EXHIBIT 10.100
AGREEMENT CONCERNING AMERICAN SKIING COMPANY
FOR HOLDER OF SPECIAL USE PERMIT NO. 4002-01
This Agreement ("Agreement") is made by the UNITED STATES DEPARTMENT OF
AGRICULTURE FOREST SERVICE (the "Forest Service"), AMERICAN SKIING COMPANY, a
Maine corporation (the "Lender"), and WATERVILLE VALLEY SKI RESORT, INC., a
Delaware corporation with a place of business in Waterville Valley, New
Hampshire (the "Borrower").
RECITALS
1. On November 27, 1996, the Forest Service issued Term Special Use
Permit No. 4002-01 to the Borrower (the "Permit").
2. The Permit authorizes the Borrower to use and occupy certain National
Forest System land for the purpose of constructing, operating and maintaining a
four season resort. The Permit covers National Forest Service System land in the
town of Waterville, Grafton County, New Hampshire (the "Property").
3. The Property is owned by the United States and managed under statutory
authority granted to the Forest Service.
4. Under the Permit, physical improvements owned by the Borrower that are
located on the Property (the "Improvements") shall be considered personal
property, not fixtures.
5. The Borrower provides products and services to the public under the
terms of the Permit.
6. The Lender has extended credit to Borrower.
7. The Lender has agreed to make a loan to the Borrower in the original
principal amount of $2,750,000 plus interest, costs and other fees pursuant to a
certain Purchase and Sale Agreement, a certain Subordinated Promissory Note and
related documents which may now or hereafter evidence, govern or secure the
foregoing obligations and any amendments, extensions, renewals, replacements or
substitutions of any of the foregoing (all collectively, the "Loan," and the
documents relating thereto the "Loan Documents").
PURPOSE OF THIS AGREEMENT
WHEREAS, the Forest Service believes that the public will benefit from the
products and services provided by the Borrower under the terms of the Permit.
WHEREAS, the Lender desires the cooperation of the Forest Service in
connection with the financing by the Lender of the acquisition of the
Improvements.
WHEREAS, the Lender desires the cooperation of the Forest Service if the
Borrower defaults on the Loan and the Lender forecloses on the Improvements.
WHEREAS, the Forest Service desires to cooperate with the Lender under the
terms of this Agreement.
AGREEMENT
In consideration of the foregoing, the parties agree as follows:
1. The Permit is revocable, terminable, and not transferable in accordance
with its terms and federal regulations. The Permit is not real property, does
not convey any interest in real property, and may not be used as collateral for
the Loan.
2. As collateral for the Loan, the Borrower agrees to give the Lender a
security interest in the Improvements, and the Forest Service acknowledges the
creation of that security interest at the request of the Lender. No security
interest is created in the Property or in any improvements owned by the United
States.
3. The Borrower is in compliance with the terms of the Permit.
4. The United States receives permit fees from the Borrower based on a fee
system contained in the Permit. The fee system and other Permit provisions may
be adjusted or replaced under the terms of the Permit or federal regulations.
5. The Permit by its terms is not transferable. Any change of title to the
Improvements shall result in termination of the Permit. Prior to any transfer of
title to the Improvements, the Forest Service shall cooperate with the Lender in
obtaining an acceptable permit holder. Issuance of a new permit shall be at the
sole discretion of the Forest Service. The Forest Service shall determine that
the prospective holder meets requirements under Forest Service regulations,
including financial and technical capability. As part of this cooperation, the
Forest Service shall not issue a new permit for a four season resort to any
individual or entity that does not hold title to the Improvements.
6. If the Borrower fails to comply with the terms of the Permit and the
noncompliance could lead to suspension or revocation of the Permit, the Forest
Service shall: (1) notify the Lender in writing of the noncompliance provided,
however that prior notice is not required under this clause where immediate
action is deemed necessary under federal regulations; (2) inform the Lender of
any action taken in response to the noncompliance; and (3) apprise the Lender of
the resolution of any disputes with the Borrower or any proposed agreement to
modify the terms of the Permit arising out of the
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noncompliance. Notice shall be mailed "certified return receipt requested," to
the following address: American Skiing Company, X.X. Xxx 000, Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxx.
The Lender shall not have any claim for legal or equitable remedies if the
Forest Service fails to comply with any part of this clause. Nothing in this
clause impinges on any of the Forest Service's rights in administering the
Permit under the federal regulations on termination, revocation, and suspension.
7. The Lender shall advise the Forest Service of impending servicing
actions which may be taken against the Borrower, if the Lender deems such notice
legal and advisable.
8. All the provisions of paragraph 5 above apply to a transfer of title
resulting from a default by the Borrower.
9. If the Lender forecloses on the Improvements, the Forest Service shall,
to the extent permitted under applicable law, allow physical access to the
Improvements by the Lender as is necessary to liquidate the Loan or secure the
Improvements. The Lender shall give prior notice to the Forest Service of such
access to the Improvements. The Lender shall obtain a temporary authorization
from the Forest Service in accordance with federal regulations in order to
operate a business in or otherwise occupy the Improvements.
10. If the Permit is revoked, the Forest Service shall cooperate with the
Lender in obtaining an acceptable permit holder. Issuance of a new permit shall
be at the sole discretion of the Forest Service. The Forest Service shall
determine that the prospective holders meet requirements under Forest Service
regulations, including financial and technical capability. As part of this
cooperation, the Forest Service shall not issue a new permit for a four season
resort to any individual or entity that does not hold title to the Improvements.
11. Nothing in this Agreement precludes the Lender from exercising
remedies against the Borrower associated with other security interests.
12. If the Borrower has satisfied all of its obligations to the Forest
Service, any money payable from the Forest Service to the Borrower under the
Permit by reason of termination of the Permit shall be paid to the Lender until
the Loan is fully satisfied.
13. Nothing in this Agreement confers any rights on any third party as a
beneficiary under this Agreement. In addition, nothing in this Agreement confers
any rights on the Lender or any third party as a beneficiary under the Permit.
14. The Borrower and Lender acknowledge that the Permit and the Property
are not encumbered by any of the Loan Documents and are not subject to
foreclosure if
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the Borrower defaults. Any statement in the Permit or the Loan Documents that
creates or appears to create a security interest in the Permit or the Property
is ineffective and contrary to law.
15. If any provision in the Loan Documents, security agreement, or any
other documentation made or executed in conjunction with the Loan conflicts with
the terms of this Agreement, the terms of this Agreement shall prevail.
16. This Agreement shall terminate automatically on final repayment of the
Loan, and readvances under the Loan are no longer committed for. The Lender
shall give the Forest Service notice of such repayment of the Loan.
17. Nothing in this Agreement shall be construed to limit in any way the
sole discretion of the Forest Service to determine the allocation of National
Forest System land, including decisions not to reauthorize any use which may be
inconsistent with a forest land and resource management plan or applicable law.
18. This Agreement is intended to xxxxxx consultation among the parties in
order to coordinate more effectively the fulfillment of their respective rights
and obligations.
19. The Borrower warrants that it has full authority to enter into this
Agreement, and covenants that it shall be binding on its representatives,
successors, and assigns.
20. The undersigned officials of the Lender and the Forest Service warrant
that they have the delegated authority to execute this Agreement.
21. Lender and Borrower represent to the Forest Service that the Loan is
junior in priority to a secured first mortgage loan in the original principal
amount of $10 million (as such loan may be modified, increased, replaced or
refinanced from time to time, so long as such loan continues to satisfy the
definition of "Senior Debt" set forth in the Subordinated Promissory Note
evidencing the Loan, the "First Mortgage Loan") extended to Borrower by The
First National Bank of Boston (including its successors and assigns, any lender
or lenders that replace or refinance the First Mortgage Loan in whole or in
part, the "Bank"), securing certain physical improvements owned by the Borrower
that are located on the Property, including the Improvements. As of the date
hereof, the Bank, Borrower and the Forest Service entered into an agreement
concerning the Bank with respect to Borrower's Special Use Permit No. 4002-01 on
terms materially similar to this Agreement. The Forest Service acknowledges and
agrees that until such time as it receives written notice from Borrower, the
Bank and Lender that the First Mortgage Loan has been paid and the collateral
therefor released, this Agreement and all the rights and benefits that run to
Lender hereunder shall be subordinate to the rights and benefits that run to the
Bank under the Agreement concerning the Bank for Holder of Special Use
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Permit No. 4002-01, and the Forest Service shall bear no liability for and shall
treat and deal with the Bank as the first priority lender with respect to the
Improvements.
UNITED STATES DEPARTMENT OF
AGRICULTURE - FOREST SERVICE
By: /s/ Xxxx XxXxxxx
-------------------------------
Title: FOR/Forest Supervisor
Date: January 2, 0000
XXXXXXXXXX XXXXXX SKI RESORT, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Title: ____________________________
Date: ___________________, 1996
AMERICAN SKIING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------------
Title: Chief Administrator Officer
Date: November 27, 0000
XXXXX XX XXXXXXXXXXXXX
Xxxxxx xx Xxxxxxx Nov. 27, 1996
Then personally appeared before me the above-named Xxxxxxx X. Xxxxx
in his/her said capacity and acknowledged the foregoing to be his/her free act
and deed and the free act and deed of the United States Department of
Agriculture - Forest Service.
Before me,
/s/ Xxxxxxx X. X'Xxxxxx
----------------------------------
Xxxxxxx X. X'Xxxxxx Notary Public
Notary Public Print Name:
My Commission expires
Feb. 7, 0000
XXXXX XX XXXXXXXXXXXXX
Xxxxxx xx Xxxxxxx Nov. 27, 1996
Then personally appeared before me the above-named Xxxxxxxxxxx X. Xxxxxx
in his/her said capacity and acknowledged the foregoing to be his/her free act
and deed and the free act and deed of Waterville Valley Ski Resort, Inc.
Before me,
/s/ Xxxxxxx X. X'Xxxxxx
--------------------------------
Xxxxxxx X. X'Xxxxxx Notary Public
Notary Public Print Name:
My Commission Expires
Feb. 7, 0000
XXXXX XX XXXXXXX
Xxxxxx xx Xxxxxxx Jan. 2 , 1997
Then personally appeared before me the above-named Xxxx XxXxxxx
in his/her said capacity and acknowledged the foregoing to be his/her free act
and deed and the free act and deed of United States Department of Agriculture,
Forest Service.
Before me,
/s/ Xxxxxxx Xxxxxxxxx
---------------------------
Notary Public
Print Name: Xxxxxxx Xxxxxxxxx