EXHIBIT 10.97
COLLATERAL ASSIGNMENT OF DECLARANT'S RIGHTS
This COLLATERAL ASSIGNMENT OF DECLARANT'S RIGHTS (this "AGREEMENT") is made
as of the 1st day of August, 1997.
1. BACKGROUND. Textron Financial Corporation, a Delaware corporation
having a principal place of business at 000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 ("ADMINISTRATIVE AGENT"), in its capacity as
Administrative Agent under that certain Loan and Security Agreement (as amended,
the "LSA"), dated as of August 1, 1997 among Grand Summit Resort Properties,
Inc., a Maine corporation having a principal place of business at X.X. Xxx 000,
Xxxxxx Xxxxx Xxxx, Xxxxxx, XX 00000 (the "BORROWER"), and the lenders that are
parties thereto, is the holder (on behalf of the aforesaid lenders) of a certain
Mortgage, Assignment of Rents and Security Agreement given by the Borrower,
dated as of August 1, 1997, and recorded in Xxxxxxx County, New Hampshire (the
"LAND RECORDS") in Book 1711, Page 590 (the "MORTGAGE"). The Borrower is the
declarant (the "DECLARANT") under that certain Declaration of Condominium for
Grand Summit Hotel and Crown Club at Attitash Bear Peak, a condominium more
particularly described on Schedule 1 attached hereto, as amended from time to
time in accordance with the terms and provisions thereof and hereof (the
"DECLARATION"), relating to the Attitash Project, as defined in the LSA and more
particularly described on Exhibit A hereto (the "PROJECT").
Except as otherwise specifically stated herein, capitalized terms used
herein without definition shall have the meaning given to such terms in the
Declaration.
In consideration of the foregoing, and of the mutual promises and covenants
herein contained and contained in the LSA, the Administrative Agent and the
Declarant have entered into this Agreement.
2. CONFIRMATION OF THE MORTGAGE. The Declarant hereby acknowledges and
confirms that in granting the Mortgage to the Administrative Agent and entering
into the LSA with the Administrative Agent and the lenders that are parties
thereto, Declarant granted to the Administrative Agent a security interest in
all of Declarant's rights and interests with respect to the property described
in the Mortgage and the LSA. Declarant does hereby unconditionally and
irrevocably grant to Administrative Agent a security interest in and a lien upon
Declarant's rights as a declarant under the Declaration and all other rights
which are reserved to the Declarant in the Declaration, including, but not
limited to, any and all rights in and to the Convertible Land and any and all
development rights or special declarant's rights, whether relating to the
Convertible Land or otherwise (collectively, the "DECLARANT'S RIGHTS"). The
aforesaid grant is hereby made subject to the Mortgage and shall be deemed to
have been made in accordance with all of the terms and conditions thereof and
for the purpose of securing the payment and performance of the obligations of
Declarant under the Mortgage and the LSA, and the terms and provisions of the
Mortgage and the LSA are incorporated herein by reference, as if set forth at
length herein. Such grant is in addition to and not in substitution for any
rights which the Administrative Agent and/or the lenders that are parties to the
LSA may now have or hereafter acquire under the law of the State in which the
Project is situated.
3. ADDITIONAL COVENANTS OF DECLARANT. The Declarant hereby further
covenants and agrees with Administrative Agent as follows:
3.1 That the Declarant will not, without the prior written consent of
Administrative Agent: (a) exercise any of the Declarant's Rights in any
manner that materially and adversely affects the operation of Mortgaged
Property (as defined in the Mortgage) or the Project situated thereon, (b)
take any action, or omit any action, the result of which taking or omission
would be the loss, abridgment or termination of any of such Declarant's
Rights or (c) amend or modify, or approve any amendment or modification of,
the Declaration that would (in the opinion of Administrative Agent)
adversely affect the operation and prospects of the Mortgaged Property, the
aforesaid Project or the security interests of Administrative Agent
therein.
3.2 That the Declarant shall fully perform all obligations, duties,
agreements and conditions to be performed by the Declarant under the terms
and provisions of the Declaration and under the laws of the State in which
the Project is situated, and that the Declarant shall provide
Administrative Agent with such evidence of such performance as
Administrative Agent may reasonably request from time to time.
3.3 The Declarant acknowledges and agrees that Administrative Agent
is not responsible for any of the obligations or liabilities of the
Declarant under the Declaration and the applicable laws of the State in
which the Project is situated, including without limitation, any obligation
or liability of any kind to any purchaser of quartershare interests,
residential units or commercial units at the Mortgaged Property, and
Declarant specifically acknowledges and agrees that in executing this
Agreement Administrative Agent makes no warranties or covenants to any
person or party as to title, merchantability, fitness for any particular
purpose, physical condition, or otherwise, as to the Mortgaged Property, or
any portion thereof, whether such be express or implied. The Declarant
further acknowledges and agrees that neither the execution of this
Agreement by Administrative Agent nor the execution of the Mortgage, the
LSA or any other agreement or instrument in connection therewith shall
relieve the Declarant from any of its obligations or duties under the
Declaration or the applicable laws of the State in which the Project is
situated, and that Administrative Agent shall have no duties or obligations
under the Declaration or under the applicable laws of the State in which
the Project is situated until such time as it should succeed to the status
of Declarant in accordance with the Declaration or pursuant to a deed in
lieu of foreclosure under the Mortgage.
3.4 The Declarant hereby warrants to Administrative Agent that as of
the date hereof (a) it has not executed any prior conveyance or assignment
of any Declarant's Rights or other rights reserved by it in the
Declaration; (b) that it has not performed any acts nor executed any
instruments which might prevent Administrative Agent from exercising the
terms and provisions of the Mortgage, the LSA, this Agreement or any other
document executed and delivered by Declarant to Administrative Agent or
which would limit Administrative Agent in the exercise of its rights
thereunder or hereunder; (c) that as of the date hereof, the Declarant is
the sole owner of the Declarant's Rights; and (d) that
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the Declarant's Rights have been validly created and reserved in accordance
with all applicable requirements of the laws of the State in which the
Project is situated.
4. MISCELLANEOUS. This Agreement, and the covenants, conditions,
warranties, and representations herein contained, shall inure to and bind the
successors and assigns of the Declarant and Administrative Agent. Wherever
used, the singular number shall include the plural, and the use of any gender
shall be applicable to all genders. If any obligation or portion of this
Agreement is determined to be invalid or unenforceable under law, it shall not
affect the validity or enforcement of the remaining obligations or portions
hereof. This Agreement is to be construed under the laws of the State of in
which the Project is situated. All covenants, conditions, provisions,
warranties, and other undertakings of Declarant contained in this Agreement, or
in the Mortgage, LSA or any other agreement executed and delivered by Declarant
in connection therewith, heretofore, concurrently or hereafter entered into,
shall be deemed cumulative to and not in derogation or substitution of any of
the terms, covenants, conditions or agreements of Declarant herein contained.
The failure or delay of Administrative Agent to exercise or enforce any rights,
liens, powers or remedies hereunder or under any of the aforesaid agreements
shall not operate as a waiver of such liens, rights, powers and remedies, but
all such liens, rights, powers and remedies shall continue in full force and
effect. All liens, rights, powers and remedies herein provided for are
cumulative and none are exclusive. Declarant shall do any and all things
necessary, or take any action requested by Administrative Agent, to carry out
the intent of this Agreement.
5. DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART. Two or more duplicate
originals hereof may be signed by the parties, each of which shall be an
original but all of which together shall constitute one and the same instrument.
This Agreement may be executed in one or more counterparts and shall be
effective when at least one counterpart shall have been executed by each party
hereto, and each set of counterparts which, collectively, show execution by each
party hereto shall constitute one duplicate original.
[REMAINDER OF PAGE INTENTIONALLY BLANK; NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the date and year first above written.
Signed and Acknowledged in the GRAND SUMMIT RESORT PROPERTIES, INC.
Presence of:
/s/ Xxxxxxx X. X'Xxxxxxxxx By /s/ Xxxx X. Xxxxxx
------------------------------- -----------------------------
Name: Xxxxxxx X. X'Xxxxxxxxx Its: Vice President
/s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
STATE OF MAINE )
) SS.
COUNTY OF )
PERSONALLY APPEARED the above-named Xxxx X. Xxxxxx, Vice President of
Grand Summit Resort Properties, Inc. and acknowledged the foregoing
instrument to be his/her free act and deed in said capacity and the free act
and deed of said corporation.
Before me,
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Notary Public/Attorney at Law
Print Name: Xxxx X. Xxxxxxxx
My commission expires: November 30, 2000
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Signed and Acknowledged TEXTRON FINANCIAL CORPORATION, as in the
Presence of: Administrative Agent
/s/ Xxxxxx X. Labbodie By /s/ Xxxxxxxx X. Xxxxx
------------------------------- --------------------------------
Name: Xxxxxx X. Labbodie Its: V. P.
/s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxx
STATE OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this 12 day of
August, 1996, by Xxxxxxxx X. Xxxxx, the V. P. of Textron Financial
Corporation, a Delaware corporation, on behalf of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Notary Public
My Commission Expires: April 30, 2002
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SCHEDULE 1
The condominium established pursuant to that certain Declaration of Condominium
Grand Summit Hotel and Crown Club at Attitash Bear Peak, A Condominium, dated
March 26, 1997, recorded on March 28, 1997, in Book 1692, at Page 989, of the
Office of the Registry of Deeds of Xxxxxxx County, New Hampshire, and according
to that certain map entitled "Condominium Plan Grand Summit Hotel and Crown Club
at Attitash Bear Peak, A Condominium", dated March 27, 1997, and recorded as
Plan Number 159 / 53-65 in the Office of the Registry of Deeds of Xxxxxxx
County, New Hampshire.
Schedule 1-1
EXHIBIT A
PROPERTY DESCRIPTION
Exhibit A-1
