ASSIGNMENT OF
PERMITS AND CONTRACT RIGHTS, LEASES AND RENTS
EXHIBIT C - AMENDMENT NUMBER TWO TO SECURITY AGREEMENT
EXHIBIT D - AMENDMENT NUMBER TWO TO ASSIGNMENT IN TRUST
OF SPECIAL USE PERMIT
EXHIBIT E - AMENDMENT NUMBER TWO TO ASSIGNMENT IN TRUST
OF TERM SPECIAL USE PERMIT
EXHIBIT F - LEGAL OPINION
EXHIBIT G - INTEREST RATE NOTICE
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Schedules:
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SCHEDULE 1 REINVESTMENT ALLOWANCE
SCHEDULE 2 MAXIMUM LOAN BALANCE AS IT RELATES TO SKIP PAYMENTS
SCHEDULE 3 PREPAYMENT FEES FOR LIBOR LOANS
SCHEDULE 4 PERMITTED LIENS
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SECOND AMENDED AND RESTATED
LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT ("Agreement") is made
as of 14th day of September, 1995, between SEATTLE-FIRST NATIONAL BANK, as
Lender, and CRYSTAL MOUNTAIN, INC., as Borrower.
RECITALS
WHEREAS, Lender and Borrower entered into a First Amended and Restated
Loan Agreement dated as of October 5, 1990 (the "Prior Loan Agreement"),
pursuant to which Lender agreed to make certain revolving credit and term loans
to Borrower; and
WHEREAS, Lender and Borrower now desire to amend and restate the Prior
Loan Agreement as hereinafter set forth.
NOW, THEREFORE, Lender and Borrower agree to amend and restate the
terms and conditions of the Prior Loan Agreement as follows:
I
DEFINITIONS
I.1 Certain Defined Terms. As used in this Agreement, the following
terms have the following meanings, which apply to both the singular and plural
forms of the terms defined:
"Additional Loan Documents" means this Agreement, the Note,
Amendment Number Two to Deed of Trust, Amendment Number Two to Security
Agreement, Amendment Number Two to Assignment in Trust of Special Use Permit,
and Amendment Number Two to Assignment in Trust of Term Special Use Permit.
"Adjusted LIBOR Rate" shall mean, with respect to any LIBOR Loan
for any Applicable Interest Period, an interest rate per annum equal to the
LIBOR Margin plus a fraction whose numerator is the applicable LIBOR Rate and
whose denominator is 1 minus the sum stated as a decimal of any basic,
supplemental, marginal, emergency or other reserve, if any, required to be
maintained against "Eurocurrency liabilities" as specified in Regulation D of
the Board of Governors of the Federal Reserve System.
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"Amendment Number Two to Assignment in Trust of Special Use Permit"
means that certain Amendment Number Two to Assignment in Trust of Special Use
Permit, in substantially the form of Exhibit D hereto, dated as of the date of
this Agreement, executed by Borrower and the U.S. Forest Service, amending the
Assignment in Trust of Special Use Permit, together with the Consent to
Assignment in Trust executed by the U.S. Forest Service in connection with such
amendment.
"Amendment Number Two to Assignment in Trust of Term Special Use
Permit" means that certain Amendment Number One to Assignment in Trust of
Special Use Permit, in substantially the form of Exhibit E hereto, dated as of
the date of this Agreement, executed by Borrower amending the Assignment in
Trust of Term Special Use Permit, together with the Consent to Assignment in
Trust executed by the U.S. Forest Service in connection with such amendment.
"Amendment Number Two to Deed of Trust" means that certain
Amendment Number Two to Deed of Trust, Security Agreement and Assignment of
Permits and Contracts Rights, Leases and Rents, in substantially the form of
Exhibit B hereto, dated as of the date of this Agreement, executed by Borrower,
as grantor, in favor of Lender, as beneficiary, amending the Deed of Trust.
"Amendment Number Two to Security Agreement" means that certain
Amendment Number Two to Security Agreement, in substantially the form of Exhibit
C hereto, dated as of the date of this Agreement, executed by Borrower, as
debtor, in favor of Lender, as secured party, amending the Security Agreement.
"Applicable Interest Period" means, with respect to any Loan, the
period commencing on the date such Loan was made or continued pursuant to
Section 2.5(b) and ending:
(a) One, two, three or six months thereafter in the case of a
LIBOR Loan as specified in the Interest Rate Notice given by Borrower in respect
of such Loan;
(b) at maturity in the case of a Prime Rate Loan;
provided, however, that no Applicable Interest Period for any Loan may end later
than the expiration of the Commitment Period.
"Applicable Interest Rate" means, for each Loan (or portion of a
Loan), the Adjusted LIBOR Rate or the Prime Rate, as designated by Borrower and
specified in the Interest Rate Notice
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given with respect to that Loan (or portion of that Loan) or as otherwise
determined pursuant to Section 2.5(b).
"Assignment in Trust of Special Use Permit" means that certain
Assignment in Trust dated as of June 10, 1988 executed by Borrower assigning to
Lender the Special Use Permit, together with the Consent to Assignment in Trust
executed in connection therewith by the U.S. Forest Service, as such amendment
and consent may be amended from time to time including, without limitation, as
amended by that certain Amendment Number One to Assignment in Trust of Special
Use Permit dated as of October 5, 1990 and by that certain Amendment Number Two
to Assignment in Trust of Special Use Permit.
"Assignment in Trust of Term Special Use Permit" means that certain
Assignment in Trust dated as of June 10, 1988 executed by Borrower assigning to
Lender the Term Special Use Permit, together with the Consent to Assignment in
Trust executed in connection therewith by the U.S. Forest Service, as such
assignment and consent may have been or may be amended from time to time
including, without limitation, as amended by that certain Amendment Number One
to Assignment in Trust of Term Special Use Permit dated as of October 5, 1990
and by that certain Amendment Number Two to Assignment in Trust of Term Special
Use Permit.
"Assignments in Trust" means the Assignment in Trust of Special Use
Permit and the Assignment in Trust of Term Special Use Permit.
"Borrower" means Crystal Mountain, Inc., a Washington corporation,
and any Successor.
"Business Day" means a day, other than a Saturday or a Sunday, on
which banks are open for business in Seattle, Washington.
"Cash Flow" for any fiscal year shall be, for such fiscal year,
Borrower's consolidated after-federal tax Net Cash Income for such year as
determined pursuant to the Xxxxxx Xxxxxx Associates Cash Flow Analysis less the
sum of (a) $250,000 and (b) the reinvestment allowance for such year set out in
Schedule 1 and (c) required payments during such year on existing long term debt
identified on Schedule 4.
"Collateral" means all real and personal property of Borrower, now
or hereafter acquired, except that which has been
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released from the lien of the Security Documents pursuant to Section 9.9.
"Deed of Trust" shall mean that certain Deed of Trust, Security
Agreement and Assignment of Permits and Contract Rights, Leases and Rents dated
as of the 15th day of June, 1988, executed by Borrower, as grantor, in favor of
Lender, as beneficiary, as amended from time to time including, without
limitation, as amended by that certain Amendment Number One to Deed of Trust,
Security Agreement and Assignment of Permits and Contract Rights, Leases and
Rents dated as of October 5, 1990, and by that certain Amendment Number Two to
Deed of Trust, Security Agreement and Assignment of Permits and Contract Rights,
Leases and Rents.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Event of Default" has the meaning defined in Section 8.1.
"Government Approval" means an approval, permit, license,
authorization, certificate, or consent of any Governmental Authority.
"Governmental Authority" means the government of the United States
or any State or any political subdivision of any thereof or any branch,
department, agency, instrumentality, court, tribunal or regulatory authority
which constitutes a part or exercises any sovereign power of any of the
foregoing.
"Indebtedness" means for any person (a) all items of indebtedness
or liability (except capital, surplus, deferred credits and reserves, as such)
which would be included in determining total liabilities as shown on the
liability side of a balance sheet as of the date as of which indebtedness is
determined, (b) indebtedness secured by any Lien, whether or not such
indebtedness shall have been assumed, (c) any other indebtedness or liability
for borrowed money or for the deferred purchase price of property or services
for which such person is directly or contingently liable as obligor, guarantor,
or otherwise, or in respect of which such person otherwise assures a creditor
against loss, and (d) any other obligations of such person under leases which
shall have been or should be recorded as capital leases.
"Lender" means Seattle-First National Bank, a national banking
association, and any Successor.
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"LIBOR Business Day" means any Business Day when the London
Interbank Market is open for business.
"LIBOR Loan" means any Loan or portion thereof bearing interest at
the Adjusted LIBOR Rate.
"LIBOR Margin" means a per annum interest rate equal to 2.5% above
the LIBOR Rate effective as of the date of election to convert to a LIBOR Loan,
and, if default shall occur in the payment when due of any such installment,
from the maturity of that installment until it is paid in full at a per annum
rate equal to 4% above such LIBOR Rate.
"LIBOR Rate" shall mean, with respect to any LIBOR Loan for any
Applicable Interest Period, an interest rate per annum equal to the offered rate
for deposits in U.S. Dollars for the Applicable Interest Period commencing on
the first day of such Applicable Interest Period (the "Reset Date") which
appears on the display designated as the "LIBO" page in the Xxxxxx Monitor Money
Rates Service (or such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates of major banks) as
of 11:00 a.m., London time, on the day that is two Business Days preceding the
Reset Date. If at least two such offered rates appear on such Xxxxxx'x screen
LIBO page, the LIBOR Rate in respect of that Reset Date will be the arithmetic
mean of such offered rates. In the event such Reuters screen LIBO page is not
published, the LIBOR Rate shall be determined from an alternate,
generally-recognized source mutually agreeable to Lender and Borrower, and, in
the absence of such agreement, Borrower shall not have an option to select the
Adjusted LIBOR Rate.
"Lien" means, for any person, any security interest, pledge,
mortgage, charge, assignment, hypothecation, encumbrance, attachment,
garnishment, execution or other voluntary or involuntary lien upon or affecting
the revenues of such person or any real or personal property in which such
person has or hereafter acquires any interest, except (a) liens for taxes which
are not delinquent or which remain payable without penalty or the validity or
amount of which is being contested in good faith by appropriate proceedings upon
stay of execution of the enforcement thereof; (b) liens imposed by law (such as
mechanics' liens) incurred in good faith in the ordinary course of business
which are not delinquent or which remain payable without penalty or the validity
or amount of which is being contested in good faith by appropriate proceedings
upon stay of execution of the enforcement
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thereof; and (c) deposits or pledges under workmen's compensation, unemployment
insurance, social security or other similar laws or made to secure the
performance of bids, tenders, contracts (except for repayment of borrowed
money), or leases, or to secure statutory obligations or surety or appeal bonds
or to secure indemnity, performance or other similar bonds given in the ordinary
course of business.
"Loan" means a loan by Lender to Borrower pursuant to Article II.
"Loan Commitment" has the meaning defined in Section 2.1.
"Loan Commitment Period" has the meaning defined in Section 2.1.
"Loan Documents" means this Agreement, the Note, and the Security
Documents.
"Note" has the meaning defined in Section 3.1.
"Permits" means all now existing or hereafter issued permits
(including, without limitation, the Special Use Permit and the Term Special Use
Permit) issued by the U.S. Forest Service to Borrower providing for the use of
the lands of the Crystal Mountain Winter Sports Area, as such permits have been
amended, renewed, extended and modified to the date hereof and any future
permits issued in replacement, extension or renewal of the existing permits.
"Prime Rate" means on any day the publicly announced prime rate
charged on that day by Lender at its principal office.
"Security Agreement" means that certain Security Agreement dated as
of June 15, 1988, executed by Borrower in favor of Lender covering all personal
property of the Borrower, as such agreement may be amended from time to time
including, without limitation, as amended by that certain Amendment Number One
to Security Agreement dated as of October 5, 1990, by that certain by Amendment
Number Two to Security Agreement.
"Security Documents" shall include all of those documents pursuant
to which Lender obtains or perfects a security interest or lien on the
Collateral. Such documents shall include, with limitation, the following
documents: (a) the Deed
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of Trust; (b) the Assignments in Trust; and (c) the Security Agreement.
"Skier Days" is a basic measure in the ski industry of skier
visitations. Any type of single day skiing ticket issued, regardless of the
revenue received, counts as one skier day. For purposes of allocating skier days
to season pass holders, season pass usage is estimated according to industry
standard formulas.
"Special Use Permit" means that certain Special Use Permit No.
8509120389 issued to Borrower on April 9, 1962 by the White River Ranger
District, Snoqualmie National Forest, State of Washington, acting through the
U.S. Forest Service, as such permit may be amended, extended or renewed from
time to time.
"Successor" means, for any corporation or banking association, any
successor by merger or by consolidation, or by acquisition of substantially all
of the assets of the predecessor.
"Tangible Net Worth" has the meaning defined in Section 6.10.
"Tax" means, for any person, any tax, assessment, duty, levy,
impost or other charge imposed by any Governmental Authority on such person or
on any property, revenue, income, or franchise of such person and any interest
or penalty with respect to any of the foregoing.
"Term Special Use Permit" means that certain Term Special Use
Permit No. 8509120390 issued to Borrower on April 6, 1962 by the White River
Ranger District, Snoqualmie National Forest, State of Washington, acting for the
U.S. Forest Service, as such permit may be amended, extended or renewed from
time to time.
"Termination Date" has the meaning defined in Section 2.3(c).
"U.S. Forest Service" means United States Department of Agriculture
acting by and through the United States Forest Service.
I.2 Accounting Terms. Except as otherwise provided herein, accounting
terms not specifically defined shall be construed, and all accounting procedures
shall be performed, in accordance with
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generally accepted United States accounting principles consistently applied.
II
THE LOANS
II.1 The Loans. Lender agrees on the terms and conditions of this
Agreement to make loans (the "Loans") to Borrower from time to time on Business
Days during the period beginning on the date of execution of the Loan Agreement
dated as of June 15, 1988 between Borrower and Lender and ending on December 31,
1995 (the "Loan Commitment Period") in the aggregate principal sum of $7,000,000
(the "Loan Commitment"). The Loans shall continue to be secured by a lien on the
Collateral created by the Security Documents.
II.2. Manner of Initial Borrowing. Except as provided in Section 2.4
with respect to the revolving feature of the Loans, Loan disbursements will be
made only during the Loan Commitment Period and only in payment of expenses
incurred by Borrower for the authorized purposes described in Section 6.1. As
disbursements are required by Borrower for the foregoing purposes, Borrower
shall give Lender at least 2 Business Days prior written notice specifying the
requested date of each borrowing and the amount thereof. Such notice shall,
further, specify the expected application of the Loan proceeds and shall be
accompanied by such invoices or other proof of costs and such proof of project
completion and compliance with project budgets as Lender shall reasonably
require. Each notice shall be irrevocable and shall constitute a representation
and warranty by Borrower that as of the date of the notice the statements set
forth in Article V hereof are true and correct and that no Event of Default or
event which, with notice or lapse of time or both, would constitute an Event of
Default has occurred and is continuing.
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II.3 Repayment of Principal.
(a) Mandatory Installment Payments. Except as provided in
subparagraph (b) below, on May 31, 1996 and on each May 31st thereafter through
the May 31st next preceding the Termination Date, (each such May 31st is
hereinafter called a "Payment Date") Borrower shall pay to Lender an installment
of the principal amount of the Loans in an amount equal to the lesser of (1) the
then-outstanding principal balance of the Loans or (2) $250,000 plus (if
positive) 50% of the estimated Cash Flow for the fiscal year ending on the next
succeeding September 30th; provided, however, that in no event shall the
installment payment required pursuant to this Section 2.3(a) be more than
$750,000. On the December 31st following each Payment Date, the payments will be
adjusted either upward or downward, as necessary, to equal the amount that would
have been payable on such Payment Date based upon the actual Cash Flow for the
fiscal year ending on the September 30th immediately following the Payment Date.
Any such adjustments shall, as appropriate, either be added to or subtracted
from the then-outstanding principal balance of the Loans.
(b) Skipped Payments. In the event that, due to conditions beyond
the control of Borrower, Skier Days during the 1995-96 ski season are less than
295,000, Borrower may, in the discretion of Lender (which will not be
unreasonably withheld), skip the mandatory principal payment described in
subparagraph (a) above on the Payment Date next succeeding such ski season. At
Lender's option, on the Payment Date next following ski seasons after the
1995-96 ski season, Borrower may skip the mandatory payment required by
subparagraph (a) if (i) due to conditions beyond the control of Borrower, during
the immediately preceding ski season Borrower experienced Skier Days of less
than 295,000 and (ii) on such Payment Date the outstanding principal balance of
the Loans will be below the amount set out in Schedule 2 for such Payment Date.
Notwithstanding anything in this Section to the contrary, Borrower shall not be
entitled to skip two consecutive Payment Dates.
(c) Termination Date. Regardless of any other provision in this
Agreement to the contrary, the entire then-outstanding principal balance of the
Loans shall be due and payable on May 31, 2002, unless, pursuant to subparagraph
(b) above, Skier Days during the 2001-2002 ski season permit Borrower to skip
the payment due on May 31, 2002, in which event the
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entire then-outstanding principal balance shall be due and payable on May 31,
2003. (The date the final installment of principal is due pursuant to this
subparagraph (c) is called the "Termination Date.")
II.4 Revolving Feature of Loans. At any time, Lender will permit the
outstanding principal balance of the Loans to revolve as provided hereinafter.
If Borrower requests Lender to implement the sweep feature, cash generated from
Borrower's operations and deposited in Borrower's demand deposit account
maintained with Lender will be swept by Lender on a twice weekly basis of all
amounts in excess of $100,000 and such swept amounts shall be applied to the
then-outstanding principal balance of the Loans. As required under Section
2.3(a), the Borrower agrees to make principal payments on the Loans. Any such
payment will represent a reduction in the Loan Commitment amount, which limits
the amount available under the Loans for the next succeeding twelve months.
Borrower further agrees that for 60 consecutive days each twelve-month payment
period (June 1 - May 31 annually) they will keep the principal balance of the
Loans $2,300,000 below the Loan Commitment for the same payment period. The
failure of the Borrower to repay the Loans to the extent necessary to cause such
60-day repayment provision to occur shall constitute an Event of Default under
Section 8.1(a) hereof.
II.5 Interest. Interest
(a) Floating Rate. Unless Borrower shall have elected pursuant to
subparagraph (b) below to fix the interest rate, Borrower shall pay interest on
the unpaid principal amount of each installment of the Loans until same shall be
due and payable at a per annum rate equal to 0.5% above the Prime Rate (changing
as the Prime Rate changes) and, if default shall occur in the payment when due
of any such installment, from the maturity of that installment until it is paid
in full at a per annum rate equal to 4% above the Prime Rate (changing as the
Prime Rate changes). Accrued but unpaid interest on Loans, including Prime Rate
Loans and LIBOR Loans, shall be paid on the first day of each fiscal quarter and
on any prepayment of the Loans. Notwithstanding the foregoing, accrued interest
on any Loan shall be payable on demand after the occurrence of an Event of
Default.
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(b) LIBOR Loans.
(i) The Borrower may, on at least three LIBOR Business Days',
prior notice, elect to have interest accrue on any Loan or any portion thereof
at the Adjusted LIBOR Rate for an Applicable Interest Period. Such notice
(herein, an "Interest Rate Notice") shall be given in writing or orally and
promptly confirmed in writing and shall be deemed delivered when communicated to
Lender (in the case of an oral notice) by any one of the following individuals:
the acting or current Chairman, President, or Manager of Finance and Accounting,
or when received by Lender (in the case of written notice) except that an
Interest Rate Notice communicated to or received by Lender after 10:00 a.m.,
Tacoma time, on any Business Day, shall be deemed to have been delivered or
received on the next Business Day. Each written Interest Rate Notice and each
confirmation of an oral Notice shall be in substantially the form of Exhibit G
hereto; provided, however, that Lender may rely on any oral Interest Rate Notice
even if Lender does not receive a written confirmation. Any such Interest Rate
Notice shall be irrevocable and shall constitute a representation and warranty
by Borrower that as of the date of such Interest Rate Notice, the statements set
forth in Article V are true and correct in all material respects (subject to any
waivers of the terms thereof then in effect in accordance with the terms of this
Agreement) and that no Default or Event of Default has occurred and is
continuing.
(ii) The ability of Borrower to select the Adjusted LIBOR Rate
shall be subject to the following conditions: (i) the aggregate of all Loans to
accrue interest at the Adjusted LIBOR for any Applicable Interest Period shall
be in an amount of not less than $250,000 and an integral multiple of $100,000;
(ii) the Lender shall not have given notice pursuant to Section 2.5(c) that the
Adjusted LIBOR Rate selected by Borrower is not available; (iii) Borrower shall
not at any time have more than a total of 12 Applicable Interest Periods
relating to LIBOR loans outstanding; and (iv) no Default or Event of Default
shall have occurred and be continuing.
(iii) In the absence of an effective request for the
application of the Adjusted LIBOR Rate, the Loans or remaining portions thereof
shall accrue interest at the Adjusted Prime Rate.
(iv) The fee for such conversion privilege shall be $2,500,
which fee is payable at the time the election is made.
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(v) If Borrower delivers an Interest Rate Notice and Borrower
thereafter declines to take such Adjusted LIBOR Rate or a condition precedent to
the making of such Loan is not satisfied or waived, Borrower shall indemnify the
Lender for all losses and any costs which Lender may sustain as a consequence
thereof including, without limitation, the costs of reemployment of funds at
rates lower than the cost to Lender of such funds. A certificate of the Lender
setting forth the amount due to it pursuant to this Section 2.5(b)(v) and the
basis for, and the calculation of, such amount shall be binding evidence of the
amount due to it hereunder, absent a showing by Borrower of manifest or
demonstrable error. Payment of the amount owed shall be due within ten days
after Borrower's receipt of such certificate.
(c) Unavailable Adjusted LIBOR Rate. If, for any reason, Lender
determines that a fair and adequate means does not exist for establishing the
Adjusted LIBOR Rate or that the making or continuation of any LIBOR Loan by
Lender has become unlawful, then Lender may give notice of that fact to Borrower
and such determination shall become conclusive and binding absent a showing by
Borrower of manifest or demonstrable error. After such notice has been given and
until Lender notifies Borrower that the circumstances giving rise to such notice
no longer exist, such rate shall no longer be available. Any subsequent request
by Borrower to have interest accrue at such rate shall be deemed to be a request
for interest to accrue at the Adjusted Prime Rate. If Lender shall thereafter
determine to permit borrowing at the Adjusted LIBOR Rate, Lender shall notify
Borrower in writing of that fact, and Borrower shall then once again become
entitled to request that such rate apply to the Loans in accordance with Section
2.5(b) hereof.
(d) Compensation for Increased Costs. In the event that after the
date hereof any change occurs in any applicable law, regulation, treaty or
directive or interpretation thereof by any Governmental Authority charged with
the administration or interpretation thereof, or any condition is imposed by any
Governmental Authority after the date hereof or any change occurs in any
condition imposed by any Governmental Authority on or prior to the date hereof
which:
(i) subjects Lender to any Tax (other than any Tax measured by
Lender's net income or gross revenues), or changes the basis of taxation of any
payments to Lender on account of principal of or interest on any LIBOR Loan, the
Note
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(to the extent the Note evidences a LIBOR Loan) or fees in respect of Lender's
obligation to make LIBOR Loans or other amounts payable with respect to such
LIBOR Loans; or
(ii) imposes, modifies or determines applicable any reserve,
deposit or similar requirements against any assets held by, deposits with or for
the account of, or loans or commitments by, any office of Lender in connection
with the LIBOR Loans to the extent the amount of which is in excess of, or was
not applicable at the time of computation of, the amounts provided for in the
definition of LIBOR Rate; or
(iii) affects the amount of capital required to be maintained
by banks generally or corporations controlling banks and Lender determines the
amount by which Lender or any corporation controlling Lender is required to
maintain or increase its capital is increased by, or based upon, the existence
of this Agreement or of Lender's Loans or Commitment hereunder;
(iv) imposes upon Lender any other condition with respect to
LIBOR Loans or its obligation to make LIBOR Loans;
which, as a result thereof, (1) increases the cost to Lender of making or
maintaining the LIBOR Loans or its Commitment hereunder, or (2) reduces the net
amount of any payment received by Lender in respect of the LIBOR Loans (whether
of principal, interest, commitment fees or otherwise), or (3) requires Lender to
make any payment on or calculated by reference to the gross amount of any sum
received by it in respect of its LIBOR Loans, in each case by an amount which
any Lender in its sole judgment deems material, then and in any such case
Borrower shall pay to Lender on demand such amount or amounts as will compensate
Lender for any increased cost, deduction or payment actually incurred or made by
Lender. The demand for payment by Lender shall be delivered to Borrower within a
reasonable period after the additional cost is incurred or the amount received
is reduced or the subject payment is made, and shall state the subjection or
change which occurred or the reserve or deposit requirements or other conditions
which have been imposed upon Lender or the request, direction or requirement
with which it has complied, together with the date thereof, the amount of such
cost, reduction or payment and the manner in which such amount has been
calculated. The statement of Lender as to the additional amounts payable
pursuant to this Section 2.5(d) shall be, absent a showing by Borrower of
manifest or demonstrable error, conclusive evidence of the amounts due
hereunder.
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The protection of this Section 2.5(d) shall be available to Lender
regardless of any possible contention of invalidity or inapplicability of the
relevant law, regulation, treaty, directive, condition or interpretation
thereof. In the event that Borrower pays Lender the amount necessary to
compensate Lender for any charge, deduction or payment incurred or made by
Lender as provided in this Section 2.5(d) and such charge, deduction or payment
or any part thereof is subsequently returned to Lender as a result of the final
determination of the invalidity or inapplicability of the relevant law,
regulation, treaty, directive or condition, then Lender shall remit to Borrower
the amount paid by Borrower which has actually been returned to Lender (together
with any interest actually paid to Lender on such returned amount).
III
GENERAL PROVISIONS
III.1 Promissory Notes. Borrower's obligation with respect to payment
of principal of, and interest on, the Loans shall be evidenced by a promissory
note in the form of Exhibit A hereto (collectively, the promissory note, as
amended, extended or renewed from time to time, shall be called the "Note").
III.2 Prepayment. Any Loan may be prepaid at any time. No prepayment
fee shall be assessed in connection with the prepayment of any Loan other than a
Loan after same has been converted to a LIBOR Loan pursuant to Section 2.5(b).
If such a LIBOR Loan is paid prior to the end of the Applicable Interest Period,
a prepayment fee computed in the manner set out in Schedule 3 shall be assessed
and paid at the time of such prepayment. Such fee shall apply in all
circumstances where any installment of the LIBOR Loan is paid prior to the end
of the Applicable Interest Period, regardless of whether such payment is
voluntary, mandatory or the result of Lender's collection efforts.
III.3 Manner of Payments.
(a) Except as otherwise provided herein, all payments of principal
and interest on any Loan and all other amounts payable hereunder by Borrower to
Lender shall be made by paying the same in immediately available funds to Lender
at its Tacoma Commercial Banking Office not later than 10:00 a.m. on the date on
which such payment shall become due.
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(b) Borrower hereby authorizes Lender, if and to the extent any
payment is not promptly made pursuant to this Agreement, to charge from time to
time against any or all of the accounts of Borrower with Lender any amount due
hereunder or under the Note.
(c) All computations of interest and fees shall be made on the
basis of a year of 365 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
or fees are payable; provided, however, that, if Borrower elects pursuant to
Section 2.5(b) to fix the interest rate on the Loans, such LIBOR Rate shall be
computed on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
(d) Whenever any payment hereunder shall be stated to be due or
whenever the last day of any interest period would otherwise occur on a day
other than a Business Day, such payment shall be made and the last day of such
interest period shall occur on the next succeeding Business Day and such
extension of time shall in such case be included in the computation of payment
of interest or commitment fees, as the case may be, unless such extension would
cause such payment to be made or the last date of such interest period to occur
in the next following calendar month, in which case such payment shall be made
and the last day of such interest period shall occur on the next preceding
Business Day.
IV
CONDITIONS OF LENDING
IV.1 Conditions to Initial Loan. In addition to the conditions set
forth in Section 4.2, the obligation of Lender to make the initial Loan after
the date hereof is subject to fulfillment of the following conditions:
(a) Loan Documents. Lender shall have received all of the
Additional Loan Documents, duly executed and delivered.
(b) Corporate Certificates. Lender shall have received all of the
following, each satisfactory to Lender in form and substance:
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(i) Certified copies of the Articles of Incorporation and
Bylaws of Borrower;
(ii) Certificate of good standing dated as of a recent date
issued by the Secretary of State of Washington with respect to Borrower;
(iii) Certified copies of resolutions adopted by the Board of
Directors of Borrower authorizing the execution, delivery and performance by
Borrower of the Loan Documents to which it is a party; and
(iv) Incumbency certificates describing the office and
identifying the specimen signatures of the individuals signing the Loan
Documents on behalf of Borrower.
(c) Legal Opinion. Lender shall have received a legal opinion of
the law firm of XxXxxxx & Xxxxxx, counsel to Borrower, substantially in the form
of Exhibit F hereto and as to such other matters as Lender may reasonably
request.
(d) Certificate. Lender shall have received a certificate of
Borrower's chief financial officer or president as to the accuracy of Borrower's
representations and warranties set forth in Article V.
(e) Insurance. Lender shall have been furnished with evidence
satisfactory to Lender that all insurance required by the Security Documents is
in full force and effect and that Lender's rights therein, as contemplated
hereby or by the Security Documents, have been perfected.
(f) Priority of UCC Financing Statements. Certificates from the
Secretaries of State of the States of Washington as to the due filing and first
priority, except as otherwise disclosed on Schedule 4 hereto, of the UCC
financing statements executed by Borrower, as Debtor, in favor of Lender, as
Secured Party, describing the personal property Collateral.
(g) Title Guarantee. Lender shall have obtained, at Borrower's
expense, a modification of the title insurance insuring the Deed of Trust to
include an ALTA modification endorsement, which modified policy shall insure
that the Deed of trust is a first and valid lien on the subject property subject
only to such exceptions as Lender shall find acceptable.
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IV.2 Conditions to All Loans. The obligation of Lender to fund any
Loans hereunder, including the initial Loan, is subject to fulfillment of the
following conditions:
(a) Prior Conditions. All of the conditions set forth in Section
4.1 shall have been satisfied.
(b) Notice of Borrowing. Lender shall have received the notice of
borrowing and accompanying material required pursuant to Section 2.2 in respect
of such Loan.
(c) No Default. At the date of the Loan no Event of Default or
event that with the giving of notice or the lapse of time or both would
constitute an Event of Default shall have occurred and be continuing or will
have occurred as the result of the making of the Loan, and the representations
and warranties of Borrower in Article V shall be true on and as of such date
with the same force and effect as if made on and as of such date.
(d) Other Information. Lender shall have received such other
statements, opinions, certificates, documents and information as it may
reasonably request in order to satisfy itself that the foregoing conditions have
been fulfilled.
V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows:
V.1 Corporate Existence and Power. Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of
Washington, is qualified to do business in each other jurisdiction where the
conduct of its business or the ownership of its properties requires such
qualification, and has full corporate power, authority and legal right to carry
on its business as presently conducted, to own and operate its properties and
assets, and to execute, deliver and perform the Loan Documents.
V.2 Corporate Authorization. The execution, delivery and performance by
Borrower of the Loan Documents and any borrowing hereunder have been duly
authorized by all necessary corporate action of Borrower, do not require any
shareholder approval or the approval or consent of any trustee or the holders of
any Indebtedness of Borrower, except such as have been obtained (certified
copies thereof having been delivered to Lender), do
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not contravene any law, regulation, rule or order binding on it or its Articles
of Incorporation or Bylaws and do not contravene the provisions of or constitute
a default under any indenture, mortgage, contract or other agreement or
instrument to which Borrower is a party or by which Borrower or any of its
properties may be bound or affected.
V.3 Government Approvals, Etc. No Government Approval or filing or
registration with any Governmental Authority is required for the making and
performance by Borrower of the Loan Documents or in connection with any of the
transactions contemplated hereby, except such as have been heretofore obtained
and are in full force and effect (certified copies thereof having been delivered
to Lender). Borrower has obtained, or will obtain before required, all
Governmental Approvals necessary for the completion of the improvements to its
property for which Loan proceeds are intended to be used as set forth in Section
6.1.
V.4 Binding Obligations, Etc. The Loan Documents have been duly
executed and delivered by Borrower and constitute the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
V.5 Litigation. There are no actions, proceedings, investigations, or
claims against or affecting Borrower now pending before any court, arbitrator or
Governmental Authority (nor to the knowledge of Borrower has any thereof been
threatened nor does any basis exist therefor) which if determined adversely to
Borrower would be likely to have a material adverse effect on the financial
condition or operations of Borrower or to result in a judgment or order against
Borrower (in excess of insurance coverage) for more than $200,000, except as
reflected in the financial statements referred to in Section 5.6.
V.6 Financial Condition. The balance sheet of Borrower as of September
30, 1994, and the related statements of income and retained earnings of Borrower
for the fiscal year then ended, copies of which have been furnished to Lender,
fairly present the financial condition of Borrower as at such date and the
results of operations of Borrower for the period then ended, all in accordance
with generally accepted accounting principles consistently applied. Borrower did
not have on such date any contingent liabilities for Taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in that balance
sheet and in the notes to those financial statements. Since that date, there has
been no
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material adverse change in the financial condition or operations of Borrower.
V.7 Title and Liens. Borrower has good and marketable title to each of
the properties and assets reflected in its balance sheet referred to in Section
5.6 (except such as have been since sold or otherwise disposed of in the
ordinary course of business and except to the extent that the terms of the
Permits affect the marketability of Borrower's interest thereunder or in the
improvements on the land covered by the Permits). No assets or revenues of
Borrower are subject to any Lien except as required or permitted by this
Agreement or disclosed on Schedule 4. All properties of Borrower and Borrower's
use thereof comply with applicable zoning and use restrictions and with
applicable laws and regulations relating to the environment. Lender has a
perfected security interest and lien on all of the Collateral (except that
Lender's lien on the Permits is perfected only to the extent such perfection is
achieved by the Assignment in Trust and Consent to Assignment in Trust
identified in the "Security Documents" definition) as security for all
obligations of Borrower under the Loan Documents and such security interest or
lien is of first priority (subject only to the liens described in Schedule 4).
V.8 Taxes. Borrower has filed all tax returns and reports required of
it, has paid all taxes which are due and payable, and has provided adequate
reserves for payment of any Tax whose payment is being contested. The charges,
accruals and reserves on the books of Borrower in respect of Taxes for all
fiscal periods to date are accurate.
V.9 Federal Reserve Regulations. Borrower is not engaged principally or
as one of its important activities in the business of extending credit for the
purpose of purchasing or carrying any margin stock (within the meaning of
Federal Reserve Regulation U), and no part of the proceeds of any Loan will be
used to purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock or for any other
purpose that violates the applicable provisions of any Federal Reserve
Regulation. Borrower will furnish on request to Lender a statement conforming
with the requirements of Regulation U.
V.10 ERISA. No "reportable event" (as that term is defined in Section
4043 of ERISA) has occurred and is continuing with respect to any employee
benefit plan or other plan maintained for employees of Borrower.
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V.11 Permit Status. Borrower is in good standing as a permittee under
the Permits and has received no notice of default under the Permits or notice of
termination of the Permits from the U.S. Forest Service or any notice that the
U.S. Forest Service intends not to renew, extend or reissue the Permits in a
timely fashion and on terms satisfactory to Borrower prior to the end of the
existing terms thereof.
V.12 Representations as a Whole. This Agreement, the financial
statements referred to in Section 5.6, and all other instruments, documents,
certificates and statements furnished to Lender by Borrower, taken as a whole,
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements contained herein or
therein not misleading.
VI
AFFIRMATIVE COVENANTS
So long as Lender shall have any commitment hereunder and until payment
in full of each Loan and performance of all other obligations of Borrower under
the Loan Documents, Borrower agrees to do all of the following unless Lender
shall otherwise consent in writing.
VI.1 Use of Proceeds. The proceeds of the Loan shall be used
exclusively for Borrower's capital expenditures approved in advance by Lender
and for Borrower's working capital needs.
VI.2 Preservation of Corporate Existence, Etc. Borrower will preserve
and maintain its corporate existence, rights, franchises and privileges in
Washington.
VI.3 Visitation Rights. At any reasonable time, and from time to time,
Borrower will permit Lender to examine and make copies of and abstracts from the
records and books of account of and to visit the properties of Borrower and to
discuss the affairs, finances and accounts of Borrower with any of its officers
or directors.
VI.4 Keeping of Books and Records. Borrower will keep adequate records
and books of account in which complete entries will be made, in accordance with
generally accepted accounting principles consistently applied, reflecting all
financial transactions of Borrower.
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VI.5 Compliance With Laws; Maintenance of Permits. Borrower will comply
in all material respects with all laws, regulations, rules, and orders of
Governmental Authorities applicable to Borrower or to its operations or
property, except any thereof whose validity is being contested in good faith by
appropriate proceedings upon stay of execution of the enforcement thereof.
Without limitation on the foregoing, Borrower will comply with all requirements
of the Permits and will at a time prior to the expiration of the term of each
Permit enter into such renewal or replacement Permits as are necessary to assure
that its business may be carried out at the existing Crystal Mountain Winter
Sports Area in the manner set forth in its business plans presented to Lender.
VI.6 Other Obligations. Borrower will pay and discharge before the same
shall become delinquent all Indebtedness, taxes and other obligations for which
Borrower is liable or to which its income or property is subject and all claims
for labor and materials or supplies which, if unpaid, might become by law a Lien
upon assets of Borrower, except any thereof whose validity or amount is being
contested in good faith by Borrower in appropriate proceedings with provision
having been made to the satisfaction of Lender for the payment thereof in the
event the contest is determined adversely to Borrower.
VI.7 Financial Information. Borrower will deliver to Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, the balance sheet of Borrower as of the
end of such fiscal year and the related statements of income and retained
earnings and statement of changes in financial position of Borrower for such
year, accompanied by the audit report thereon by independent certified public
accountants selected by Borrower and approved by Lender (which reports shall be
prepared in accordance with generally accepted accounting principles
consistently applied and shall not be qualified by reason of restricted or
limited examination of any material portion of Borrower's records and shall
contain no disclaimer of opinion or adverse opinion except such as Lender in its
sole discretion determines to be immaterial);
(b) as soon as available and in any event within 30 days after
the end of each month unaudited balance sheet and statement of income and
retained earnings of Borrower as of the end of such month (including the fiscal
year to the end of such
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month), accompanied by a certificate of the chief financial officer of Borrower
that such unaudited balance sheet and statement of income and retained earnings
have been prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial position and the results
of operations of Borrower as of the end of and for such month and that since the
fiscal year-end report referred to in subparagraph (a) there has been no
material adverse change in the financial condition or operations of Borrower as
shown on the balance sheet as of said date;
(c) Borrower's winter budget and summer budget prior to the
commencement of each respective season;
(d) as soon as available, all reports sent by Borrower to its
shareholders and all quarterly and annual reports filed by Borrower with the
Securities and Exchange Commission and each other Governmental Authority having
jurisdiction over Borrower; and
(e) all other statements, reports and other information as
Lender may reasonably request concerning the financial condition and business
affairs of Borrower.
VI.8 Notification. Promptly after learning thereof, Borrower will
notify Lender of (a) the details of any action, proceeding, investigation or
claim against or affecting Borrower instituted before any court, arbitrator or
Governmental Authority or, to Borrower's knowledge, threatened to be instituted,
which, if determined adversely to Borrower, would be likely to have a material
adverse effect on the financial condition or operations of Borrower or to result
in a judgment or order against Borrower (in excess of insurance coverage) for
more than $200,000; (b) any substantial dispute between Borrower and any
Governmental Authority; (c) any labor controversy which has resulted in or, to
Borrower's knowledge, threatens to result in a strike which would materially
affect the business operations of Borrower; and (d) the occurrence of any Event
of Default or other event which, with notice or lapse of time or both, would
constitute an Event of Default.
VI.9 Additional Payments; Additional Acts. From time to time, Borrower
will (a) pay or reimburse Lender on request for all expenses, including legal
fees, actually incurred by Lender in connection with the preparation of the Loan
Documents or the making of any Loan or the enforcement by judicial proceedings
or otherwise of any of the rights of Lender under the Loan
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Documents; (b) obtain and promptly furnish to Lender evidence of all such
Government Approvals as may be required to enable Borrower to comply with its
obligations under this Agreement; and (c) execute and deliver all such
instruments and perform all such other acts as Lender may reasonably request to
carry out the transactions contemplated by this Agreement.
VI.10 Tangible Net Worth. At all times during the fiscal year of
Borrower ending September 30, 1995, Borrower shall maintain a Tangible Net Worth
of at least $2,700,000. During each fiscal year of Borrower thereafter, the
Tangible Net Worth shall be increased by an amount equal to 75% of Borrower's
net profit for the preceding year. Borrower shall at all times a ratio of
Indebtedness to Tangible Net Worth of not more than 2.0 to 1. "Tangible Net
Worth" means the excess of total assets over total liabilities, excluding,
however, from the determination of total assets (a) all assets which should be
classified as intangible assets (such as goodwill, patents, trademarks,
copyrights, franchises, and deferred charges (including unamortized debt
discount and research and development costs), (b) treasury stock, (c) cash held
in a sinking or other similar fund established for the purpose of redemption or
other retirement of capital stock, (d) to the extent not already deducted from
total assets, reserves for depreciation, depletion, obsolescence or amortization
of properties and other reserves or appropriations of retained earnings which
have been or should be established in connection with the business conducted by
the relevant corporation, and (e) any revaluation or other write-up in book
value of assets subsequent to the fiscal year of such corporation last ended at
the date of the Prior Loan Agreement.
VII
NEGATIVE COVENANTS
So long as the Commitment of Lender shall be outstanding and until
payment in full of the Note and performance of all other obligations of Borrower
under this Agreement, Borrower agrees that it will not do any of the following
unless Lender shall otherwise consent in writing.
VII.1 Dividends, Purchase of Stock, Etc. Borrower shall not (a) declare
or pay any dividend (except dividends payable in its capital stock or, pursuant
to its Articles of Incorporation, in lift privileges) on any shares of any class
of its capital stock, nor (b) apply any assets to the purchase, redemption or
other retirement of, or set aside any sum for the payment of any
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dividends on or for the purchase, redemption or other retirement of, or make any
other distribution by reduction of capital or otherwise in respect of, any
shares of any class of capital stock of Borrower; provided, however, that
dividends may be paid if: (i) on the last Payment Date prior to such payment the
Loan balance was equal to or less than the amount set out on Schedule 2 for such
Payment Date, and (ii) at the time such dividend is paid no Event of Default, or
event that with the giving of notice or the lapse of time or both shall
constitute an Event of Default, shall have occurred or be continuing or will
result from the payment of such dividend.
VII.2 Liquidation, Merger, Sale of Assets. Borrower shall not
liquidate, dissolve or enter into any merger, consolidation, joint venture,
partnership or other combination nor sell, lease, or dispose of such portion of
its business or assets (excepting sales of goods in the ordinary course of
business) as constitutes in the opinion of Lender a substantial portion thereof
except that Borrower may sell, lease or dispose of assets which have been
released from Lender's lien pursuant to Section 9.9 and may enter into joint
ventures or partnerships with respect to such assets.
VII.3 Indebtedness. Borrower shall not create, incur or become liable
for any Indebtedness except (a) any Loan, (b) existing Indebtedness reflected on
the balance sheet referred to in Section 5.6 (except any renewal or extension of
such Indebtedness or any portion thereof to a date on or before the final
maturity of any Loan), (c) current accounts payable or accrued, incurred by
Borrower in the ordinary course of business, (d) Indebtedness to vendors for the
deferred purchase price of real or personal property used by Borrower in its
business and (e) Indebtedness for money borrowed from banks which does not in
the aggregate in any fiscal year of Borrower exceed the amount set out as a
reinvestment allowance for such year in Schedule 1.
VII.4 Guaranties, Etc. Borrower shall not assume, guaranty, endorse or
otherwise become directly or contingently liable for, or obligated to purchase,
pay or provide funds for payment of, any obligation or Indebtedness of any other
person, except by endorsement of negotiable instruments for deposit or
collection or by similar transactions in the ordinary course of business.
VII.5 Investments. Borrower shall not make any loan or advance to any
person or purchase or otherwise acquire the capital stock, assets or obligations
of, or any interest in, any
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person, except (a) commercial bank time deposits maturing within one year, (b)
marketable general obligations of the United States or a State or marketable
obligations fully guarantied by the United States, (c) short-term commercial
paper with the highest rating of a generally recognized rating service, (d)
overnight federal funds and (e) the acquisition of assets at the Crystal
Mountain Winter Sports Area that are presently owned and operated by Borrower's
subpermittees or lessees, such as the grocery store or ski school.
VII.6 Liens. Borrower shall not create, assume or suffer to exist any
Lien except (a) Liens in favor of Lender, (b) existing Liens set out in Schedule
4, (c) Liens to secure Indebtedness permitted by Section 7.3, and (d) for the
deferred price of property, but only if they are limited to such property and
its proceeds and do not exceed 80% of the fair market value thereof.
VII.7 Capital Expenditures. Borrower may not, during any fiscal year,
make expenditures for fixed assets or other capital expenditures which, in the
aggregate, have a purchase, construction and installation cost exceeding the sum
of (a) the reinvestment allowance for such fiscal year set out in Schedule 1
plus (b) the expenditures permitted pursuant to the following sentence. Borrower
may expend 50% of Cash Flow in any fiscal year for fixed assets or other capital
expenditures if (i) no Event of Default has then occurred and is continuing and
(ii) the Loan balance as of the Payment Date occurring in such fiscal year and
as of the next following Payment Date is, or will be, less than or equal to the
Loan balance that would be then-outstanding if the Loan, as disbursed pursuant
to Section 2.2, were amortized evenly over 7 annual installment payments
starting on May 31, 1996 and ending on May 31, 2002. Borrower may with Lender's
prior written approval (which shall not be unreasonably withheld) make
expenditures pursuant to the preceding sentence prior to its fiscal year end
based on pro forma financial statements and its capital expenditure budget.
VII.8 Operations. Borrower shall not engage in any activity or
introduce any major product which is substantially different from or unrelated
to the present business activities or products of Borrower nor discontinue any
major product or any portion of Borrower's present business activities which
constitutes a substantial portion thereof. Borrower shall not enter into any
significant contracts or other agreements except in the usual course of its
business.
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VIII
EVENTS OF DEFAULT
VIII.1 Events of Default. The occurrence of any of the following events
shall constitute an "Event of Default" hereunder.
(a) Payment Default. Borrower shall fail (i) to pay any
principal or interest due on the Loans in accordance with the terms of the Loan
Documents or (ii) default shall be made in the payment of any other sum required
under the Loan Documents and such default under this clause (ii) shall continue
for a period of three Business Days; or
(b) Breach of Warranty. Any representation or warranty made or
deemed made by Borrower under or in connection with this Agreement or any Note
shall prove to have been incorrect in any material respect when made; or
(c) Breach of Covenant. Borrower shall fail to perform or
observe any other covenant, obligation or term of the Loan Documents and such
failure shall remain unremedied for 30 days after written notice thereof shall
have been given to Borrower by Lender; or
(d) Cross-default. Borrower shall fail (i) to pay when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) any Indebtedness (except any Loan) or any interest or premium thereon
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness, or (ii)
to perform any term or covenant on its part to be performed under any agreement
or instrument relating to any such Indebtedness and required to be performed and
such failure shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such failure to perform is to
accelerate or to permit the acceleration of the maturity of such Indebtedness,
or (iii) any such Indebtedness shall be declared to be due and payable or
required to be prepaid (other than by regularly scheduled required prepayment)
prior to the stated maturity thereof; or
(e) Voluntary Bankruptcy, Etc. Borrower shall (i) file a
petition seeking relief for itself under Title 11 of the United States Code, as
now constituted or hereafter amended,
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or file an answer consenting to, admitting the material allegations of or
otherwise not controverting, or fail timely to controvert a petition filed
against it seeking relief under Title 11 of the United State Code, as now
constituted or hereafter amended; or (ii) file such petition or answer with
respect to relief under the provisions of any other now existing or future
applicable bankruptcy, insolvency, or other similar law of the United States of
America or any State thereof or of any other country to jurisdiction providing
for the reorganization, winding-up or liquidation of corporations or an
arrangement, composition, extension or adjustment with creditors; or
(f) Involuntary Bankruptcy, Etc. An order for relief shall be
entered against Borrower under Title 11 of the United States Code, as now
constituted or hereafter amended, which order is not stayed; or upon the entry
of an order, judgment or decree by operation of law or by a court having
jurisdiction in the premises which is not stayed adjudging it a bankrupt or
insolvent under, or ordering relief against it under, or approving as properly
filed a petition seeking relief against it under the provisions of any other now
existing or future applicable bankruptcy, insolvency or other similar law of the
United States of America or any State thereof or of any other country or
jurisdiction providing for the reorganization, winding-up or liquidation of
corporations or any arrangement, composition, extension or adjustment with
creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee
or custodian of Borrower or of any substantial part of its property, or ordering
the reorganization, winding-up or liquidation of its affairs, or upon the
expiration of 120 days after the filing of any involuntary petition against it
seeking any of the relief specified in Section 8.1(e) or this Section 8.1(f)
without the petition being dismissed prior to that time; or
(g) Insolvency, Etc. Borrower shall (i) make a general
assignment for the benefit of its creditors, or (ii) consent to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, or
custodian of all or a substantial part of the property of Borrower, or (iii)
admit its insolvency or inability to pay its debts generally as they become due,
or (iv) fail generally to pay its debts as they become due, or (v) take any
action (or suffer any action to be taken by its director or shareholders)
looking to the dissolution or liquidation of Borrower; or
(h) Judgment. A final judgment or order for the payment of
money in excess of $50,000 or its equivalent in
27
32
another currency shall be rendered against Borrower and such judgment or order
shall continue unsatisfied and in effect for a period of 30 consecutive days; or
(i) Prepayment. Borrower shall, at any time after the
occurrence and during the continuance of an Event of Default or an event that
with the giving of notice or the lapse of time or both would constitute an Event
of Default, make any payment of principal of any Indebtedness (except any Loan)
which is not required to be made at the time of such payment by the terms of
such Indebtedness; or
(j) Condemnation. Such portion of the properties of Borrower as
in the opinion of Lender constitutes a substantial portion shall be condemned,
seized or appropriated; or
(k) Government Approvals, Etc. Any Government Approval or
registration or filing with any Governmental Authority now or hereafter required
in connection with the performance by Borrower of its obligations set forth in
the Loan Documents or required in connection with the conduct of Borrower's
business shall be revoked, withdrawn or withheld or shall fail to remain in full
force and effect; or
(l) Other Government Action. Any act of any Governmental
Authority shall (in the opinion of Lender) deprive Borrower of any substantial
right, privilege or franchise, or substantially restrict the exercise thereof,
and such act shall not be revoked or rescinded within 60 days after it shall
have become effective or within 30 days after notice from Lender, whichever
first occurs; or
VIII.2 Consequences of Default. If any Event of Default shall occur and
be continuing, then in any such case and at any time thereafter so long as any
such Event of Default shall be continuing, Lender may at its option immediately
terminate the Loan Commitment and, if any Loan shall have been made, Lender may
at its option declare the principal of and the interest on any Loan and all
other sums payable by Borrower hereunder or thereunder to be immediately due and
payable, whereupon the same shall become immediately due and payable without
protest, presentment, notice or demand, all of which Borrower expressly waives
and, additionally, Lender may take all action permitted by the Security
Documents or otherwise at law to realize on the Collateral.
28
33
IX
MISCELLANEOUS
IX.1 No Waiver; Remedies Cumulative. No failure by Lender to exercise,
and no delay in exercising, any right, power or remedy under the Loan Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or remedy under the Loan Documents preclude any other or
further exercise thereof or the exercise of any other right, power, or remedy.
The exercise of any right, power, or remedy shall in no event constitute a cure
or waiver of any Event of Default nor prejudice the right of Lender in the
exercise of any right hereunder, unless in the exercise of such right, all
obligations of Borrower under the Loan Documents are paid in full. The rights
and remedies provided herein and therein are cumulative and not exclusive of any
right or remedy provided by law.
IX.2 Governing Law. The Loan Documents shall be governed by and
construed in accordance with the laws of the State of Washington, U.S.A.
29
34
IX.3 Mandatory Arbitration.
(a) At the request of either Lender or Borrower, any
controversy or claim between Lender and Borrower, arising from or relating to
this Agreement or any of the other Loan Documents, or arising from an alleged
tort, shall be settled by arbitration in Seattle, Washington. The United States
Arbitration Act shall apply even though this Agreement is otherwise governed by
Washington law. The proceedings shall be administered by the American
Arbitration Association under its commercial rules of arbitration. Any
controversy over whether an issue is arbitrable shall be determined by the
arbitrator(s). Judgment upon the arbitration award may be entered by any court
having jurisdiction over the parties. The institution and maintenance of an
action for judicial relief or pursuit of an ancillary or provisional remedy
shall not constitute a waiver of the right of either party, including the
plaintiff, to submit the controversy or claim to arbitration if such action for
judicial relief is tested. For the purposes of the application of the statute of
limitations, the filing of an arbitration pursuant to this Section 9.3 is the
equivalent of the filing of a lawsuit, any claim or controversy which may be
arbitrated under this Section 9.3 is subject to any applicable statute of
limitations. The arbitrator(s) shall have the authority to decide whether any
such claim or controversy is barred by the statute of limitations and, if so, to
dismiss the arbitration on that basis. The parties consent to the joinder of any
guarantor, hypothecator, other party having an interest relating to the claim or
controversy being arbitrated in any proceedings under this Section 9.3.
(b) Notwithstanding the provision of Section 9.3(a), no case or
controversy shall be submitted to arbitration without the consent of all parties
if at the time of the proposed submission, such controversy or claim arises from
or relates to an obligation secured by real property.
(c) No provision of this Section 9.3 shall limit the right of
Borrower or Lender to exercise self-help remedies such as setoff, foreclosure,
retention or sale of any collateral, or obtaining any ancillary, provisional, or
interim remedies from a court of competent jurisdiction before, after, or during
the pendency of any arbitration proceeding. The exercise of any such remedy does
not waive the right of either party to request arbitration.
30
35
IX.4 Notices. All notices and other communications provided for in this
Agreement shall be in writing and shall be mailed or sent or delivered to each
party at the address set forth under its name on the signature page hereof, or
at such other address as shall be designated by such party in a written notice
to the other party. Except as otherwise specified, all such notices and
communications if duly given or made shall be effective upon receipt if
delivered personally or, if mailed, two days after deposit in the United States
mail, first class postage prepaid, Certified or Registered.
IX.5 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, except that
Borrower may not assign or otherwise transfer all or any part of its rights or
obligations hereunder without the prior written consent of Lender, and any such
assignment or transfer purported to be made without such consent shall be
ineffective.
IX.6 Severability. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall as to such jurisdiction be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties waive any provision of law which
renders any provision hereof prohibited or unenforceable in any respect.
IX.7 Conditions Not Fulfilled. If the Loan Commitment or any portion
thereof is not borrowed owing to nonfulfillment of any condition precedent
specified in Article IV, neither Borrower nor Lender shall be responsible to the
other for any damage or loss by reason thereof, except that Borrower shall in
any event be liable to pay the fees, taxes, and expenses for which it is
obligated hereunder.
IX.8 Entire Agreement; Amendment. This Agreement comprises the entire
agreement of the parties and may not be amended or modified except by written
agreement of Borrower and Lender. No provision of this Agreement may be waived
except in writing and then only in the specific instance and for the specific
purpose for which given. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
31
36
IX.9 Release of Collateral. At any time, on Borrower's written request,
Lender will release Collateral from the lien of its Security Documents in
accordance with the following conditions and procedures:
(a) All real and personal property then covered by Lender's
lien shall have been appraised at Borrower's expense within 60 days prior to the
date of such release by an appraiser selected mutually by Borrower and Lender
and the value of Borrower's properties shall have been separately itemized by
such appraiser in form satisfactory to Lender;
(b) The outstanding Loan balance as of the last Payment Date
immediately preceding the date of such release shall not exceed 75% of the
appraised value of the Collateral which will remain subject to the lien of the
Security Documents;
(c) Lender and Borrower shall, after the appraisal described in
subparagraph (a) has been completed, negotiate in good faith to designate
specific assets for release from Lender's lien. Absent contrary agreement
between Lender and Borrower, Collateral shall be released in the order of age,
with the oldest Collateral being released first; provided, however, that an item
of Collateral shall not be released if in Lender's reasonable judgment the
release of such Collateral would materially adversely affect in a way not
reflected in the appraisal the value of the items of remaining Collateral;
(d) No Collateral shall be released at any time when an Event
of Default, or an event that with the giving of notice or the lapse of time or
both would constitute an Event of Default, shall have occurred and be
continuing.
IX.10 Construction. In the event of any conflict between the terms,
conditions and provisions of this Agreement and those in the Security Documents,
the terms, conditions and provisions of this Agreement shall control.
IX.11 Counterparts. This Agreement or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Agreement.
32
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or agents thereunto duly authorized as of
the date first above written.
LENDER: SEATTLE-FIRST NATIONAL BANK
By ________________________________
Its __________________________
Address: Seattle-First National Bank
Tacoma Seafirst Financial Center
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BORROWER: CRYSTAL MOUNTAIN, INC.
By ________________________________
Its __________________________
By ________________________________
Its __________________________
Address: Crystal Mountain, Inc.
X.X. Xxx 0
Xxxxxxx Xxxxxxxx, XX 00000
Attn: Manager, Finance &
Accounting
Telephone: _____________________
Facsimile: _____________________
33
38
SCHEDULE 1
REINVESTMENT ALLOWANCE
Fiscal Year Ending September 30, 1995 $422,130
1996 $443,237
1997 $465,398
1998 $488,668
1999 $513,102
2000 $538,757
2001 $565,695
34
39
SCHEDULE 2
----------
MAXIMUM LOAN BALANCE
AS IT RELATES TO SKIP PAYMENTS
------------------------------
Maximum Loan
Payment Date Level
------------ ------------
May 31, 1996 $6,400,000
May 31, 1997 $5,700,000
May 31, 1998 $5,000,000
May 31, 1999 $4,300,000
May 31, 2000 $3,700,000
May 31, 2001 $3,000,000
May 31, 2002 $2,500,000
35
40
SCHEDULE 3
----------
PREPAYMENT FEES FOR LIBOR LOANS
The amount of the fee to be paid pursuant to Section 3.2 shall depend
on the following:
(a) The amount by which interest rates have changed between the
Reference Date and the Prepayment Date. As used herein,
"Reference Date" shall mean the first day of an Applicable
Interest Period. As used herein, "Prepayment Date" shall mean
the date the Borrower either voluntarily or involuntarily
prepays a LIBOR Loan. Certain U.S. Treasury rates are used as
a benchmark to measure changes in interest rate levels.
A "reference rate" equal to the average interest rate
yield at the Reference Date for U.S. Government
Securities having maturities equivalent to that of
the applicable LIBOR Loan will be determined in the
manner described below for determining applicable
rates but will be established as of the Reference
Date for the Applicable Interest Period. This rate
represents interest rate levels at the time a
Revolving Loan is made or its interest rate fixed.
An "applicable rate," determined as described below,
represents interest rate levels as of the Prepayment
Date.
(b) The amount of principal prepaid.
(c) A payment fee factor (see "payment fee factor schedule"
below).
CALCULATION OF PAYMENT FEE
If the reference rate is lower than or equal to the applicable rate,
there is no payment fee.
If the applicable rate is lower than the reference rate, the payment
fee shall be equal to the difference between the reference rate and the
applicable rate (expressed as a decimal), multiplied by the appropriate factor
from the payment fee factor
36
41
schedule, multiplied by the principal amount of the Loan which is prepaid.
37
42
Example:
A LIBOR Loan with principal of $850,000 is fully prepaid with 4
months remaining prior to the end of the Applicable Interest
Period. A reference rate of 10% was assigned to the LIBOR Loan
when the rate was fixed. The applicable rate (as determined by
current 4-month U.S. Treasury rates) is 8.5%. Rates are
therefore judged to have dropped by 1.5% since the rate was
fixed, and a payment fee applies.
A payment fee factor of .37 is determined from the tables below,
and the payment fee is computed as follows:
Payment Fee = (.10-.085) x (.37) x ($850,000) = $4,717.50
APPLICABLE RATES
The applicable rate is equal to the Treasury Rate at the time of
prepayment for U.S. Government Securities having maturities equivalent to the
remaining portion of the Applicable Interest Period.
Rates listed in the Federal Reserve Statistical Release for maturities
of less than one year are on a discount rate basis, and these rates shall be
converted to a coupon equivalent basis, based upon a 360-day year. The
Statistical Release published on Monday shall be used for calculation of payment
fees payable on the following Tuesday through the following Monday, with
appropriate adjustment if the day of publication changes.
38
43
PAYMENT FEE FACTOR SCHEDULES
Months Remaining in the
Applicable Interest Period for LIBOR Loans(1)
0 1 2 3 4 5 6
--- --- --- --- --- --- --
Factors 0 .09 .18 .28 .37 .46 .55
-----------------
(1) If the remaining Applicable Interest Period is between any two time
periods in the above schedules, interpolate between the corresponding factors.
Agent and Lenders are not required to actually reinvest the paid
principal in any U.S. Government Treasury obligations as a condition to
receiving a payment fee as calculated above.
39
44
SCHEDULE 4
----------
PERMITTED LIENS
40
45
EXHIBIT A
NOTE
$7,000,000 Date: September 14, 0000
Xxxxxxx, Xxxxxxxxxx
This promissory note ("Note") is made pursuant to and is subject to the
terms and conditions of the Second Amended and Restated Loan Agreement (the
"Loan Agreement") dated as of the date of this Note, executed and delivered by
CRYSTAL MOUNTAIN, INC., a Washington corporation ("Borrower") and SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Lender"). This Note amends and
renews that certain Secured Note dated as of October 5, 1990 in the principal
amount of $6,200,000 executed by Borrower payable to Lender. Terms used herein
that are not otherwise defined shall have the respective meaning set forth in
the Loan Agreement.
FOR VALUE RECEIVED, Borrower promises to repay to the order of Lender
all disbursements of the Loans made by Lender to Borrower on the dates and in
the installment amounts set forth in the Loan Agreement for repayment of the
Loans.
Borrower also hereby promises to pay to the order of Lender interest on
the unpaid principal amount hereof from the date hereof until such principal
amount is paid in full at the interest rates and at the times as are specified
in the Loan Agreement for payment of interest on the Loans.
1. This Note evidences Borrower's obligation to repay principal of, and
interest on, the Loans. Each Loan disbursement, Applicable Interest Rate,
Applicable Interest Period, and all payments made on account of the principal of
the Loans shall be recorded by Lender in its records and, prior to any transfer
hereof, endorsed on the grid attached hereto as Schedule A that is a part of
this Note; the failure to so record any such amount or any error in so recording
such amount shall not, however, limit or otherwise affect the obligations of
Borrower to repay the outstanding principal amount of the Loans, together with
all interest accruing thereon.
2. Each maker, surety, guarantor and endorser of this Note expressly
waives all notices, demands for payment, presentations for payment, notices of
intention to accelerate the maturity, protest and notice of protest as to this
Note.
46
3. In the event this Note is placed in the hands of an attorney for a
collection, or suit is brought on the same, or the same is collected through
bankruptcy or other judicial proceedings, Borrower agrees and promises to pay a
reasonable attorney's fee and collection cost, including all out-of-pocket
expenses incurred by Lender.
4. This Note has been executed and delivered in and should be governed
by and construed in accordance with the laws of the State of Washington, USA.
Borrower hereby irrevocably submits to the jurisdiction of any state or any
federal court sitting in Seattle, King County, Washington, USA, in any action or
proceeding brought to enforce or otherwise arising out of or relating to this
Note and hereby waives any objection to venue in any such court and any claim
that such forum is an inconvenient forum.
5. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments and restrictions on prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
6. This Note is secured by the Collateral described in the Security
Documents.
CRYSTAL MOUNTAIN, INC.
By
----------------------------------
Its
-----------------------------
By
----------------------------------
Its
-----------------------------
2
47
SCHEDULE A
To Crystal Mountain, Inc. Note
LOANS, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Interest Principal Paid Interest Principal Notation
Date Loan Rate or Prepaid Period Balance Made By
---- --------- -------- -------------- -------- --------- -------
3
48
EXHIBIT B
WHEN RECORDED, RETURN TO:
Xxxxx Xxxxxx Xxxxxxxx
Attn: Xx. Xxxxxxxxx X. XxXxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
================================================================================
AMENDMENT NUMBER TWO TO
DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF PERMITS AND CONTRACT RIGHTS,
LEASES AND RENTS
THIS AMENDMENT NUMBER TWO TO DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF PERMITS AND CONTRACT RIGHTS, LEASES AND RENTS ("Amendment") is
made as of this 14th day of September, 1995, between CRYSTAL MOUNTAIN, INC., a
Washington corporation ("Grantor"), and SEATTLE-FIRST NATIONAL BANK, a national
banking association ("Beneficiary").
WHEREAS, Beneficiary and Grantor entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan
Agreement"), pursuant to which Beneficiary agreed to make certain revolving
credit and term loans to Grantor; and
WHEREAS, Grantor executed a Deed of Trust, Security Agreement and
Assignment of Permits and Contract Rights, Leases and Rents dated June 15, 1988
and recorded on June 28, 1988 under Xxxxxx County Auditor's Number 8806280189,
to DWTR&J Corp. as Trustee for the benefit of Beneficiary, as amended by that
certain Amendment Number One to Deed of Trust, Security Agreement and Assignment
of Permits and Contract Rights, Leases and Rents dated as of October 5, 1990 and
recorded on _________, 1990 under Xxxxxx County Auditor's Number ______________
(as amended, the "Deed of Trust"); and
WHEREAS, Beneficiary and Grantor have agreed to amend and restate the
Prior Loan Agreement pursuant to the terms of that certain Second Amended and
Restated Loan Agreement dated as of
49
the date hereof (as the same may be amended from time to time, the "Loan
Agreement"); and
WHEREAS, the parties hereto desire to amend the Deed of Trust by (a)
modifying the terms thereof to such extent as may be provided below, and (b)
expressly recognizing and affirming the continuing effectiveness and priority of
the lien of the Deed of Trust, as amended hereby, as to the sums owing
thereunder.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. AMENDMENT TO DEED OF TRUST. The description of "Obligations Secured"
set forth in subparagraph (a) of Section 1 of the Deed of Trust is hereby
deleted and the following paragraph is substituted in its stead:
(a) Payment of the sum of $7,000,000 with interest thereon
under the Loan Commitment (as such Loan Commitment is defined in the
Loan Agreement described below) according to the terms of the Second
Amended and Restated Loan Agreement dated as of the 14th day of
September, 1995, between Grantor and Beneficiary (as the same may be
amended from time to time, the "Loan Agreement") and the Note executed
by Grantor in the form of Exhibit A to the Loan Agreement, payable to
Beneficiary (the "Note," which term shall include all loan agreements
and notes evidencing the indebtedness secured by this Deed of Trust and
all replacements, renewals, modifications or extensions thereof);
2. AFFIRMATION OF SECURITY. The Deed of Trust, as amended by this
Amendment, is incorporated herein in its entirety by this reference, and Grantor
and Beneficiary jointly affirm and agree that the Deed of Trust, as amended,
secures the full performance of each and every obligation to be secured thereby
as described in the Loan Agreement and continues to be effective as, and to
constitute, a lien on the property described in the Deed of Trust to the full
extent of all obligations secured thereby.
3. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Deed of Trust shall remain in full force and effect and
Grantor expressly reaffirms and ratifies its obligations thereunder. To the
50
extent there is any conflict between the provisions of the Deed of Trust and the
provisions of this Amendment, the terms of this Amendment shall control.
4. ACCESS TO LOAN AGREEMENT. A true and correct copy of the Loan
Agreement is maintained by the Beneficiary at the address set forth below the
Beneficiary's signature.
5. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Grantor and Beneficiary as of the day and year first above
written.
GRANTOR: CRYSTAL MOUNTAIN, INC.
X.X. Xxx 0
Xxxxxxx Xxxxxxxx, XX 00000
By
---------------------------------------
Its
--------------------------------
By
---------------------------------------
Its
--------------------------------
BENEFICIARY: SEATTLE-FIRST NATIONAL BANK
Tacoma Seafirst Financial Center
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
By
---------------------------------------
Its
--------------------------------
3
51
STATE OF WASHINGTON )
) ss.
COUNTY OF ______ )
On this___________ day of___________ , 1995, before me, a Notary Public
in and for the State of Washington, personally appeared ___________
and___________ , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons who executed this instrument, on oath
stated that they were authorized to execute the instrument, and acknowledged it
as the___________and___________ , respectively, of CRYSTAL MOUNTAIN, INC. to be
the free and voluntary act and deed of said corporation for the uses and
purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
______________________________________
NOTARY PUBLIC in and for the State
of Washington, residing at ___________
My appointment expires _______________
Print Name: __________________________
STATE OF WASHINGTON )
) ss.
COUNTY OF _______ )
On this _____ day of _______________, 1995, before me, a Notary Public
in and for the State of Washington, personally appeared ___________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed this instrument, on oath stated that he was authorized to
execute the instrument, and acknowledged it as the___________of SEATTLE-FIRST
NATIONAL BANK to be the free and voluntary act and deed of said national banking
association for the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
______________________________________
4
52
NOTARY PUBLIC in and for the State
of Washington, residing at ____________
My appointment expires ________________
Print Name: ___________________________
5
53
EXHIBIT C
AMENDMENT NUMBER TWO TO SECURITY AGREEMENT
THIS AMENDMENT NUMBER TWO TO SECURITY AGREEMENT ("Amendment") is made
as of this 14th day of September, 1995, by CRYSTAL MOUNTAIN, INC., a Washington
corporation ("Borrower"), in favor of SEATTLE-FIRST NATIONAL BANK, a national
banking association ("Lender").
WHEREAS, Lender and Borrower have entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan
Agreement"), pursuant to which Lender agreed to make certain revolving credit
and term loans to Borrower; and
WHEREAS, Borrower executed a Security Agreement dated June 15, 1988, in
favor of Lender, as amended by that certain Amendment Number One to Security
Agreement dated as of October 5, 1990 (as amended, the "Security Agreement");
and
WHEREAS, Lender and Borrower have agreed to amend and restate the Prior
Loan Agreement pursuant to the terms of that certain Second Amended and Restated
Loan Agreement dated as of the date hereof (as the same may be amended from time
to time, the "Loan Agreement"); and
WHEREAS, in order to reflect the changes embodied in the Loan
Agreement, Borrower and Lender now wish to amend the terms of the Security
Agreement.
NOW, THEREFORE, Borrower hereby agrees to the following amendments to
the Security Agreement:
1. AMENDMENT TO SECURITY AGREEMENT. The final paragraph on page 2 of
the Security Agreement is hereby deleted and the following paragraph is
substituted in its stead:
THIS SECURITY INTEREST is given to secure the payment to
Lender when due of all amounts now due or which may become due to
Lender from Borrower under (a) that certain Second Amended and Restated
Loan Agreement dated as of the 14th day of September, 1995, between the
Lender and the Borrower (as the same shall be amended from time to
time, herein called the "Loan Agreement"), or (b) the Note (in the form
attached as Exhibit A to the Loan Agreement) as the same may be
amended, renewed or extended from time to time; or (c) this Security
Agreement or any other document
54
or agreement contemplated by the Loan Agreement; and to secure the
Borrower's full and timely performance and observance of all covenants
and conditions contained in this Security Agreement, the Loan
Agreement, and the Note (all such amounts and obligations are
collectively hereinafter called the "Secured Obligations").
2. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Security Agreement shall remain in full force and effect and
Borrower expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Security Agreement
and the provisions of this Amendment, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Borrower and Lender as of the date first set forth above.
BORROWER: CRYSTAL MOUNTAIN, INC.
By
----------------------------------
Its
-----------------------------
By
----------------------------------
Its
-----------------------------
LENDER: SEATTLE-FIRST NATIONAL BANK
By
----------------------------------
Its
-----------------------------
2
55
EXHIBIT D
AMENDMENT NUMBER TWO TO
ASSIGNMENT IN TRUST OF SPECIAL USE PERMIT
THIS AMENDMENT NUMBER ONE TO ASSIGNMENT IN TRUST OF SPECIAL USE PERMIT
("Amendment") is made as of this 14th day of September, 1995, by CRYSTAL
MOUNTAIN, INC., a Washington corporation ("Assignor"), in favor of SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Assignee").
WHEREAS, Assignor and Assignee have entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan Agreement")
pursuant to which Assignee agreed to make certain revolving credit and term
loans to Assignor; and
WHEREAS, Assignor has executed an Assignment in Trust dated June 10,
1988, assigning to Assignee all of its interests and rights under and by virtue
of that certain Special Use Permit No. 8509120389 issued to the Assignor on
April 9, 1962 by the White River Ranger District, Snoqualmie National Forest,
State of Washington, acting for the U.S. Department of Agriculture, Forest
Service, as amended by that certain Amendment Number One to Assignment in Trust
of Special Use Permit dated as of October 5, 1990 (as amended, the "Assignment
in Trust"); and
WHEREAS, Assignor and Assignee have obtained the written consent of the
U.S. Department of Agriculture, Forest Service, to the Assignment in Trust; and
WHEREAS, Assignor and Assignee have agreed to amend and restate the
Prior Loan Agreement pursuant to the terms of that certain Second Amended and
Restated Loan Agreement dated as of the date hereof (as the same may be amended
from time to time, the "Loan Agreement"); and
WHEREAS, in order to reflect the changes embodied in the Loan
Agreement, Assignor and Assignee now wish to amend the terms of the Assignment
in Trust.
NOW, THEREFORE, Assignor hereby agrees as follows:
1. AMENDMENT TO ASSIGNMENT IN TRUST. The first sentence of the second
paragraph of the Assignment in Trust is hereby deleted and the following
sentence is substituted in its stead:
The assignment is made in trust for the repayment of that
certain indebtedness payable by Assignor to Assignee
56
in a total aggregate amount not to exceed $7,000,000, as evidenced by
and in accordance with the terms of that certain Second Amended and
Restated Loan Agreement, dated as of September 14, 1995, (as the same
may be amended from time to time, the "Loan Agreement") executed by
Assignor in favor of Assignee; and it is understood that Assignee shall
not be liable for nor have any responsibility for the performance of
any of the obligations undertaken, made, or assumed by Assignor under
said Special Use Permit so long as Assignee has not entered into actual
possession of Assignor's interests and rights under said Special Use
Permit, and until such time, Assignor shall remain fully responsible
and liable for the performance of any and all obligations under said
Special Use Permit, and Assignor hereby agrees to fully conform and
comply with all such obligations of said Special Use Permit so long as
any of the indebtedness secured by this assignment remains outstanding.
2. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Assignment in Trust shall remain in full force and effect and
Assignor expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Assignment in Trust
and the provisions of this Amendment, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Assignor and Assignee and Lender as of the date first set
forth above.
ASSIGNOR: CRYSTAL MOUNTAIN, INC.
By
----------------------------------
Its
-----------------------------
By
----------------------------------
Its
-----------------------------
2
57
ASSIGNEE: SEATTLE-FIRST NATIONAL BANK
By
----------------------------------
Its
-----------------------------
3
58
CONSENT TO AMENDMENT NUMBER TWO
TO ASSIGNMENT IN TRUST
Reference is made to that certain Special Use Permit No. 8509120389
issued to Crystal Mountain, Inc. on April 9, 1962 by the White River Ranger
District, Snoqualmie National Forest, State of Washington, acting for the U.S.
Department of Agriculture, Forest Service (the "Special Use Permit"). Reference
is further made to that certain Assignment in Trust dated June 10, 1988,
pursuant to which Crystal Mountain, Inc. assigned to Seattle-First National Bank
all of its interests and rights under and by virtue of the Special Use Permit
(the "Assignment in Trust").
The United States of America, through the Forest Service, U.S.
Department of Agriculture, reconfirms its consent to the Assignment in Trust and
further consents to that certain Amendment Number Two to Assignment in Trust
dated as of the 14th day of September, 1995, amending the terms of the
Assignment in Trust, subject, however, to the following conditions: (a) the
execution of this consent shall not be construed as a transfer of the Special
Use Permit or as a release of Crystal Mountain, Inc. or its surety from their
obligations to the United States under the Special Use Permit, and (b) the
execution of this consent shall not give Seattle-First National Bank any
authority for occupancy and use of National Forest Land under the Special Use
Permit except as agent for the permittee.
DATED this ____ day of ___________, 1995.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE
____________________________________________
4
59
EXHIBIT E
AMENDMENT NUMBER TWO TO ASSIGNMENT IN
TRUST OF TERM SPECIAL USE PERMIT
THIS AMENDMENT NUMBER TWO TO ASSIGNMENT IN TRUST OF TERM SPECIAL USE
PERMIT ("Amendment") is made as of this 14th day of September, 1995, by CRYSTAL
MOUNTAIN, INC., a Washington corporation ("Assignor"), in favor of SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Assignee").
WHEREAS, Assignor and Assignee have entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan Agreement")
pursuant to which Assignee agreed to make certain revolving credit and term
loans to Assignor; and
WHEREAS, Assignor has executed an Assignment in Trust dated June 10,
1988, assigning to Assignee all of its interests and rights under and by virtue
of that certain Term Special Use Permit No. 8509120390 issued to the Assignor on
April 6, 1962 by the White River Ranger District, Snoqualmie National Forest,
State of Washington, acting for the U.S. Department of Agriculture, Forest
Service, as amended by that certain Amendment Number One to Assignment in Trust
of Term Special Use Permit dated as of October 5, 1990 (as amended, the
"Assignment in Trust"); and
WHEREAS, Assignor and Assignee have obtained the written consent of the
U.S. Department of Agriculture, Forest Service, to the Assignment in Trust; and
WHEREAS, Assignor and Assignee have agreed to amend and restate the
Loan Agreement pursuant to the terms of that certain Second Amended and Restated
Loan Agreement dated as of the date hereof (as the same may be amended from time
to time, the "Loan Agreement"); and
WHEREAS, in order to reflect the changes embodied in the Amended and
Restated Loan Agreement, Assignor and Assignee now wish to amend the terms of
the Assignment in Trust.
NOW, THEREFORE, Assignor hereby agrees as follows:
1. AMENDMENT TO ASSIGNMENT IN TRUST. The first sentence of the second
paragraph of the Assignment in Trust is hereby deleted and the following
sentence is substituted in its stead:
60
The assignment is made in trust for the repayment of that
certain indebtedness payable by Assignor to Assignee in a total
aggregate amount not to exceed $7,000,000, as evidenced by and in
accordance with the terms of that certain Second Amended and Restated
Loan Agreement, dated as of September 14, 1995 (as the same may be
amended from time to time, the "Loan Agreement") executed by Assignor
in favor of Assignee; and it is understood that Assignee shall not be
liable for nor have any responsibility for the performance of any of
the obligations undertaken, made, or assumed by Assignor under said
Term Special Use Permit so long as Assignee has not entered into actual
possession of Assignor's interests and rights under said Term Special
Use Permit, and until such time, Assignor shall remain fully
responsible and liable for the performance of any and all obligations
under said Term Special Use Permit, and Assignor hereby agrees to fully
conform and comply with all such obligations of said Term Special Use
Permit so long as any of the indebtedness secured by this assignment
remains outstanding.
2. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Assignment in Trust shall remain in full force and effect and
Assignor expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Assignment in Trust
and the provisions of this Amendment, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Assignor and Assignee and Lender as of the date first set
forth above.
ASSIGNOR: CRYSTAL MOUNTAIN, INC.
By
---------------------------------
Its
----------------------------
By
---------------------------------
2
61
Its
----------------------------
ASSIGNEE: SEATTLE-FIRST NATIONAL BANK
By
---------------------------------
Its
----------------------------
3
62
CONSENT TO AMENDMENT NUMBER TWO
TO ASSIGNMENT IN TRUST
Reference is made to that certain Term Special Use Permit No.
8509120390 issued to Crystal Mountain, Inc. on April 6, 1962 by the White River
Ranger District, Snoqualmie National Forest, State of Washington, acting for the
U.S. Department of Agriculture, Forest Service (the "Term Special Use Permit").
Reference is further made to that certain Assignment in Trust dated June 10,
1988, pursuant to which Crystal Mountain, Inc. assigned to Seattle-First
National Bank all of its interests and rights under and by virtue of the Term
Special Use Permit (the "Assignment in Trust").
The United States of America, through the Forest Service, U.S.
Department of Agriculture, reconfirms its consent to the Assignment in Trust and
further consents to that certain Amendment Number Two to Assignment in Trust
dated as of the 14th day of September, 1995, amending the terms of the
Assignment in Trust, subject, however, to the following conditions: (a) the
execution of this consent shall not be construed as a transfer of the Term
Special Use Permit or as a release of Crystal Mountain, Inc. or its surety from
their obligations to the United States under the Term Special Use Permit, and
(b) the execution of this consent shall not give Seattle-First National Bank any
authority for occupancy and use of National Forest Land under the Term Special
Use Permit except as agent for the permittee.
DATED this ____ day of ___________, 1995.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE
________________________________________________
4
63
EXHIBIT F
OPINION OF COUNSEL TO BORROWER
[On letterhead of XxXxxxx & Xxxxxx]
[Dated the date of September 14, 1995]
Seattle-First National Bank
Re: Crystal Mountain, Inc. Loan Agreement
Dear Sirs:
We have acted as counsel for Crystal Mountain, Inc. ("Borrower") in
connection with the financing transactions contemplated by the Second Amended
and Restated Loan Agreement dated as of September 14, 1995, (the "Loan
Agreement") between Seattle-First National Bank, as Lender, and Borrower. Terms
used and not otherwise defined herein have the meanings defined in the Loan
Agreement.
Execution of the following documents (collectively, the "Additional
Loan Documents") is contemplated by the Loan Agreement.
1. The Loan Agreement;
2. The Note;
3. Amendment Number Two to Deed of Trust;
4. Amendment Number Two to Security Agreement; and
5. Amendment Number Two to Assignment in Trust of Term Special
Use Permit and Amendment Number Two to Assignment in Trust of Special Use Permit
(collectively, the "Assignments in Trust").
In connection with this opinion we have examined executed copies of the
Loan Documents (including, without limitation, the Additional Loan Documents)
and originals or copies of such other documents, corporate records, certificates
and other statements
5
64
of government officials, corporate officers and other representatives of the
persons referred to herein, and such other instruments as we have considered
necessary or appropriate for purposes of this opinion.
Based upon our review of the foregoing and subject to the
qualifications hereinafter stated, we advise you that in our opinion:
1. Corporate Existence and Power. Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Washington, is qualified to do business in each other jurisdiction where the
conduct of its business or the ownership of its properties requires such
qualification, and has full corporate power, authority and legal right to carry
on its business as presently conducted and to own and operate its properties and
assets. Borrower has full corporate power, authority and legal right to execute
and deliver the Additional Loan Documents and to perform all Loan Documents.
2. Corporate Authorization. The execution and delivery by Borrower of
the Additional Loan Documents and performance by Borrower of the Loan Documents,
as amended by the Additional Loan Documents, and any borrowing thereunder have
been duly authorized by all necessary corporate action of Borrower, do not
require any shareholder approval or the approval or consent of any trustee or
the holders of any Indebtedness of Borrower, except such as have been obtained
(certified copies thereof having been delivered to the Agent), do not contravene
any law, regulation, rule or order binding on them or their Articles of
Incorporation or Bylaws and do not contravene the provisions of or constitute a
default under any indenture, mortgage, contract or other agreement or instrument
to which Borrower, is a party or by which Borrower or any of its properties may
be bound or affected.
3. Government Approvals, Etc. No Government Approval or filing or
registration with any Governmental Authority is required for the making and
performance by Borrower of any Loan Document, except such as have been
heretofore obtained and are in full force and effect (certified copies thereof
having been delivered to Lender).
4. Binding Obligations, Etc. The Loan Documents have been duly executed
and delivered by Borrower and constitute the
6
65
legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms.
5. Litigation. There are no actions, proceedings, investigations, or
claims against or affecting Borrower now pending before any court, arbitrator or
Governmental Authority which if determined adversely to Borrower would be likely
to have a material adverse effect on the financial condition or operations of
Borrower or to result in a judgment or order against Borrower (in excess of
insurance coverage) for more than $200,000 in any one case.
6. Title and Liens. The Deed of Trust, Security Agreement and
Assignments in Trust create a valid security interest and lien in all property
of Borrower, all as security for all of Borrower's obligations to Lender in
respect of the Loan Commitment.
7. Federal Reserve Regulations. To the best of our knowledge, Borrower
is not engaged principally or as one of its important activities in the business
of extending credit for the purpose of purchasing or carrying any margin stock
(within the meaning of Federal Reserve Regulation U).
The opinions expressed above are subject to the following
qualifications:
A. In rendering the foregoing opinions, we have relied upon
certificates from governmental agencies and responsible corporate officers of
Borrower as to questions of fact to the extent we have deemed such reliance
proper.
B. The enforceability of the obligations of Borrower under the Loan
Documents is subject to any applicable bankruptcy, insolvency or any similar
laws affecting creditors' rights generally and to general principles of equity
(whether asserted in an action in equity or at law).
C. We express no opinion as to the laws of any jurisdiction other than
the State of Washington and the federal laws of the United States.
Very truly yours,
7
66
[signature of counsel for
Borrower]
8
67
EXHIBIT G
INTEREST RATE NOTICE
To: Seattle-First National Bank
Tacoma Seafirst Financial Center
Tacoma, WA
INTEREST RATE NOTICE
Rate Requested: Adjusted LIBOR
Applicable Interest Period:
1 month / / 2 months / / 3 months / / 6 months / /
Requested first date of Interest Period: _______________
Amount to be converted: __________________________
(amount must be not less than $____________________
and must be an integral multiple of
$------------------)
Borrower hereby represents and warrants to Lenders that as of
the date hereof (a) the statements set forth in Article V of the Loan
Agreement are true and correct (subject to any waivers of the terms
thereof then in effect in accordance with the terms of this Agreement);
and (b) no Default or Event of Default (as defined in the Loan
Agreement) has occurred and is continuing or will result from
disbursement of the requested loan.
DATED as of the ______ day of ______________, ______.
CRYSTAL MOUNTAIN, INC., a Washington corporation,
By By
------------------------- -------------------------
Its Authorized Signer Its Authorized Signer
9
68
WHEN RECORDED, RETURN TO:
Xxxxx Xxxxxx Xxxxxxxx
Attn: Xx. Xxxxxxxxx X. XxXxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
===============================================================================
AMENDMENT NUMBER TWO TO
DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF PERMITS AND CONTRACT RIGHTS,
LEASES AND RENTS
THIS AMENDMENT NUMBER TWO TO DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF PERMITS AND CONTRACT RIGHTS, LEASES AND RENTS ("Amendment") is
made as of this 14th day of September, 1995, between CRYSTAL MOUNTAIN, INC., a
Washington corporation ("Grantor"), and SEATTLE-FIRST NATIONAL BANK, a national
banking association ("Beneficiary").
WHEREAS, Beneficiary and Grantor entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan
Agreement"), pursuant to which Beneficiary agreed to make certain revolving
credit and term loans to Grantor; and
WHEREAS, Grantor executed a Deed of Trust, Security Agreement and
Assignment of Permits and Contract Rights, Leases and Rents dated June 15, 1988
and recorded on June 28, 1988 under Xxxxxx County Auditor's Number 8806280189,
to DWTR&J Corp. as Trustee for the benefit of Beneficiary, as amended by that
certain Amendment Number One to Deed of Trust, Security Agreement and Assignment
of Permits and Contract Rights, Leases and Rents dated as of October 5, 1990 and
recorded on October 25, 1990 under Xxxxxx County Auditor's Number 901025011 (as
amended, the "Deed of Trust"); and
WHEREAS, Beneficiary and Grantor have agreed to amend and restate the
Prior Loan Agreement pursuant to the terms of that certain Second Amended and
Restated Loan Agreement dated as of the date hereof (as the same may be amended
from time to time, the "Loan Agreement"); and
69
WHEREAS, the parties hereto desire to amend the Deed of Trust by (a)
modifying the terms thereof to such extent as may be provided below, and (b)
expressly recognizing and affirming the continuing effectiveness and priority of
the lien of the Deed of Trust, as amended hereby, as to the sums owing
thereunder.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. AMENDMENT TO DEED OF TRUST. The description of "Obligations Secured"
set forth in subparagraph (a) of Section 1 of the Deed of Trust is hereby
deleted and the following paragraph is substituted in its stead:
(a) Payment of the sum of $7,000,000 with interest thereon
under the Loan Commitment (as such Loan Commitment is defined in the
Loan Agreement described below) according to the terms of the Second
Amended and Restated Loan Agreement dated as of the 14th day of
September, 1995, between Grantor and Beneficiary (as the same may be
amended from time to time, the "Loan Agreement") and the Note executed
by Grantor in the form of Exhibit A to the Loan Agreement, payable to
Beneficiary (the "Note," which term shall include all loan agreements
and notes evidencing the indebtedness secured by this Deed of Trust and
all replacements, renewals, modifications or extensions thereof);
2. AFFIRMATION OF SECURITY. The Deed of Trust, as amended by this
Amendment, is incorporated herein in its entirety by this reference, and Grantor
and Beneficiary jointly affirm and agree that the Deed of Trust, as amended,
secures the full performance of each and every obligation to be secured thereby
as described in the Loan Agreement and continues to be effective as, and to
constitute, a lien on the property described in the Deed of Trust to the full
extent of all obligations secured thereby.
3. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Deed of Trust shall remain in full force and effect and
Grantor expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Deed of Trust and the
provisions of this Amendment, the terms of this Amendment shall control.
2
70
4. ACCESS TO LOAN AGREEMENT. A true and correct copy of the Loan
Agreement is maintained by the Beneficiary at the address set forth below the
Beneficiary's signature.
5. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Grantor and Beneficiary as of the day and year first above
written.
GRANTOR: CRYSTAL MOUNTAIN, INC.
X.X. Xxx 0
Xxxxxxx Xxxxxxxx, XX 00000
By
-------------------------------------
Its
---------------------------------
By
-------------------------------------
Its
---------------------------------
BENEFICIARY: SEATTLE-FIRST NATIONAL BANK
Tacoma Seafirst Financial Center
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
By
-------------------------------------
Its
---------------------------------
3
71
STATE OF WASHINGTON )
) ss.
COUNTY OF ______ )
On this ______ day of _____________, 1995, before me, a Notary Public
in and for the State of Washington, personally appeared_____________
and_____________ , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons who executed this instrument, on oath
stated that they were authorized to execute the instrument, and acknowledged it
as the _____________and_____________ , respectively, of CRYSTAL MOUNTAIN, INC.
to be the free and voluntary act and deed of said corporation for the uses and
purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
__________________________________
NOTARY PUBLIC in and for the State
of Washington, residing at
My appointment expires
Print Name:
STATE OF WASHINGTON )
) ss.
COUNTY OF _______ )
On this _____ day of _______________, 1995, before me, a Notary Public
in and for the State of Washington, personally appeared_____________ ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed this instrument, on oath stated that he was
authorized to execute the instrument, and acknowledged it as the_____________ of
SEATTLE-FIRST NATIONAL BANK to be the free and voluntary act and deed of said
national banking association for the uses and purposes mentioned in the
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
__________________________________
NOTARY PUBLIC in and for the State
of Washington, residing at
4
72
My appointment expires __________________
Print Name: _____________________________
5
73
AMENDMENT NUMBER TWO TO SECURITY AGREEMENT
THIS AMENDMENT NUMBER TWO TO SECURITY AGREEMENT ("Amendment") is made
as of this 14th day of September, 1995, by CRYSTAL MOUNTAIN, INC., a Washington
corporation ("Borrower"), in favor of SEATTLE-FIRST NATIONAL BANK, a national
banking association ("Lender").
WHEREAS, Lender and Borrower have entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan
Agreement"), pursuant to which Lender agreed to make certain revolving credit
and term loans to Borrower; and
WHEREAS, Borrower executed a Security Agreement dated June 15, 1988, in
favor of Lender, as amended by that certain Amendment Number One to Security
Agreement dated as of October 5, 1990 (as amended, the "Security Agreement");
and
WHEREAS, Lender and Borrower have agreed to amend and restate the Prior
Loan Agreement pursuant to the terms of that certain Second Amended and Restated
Loan Agreement dated as of the date hereof (as the same may be amended from time
to time, the "Loan Agreement"); and
WHEREAS, in order to reflect the changes embodied in the Loan
Agreement, Borrower and Lender now wish to amend the terms of the Security
Agreement.
NOW, THEREFORE, Borrower hereby agrees to the following amendments to
the Security Agreement:
1. AMENDMENT TO SECURITY AGREEMENT. The final paragraph on page 2 of
the Security Agreement is hereby deleted and the following paragraph is
substituted in its stead:
THIS SECURITY INTEREST is given to secure the payment to
Lender when due of all amounts now due or which may become due to
Lender from Borrower under (a) that certain Second Amended and Restated
Loan Agreement dated as of the 14th day of September, 1995, between the
Lender and the Borrower (as the same shall be amended from time to
time, herein called the "Loan Agreement"), or (b) the Note (in the form
attached as Exhibit A to the Loan Agreement) as the same may be
amended, renewed or extended from time to time; or (c) this Security
Agreement or any other document or agreement contemplated by the Loan
Agreement; and to secure the Borrower's full and timely performance and
observance of
74
all covenants and conditions contained in this Security
Agreement, the Loan Agreement, and the Note (all such amounts and
obligations are collectively hereinafter called the "Secured
Obligations").
2. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Security Agreement shall remain in full force and effect and
Borrower expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Security Agreement
and the provisions of this Amendment, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Borrower and Lender as of the date first set forth above.
BORROWER: CRYSTAL MOUNTAIN, INC.
By
___________________________________
Its
_____________________________
By
___________________________________
Its
_____________________________
LENDER: SEATTLE-FIRST NATIONAL BANK
By
___________________________________
Its
_____________________________
2
75
AMENDMENT NUMBER TWO TO
ASSIGNMENT IN TRUST OF SPECIAL USE PERMIT
THIS AMENDMENT NUMBER ONE TO ASSIGNMENT IN TRUST OF SPECIAL USE PERMIT
("Amendment") is made as of this 14th day of September, 1995, by CRYSTAL
MOUNTAIN, INC., a Washington corporation ("Assignor"), in favor of SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Assignee").
WHEREAS, Assignor and Assignee have entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan Agreement")
pursuant to which Assignee agreed to make certain revolving credit and term
loans to Assignor; and
WHEREAS, Assignor has executed an Assignment in Trust dated June 10,
1988, assigning to Assignee all of its interests and rights under and by virtue
of that certain Special Use Permit No. 8509120389 issued to the Assignor on
April 9, 1962 by the White River Ranger District, Snoqualmie National Forest,
State of Washington, acting for the U.S. Department of Agriculture, Forest
Service, as amended by that certain Amendment Number One to Assignment in Trust
of Special Use Permit dated as of October 5, 1990 (as amended, the "Assignment
in Trust"); and
WHEREAS, Assignor and Assignee have obtained the written consent of the
U.S. Department of Agriculture, Forest Service, to the Assignment in Trust; and
WHEREAS, Assignor and Assignee have agreed to amend and restate the
Prior Loan Agreement pursuant to the terms of that certain Second Amended and
Restated Loan Agreement dated as of the date hereof (as the same may be amended
from time to time, the "Loan Agreement"); and
WHEREAS, in order to reflect the changes embodied in the Loan
Agreement, Assignor and Assignee now wish to amend the terms of the Assignment
in Trust.
NOW, THEREFORE, Assignor hereby agrees as follows:
1. AMENDMENT TO ASSIGNMENT IN TRUST. The first sentence of the
second paragraph of the Assignment in Trust is hereby deleted and the following
sentence is substituted in its stead:
The assignment is made in trust for the repayment of that
certain indebtedness payable by Assignor to Assignee in a total
aggregate amount not to exceed $7,000,000, as evidenced by and in
accordance with the terms of that
76
certain Second Amended and Restated Loan Agreement, dated as of
September 14, 1995, (as the same may be amended from time to time, the
"Loan Agreement") executed by Assignor in favor of Assignee; and it is
understood that Assignee shall not be liable for nor have any
responsibility for the performance of any of the obligations
undertaken, made, or assumed by Assignor under said Special Use Permit
so long as Assignee has not entered into actual possession of
Assignor's interests and rights under said Special Use Permit, and
until such time, Assignor shall remain fully responsible and liable for
the performance of any and all obligations under said Special Use
Permit, and Assignor hereby agrees to fully conform and comply with all
such obligations of said Special Use Permit so long as any of the
indebtedness secured by this assignment remains outstanding.
2. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Assignment in Trust shall remain in full force and effect and
Assignor expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Assignment in Trust
and the provisions of this Amendment, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Assignor and Assignee and Lender as of the date first set
forth above.
ASSIGNOR: CRYSTAL MOUNTAIN, INC.
By
_________________________________
Its
_____________________________
By
_________________________________
Its
_____________________________
ASSIGNEE: SEATTLE-FIRST NATIONAL BANK
2
77
By
__________________________________
Its
_____________________________
3
78
CONSENT TO AMENDMENT NUMBER TWO
TO ASSIGNMENT IN TRUST
Reference is made to that certain Special Use Permit No. 8509120389
issued to Crystal Mountain, Inc. on April 9, 1962 by the White River Ranger
District, Snoqualmie National Forest, State of Washington, acting for the U.S.
Department of Agriculture, Forest Service (the "Special Use Permit"). Reference
is further made to that certain Assignment in Trust dated June 10, 1988,
pursuant to which Crystal Mountain, Inc. assigned to Seattle-First National Bank
all of its interests and rights under and by virtue of the Special Use Permit
(the "Assignment in Trust").
The United States of America, through the Forest Service, U.S.
Department of Agriculture, reconfirms its consent to the Assignment in Trust and
further consents to that certain Amendment Number Two to Assignment in Trust
dated as of the 14th day of September, 1995, amending the terms of the
Assignment in Trust, subject, however, to the following conditions: (a) the
execution of this consent shall not be construed as a transfer of the Special
Use Permit or as a release of Crystal Mountain, Inc. or its surety from their
obligations to the United States under the Special Use Permit, and (b) the
execution of this consent shall not give Seattle-First National Bank any
authority for occupancy and use of National Forest Land under the Special Use
Permit except as agent for the permittee.
DATED this ____ day of ___________, 1995.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE
____________________________________
4
79
AMENDMENT NUMBER TWO TO ASSIGNMENT IN
TRUST OF TERM SPECIAL USE PERMIT
THIS AMENDMENT NUMBER TWO TO ASSIGNMENT IN TRUST OF TERM SPECIAL USE
PERMIT ("Amendment") is made as of this 14th day of September, 1995, by CRYSTAL
MOUNTAIN, INC., a Washington corporation ("Assignor"), in favor of SEATTLE-FIRST
NATIONAL BANK, a national banking association ("Assignee").
WHEREAS, Assignor and Assignee have entered into a First Amended and
Restated Loan Agreement dated as of October 5, 1990 (the "Prior Loan Agreement")
pursuant to which Assignee agreed to make certain revolving credit and term
loans to Assignor; and
WHEREAS, Assignor has executed an Assignment in Trust dated June 10,
1988, assigning to Assignee all of its interests and rights under and by virtue
of that certain Term Special Use Permit No. 8509120390 issued to the Assignor on
April 6, 1962 by the White River Ranger District, Snoqualmie National Forest,
State of Washington, acting for the U.S. Department of Agriculture, Forest
Service, as amended by that certain Amendment Number One to Assignment in Trust
of Term Special Use Permit dated as of October 5, 1990 (as amended, the
"Assignment in Trust"); and
WHEREAS, Assignor and Assignee have obtained the written consent of the
U.S. Department of Agriculture, Forest Service, to the Assignment in Trust; and
WHEREAS, Assignor and Assignee have agreed to amend and restate the
Loan Agreement pursuant to the terms of that certain Second Amended and Restated
Loan Agreement dated as of the date hereof (as the same may be amended from time
to time, the "Loan Agreement"); and
WHEREAS, in order to reflect the changes embodied in the Amended and
Restated Loan Agreement, Assignor and Assignee now wish to amend the terms of
the Assignment in Trust.
NOW, THEREFORE, Assignor hereby agrees as follows:
1. AMENDMENT TO ASSIGNMENT IN TRUST. The first sentence of the second
paragraph of the Assignment in Trust is hereby deleted and the following
sentence is substituted in its stead:
The assignment is made in trust for the repayment of that
certain indebtedness payable by Assignor to Assignee in a total
aggregate amount not to exceed $7,000,000, as
80
evidenced by and in accordance with the terms of that certain Second
Amended and Restated Loan Agreement, dated as of September 14, 1995 (as
the same may be amended from time to time, the "Loan Agreement")
executed by Assignor in favor of Assignee; and it is understood that
Assignee shall not be liable for nor have any responsibility for the
performance of any of the obligations undertaken, made, or assumed by
Assignor under said Term Special Use Permit so long as Assignee has not
entered into actual possession of Assignor's interests and rights under
said Term Special Use Permit, and until such time, Assignor shall
remain fully responsible and liable for the performance of any and all
obligations under said Term Special Use Permit, and Assignor hereby
agrees to fully conform and comply with all such obligations of said
Term Special Use Permit so long as any of the indebtedness secured by
this assignment remains outstanding.
2. REMAINING TERMS AND CONDITIONS UNCHANGED; AMENDMENT CONTROLS. Except
as expressly modified by the terms of this Amendment, all the terms and
conditions of the Assignment in Trust shall remain in full force and effect and
Assignor expressly reaffirms and ratifies its obligations thereunder. To the
extent there is any conflict between the provisions of the Assignment in Trust
and the provisions of this Amendment, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment or the signature pages and
acknowledgments, may be executed in any number of counterparts for the
convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same Amendment.
EXECUTED by Assignor and Assignee and Lender as of the date first set
forth above.
ASSIGNOR: CRYSTAL MOUNTAIN, INC.
By
____________________________________
Its
______________________________
By
____________________________________
Its
______________________________
2
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ASSIGNEE: SEATTLE-FIRST NATIONAL BANK
By
____________________________________
Its
______________________________
3
82
CONSENT TO AMENDMENT NUMBER TWO
TO ASSIGNMENT IN TRUST
Reference is made to that certain Term Special Use Permit No.
8509120390 issued to Crystal Mountain, Inc. on April 6, 1962 by the White River
Ranger District, Snoqualmie National Forest, State of Washington, acting for the
U.S. Department of Agriculture, Forest Service (the "Term Special Use Permit").
Reference is further made to that certain Assignment in Trust dated June 10,
1988, pursuant to which Crystal Mountain, Inc. assigned to Seattle-First
National Bank all of its interests and rights under and by virtue of the Term
Special Use Permit (the "Assignment in Trust").
The United States of America, through the Forest Service, U.S.
Department of Agriculture, reconfirms its consent to the Assignment in Trust and
further consents to that certain Amendment Number Two to Assignment in Trust
dated as of the 14th day of September, 1995, amending the terms of the
Assignment in Trust, subject, however, to the following conditions: (a) the
execution of this consent shall not be construed as a transfer of the Term
Special Use Permit or as a release of Crystal Mountain, Inc. or its surety from
their obligations to the United States under the Term Special Use Permit, and
(b) the execution of this consent shall not give Seattle-First National Bank any
authority for occupancy and use of National Forest Land under the Term Special
Use Permit except as agent for the permittee.
DATED this ____ day of ___________, 1995.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE
_____________________________________
4
