FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 10, 2002
Among
BOOTH CREEK SKI HOLDINGS, INC.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BEAR MOUNTAIN, INC.
BOOTH CREEK SKI ACQUISITION CORP.
WATERVILLE VALLEY SKI RESORT, INC.
MOUNT CRANMORE SKI RESORT, INC.
SKI LIFTS, INC.
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP.,
as Borrowers,
DRE, L.L.C.,
as Guarantor
THE LENDERS PARTY HERETO,
as Lenders
and
FLEET NATIONAL BANK,
as Agent for the Lenders
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"First Amendment") is entered into as of October 10, 2002 by and among BOOTH
CREEK SKI HOLDINGS, INC., a Delaware corporation (together with its successors
and assigns, "BCS Holdings"), BOOTH CREEK SKI ACQUISITION CORP., a Delaware
corporation (together with its successors and assigns, "BCS Acquisition"),
TRIMONT LAND COMPANY, a California corporation (together with its successors and
assigns, "TLC"), SIERRA-AT-TAHOE, INC., a Delaware corporation (together with
its successors and assigns, "Sierra-at-Tahoe"), BEAR MOUNTAIN, INC., a Delaware
corporation (together with its successors and assigns, "Bear Mountain"),
WATERVILLE VALLEY SKI RESORT, INC., a Delaware corporation (together with its
successors and assigns, "Waterville"), MOUNT CRANMORE SKI RESORT, INC., a
Delaware corporation (together with its successors and assigns, "Cranmore"), SKI
LIFTS, INC., a Washington corporation (together with its successors and assigns,
"Ski Lifts"), LMRC HOLDING CORP., a Delaware corporation (together with its
successors and assigns, "LMRC Holding"), LOON MOUNTAIN RECREATION CORPORATION, a
New Hampshire corporation (together with its successors and assigns, "Loon"),
and LOON REALTY CORP., a New Hampshire corporation (together with its successors
and assigns, "Loon Realty," and together with BCS Holdings, BCS Acquisition,
TLC, Sierra-at-Tahoe, Bear Mountain, Waterville, Cranmore, Ski Lifts, LMRC
Holding and Loon, the "Borrowers", and each a "Borrower"), as borrowers, DRE,
L.L.C., a Delaware limited liability company (together with its successors and
assigns, the "Guarantor"), as guarantor, the lenders from time to time party to
the Credit Agreement described below (the "Lenders"), and FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.), as agent (the "Agent") for itself and the other
Lenders.
Recitals
The Borrowers, the Guarantor, the Lenders and the Agent are parties to
an Amended and Restated Credit Agreement dated as of March 15, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
BCS Holdings desires to sell all of the capital stock of Bear Mountain (the
"Bear Mountain Stock Sale") pursuant to that certain Stock Purchase Agreement
dated as of July 22, 2002 by and among Bear Mountain Resort, Inc. and Snow
Summit Ski Corporation, as purchasing parties, and BCS Holdings, as seller (the
"Bear Mountain Stock Purchase Agreement"). The Lenders are willing to consent to
the Bear Mountain Stock Sale, the release of Bear Mountain as a Borrower and a
Loan Party under the Credit Agreement and all other Lender Agreements, and the
release of the Agent's liens on the capital stock of Bear Mountain held by BCS
Holdings and on the personal and real property of Bear Mountain covered by
certain security agreements and mortgages executed in connection with the Credit
Agreement, all in accordance with the terms hereof. All capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the Credit
Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged and subject to the satisfaction of
the conditions to effectiveness specified in Section 5, the Borrowers, the
Guarantor, the Lenders and the Agent hereby amend the Credit Agreement and agree
as follows:
Section 1. Definitions. Section 1.2 of the Credit Agreement is hereby
amended as follows:
(a) The definitions of "California Resorts", "Mortgages" and
"Security Agreements" are hereby deleted in their entirety and new
definitions substituted therefor as follows:
"`Borrowers' means BCS Holdings, BCS Acquisition,
TLC, Sierra-at-Tahoe, Waterville, Cranmore, Ski Lifts, LMRC
Holding, Loon and Loon Realty."
"`California Resorts' means the Northstar-at-Tahoe
and Sierra-at-Tahoe ski resorts, collectively."
"`Mortgages' means, collectively, the TLC
Mortgage, the Sierra-at-Tahoe Mortgage, the Waterville
Mortgage, the Cranmore Mortgage, the DRE Mortgage, the Ski
Lifts Mortgage, the Loon Mortgage and related assignments to
the Agent of leases of real property owned by any of the
Loan Parties."
"`Security Agreements' means, collectively, the
TLC Security Agreement, the Sierra-at-Tahoe Security
Agreement, the Waterville Security Agreement, the Cranmore
Security Agreement, the Ski Lifts Security Agreement, the
DRE Security Agreement, the LMRC Holding Security Agreement,
the Loon Security Agreement, the Loon Realty Security
Agreement, the BCS Acquisition Security Agreement and the
BCS Holdings Security Agreement."
(b) The following new definitions of "Bear Mountain Stock
Purchase Agreement" "Bear Mountain Stock Sale" and "First Amendment"
shall be added in alphabetical order, as follows:
"`Bear Mountain Stock Purchase Agreement' shall
have the meaning ascribed thereto in the recitals to the
First Amendment."
"`Bear Mountain Stock Sale' shall have the meaning
ascribed thereto in the recitals to the First Amendment."
"`First Amendment' means that certain First
Amendment to Amended and Restated Credit Agreement dated as
of October 10, 2002 by and among the Borrowers, the
Guarantor, the Lenders and the Agent."
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(c) The definitions of "Bear Mountain", "Bear Mountain
Mortgage" and "Bear Mountain Security Agreement" are hereby deleted in
their entirety.
Section 2. Consent to Bear Mountain Stock Sale; Release of Bear
Mountain as Borrower; Release of Liens.
(a) Notwithstanding the provisions of Section 5.12 of the
Credit Agreement, the Lenders hereby consent to the consummation of
the Bear Mountain Stock Sale in accordance with the terms of the Bear
Mountain Stock Purchase Agreement. In connection therewith, the
Lenders hereby (i) release Bear Mountain as a Borrower and a Loan
Party (as well as a Subsidiary of a Loan Party) under the Credit
Agreement and from any and all liabilities and obligations owing to
the Lenders under any Lender Agreement, and (ii) release the liens of
the Agent and the Lenders on (A) the capital stock of Bear Mountain
held by BCS Holdings under the BCS Holdings Security Agreement and (B)
the real and personal property of Bear Mountain covered by the Bear
Mountain Mortgage and the Bear Mountain Security Agreement, and the
Lenders hereby agree, at the reasonable request of the Borrowers and
at the Borrowers' expense, to execute and deliver termination
statements and other documents reflecting such releases prepared by
the Borrowers. Upon the consummation of the Bear Mountain Stock Sale,
the Agent shall deliver to BCS Holdings the stock certificate(s)
representing the issued and outstanding stock of Bear Mountain pledged
to the Agent pursuant to the BCS Holdings Security Agreement.
(b) The transactions contemplated by the Bear Mountain Stock
Purchase Agreement shall not be deemed to constitute, or contribute
to, a Material Adverse Change under any Lender Agreement.
(c) The Loan Parties hereby represent and warrant that (i)
the Bear Mountain Stock Sale constitutes an Asset Sale (as defined in
the Senior Indenture), and (ii) the consideration to be received by
BCS Holdings in consideration of the Bear Mountain Stock Sale is at
least equal to the fair market value of the assets to be sold pursuant
to the Bear Mountain Stock Purchase Agreement as determined in good
faith by the Board of Directors of BCS Holdings, as evidenced by a
resolution duly adopted by the Board of Directors. BCS Holdings hereby
agrees that (A) it will notify the Agent of the final amount of Asset
Sale Proceeds (as defined in the Senior Indenture) from the Bear
Mountain Stock Sale promptly after determination of all adjustments
under the Bear Mountain Stock Purchase Agreement and (B) it will apply
such Asset Sale Proceeds in accordance with the requirements of
Section 4.10 of the Senior Indenture so as not to require BCS Holdings
to make an Excess Proceeds Offer (as defined in the Senior Indenture).
Section 3. Amendment of Schedules. Schedules 6.1(a), 6.3, 6.4, 6.17
and 6.23 attached hereto hereby replace in their entirety the corresponding
schedules attached to the Credit Agreement.
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Section 4. Amendments
(a) The second sentence of Section 2.15 of the Credit
Agreement is hereby amended and restated to read as follows:
"Without the prior written consent of the Lenders, no
portion of the Revolving Credit Advances shall be used by the
Borrowers for the purchase of the Senior Unsecured Notes."
(b) Section 5.5 of the Credit Agreement is hereby amended by
deleting paragraphs (a) and (c) thereof in their entirety and
substituting therefor the following:
"(a) Minimum Consolidated Resort EBITDA. The Loan
Parties and their Subsidiaries shall earn Consolidated
Resort EBITDA for any four consecutive fiscal quarter period
ending during each period set forth below of not less than
the amount set forth opposite such period:
Period Minimum Resort
------ --------------
EBITDA
------
February 1, 2002 through January 31, 2005 $23,500,000
April 30, 2005 and thereafter $26,500,000
"(c) Adjusted Consolidated Leverage Ratio. The
Adjusted Consolidated Leverage Ratio of the Loan Parties at
all times shall not exceed the ratio set forth below
opposite such period:
Leverage Ratio Period Adjusted Leverage
--------------------- -----------------
Ratio
-----
Closing Date through October 29, 2004 .55:1
October 30, 2004 through October 28, 2005 .50:1
Thereafter .45:1"
(c) For purposes of calculating compliance with the
financial covenants in Sections 5.5(a) and (b) of the Credit Agreement
for the Borrowers' fiscal quarters ending November 1, 2002, February
1, 2003, May 2, 2003, August 1, 2003 and October 31, 2003, such
covenants shall be calculated after giving pro forma effect to the
Bear Mountain Stock Sale and the application of the proceeds
therefrom.
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Section 5. Effectiveness; Conditions to Effectiveness. This First
Amendment shall become effective upon execution and delivery hereof by the
Borrowers, the Guarantor, the Lenders and the Agent and satisfaction of the
following conditions:
(a) Bear Mountain Stock Sale. BCS Holdings shall have
delivered to the Agent evidence of the consummation of the Bear
Mountain Stock Sale in accordance with the terms of the Bear Mountain
Stock Purchase Agreement.
(b) Board of Directors Resolutions. The Loan Parties shall
have delivered to the Agent certified copies of resolutions of their
Boards of Directors authorizing execution, delivery and performance of
this First Amendment and any other documents to be executed by the
Loan Parties in connection therewith, and BCS Holdings shall have
delivered to the Agent a certified copy of resolutions of its Board of
Directors authorizing the Bear Mountain Stock Sale and making the
determination required under Section 4.10 of the Senior Indenture, in
each case certified by the Secretary or Assistant Secretary of each
Loan Party (which certificate shall state that such resolutions are in
full force and effect).
(c) Secretary's Certificates. The Loan Parties shall have
delivered to the Agent a certificate of the Secretary or Assistant
Secretary of each Loan Party, certifying (i) that no amendments have
been made to the charter documents of such Loan Party as previously
delivered to the Agent on the Closing Date, (ii) that no amendments
have been made to the bylaws of such Loan Party as previously
delivered to the Agent on the Closing Date, and (iii) as to the names
and signatures of the officers of such Loan Party authorized to sign
this Amendment and any other documents to be executed by such Loan
Party in connection therewith.
(d) Opinions of Counsel. BCS Holdings shall have delivered
to the Agent an opinion of Loeb & Loeb LLP with respect to the Bear
Mountain Stock Sale, compliance with the Senior Indenture, the
execution, delivery and enforceability of this First Amendment and
such other matters as the Agent may reasonably request.
Section 6. Representations and Warranties; No Default. The Loan
Parties confirm to the Lenders their representations and warranties set forth in
Article 6 of the Credit Agreement (as amended hereby) (except as to transactions
permitted under the Credit Agreement and described in a Compliance Certificate
previously delivered to the Agent or in this First Amendment and except to the
extent that any representation or warranty expressly relates to an earlier date)
as of the date hereof, as if set forth herein in full. The Loan Parties certify
that no Default exists under the Credit Agreement.
Section 7. Miscellaneous. The Borrowers, jointly and severally, agree
to pay on demand all of the Agent's reasonable expenses in preparing, executing
and delivering this First Amendment, and all related instruments and documents,
including, without limitation, the reasonable fees and out-of-pocket expenses of
the Agent's special counsel, Xxxxxxx Procter LLP. This First Amendment shall be
a Lender Agreement and shall be governed by and construed and enforced under the
laws of The Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the Borrowers, the Guarantor, the Lenders and the
Agent have caused this First Amendment to Amended and Restated Credit Agreement
to be executed by their duly authorized officers as of the date first set forth
above.
BOOTH CREEK SKI HOLDINGS, INC.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BEAR MOUNTAIN, INC.
BOOTH CREEK SKI ACQUISITION CORP.
WATERVILLE VALLEY SKI RESORTS, INC.
MOUNT CRANMORE SKI RESORT, INC.
SKI LIFTS, INC.
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP., as Borrowers
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and General
Counsel
DRE, L.L.C., as Guarantor
By: Ski Lifts, Inc., its Manager
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and General
Counsel
FLEET NATIONAL BANK, as Agent
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name:
Title:
6
FLEET NATIONAL BANK, as Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxx X. Salem
------------------------------------
Name:
Title:
7
