FIRST AMENDMENT AGREEMENT
RE:
LOAN AND SECURITY AGREEMENT
AMONG
GRAND SUMMIT RESORT PROPERTIES, INC., AS BORROWER
AND
TEXTRON FINANCIAL CORPORATION, AS ADMINISTRATIVE AGENT
AND
THE LENDERS LISTED HEREIN, AS LENDERS
DATED AS OF APRIL 5, 1999
FIRST AMENDMENT AGREEMENT
THIS FIRST AMENDMENT AGREEMENT (as amended from time to time, this
"First Amendment Agreement"), dated as of April 5, 1999, among GRAND SUMMIT
RESORT PROPERTIES, INC., a Maine corporation, (herein referred to as "GSRP"),
the lenders listed on the signature pages hereof (each individually referred to
herein as a "Lender" and, collectively, the "Lenders"), TEXTRON FINANCIAL
CORPORATION, a Delaware corporation, as agent for the Lenders (in such capacity
herein referred to as the "Administrative Agent").
W I T N E S S E T H:
A. WHEREAS, GSRP entered into that certain Loan and Security Agreement dated as
of September 1, 1998 (as amended to but excluding the date hereof, "Existing
LSA" and, as amended hereunder, "Amended LSA"), pursuant to which the Lenders
agreed to make loans to GSRP in accordance with the terms of Existing LSA;
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing LSA;
C. WHEREAS, the parties to the Existing LSA have agreed to certain amendments to
the Existing LSA, as described and set forth below;
D. WHEREAS, Parent has obtained interim financing (the "BankBoston Interim
Steamboat Project Advance") of $3,044,713 in respect of the Steamboat Project
from BankBoston, N.A., as agent and as the sole lender under that certain
Amended and Restated Credit Agreement, dated as of January 8, 1999 (as amended
from time to time, the "Parent/BKB Credit Facility");
E. WHEREAS, in connection with such BankBoston Interim Steamboat Project
Advance, the Administrative Agent assigned to BankBoston, N.A. all of the
Steamboat Security Documents and the Lenders agreed in a letter among GSRP and
the Lenders dated March 10, 1999 to remove the Steamboat Project from the
financings contemplated under the Existing LSA and to permit GSRP to issue a
guaranty in respect of the Parent's indebtedness under the Parent/BKB Credit
Facility;
F. WHEREAS, Textron Financial Corporation, solely in its capacity as a lender
under the Existing LSA (in such lending capacity only, "Textron") agreed to
make, pursuant to that certain letter agreement (the "Overadvance Letter
Agreement") between Textron and GSRP dated April 5, 1999, an overadvance of
$2,211,304.86 (the "Overadvance") in respect of its Canyons Construction Project
Advance Commitment, the proceeds of which were to be used by GSRP to pay
construction costs of the Steamboat General Contractor in respect of the
Steamboat Project and certain other expenses of GSRP;
G. WHEREAS, on April 5, 1999 Textron made the Overadvance, GSRP used the
proceeds to pay construction costs of the Steamboat General Contractor in
respect of the Steamboat Project and certain other expenses of GSRP and
BankBoston, N.A. commenced the reassignment to the Administrative Agent of all
of the Steamboat Security Documents, the reassignment to Textron and Green Tree
of their respective Steamboat Construction Project Advance Notes and Steamboat
Inventory Advance Notes and the releasing of the guaranty issued by GSRP in
respect of the Parent/BKB Credit Agreement; BankBoston, N.A. delivered to
Textron a letter dated April 5, 1999 in which it confirmed the foregoing;
H. WHEREAS, the Overadvance Letter Agreement was not consented to by Green Tree
Financial Servicing Corporation ("Green Tree") and, as a consequence thereof,
Textron agreed in the Overadvance Letter Agreement that the Overadvance would be
payable out of the proceeds of Collateral only after the Obligations under the
Existing LSA (other than the Overadvance) were paid first;
I. WHEREAS, the Overadvance Letter Agreement contemplated the reassignment from
BankBoston, N.A. of all of the Steamboat Security Documents and Steamboat
Obligations and the creation of a limited $12,000,000 aggregate Steamboat
Construction Project Advance Commitment (the "Interim Steamboat Construction
Project Advance Commitment") that would be available to GSRP during the period
(the "Syndication Period") commencing on the First Amendment Closing Date (as
hereinafter defined) and ending on the earlier of (a) July 6, 1999 or (b) the
date (the "Full Syndication Date") on which both of the following events shall
have occurred: (i) additional Steamboat Construction Project Advance Commitments
and additional Canyons Construction Project Advance Commitments shall have been
obtained by GSRP such that, after giving effect to the current commitments of
Textron and Green Tree under the Amended LSA (after giving full effect to the
repayment of the Loans in respect of the 1997 Projects) and such additional
commitments, there would be in effect $45,200,000 of Canyons Construction
Project Advance Commitments and $56,300,000 of Steamboat Construction Project
Advance Commitments and (ii) GSRP shall have raised and funded, either itself or
through a wholly-owned special purpose subsidiary (the "GSRP SPV"), as much
mezzanine debt, up to a maximum amount of $25,000,000, as the Administrative
Agent may require, which mezzanine debt would be junior and subordinate (on
terms and conditions satisfactory to Textron and Green Tree) as to both payment
and lien to the Obligations and the liens and security interests of the
Administrative Agent in and to the Collateral (the "Mezzanine Debt");
J. WHEREAS, Textron has agreed to reallocate its current commitments under the
Existing LSA in respect of the Steamboat Project and the Canyons Project such
that (a) it shall maintain the Interim Steamboat Construction Project Advance
Commitment and (b) it shall maintain a Canyons Construction Project Advance
Commitment equal to the remainder of (i) $40,000,000 minus the sum of (A) the
Interim Steamboat Construction Project Advance Commitment and (B) the aggregate
of the outstanding principal balances of its Jordan Bowl Inventory Advance Note,
its Attitash Inventory Advance Note, its Killington Inventory Advance Note and
its Mt. Snow Inventory Advance Note;
K. WHEREAS, Green Tree has agreed to reallocate its current commitments under
the Existing LSA in respect of the Steamboat Project and the Canyons Project
such that it shall maintain a Canyons Construction Project Advance Commitment
equal to the remainder of (i) $30,000,000 minus the aggregate of the outstanding
principal balances of its Jordan Bowl Inventory Advance Note, its Attitash
Inventory Advance Note, its Killington Inventory Advance Note and its Mt. Snow
Inventory Advance Note;
L. WHEREAS, in connection with the consummation of this First Amendment
Agreement, the Overadvance will be transferred from Textron's Canyons
Construction Project Advance Commitment to the Interim Steamboat Construction
Project Advance Commitment and from a utilization of the Canyons Construction
Project Borrowing Base and the Canyons Construction Project Advance Note of
Textron to the Steamboat Construction Project Borrowing Base and the Steamboat
Construction Project Advance Note of Textron;
M. WHEREAS, Textron and Green Tree have agreed that any Steamboat Construction
Project Advances made in respect of the Interim Steamboat Construction Project
Advance Commitment (herein referred to as an "Interim Steamboat Construction
Project Advance") will, in accordance with the Existing LSA, have a priority
claim to the Steamboat collateral and cash flow as contemplated, for example, in
Section 2.5(d)(i) and Section 8.2(c)(i) of the Existing LSA, but that any claim
in respect of such Interim Steamboat Construction Project Advances in and to the
Cash Collateral Account will be subordinate and junior to the payment of all
other Obligations unless and until Green Tree shall have decided, in its sole
discretion, to participate in such Advances; this recital is not intended to
have application to any Steamboat Construction Project Advances made after the
Syndication Date as long as such Advances are not in respect of the Interim
Steamboat Construction Project Advance Commitment;
N. WHEREAS, the Parent is entering into an Amended and Restated Forbearance
Agreement with BankBoston, N.A. dated as of April 20, 1999 (the "Syndication
Standstill Agreement"), a copy of which is attached hereto as Schedule 2;
O. WHEREAS, Green Tree may, in its sole discretion, decide to participate in the
Interim Steamboat Construction Project Advance Commitment; if Green Tree should
decide to do so, then, on and after the date on which Textron and Green Tree
inform GSRP of this fact, in writing, each reference to the "Interim Steamboat
Construction Project Advance Commitment" shall be deemed a reference to the
portion thereof allocated by such writing to Textron and the portion thereof
allocated by such writing to Green Tree; their respective Canyons Construction
Project Advance Commitments will be adjusted to reflect the reduction thereof by
the allocated amounts of their respective Interim Steamboat Construction Project
Advance Commitments (in the case of Textron, such reduction of its Canyons
Construction Project Advance Commitment will decrease from the $12,000,000
originally provided for herein and, in the case of Green Tree, such reduction
will be new as there currently is no reduction in its Canyons Construction
Project Advance Commitment in respect of the Interim Steamboat Construction
Project Advance Commitment); and Textron and Green Tree shall make such
adjustments between themselves, as they shall have agreed to, in order to
allocate any outstanding principal amount of the Interim Steamboat Construction
Project Advances from the Steamboat Construction Project Advance Note of Textron
to the Steamboat Construction Project Advance Note of Green Tree; all of the
aforesaid amendments and modifications to the Existing LSA, as amended hereby,
will be effected automatically, upon the delivery of said writing to GSRP,
without the need for any further action on the part of any party hereto;
P. WHEREAS, it is the express intention of the parties hereto that all of the
funding conditions in the Existing LSA applicable to Canyons Construction
Project Advances shall continue to apply to each and every Canyons Construction
Project Advance made prior, during or after the Syndication Period;
Q. Intentionally Omitted;
R. WHEREAS, GSRP has revised the Budget for the Steamboat Project, a copy of
which is attached hereto as Schedule 5; the Budget for the Canyons Project
remains unmodified and the construction of the Canyons Project has progressed in
accordance with such Budget and its construction timeline;
S. WHEREAS, the Parent and GSRP have revised the "Budget," as defined in the
Parent/BKB Credit Facility, a copy of which is attached hereto as Schedule 6
(the "Parent Revised Budget"); the Parent Revised Budget has been approved by
BankBoston, N.A.;
T. WHEREAS, the Parent currently intends to request during the Syndication
Period draws under the Parent/BKB Credit Facility set forth on Schedule 7
attached hereto, which draws are consistent with the Parent Revised Budget and
at a maximum aggregate $5,500,000;
U. WHEREAS, GSRP will be requesting during the Syndication Period Canyons
Construction Project Advances set forth on Schedule 8 attached hereto, which
draws are consistent with the Budget for the Canyons Project and at a maximum
aggregate $11,204,501 (including the Canyons Interest Advances);
V. WHEREAS, GSRP will be requesting during the Syndication Period the Interim
Steamboat Construction Project Advances set forth on Schedule 9 attached hereto,
which advances are consistent with the revised Budget for the Steamboat Project
and at a maximum aggregate $14,690,067 (including the Overadvance and Steamboat
Interest Advances); GSRP acknowledges that the present level of the Interim
Steamboat Construction Project Advance Commitment would require it to postpone
or otherwise defer a portion of the aforesaid planned expenditures under, and
consistent with the terms of, the Steamboat Construction Contract or obtain
payment thereof from sources other than Interim Steamboat Construction Project
Advances; and
W. WHEREAS, Textron, BankBoston, N.A. and GSRP have entered into that certain
syndication letter, dated as of April 20, 1999 (the "Syndication Letter")
pursuant to which GSRP has agreed to pay to Textron and BankBoston, N.A. certain
fees in respect of the syndication of commitments thereunder;
NOW, THEREFORE, in consideration of the Administrative Agent's, the
Lenders' and GSRP's agreements hereunder, and in consideration of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Administrative Agent, the Lenders and GSRP hereby agree as
follows:
1. RECITALS.
The recitals are hereby incorporated into and made part of this First
Amendment Agreement. Consistent with recital I above, the Lenders agree that,
upon the incurrence of the Mezzanine Debt on terms and conditions acceptable to
the Lenders, GSRP may, if required by the terms of the Mezzanine Debt, assign,
transfer and contribute the Canyons Project and the Steamboat Project to the
GSRP SPV (subject to all of the Liens provided for herein and in the other
Security Documents) and, in connection therewith, the Lenders and GSRP shall
amend the Amended LSA to add GSRP SPV as a co-borrower; such amendment to be in
form and substance satisfactory to the Lenders and GSRP.
2. STEAMBOAT PROJECT; SUGARBUSH PROJECT; SUGARLOAF PROJECT.
Anything contained in any other written agreement or letter to the
contrary notwithstanding, all of the Steamboat Security Documents and all of the
Steamboat Construction Project Advance Notes and other Steamboat Project-related
Collateral continues to be part of the Security Documents, Collateral and
Obligations under the Existing LSA, as amended hereby. For purposes of the
Amended LSA and all other Security Documents, Interim Steamboat Construction
Project Advances shall be deemed to be Steamboat Construction Project Advances
thereunder and, except as expressly provided for herein, all of the terms and
provisions of the Amended LSA and other Security Documents shall be applicable
thereto.
All references to the Sugarbush Project and all "Sugarbush" defined
terms and "Sugarbush" related exhibits and references in the Existing LSA and
the other Security Documents are hereby deleted. No commitments under the
Amended LSA shall exist in respect of the Sugarbush Project.
All references to the Sugarloaf Project and all "Sugarloaf" defined
terms and "Sugarloaf" related exhibits and references in the Existing LSA and
the other Security Documents are hereby deleted. No commitments under the
Amended LSA shall exist in respect of the Sugarloaf Project.
3. AMENDMENTS OF EXISTING LSA.
The Existing LSA is hereby amended as follows:
(a) Amended and Restated Defined Terms. The defined terms in
the recitals of this First Amendment Agreement are hereby incorporated
into Section 1.1 of the Existing LSA in such a manner as to maintain
the alphabetical ordering thereof. The following existing defined terms
in the Existing LSA are hereby amended and restated in their entirety
and the new terms set forth below are hereby added to Section 1.1 of
the Existing LSA:
Aggregate Construction Project Borrowing Base --
means, on any date, the result of (a) the Maximum Outstanding
Loan Limit, minus (b) the sum of (i) the aggregate outstanding
principal balance of all Inventory Advances as of such date
and (ii) the aggregate outstanding principal balance of all
Interest Advances as of such date.
Attitash Inventory Required Lenders -- means any two
or more of the Attitash Inventory Advance Lenders having or
holding 66-2/3% or more of the Attitash Loan Exposure.
Canyons Construction Project Borrowing Base -- means,
on any date and with respect to the Canyons Project, 80% of
the aggregate amount of
(a) Construction Costs for the Canyons
Project, FF&E Costs for the Canyons Project and
Sales, Marketing & Other Costs for the Canyons
Project incurred and paid for by GSRP on or prior to
such date in respect of the Canyons Project under and
in accordance with the Budget for the Canyons Project
plus
(b) pre-development expenses and land values
(net of mortgage debt) for such Project set forth on
Schedule 1 hereto,
provided that the "Canyons Project Borrowing Base" shall, in
no case, exceed the lesser of:
(i) the remainder of (1) $45,200,000 minus (2) 50% of
the original outstanding principal amount of the Mezzanine
Debt, if any; and
(ii) the remainder of (A) the Maximum
Outstanding Loan Limit, minus (B) the sum of (1) the
aggregate outstanding principal balance of all
Construction Project Advances other than Canyons
Construction Project Advances as of such date, (2)
the aggregate outstanding principal balance of all
Inventory Advances as of such date and (3) the
aggregate outstanding principal balance of Interest
Advances other than Canyons Interest Advances as of
such date.
Canyons Construction Project Required Lenders --
means any two or more of the Canyons Construction Project
Advance Lenders having or holding 66-2/3% or more of the
Canyons Loan Exposure.
Canyons Inventory Required Lenders -- means any two
or more of the Canyons Inventory Advance Lenders having or
holding 66-2/3% or more of the Canyons Loan Exposure.
First Amendment Agreement -- means that certain First
Amendment Agreement, dated as of April 5, 1999, to this
Agreement.
Interest Rate -- means, with respect to the Steamboat
Loan, the Canyons Loan, the Jordan Bowl Loan, the Attitash
Loan, the Killington Loan and/or the Mt. Snow Loan, (a) prior
to the Full Syndication Date, the Original Prime Interest Rate
and (b) on and after the Full Syndication Date, the New Prime
Rate or the LIBOR Interest Rate, as may be selected by all of
the Lenders that have made Advances in respect of the
applicable Loan upon not less than 30 days' prior written
notice to GSRP, provided that, in connection with the first
Advance in respect of any such Loan, the selection of a Prime
Interest Rate or a LIBOR Interest Rate shall be made
contemporaneously with the making of such Advance and no
advance notification need be given and provided further that,
if no such selection or notification shall have been made, the
Prime Interest Rate shall be deemed to have been selected with
respect to the applicable Loan.
Jordan Bowl Inventory Required Lenders -- means any
two or more of the Jordan Bowl Inventory Advance Lenders
having or holding 66-2/3% or more of the Jordan Bowl Loan
Exposure.
Killington Inventory Required Lenders -- means any
two or more of the Killington Inventory Advance Lenders having
or holding 66-2/3% or more of the Killington Loan Exposure.
LIBOR Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) the remainder (if positive) of
(1) the sum of 2.50% plus the Prime Rate
then in effect for such month minus
(2)One-Month LIBOR then in effect for such
month, plus
(ii) One-Month LIBOR then in effect
for such month.
"One-Month LIBOR" shall mean, with respect to any calendar
month, the rate published on the second London Business Day
immediately preceding such calendar month in The Wall Street
Journal (Eastern Coast edition published in the United States
of America) for deposits maturing thirty (30) days after
issuance under the caption "Money Rates, London Interbank
Offered Rates (LIBOR)" or, if, but only if, the Wall Street
Journal (East Coast edition published in the United States of
America) ceases to exist or to be published or ceases to
report the aforesaid rate, the rate per annum in respect of
one month London inter-bank offered deposits as reported in
another reputable United States of America financial
publication or newspaper or on a reputable electronic service
as may be designated, in either case, by the Administrative
Agent.
If the eurodollar interest rate market ceases to function, or
it becomes impossible, impractical or illegal to readily,
currently and accurately determine One-Month LIBOR, or
One-Month LIBOR no longer currently and accurately reflects
the interest rates for obligations of a similar nature, term
and amount as the Loan, then the Administrative Agent shall
forthwith give notice thereof to GSRP and the Prime Interest
Rate shall replace the LIBOR Interest Rate for all purposes
hereunder. The Prime Interest Rate shall remain in place until
the Administrative Agent shall determine that LIBOR Interest
Rate is again reliably available.
Any other provision in this Agreement notwithstanding, in the
event that any federal, state, local or foreign law or any
governmental rule, regulation, treaty, policy, guideline or
directive in respect thereof shall make it unlawful for any
Lender to maintain its eurodollar funding of its respective
portion of the Loan, then the LIBOR Interest Rate borne by
such portion of the Loan shall automatically be converted to
the Prime Interest Rate, as provided above, on the earlier of
(i) the first day of the then next calendar month and (b)
immediately upon notification from such holder.
To the extent that the LIBOR Interest Rate is applicable, GSRP
agrees to pay to each Lender all costs incurred by such Lender
that are attributable to its portion of the Loan or the
performance of its obligations hereunder and that occur by
reason of the promulgation of any law, regulation or treaty or
any change therein or in the application or interpretation
thereof or by reason of the compliance by the Lender with any
direction, requirement or request of any governmental
authority, including, without limitation, any such cost
resulting from (1) the imposition or amendment of any tax
(other than a tax measured by the overall net income of the
Lender), (2) the imposition or amendment of any reserve,
special deposit or similar requirement against assets of,
liabilities of, deposits with or for the account of, or loans
by, the Lender or (3) the imposition or amendment of any
capital requirements or provisions relating to capital
adequacy that have the effect of reducing the rate of return
on the Lender's capital as a consequence of the Loan (or its
portion thereof) or its obligations hereunder to a level below
that which it could have achieved but for such adoption,
change or compliance. If such Lender has sold one or more
participations in its share of the Loan, in accordance with
the terms hereof, costs incurred by the participants thereof
shall be deemed attributable to such share of the Loan for
purposes of this paragraph, provided that GSRP shall not be
required to reimburse such Lender for an amount greater than
the amount that would have been due if such Lender had not
sold participations hereunder. A certificate of the Lender
delivered to GSRP in respect of the aforesaid costs shall be
final and binding absent manifest error. Such costs shall be
payable together with the then next scheduled interest payment
hereunder.
For purposes of this definition, "London Business Day" means a
day other than (aa) a Saturday, (bb) a Sunday or (cc) a day on
which dealings in deposits in U.S. dollars are not transacted
in the London interbank market.
Maximum Outstanding Loan Limit - means, at any
time,(a) if no Mezzanine Debt is required, $105,000,000 or (b)
if Mezzanine Debt is required, the lesser of (i) $145,000,000
and (ii) the remainder of (y) $153,000,000 minus (z) the
amount of Mezzanine Debt originally raised and funded by
either GSRP or the GSRP SPV.
Mt. Snow Inventory Required Lenders -- means any two or
more of the Mt. Snow Inventory Advance Lenders having or
holding 66-2/3% or more of the Mt. Snow Loan Exposure.
New Prime Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) 2.50%, plus
(ii) the Prime Rate then in effect
for such month.
To the extent that the interest rate for any calendar month
shall be based upon the Prime Rate, such Prime Rate shall be
the Prime Rate in effect at 9:00 a.m. (Eastern time) on the
1st day of such month. The term "Prime Rate" shall mean the
"prime rate" as announced from time to time by Chase Manhattan
Bank, New York, New York or any successor thereto. In the
event Chase Manhattan Bank, New York, New York or any
successor thereto, shall discontinue announcement of said
Prime Rate, a comparable index designated by the Lender shall
be used in calculating the Interest Rate. It is expressly
agreed that the use of the term "prime rate" or any other
similar designation is not intended to, nor does it, imply
that said rate of interest is a preferred rate of interest or
one which is offered by Chase Manhattan Bank, New York, New
York or any successor thereto to its most creditworthy
customers.
Original Prime Interest Rate -- means, with respect
to any calendar month, a per annum rate of interest equal to
the greater of:
(a) 9.25%, or
(b) the sum of
(i) 1.50%, plus
(ii) the Prime Rate then in effect
for such month.
To the extent that the interest rate for any calendar month
shall be based upon the Prime Rate, such Prime Rate shall be
the Prime Rate in effect at 9:00 a.m. (Eastern time) on the
1st day of such month. The term "Prime Rate" shall mean the
"prime rate" as announced from time to time by Chase Manhattan
Bank, New York, New York or any successor thereto. In the
event Chase Manhattan Bank, New York, New York or any
successor thereto, shall discontinue announcement of said
Prime Rate, a comparable index designated by the Lender shall
be used in calculating the Interest Rate. It is expressly
agreed that the use of the term "prime rate" or any other
similar designation is not intended to, nor does it, imply
that said rate of interest is a preferred rate of interest or
one which is offered by Chase Manhattan Bank, New York, New
York or any successor thereto to its most creditworthy
customers.
Steamboat Construction Project Borrowing Base --
means, on any date and with respect to the Steamboat Project,
80% of the aggregate amount of
(a) Construction Costs for the Steamboat
Project, FF&E Costs for the Steamboat Project and
Sales, Marketing & Other Costs for the Steamboat
Project incurred and paid for by GSRP on or prior to
such date in respect of the Steamboat Project under
and in accordance with the Budget for the Steamboat
Project plus
(b) pre-development expenses and land values
(net of mortgage debt) for such Project set forth on
Schedule 1 hereto,
provided that the "Steamboat Construction Project Borrowing
Base" shall, in no case, exceed the lesser of:
(i) the remainder of (1) $56,300,000 minus
(2) 50% of the original outstanding principal
balance of the Mezzanine Debt, if any; and
(ii) the remainder of (A) Maximum
Outstanding Loan Limit, minus (B) the sum of (1) the
aggregate outstanding principal balance of all
Construction Project Advances other than Steamboat
Construction Project Advances as of such date, (2)
the aggregate outstanding principal balance of all
Inventory Advances as of such date and (3) the
aggregate outstanding principal balance of Interest
Advances other than Steamboat Interest Advances as of
such date.
(b) Amendment of Sections 2.1(a) and (b) of the Existing LSA.
Sections 2.1(a) and (b) of the Existing LSA are hereby amended and
restated in its entirety as follows:
2.1 Construction Project Advances.
(a) Steamboat Construction Project Advances.
Except as provided in the final proviso to this
clause (a), each of the Steamboat Construction
Project Advance Lenders agrees, pursuant to the terms
of this Agreement and subject to the satisfaction of
the conditions precedent in Section 6 of this
Agreement, to make its Pro Rata Share of one or more
advances in respect of the Steamboat Project (such
advances, with respect to the Steamboat Project, are
individually referred to as a "*Steamboat
Construction Project Advance" and collectively as the
"*Steamboat Construction Project Advances") to GSRP
from time to time during the Steamboat Commitment
Period, provided that
(i) no Steamboat Construction Project Advance shall be
made
(A) unless the proceeds
thereof are to be used to satisfy
Construction Costs in respect of the
Steamboat Project, FF&E Costs in
respect of the Steamboat Project
and/or Sales, Marketing & Other
Costs in respect of the Steamboat
Project and no Equity Moneys or
Mezzanine Debt proceeds are
available that are designated
pursuant to the Budget for the
Steamboat Project to be used to
satisfy such Costs;
20
(B) if the proceeds thereof
are to be used to reimburse GSRP for
any Equity Moneys used to satisfy
the minimum cash equity requirements
for the Steamboat Project or
Mezzanine Debt, in each case,
previously used to satisfy
Construction Costs in respect of the
Steamboat Project, FF&E Costs in
respect of the Steamboat Project
and/or Sales, Marketing & Other
Costs in respect of the Steamboat
Project (provided that the proceeds
may be used to repay the BankBoston
Interim Steamboat Project Advance
per Part II of Schedule 1 to the
First Amendment Agreement);
(C) if a Default or Event
of Default shall then exist that has
not been waived by the Steamboat
Construction Project Required
Lenders, and
(D) if the aggregate amount
of the purchase prices payable under
Validated Contracts arising from the
sale of Steamboat Quartershare
Interests is less than $16,500,000,
provided that, until the earlier of
(I) December 31, 1999 and (II) 60
days after GSRP shall have obtained
its subdivision license in Colorado,
GSRP may satisfy the requirements
under this clause (D) by having
Reservation Contracts having an
aggregate amount of purchase prices
of not less than $23,700,000;
(ii) (A) on the date of the making
of any Steamboat Construction Project
Advance (and after giving effect thereto)
the aggregate outstanding principal amount
of all Construction Project Advances made
hereunder with respect to all of the
Projects shall not exceed the Aggregate
Construction Project Borrowing Base,
determined as of such date, and (B) on the
date of the making of any Steamboat
Construction Project Advance hereunder (and
after giving effect thereto) the aggregate
original principal amount of all Advances
made hereunder shall not exceed
$177,000,000, provided that in making such
calculation there shall be no duplication in
respect of any Construction Project Advance
or Advances which shall have been refinanced
by an Inventory Advance;
(iii) on the date of the making of
any Steamboat Construction Project Advance
(and after giving effect thereto) (A) the
aggregate original principal amount of all
Steamboat Construction Project Advances made
hereunder shall not exceed the amount
described in clause (a) of the definition of
Steamboat Construction Project Borrowing
Base (without giving effect to the proviso
with respect thereto) determined as of such
date and (B) on the date of the making of
any Steamboat Construction Project Advance
(and after giving effect thereto) the
aggregate outstanding principal amount of
all Steamboat Construction Project Advances
and all Steamboat Interest Advances made
hereunder shall not exceed the Steamboat
Construction Project Borrowing Base,
determined as of such date (inclusive of the
proviso set forth in the definition
thereof);
(iv) the original principal amount
of each Steamboat Construction Project
Advance to be made in respect of
Construction Costs of the Steamboat Project,
at the time of the making thereof, shall
have been determined by excluding from such
Construction Costs a contractor's retainage
of not less than 10% of the first one-half
of the applicable Construction Costs (such
10% so reserved from any such Construction
Costs is referred to herein as the
"Steamboat Retainage Amount;" for purposes
of the avoidance of doubt, the Steamboat
Retainage Amount shall be based upon the
full amount of certified Construction Costs
for the Steamboat Project and shall remain
as a retainage until the final payment
thereof), provided that, in connection with
the Steamboat Final Construction Cost
Advance and subject to the requirements of
Section 6.4 hereof, this clause (iv) shall
not operate and the aggregate unutilized
Steamboat Retainage Amounts may then be
borrowed in their entirety and provided
further that the Administrative Agent, as
directed by the Steamboat Construction
Project Required Lenders and upon GSRP's
submission of a written request therefor
(which request shall be based upon the
completion of construction work at the
Steamboat Project by a subcontractor or by
the General Contractor for the Steamboat
Project and the desire of GSRP to pay such
subcontractor or the General Contractor for
such work), may agree to advance any or all
of such unutilized Steamboat Retainage
Amounts prior to the making of the Steamboat
Final Construction Cost Advance upon such
terms and conditions as it may require;
(v) the original principal amount of
the Steamboat Final Construction Cost
Advance, assuming compliance with clauses
(ii) and (iii) above, shall not exceed 100%
of the aggregate amount of the Steamboat
Retainage Amounts then owing to the General
Contractor for the Steamboat Project under
the Construction Contract for the Steamboat
Project, as of the date of the making of
such *Steamboat Final Construction Cost
Advance;
(vi) no more than one Steamboat
Construction Project Advance shall be made
during any weekly period and no Steamboat
Construction Project Advance shall be made
if any other Construction Project Advance
was made during such weekly period;
(vii) each Steamboat Construction
Project Advance shall only relate or be
attributable only to the Steamboat Project;
and
(viii) no Steamboat Construction
Project Advance shall be in an amount of
less than $50,000 and no Steamboat
Construction Project Advance shall be made
until Lenders shall have been obtained and
have agreed hereunder to provide commitments
of at least $56,300,000 of Steamboat
Construction Project Advances and
$46,200,000 of Canyons Construction Project
Advances (counting with respect to such
amount the Canyons Construction Project
Advance Commitments of Textron Financial
Corporation and Green Tree Financial
Servicing Corporation);
provided that, with respect to the making of any
Steamboat Construction Project Advance in respect of
the Interim Steamboat Construction Project Advance
Commitment (an "Interim Steamboat Construction
Project Advance"), the conditions set forth on Part 1
of Schedule 1 to the First Amendment Agreement and
not the conditions set forth above shall be
applicable;
(b) Canyons Construction Project Advances.
Each of the Canyons Construction Project Advance
Lenders agrees, pursuant to the terms of this
Agreement and subject to the satisfaction of the
conditions precedent in Section 6 of this Agreement,
to make its Pro Rata Share of one or more advances in
respect of the Canyons Project (such advances, with
respect to the Canyons Project, are individually
referred to herein as a "Canyons Construction Project
Advance" and collectively as the "Canyons
Construction Project Advances") to GSRP from time to
time during the Canyons Commitment Period, provided
that
(i) no Canyons Construction Project Advance shall be
made
(A) unless the proceeds
thereof are to be used to satisfy
Construction Costs in respect of the
Canyons Project, FF&E Costs in
respect of the Canyons Project
and/or Sales, Marketing & Other
Costs in respect of the Canyons
Project and no Equity Moneys or
Mezzanine Debt are available that
are designated to be used to satisfy
such Costs pursuant to the Budget
for the Canyons Project;
(B) if the proceeds thereof
are to be used to reimburse GSRP for
any Equity Moneys used to satisfy
cash minimum equity requirements for
the Canyons Project or Mezzanine
Debt, in each case, previously used
to satisfy Construction Costs in
respect of the Canyons Project, FF&E
Costs in respect of the Canyons
Project and/or Sales, Marketing &
Other Costs in respect of the
Canyons Project;
(C) if a Default or Event
of Default shall then exist that has
not been waived by the Canyons
Construction Project Required
Lenders, and
(D) if the aggregate amount
of the purchase prices payable under
Validated Contracts arising from the
sale of Canyons Quartershare
Interests is less than $31,700,000;
(ii) (A) on the date of the making
of any Canyons Construction Project Advance
(and after giving effect thereto) the
aggregate outstanding principal amount of
all Construction Project Advances made
hereunder with respect to all of the
Projects shall not exceed the Aggregate
Construction Project Borrowing Base,
determined as of such date, and (B) on the
date of the making of any Canyons
Construction Project Advance hereunder (and
after giving effect thereto) the aggregate
original principal amount of all Advances
made hereunder shall not exceed
$177,000,000, provided that in making such
calculation there shall be no duplication in
respect of any Construction Project Advance
or Advances which shall have been refinanced
by an Inventory Advance;
(iii) on the date of the making of
any Canyons Construction Project Advance
(and after giving effect thereto) (A) the
aggregate original principal amount of all
Canyons Construction Project Advances made
hereunder shall not exceed the amount
described in clause (a) of the definition of
Canyons Construction Project Borrowing Base
(without giving effect to the proviso with
respect thereto) determined as of such date
and (B) on the date of the making of any
Canyons Construction Project Advance (and
after giving effect thereto) the aggregate
outstanding principal amount of all Canyons
Construction Project Advances and all
Canyons Interest Advances made hereunder
shall not exceed the Canyons Construction
Project Borrowing Base, determined as of
such date (inclusive of the proviso set
forth in the definition thereof);
(iv) the original principal amount
of each Canyons Construction Project Advance
to be made in respect of Construction Costs
of the Canyons Project, at the time of the
making thereof, shall have been determined
by excluding from such Construction Costs a
contractor's retainage of not less than 10%
of the first one-half of the applicable
Construction Costs (such 10% so reserved
from any such Construction Costs is referred
to herein as the "Canyons Retainage Amount;"
for purposes of the avoidance of doubt, the
Canyons Retainage Amount shall be based upon
the full amount of certified Construction
Costs for the Canyons Project and shall
remain as a retainage until the final
payment thereof), provided that, in
connection with the Canyons Final
Construction Cost Advance and subject to the
requirements of Section 6.4 hereof, this
clause (iv) shall not operate and the
aggregate unutilized Canyons Retainage
Amounts may then be borrowed in their
entirety and provided further that the
Administrative Agent, as directed by the
Canyons Construction Project Required
Lenders and upon GSRP's submission of a
written request therefor (which request
shall be based upon the completion of
construction work at the Canyons Project by
a subcontractor or by the General Contractor
for the Canyons Project and the desire of
GSRP to pay such subcontractor or the
General Contractor for such work), may agree
to advance any or all of such unutilized
Canyons Retainage Amounts prior to the
making of the Canyons Final Construction
Cost Advance upon such terms and conditions
as it may require;
(v) the original principal amount of
the Canyons Final Construction Cost Advance,
assuming compliance with clauses (ii) and
(iii) above, shall not exceed 100% of the
aggregate amount of the Canyons Retainage
Amounts then owing to the General Contractor
for the Canyons Project under the
Construction Contract for the Canyons
Project, as of the date of the making of
such Canyons Final Construction Cost
Advance;
(vi) no more than one Canyons
Construction Project Advance shall be made
during any weekly period and no Canyons
Construction Project Advance shall be made
if any other Construction Project Advance
was made during such weekly period;
(vii) each Canyons Construction
Project Advance shall only relate or be
attributable only to the Canyons Project;
and
(viii) no Canyons Construction
Project Advance shall be in an amount of
less than $50,000.
(c) References to $200,000,000 and $145,000,000 in the
Existing LSA. All references to "$200,000,000" in the Existing LSA and
in any other Security Documents are hereby automatically modified to
refer to "$177,000,000" without the need or requirement of any
additional action by any party hereto. All references to "$145,000,000"
in the Existing LSA and in any other Security Documents are hereby
automatically modified to refer to the "Maximum Outstanding Loan Limit"
without the need or requirement of any additional action by any party
hereto.
(d) Amendment of Section 2.3(c)(i). There is hereby added to
Section 2.3(c) (i) of the Existing LSA the following last sentence:
For the avoidance of doubt, each of the Steamboat
Loan, the Canyons Loan, the *Sugarbush Loan, the *Sugarloaf
Loan, the Jordan Bowl Loan, the Attitash Loan, the Killington
Loan and the Mt. Snow Loan, shall bear interest at the
Original Prime Interest Rate and on and after the Full
Syndication Date shall bear interest at the New Prime Interest
Rate or the LIBOR Interest Rate and the appropriate Project
Required Lenders may elect which rate shall apply, as provided
for in the definition of "Interest Rate."
(d) Section 2.5(c) of the Existing LSA. Section 2.5(c) of the
Existing LSA is hereby amended and restated in its entirety as follows:
(e) Borrowing Base Prepayments.
(i) If on any date the aggregate outstanding
principal amount of the Loan shall exceed the Aggregate
Construction Project Borrowing Base, determined as of such
date, GSRP shall immediately pay the amount of such excess to
the Administrative Agent together with interest accrued
thereon to (but not including) the date of such payment and
such amounts shall be applied by the Administrative Agent when
received in good, collected funds as set forth in Section
2.5(d) hereof to prepay ratably each outstanding Advance.
(ii) If on any date the aggregate outstanding
principal amount of the Steamboat Loan shall exceed the
Steamboat Construction Project Borrowing Base, determined as
of such date, GSRP shall immediately pay the amount of such
excess to the Administrative Agent together with interest
accrued thereon to (but not including) the date of such
payment and such amounts shall be applied by the
Administrative Agent when received in good, collected funds as
set forth in Section 2.5(d) hereof to prepay the Steamboat
Loan, provided that, during the Syndication Period, the
Steamboat Construction Borrowing Base shall be limited to 80%
of the aggregate amount of Construction Costs and interest
costs for the Steamboat Project and shall, in no case, exceed
$12,000,000 .
If on any date the aggregate outstanding principal
amount of the Canyons Loan shall exceed the Canyons
Construction Project Borrowing Base, determined as of such
date, GSRP shall immediately pay the amount of such excess to
the Administrative Agent together with interest accrued
thereon to (but not including) the date of such payment and
such amounts shall be applied by the Administrative Agent when
received in good, collected funds as set forth in Section
2.5(d) hereof to prepay the Canyons Loan.
(iii) If on each of the following test dates the
aggregate outstanding principal amount of all Inventory
Advances (other the Inventory Advances in respect of the 1997
Projects) exceeds the maximum outstanding principal amount of
Inventory Advances set forth below, GSRP shall immediately pay
the amount of such excess to the Administrative Agent together
with interest accrued thereon to (but not including) the date
of such payment and such amounts shall be applied by the
Administrative Agent when received in good, collected funds as
set forth in Section 2.5(d) hereof ratably to all Inventory
Advances (other than Inventory Advances in respect of the 1997
Projects):
----------------------------------------------------------- ========================================================
Test Date Maximum Outstanding Principal Amount of Inventory
Advances
----------------------------------------------------------- ========================================================
----------------------------------------------------------- ========================================================
March 31, 2001 the remainder of (1) $60,000,000 minus (2) the
original outstanding principal amount of the Mezzanine
Debt, if any
----------------------------------------------------------- ========================================================
----------------------------------------------------------- ========================================================
September 30, 2001 the remainder of (1) $40,000,000 minus (2) the
original outstanding principal amount of the Mezzanine
Debt, if any
----------------------------------------------------------- ========================================================
----------------------------------------------------------- ========================================================
March 31, 2002 the remainder of (1) $15,000,000 minus (2) the
original outstanding principal amount of the Mezzanine
Debt, if any
----------------------------------------------------------- ========================================================
----------------------------------------------------------- ========================================================
----------------------------------------------------------- ========================================================
(f) Cash Collateral Account. For so long as any Interim
Steamboat Construction Project Advance is outstanding, no moneys from
the Cash Collateral Account or in respect of any Borrowing Base
prepayment (other than in respect of the Steamboat Construction Project
Borrowing Base) shall be allocated or distributed in respect thereof
unless and until all other Obligations shall have been paid in full,
provided that this clause (f) shall have no effect on and after the
Full Syndication Date or, if earlier, the date on which Green Tree
shall have elected, in its sole discretion, to participate in the
Interim Steamboat Construction Project Advance, as contemplated in
recital O of this First Amendment Agreement.
(g) Amendment of Steamboat Construction Project Advance
Commitment and Steamboat Inventory Advance Commitment. The Steamboat
Construction Project Advance Commitment of Textron is hereby decreased
to $0, provided that, as set forth in recital I of this First Amendment
Agreement, Textron hereby extends the Interim Steamboat Construction
Project Advance Commitment to GSRP for the Syndication Period (subject
to any adjustments with respect thereto contemplated in recital O of
this First Amendment Agreement). The Steamboat Construction Project
Advance Commitment of Green Tree is hereby decreased to $0 subject to
its decision to participate in the Interim Steamboat Construction
Project Commitment, as set forth in recital O of this First Amendment
Agreement. The Steamboat Inventory Advance Commitment of Textron is
hereby decreased to $0. The Steamboat Inventory Advance Commitment of
Green Tree is hereby decreased to $0. For the avoidance of doubt,
neither Textron nor Green Tree shall have any obligation or commitment
to extend any Steamboat Construction Project Advances or Steamboat
Inventory Advances, provided that, for so long as the conditions
precedent set forth on Part 1 to Schedule 1 to this First Amendment
Agreement are satisfied and then only during the Syndication Period,
Textron (and, to the extent, but only to extent, provided for in
recital O of the First Amendment Agreement, Green Tree) will extend
Interim Steamboat Construction Project Advances to GSRP pursuant to the
Interim Steamboat Project Advance Commitment.
The Steamboat Construction Project Advance Note of Textron is hereby
amended to reflect the above as is Textron's signature block to the
Existing LSA. GSRP shall execute and deliver an allonge, in form and
substance satisfactory to Textron, reflecting the above and Textron
shall attach it to said Steamboat Construction Project Advance Note.
The Steamboat Construction Project Advance Note of Green Tree is hereby
amended to reflect the above as is Green Tree's signature block to the
Existing LSA. GSRP shall execute and deliver an allonge, in form and
substance satisfactory to Green Tree, reflecting the above and Green
Tree shall attach it to said Steamboat Construction Project Advance
Note. The Steamboat Inventory Advance Note of Textron is hereby amended
to reflect the above as is Textron's signature block to the Existing
LSA. GSRP shall execute and deliver an allonge, in form and substance
satisfactory to Textron, reflecting the above and Textron shall attach
it to said Steamboat Inventory Advance Note. The Steamboat Inventory
Advance Note of Green Tree is hereby amended to reflect the above as is
Green Tree's signature block to the Existing LSA. GSRP shall execute
and deliver an allonge, in form and substance satisfactory to Green
Tree, reflecting the above and Green Tree shall attach it to said
Steamboat Inventory Advance Note.
(h) Amendment of Canyons Construction Project Advance
Commitment and Canyons Inventory Advance Commitment.
(i) Textron's current Canyons Construction Project
Advance Commitment is hereby increased from
(A) $6,516,768.21 + {50% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by
Textron up to a maximum of $8,483,231.79} -- the
total possible amount of Canyons Construction Project
Advance Commitment shall not exceed $15,000,000 to
(B) $28,128,755.86 + {100% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by
Textron up to a maximum of $11,871,244.14} + (without
duplication) {100% of the principal amount of the
portion of the Jordan Bowl Inventory Advance Note,
the Attitash Inventory Advance Note, the Killington
Inventory Advance Note and/or the Mt. Snow Inventory
Advance Note sold and assigned by Textron after the
First Amendment Closing Date pursuant to Section
2.6(b) of the Amended LSA and 100% of the principal
amount of the participations granted by Textron after
the First Amendment Closing Date in and to its Jordan
Bowl Inventory Advance Note, its Attitash Inventory
Advance Note, its Killington Inventory Advance Note
and/or its Mt. Snow Inventory Advance Note pursuant
to Section 2.6(a) of the Amended LSA} -- the total
possible amount of Canyons Construction Project
Advance Commitment shall not exceed $40,000,000 --
minus, in any case, (1) during the Syndication
Period, the Interim Steamboat Construction Project
Advance Commitment and (2) after the Syndication
Period, the aggregate outstanding principal amount of
all Interim Steamboat Construction Project Advances
and Steamboat Interest Advances made during the
Syndication Period unless the Full Syndication Date
shall have occurred and such Advances shall have been
consequently recharacterized as Steamboat
Construction Project Advances and Steamboat Interest
Advances made during the Steamboat Commitment Period
(the Syndication Period not being deemed, for
purposes of this subclause (B), as part of the
Steamboat Commitment Period) in which case this
clause (2) shall be deemed to be $0; clauses (1) and
(2) above are subject in any case to the adjustments
contemplated in recital O of this First Amendment
Agreement.
The Canyons Construction Project Advance Note of Textron is
hereby amended to reflect the above as is Textron's signature
block to the Existing LSA. GSRP shall execute and deliver an
allonge, in form and substance satisfactory to Textron,
reflecting the above and Textron shall attach it to said Note.
(ii) Textron's current Canyons Inventory Advance
Commitment is hereby increased from
(A) $6,516,768.21 + {50% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by
Textron up to a maximum of $8,483,231.79} -- the
total possible amount of Canyons Inventory Advance
Commitment shall not exceed $15,000,000 to
(B) $28,128,755.86 + {100% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by
Textron up to a maximum of $11,871,244.14} + (without
duplication) {100% of the principal amount of the
portion of the Jordan Bowl Inventory Advance Note,
the Attitash Inventory Advance Note, the Killington
Inventory Advance Note and/or the Mt. Snow Inventory
Advance Note sold and assigned by Textron after the
First Amendment Closing Date pursuant to Section
2.6(b) of the Amended LSA and 100% of the principal
amount of the participations granted by Textron after
the First Amendment Closing Date in and to its Jordan
Bowl Inventory Advance Note, its Attitash Inventory
Advance Note, its Killington Inventory Advance Note
and/or its Mt. Snow Inventory Advance Note pursuant
to Section 2.6(a) of the Amended LSA} -- the total
possible amount of Canyons Inventory Advance
Commitment shall not exceed $40,000,000 minus, in any
case, the aggregate outstanding principal amount of
all Interim Steamboat Construction Project Advances
and Steamboat Interest Advances made during the
Syndication Period unless the Full Syndication Date
shall have occurred and such Advances shall have been
consequently recharacterized as Steamboat
Construction Project Advances and Steamboat Interest
Advances made during the Steamboat Commitment Period
(the Syndication Period not being deemed for purposes
of this subclause (B) to be part of the Steamboat
Commitment Period) in which case nothing shall be
subtracted from the foregoing amounts; clauses (1)
and (2) above are subject in any case to the
adjustments contemplated in recital O of the First
Amendment .
The Canyons Inventory Advance Note of Textron is hereby
amended to reflect the above as is Textron's signature block
to the Existing LSA. GSRP shall execute and deliver an
allonge, in form and substance satisfactory to Textron,
reflecting the above and Textron shall attach it to said Note.
(iii) Green Tree's current Canyons Construction
Project Advance Commitment is hereby increased from
(A) $6,516,768.21 + {50% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by Green
Tree up to a maximum of $8,483,231.79} -- the total
possible amount of Canyons Construction Project
Advance Commitment shall not exceed $15,000,000 to
(B) $18,128,755.86 + {100% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by Green
Tree up to a maximum of $11,871,244.14} + (without
duplication) {100% of the principal amount of the
portion of the Jordan Bowl Inventory Advance Note,
the Attitash Inventory Advance Note, the Killington
Inventory Advance Note and/or the Mt. Snow Inventory
Advance Note sold and assigned by Green Tree after
the First Amendment Closing Date pursuant to Section
2.6(b) of the Amended LSA and 100% of the principal
amount of the participations granted by Green Tree
after the First Amendment Closing Date in and to its
Jordan Bowl Inventory Advance Note, its Attitash
Inventory Advance Note, its Killington Inventory
Advance Note and/or its Mt. Snow Inventory Advance
Note pursuant to Section 2.6(a) of the Amended LSA}
-- the total possible amount of Canyons Construction
Project Advance Commitment shall not exceed
$30,000,000 (subject to ratable adjustments as
contemplated in Textron's Canyons Construction
Project Advance Commitment in the case that Green
Tree shall acquire a part of the Interim Steamboat
Construction Project Advance Commitment and the
Interim Steamboat Construction Project Advances, as
contemplated in recital O of this First Amendment
Agreement).
The Canyons Construction Project Advance Note of Green Tree is
hereby amended to reflect the above as is Green Tree's
signature block to the Existing LSA. GSRP shall execute and
deliver an allonge, in form and substance satisfactory to
Green Tree, reflecting the above and Green Tree shall attach
it to said Note.
(iv) Green Tree's current Canyons Inventory Advance
Commitment is hereby increased from
(A) $6,516,768.21 + {50% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by Green
Tree up to a maximum of $8,483,231.79} -- the total
possible amount of Canyons Inventory Advance
Commitment shall not exceed $15,000,000 to
(B) $18,128,755.86 + {100% of each dollar of
principal repaid in respect of the Jordan Bowl
Inventory Advance Note, the Attitash Inventory
Advance Note, the Killington Inventory Advance Note
and the Mt. Snow Inventory Advance Note held by
Textron up to a maximum of $11,871,244.14} + (without
duplication) {100% of the principal amount of the
portion of the Jordan Bowl Inventory Advance Note,
the Attitash Inventory Advance Note, the Killington
Inventory Advance Note and/or the Mt. Snow Inventory
Advance Note sold and assigned by Green Tree after
the First Amendment Closing Date pursuant to Section
2.6(b) of the Amended LSA and 100% of the principal
amount of the participations granted by Green Tree
after the First Amendment Closing Date in and to its
Jordan Bowl Inventory Advance Note, its Attitash
Inventory Advance Note, its Killington Inventory
Advance Note and/or its Mt. Snow Inventory Advance
Note pursuant to Section 2.6(a) of the Amended LSA}
-- the total possible amount of Canyons Inventory
Advance Commitment shall not exceed $30,000,000
(subject to ratable adjustments as contemplated in
Green Tree's Canyons Inventory Advance Commitment in
the case that Green Tree shall acquire a part of the
Interim Steamboat Construction Project Advance
Commitment and the Interim Steamboat Construction
Project Advances, as contemplated in recital O of
this First Amendment Agreement).
The Canyons Inventory Advance Note of Green Tree is hereby
amended to reflect the above as is Green Tree's signature
block to the Existing LSA. GSRP shall execute and deliver an
allonge, in form and substance satisfactory to Green Tree,
reflecting the above and Green Tree shall attach it to said
Note.
(i) Section 2.6(b) of the Existing LSA. Section 2.6(b) of the
Existing LSA is hereby amended and restated in its entirety as follows:
(b) Assignments. Each Lender shall have the right, at
any time, to sell, assign or transfer to any Eligible Assignee
all or any part of its Commitment or its Pro Rata Share of the
Steamboat Loan, the Canyons Loan, the Jordan Bowl Loan, the
Attitash Loan, the Killington Loan and/or the Mt. Snow Loan,
as the case may be, provided that
(i) No Lender shall assign any part of its
Loan prior to the Full Syndication Date without the
prior written consent of GSRP, which shall not be
unreasonably withheld; after the Full Syndication
Date, no consent of GSRP shall be required;
(ii) no such sale, assignment or transfer
shall, without the prior written consent of GSRP,
require GSRP to file a registration statement with
the Securities and Exchange Commission or apply to
qualify such sale, assignment or transfer under the
securities laws of any state,
(iii) no such sale, assignment or transfer
shall be effective unless and until an assignment
agreement effecting such sale, assignment or
transfer, in form and substance reasonably
satisfactory to the Administrative Agent, shall have
been accepted by the Administrative Agent, and
(iv) no such sale, assignment or transfer
shall be effected in an amount of less than
$1,000,000.
To the extent of any such assignment in accordance with the
requirements of this Section 2.6(b), the assigning Lender
shall be relieved of its obligations with respect to its
respective Commitment and the portion of such Loan or Loans so
assigned that corresponds to such Commitment. Upon such
execution, delivery and acceptance from and after the
effective date specified in the aforesaid assignment
agreement, (A) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such assignment agreement,
shall have the rights and obligations of a Lender hereunder
that corresponds to the portion of the Loan so assigned and
(B) the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such assignment agreement, relinquish its rights
and be released from its obligations under this Agreement to
the extent of the portion of such Loan or Loans so assigned.
The appropriate Commitments hereunder shall be modified to
reflect the acceptance of the assigned portion of the
appropriate Commitment by such assignee and to reflect any
remaining Commitment of such assigning Lender not so assigned
and, if any such assignment occurs after the issuance of the
Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as
practicable, surrender its Note to GSRP for cancellation, and
thereupon new Notes shall be issued by GSRP to the assignee
and to the assigning Lender, substantially in the form of
Exhibits E-1, E-2, E-3, E-4, E-5, E-6, E-7, E-8, E-9, E-10,
E-11 or E-12, as the case may be, attached hereto with
appropriate insertions, to reflect the new appropriate
Commitments of the assignee and the assigning Lender. Except
as otherwise provided in this Section 2.6(b) and in Section
2.3(a)(i) hereof, no Lender shall, as between GSRP and such
Lender, be relieved of any of its obligations hereunder as a
result of any sale, assignment or transfer of all or any part
of its Commitment or its Pro Rata Share of the Loan.
(j) Section 2.7 of the Existing LSA. Section 2.7 of the
Existing LSA is hereby amended and restated in its entirety as follows:
2.7 Commitment Fee.
In connection with the Existing LSA (as defined in
the First Amendment Agreement), GSRP paid to Textron Financial
Corporation $600,000 for the $60,000,000 amount of commitments
provided for therein. Such fee was paid to Textron Financial
Corporation in its individual capacity and not as the
Administrative Agent or lender. GSRP hereby agrees that such
fees were fully earned and are nonrefundable. GSRP
acknowledges that Textron Financial Corporation has earned a
$100,000 fee in connection with its increase in its overall
commitments from $30,000,000 to $40,000,000 in the First
Amendment Agreement and such $100,000 fee shall be due and
payable from the first Canyons Construction Project Advance or
the first Steamboat Construction Project Advance made after
the First Amendment Closing Date. Further syndication fees are
payable to Textron Financial Corporation as provided for in
the Syndication Letter. Except as specifically set forth
above, no further fees are due and payable to Textron
Financial Corporation under this Section 2.7. GSRP hereby
acknowledges its obligations to pay such fees to Textron
Financial Corporation and further acknowledges that Textron
Financial Corporation has no obligation to obtain such
commitments and has not assured GSRP in any way of the success
of the same. No Lender (other than Textron Financial
Corporation) shall have any rights under this Section 2.7.
(k) New Section 3.15(c). A new section 3.15(c) is hereby to
the Existing LSA:
(c) Upgrading of Quartershare Interests.
If
(i) the Administrative Agent shall
have executed and delivered to GSRP a
partial release of a Blanket Mortgage in
connection with the sale of a Quartershare
Interest, as provided for under Section
3.15(a) above,
(ii) the Administrative Agent was
paid the full Release Price in respect of
the sale of such Quartershare Interest under
said Section 3.15(a), and
(iii) GSRP and the Purchaser of such
Quartershare Interest shall have, subsequent
to the consummation of the sale of such
Quartershare Interest, determined to
"upgrade" such Quartershare Interest and, in
connection therewith, shall have entered
into the appropriate sale and exchange
documents (all of which shall be
satisfactory to Administrative Agent)
whereby the Purchaser of such "originally"
acquired Quartershare Interest is to convey
such Quartershare Interest back to GSRP and
is to enter into a Contract to purchase the
"upgraded" Quartershare Interest,
then the Administrative Agent shall apply the release
procedures set forth in Section 3.15(a) above with
respect to the consummation of the sale of such
"upgraded" Quartershare Interest upon the following
conditions (which shall be in addition to the
conditions set forth in Section 3.15(a) above and
shall take precedence over any conflicting conditions
set forth in said Section 3.15(a)):
(1) the Contract for the sale of
such "upgraded" Quartershare Interest shall
be consummated and, contemporaneously
therewith, the Purchaser shall have conveyed
to GSRP, via a warranty deed and for
valuable consideration, the "originally"
acquired Quartershare Interest subject to no
liens or encumbrances other than those that
encumbered such Quartershare Interest when
it was sold to such Purchaser by GSRP,
(2) the exchange of the "upgraded"
Quartershare Interest for the "originally"
acquired Quartershare Interest shall not
have been consummated more than 180 days
after the consummation of the purchase of
the "originally" acquired Quartershare
Interest,
(3) all other exchange documentation
entered into between GSRP, and such
Purchaser shall be satisfactory to the
Administrative Agent,
(4) no Default or Event of Default
shall then exist,
(5) the applicable Purchaser shall
not have been the subject of a prior use of
this Section 3.15(c) with respect to any
Quartershare Interest previously purchased
by such Purchaser,
(6) the Release Price to be paid in
respect of the "upgraded" Quartershare
Interest shall be the remainder (if
positive) of (A) the Release Price otherwise
payable in respect of such "upgraded"
Quartershare Interest minus (B) the Release
Price paid in respect of the "originally"
acquired Quartershare Interest (for the
avoidance of doubt, the Release Price for
such "upgraded" Quartershare Interest will
be $0 if subclause (B) above is greater than
subclause (A) above), and
(7) the "originally" acquired
Quartershare Interest, which has been
contemporaneously reacquired by GSRP from
such Purchaser, shall be added to the
Collateral and made subject once again to
the Blanket Mortgage that originally
encumbered it (pursuant to a modification to
such Blanket Mortgage which shall be
satisfactory to the Administrative Agent)
and an appropriate endorsement to the Title
Insurance Policy {Blanket}, at the sole cost
of GSRP, reflecting such addition shall be
delivered to the Administrative Agent (for
the avoidance of doubt, the Release Price of
such Quartershare Interest shall be its
original Release Price).
(l) Conditions Precedent. Sections 6.2, 6.3, 6.5, 6.6, 6.7,
6.8, and 6.9 of the Existing LSA shall not be applicable to any Interim
Steamboat Construction Project Advance during the Syndication Period.
Schedule 1 attached hereto contains all conditions precedent applicable
to such Interim Steamboat Construction Project Advances. GSRP
represents and warrants to the Lenders and the Administrative Agent
that all deliveries and other conditions set forth in Section 6.1 with
respect to the Steamboat Construction Project Advances have been made
and/or satisfied.
(m) Section 7.6 of the Existing LSA. Section 7.6 of the
Existing LSA is amended and restated in its entirety as follows:
GSRP shall not become or be liable in respect of any guaranty
except (a) the endorsement in the ordinary course of business
of negotiable instruments for deposit or collection, (b) the
guarantees provided for under the Parent Indenture, provided
that such guarantees are unsecured and junior and subordinate
in payment to the Obligations as provided for in the ASC
Indenture as of the Closing Date and (c) that certain guaranty
issued by GSRP in favor of BankBoston, N.A. under the
Parent/BKB Credit Facility, which guaranty, GSRP hereby
represents and warrants, has been released in connection with
the making of the Overadvance by Textron. The Borrower shall
not consent to or permit any modification or change in any of
the terms and provisions of any of the subordination
provisions referred to in clause (b) above. GSRP undertakes to
cause the Obligations hereunder to be"Designated Senior Debt"
under, and as defined in, the ASC Indenture to the extent that
the "Senior Agent," as such term is defined in the ASC
Indenture, has agreed to the same.
(n) Section 8.1(h) of the Existing LSA. Section 8.1(h) of the
Existing LSA is hereby amended and restated in its entirety as follows:
(h) Default by GSRP or Parent in Other Agreements --
(i) any default by GSRP, the Parent or any subsidiary thereof
in the payment of material indebtedness for borrowed money or
any guarantee issued by GSRP, the Parent or any subsidiary
thereof in respect of material indebtedness for borrowed
money; or (ii) any other default under such indebtedness which
accelerates or permits the acceleration (after the giving of
notice or passage of time, or both) of the maturity of such
indebtedness, whether or not such default has been waived by
the holder of such indebtedness; or (iii) if the Obligations
cease to be Senior Debt under, and as defined in, the ASC
Indenture, provided that no default under the Parent/BKB
Credit Facility shall cause any default under this clause (h)
for so long as the forbearance provisions of the Syndication
Standstill Agreement are in full force and effect;
4. OTHER COVENANTS OF GSRP.
GSRP hereby agrees as follows (each of such agreements being hereby
incorporated into the Existing LSA and becoming a part thereof):
(a) Syndication Standstill Agreement. GSRP agrees to give
Administrative Agent prompt written notice of any default of the Parent
under the Syndication Standstill Agreement or under the Parent/BKB
Credit Agreement and to also give the Administrative Agent prompt
written notice of the termination of BankBoston, N.A.'s forbearance
under the Syndication Standstill Agreement.
(b) Mezzanine Debt. GSRP shall notify the Administrative Agent
promptly if there is any change in the source and/or terms and
conditions of the Mezzanine Debt, as set forth on Schedules 3 and 4
hereto. If GSRP reasonably believes that it will not be able to close
and receive funding of such Mezzanine Debt on or prior to July 6, 1999,
it shall immediately inform Administrative Agent of the same. GSRP
agrees to continue to use BankBoston, N.A. to assist it in obtaining
Mezzanine Debt and shall cooperate fully with BankBoston, N.A. in its
endeavors to assist GSRP with respect thereto. GSRP acknowledges that
Textron Financial Corporation, Green Tree Financial Servicing
Corporation and the Administrative Agent are relying upon GSRP's
efforts in connection with the obtaining of the Mezzanine Debt in
connection with entering into this First Amendment Agreement.
(c) Overadvance Letter Agreement. GSRP shall make the
submissions referred to in clause (ii) of the Overadvance Letter
Agreement. GSRP shall use its best efforts to comply with its
undertakings described in clause (iii)(9) of the Overadvance Letter
Agreement. The parties hereto agree that the execution and delivery by
BankBoston, N.A. of the Syndication Standstill Agreement will satisfy
the requirements in the Overadvance Letter Agreement for the delivery
of the "Bank Letter" referred to therein. The parties hereto agree that
the execution and delivery of this First Amendment Agreement will
satisfy the requirements in the Overadvance Letter Agreement referred
to in clauses (iii)(1), (2), (3) and (10).
(d) Others. GSRP agrees to deliver copies to BankBoston, N.A.
of all documents, certificates and requests required to be delivered
under Section 6 with respect to each Canyons Construction Project
Advance made during the Syndication Period and all documents,
certificates and requests required to be delivered under Schedule 1
attached hereto with respect to each Interim Steamboat Construction
Project Advance made during the Syndication Period. GSRP shall cause
the Parent to deliver to the Administrative Agent all documents,
certificates and requests that the Parent delivers to BankBoston, N.A.
under the Parent/BKB Credit Agreement in order to obtain advances
thereunder during the Syndication Period. GSRP agrees, consistent with
recital V. above, to defer construction expenditures during the
Syndication Period under, and consistent with the terms of, the
Steamboat Construction Contract so as to remain within the expenditure
limits of the Interim Steamboat Construction Project Advance Commitment
or to otherwise obtain payment of the same from a source other than the
Interim Steamboat Construction Project Advance Commitment. GSRP
covenants not to allow the modification of the Parent Revised Budget
without the prior written consent of the Administrative Agent and,
during the Syndication Period, to cause the Parent to deliver to each
of the Lenders monthly reconciliations with respect to such Parent
Revised Budget (together with written explanations of any material
variances). GSRP agrees to pay to Textron a fee of $100,000 which
represents a 1% fee on the increase of Textron's overall commitments
under the Existing LSA from $30,000,000 to $40,000,000, all as provided
for in Section 2.7 of the Amended LSA. All undertakings of GSRP made or
referred to in the recitals hereto are hereby incorporated into the
Existing LSA. All of GSRP undertakings set forth in this Section 4 are
hereby incorporated into the Existing LSA.
5. WARRANTIES AND REPRESENTATIONS
GSRP hereby represents and warrants as of the date hereof as follows,
which representations and warranties are hereby incorporated into and made part
of the Amended LSA:
(a) Warranties and Representations True and Correct. Except as
otherwise disclosed on Schedule 10 attached hereto, each of the
representations and warranties contained in Section 4 of the Existing
LSA (other than Section 4.4 thereof) is true and correct as of the date
hereof. All of the statements, representations and warranties made by
or pertaining to GSRP in the recitals hereof are true and correct.
Without limiting the foregoing and in addition thereto, GSRP hereby:
(i) acknowledges that the following principal amounts
are outstanding on the following Notes held by the following
Lenders (each of the Lenders, by their execution of this First
Amendment Agreement, acknowledges that such amounts are
outstanding as of the date hereof):
---------------------------------------- ------------------------------------- -------------------------------------
Holder Note Amount
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
Textron Financial Corporation Attitash Inventory Note $424,070.47
Mt. Snow Inventory Note $5,287,222.48
Killington Inventory Note $2,865,110.42
Jordan Bowl Inventory Note $3,163,075.47
Canyons Construction Project $7,373,517.86 (includes Overadvance
Advance Note of $2,211,304.86)
Steamboat Construction Project $0
Advance Note
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
Green Tree Financial Servicing Attitash Inventory Note $424,070.47
Corporation
Mt. Snow Inventory Note $5,287,222.48
Killington Inventory Note $2,865,110.42
Jordan Bowl Inventory Note $3,163,075.47
Canyons Construction Project $5,162,213.00
Advance Note
Steamboat Construction Project $0
Advance Note
---------------------------------------- ------------------------------------- -------------------------------------
(ii) represents and warrants, except with respect to
the Permitted Exceptions, that all Liens granted to the
Administrative Agent under the Existing LSA and the other
Security Documents are duly granted, valid, perfected and
prior in right to all other Liens that now or hereafter may be
granted to or held by any other Person.
(iii) acknowledges that no claims, actions, causes
of actions, counterclaims as liabilities exist against, or
are held by it in respect of, any Lender, the Administrative
Agent, Textron Financial or Green Tree under the Existing
LSA or any of the Security Documents, and agrees, as further
inducement to Textron Financial's and Green Tree's entering
into this First Amendment Agreement, to release, waive and
discharge any such claims, actions, causes of actions,
counterclaims and/or liabilities and by executing this First
Amendment Agreement hereby so releases, waives and
discharges the same.
(b) Transaction Is Legal and Authorized. The execution and
delivery of this First Amendment Agreement, the Modification Documents
and the other documents and instruments contemplated herein, and
compliance by GSRP with all of the provisions of this First Amendment
Agreement, the Existing LSA, as amended hereby, and each of the other
documents set forth above are:
(i) within the corporate powers of GSRP;
(ii) valid and legal acts and will not conflict with,
or result in any breach in any of the provisions of, or
constitute a default under, or result in the creation of any
Lien (except Liens contemplated under any of the Security
Documents) upon any Property of GSRP under the provisions of,
any agreement, charter instrument, bylaw or other instrument
to which GSRP is a party or by which its Property may be
bound.
(c) Governmental Consent. Neither the nature of GSRP, or of
any of its businesses or Properties, or any relationship between GSRP
and any other Person, or any circumstance in connection with the
execution or delivery of this First Amendment Agreement and the other
documents contemplated in connection herewith, nor the operation of any
Project and the sale, or offering for sale, of any Quartershare
Interest of any of the Projects by GSRP, is such as to require a
consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of GSRP, as
a condition of the execution, delivery or performance of this First
Amendment Agreement and the other documents contemplated in connection
herewith.
(d) Restrictions of GSRP. GSRP will not be, on or after the
date hereof, a party to any contract or agreement which restricts its
right or ability to incur indebtedness under, or prohibits the
execution of, or compliance with, this First Amendment Agreement by
GSRP. GSRP has not agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its Property
constituting the Collateral, whether now owned or hereafter acquired,
to be subject to a Lien and all Liens in favor of the Administrative
Agent in respect of such Collateral remain in full force and effect
(except with respect to any Mezzanine Debt but only on terms and
conditions that will be acceptable to the Lenders).
(e) Brokers' Fees. There are no brokers and finders which are
entitled to receive compensation for their services rendered to GSRP
with respect to the transactions described in this First Amendment
Agreement.
(f) No Defaults or Events of Default. No Default or Event of
Default has occurred or is continuing, nor does any event or condition
exist that would constitute a Default or an Event of Default upon the
execution and delivery of this First Amendment Agreement. Since the
Closing Date, no material adverse change has occurred in or in respect
of the Collateral or any one or more of the Projects.
6. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS FIRST AMENDMENT AGREEMENT
This First Amendment Agreement shall become effective on the date (the
"First Amendment Closing Date") on which the parties hereto shall have executed
this First Amendment Agreement and each of the following conditions shall have
been satisfied:
(a) Warranties and Representations True as of First Amendment
Closing Date. The warranties and representations contained or referred
to in this First Amendment Agreement shall be true in all material
respects on the First Amendment Closing Date with the same effect as
though made on and as of that date. The Administrative Agent shall have
received a certificate, in form and substance satisfactory to the
Administrative Agent, dated as of the First Amendment Closing Date,
signed by an Executive Vice-President or Vice President of GSRP and
certifying that the warranties and representations of GSRP contained in
this First Amendment Agreement are true in all material respects on the
First Amendment Closing Date.
(b) Secretary's Certificates.
The Administrative Agent shall have received a certificate of
the Secretary or any Assistant Secretary of GSRP, in form and substance
reasonably satisfactory to the Administrative Agent, dated as of the
First Amendment Closing Date, certifying
(i) the adoption by the Board of Directors of GSRP of
a resolution authorizing GSRP to enter into this First
Amendment Agreement and the transactions and instruments
contemplated hereby, and
(ii) the incumbency and authority of, and verifying
the specimen signatures of, the officers of GSRP authorized to
execute and deliver this First Amendment Agreement, the
Modification Agreements and the other documents contemplated
hereunder.
(c) Legal Opinion. GSRP shall have delivered to Administrative
Agent and the Lenders a legal opinion from its General Counsel in form
and substance reasonably satisfactory to the Lenders and Administrative
Agent.
(d) Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 11.2(d) of Existing LSA
pursuant to invoices or other bills submitted to GSRP.
(e) Consent. Each Lender shall have consented to this First
Amendment Agreement.
(f) Other Documents.
(i) GSRP shall have executed each of the modification
agreements (collectively, the "Modification Agreements") to
each of the Blanket Mortgages, substantially in the forms of
Exhibits A1 through A6 attached hereto, and shall have been
delivered the same to the Administrative Agent.
(ii) Each of the other Persons that shall have
delivered subordination agreements to the Administrative Agent
in connection with the original closing of the Existing LSA
shall have executed this First Amendment Agreement to show its
consent to the same.
(iii) The Syndication Standstill Agreement shall have
been executed by the Parent and BankBoston, N.A. and shall be
in full force and effect. The BankBoston Interim Steamboat
Project Advance shall remain outstanding and shall have not
been accelerated or payment demanded in respect thereof.
(iv) The Steamboat Construction Project Advance Notes
and the Steamboat Inventory Advance Notes shall have delivered
to the Lenders together with appropriate allonges thereto by
BankBoston, N.A.
(v) GSRP shall have executed and delivered the
allonges referred to in Section 3(g) hereof.
(g) Other Deliveries. In consideration of Textron's making the
Overadvance and entering into this First Amendment Agreement, GSRP
agrees to deliver to Textron and Green Tree a general release of all
claims, actions, causes of actions, counterclaims and liabilities
whatsoever in form and substance satisfactory to Textron and Green
Tree, respectively.
7. MISCELLANEOUS
(a) Parties, Successors and Assigns. This First Amendment
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(b) Governing Law. This First Amendment Agreement shall be
governed by the internal laws of the State of Maine. To the extent any
provision of this First Amendment Agreement is not enforceable under
applicable law, such provision shall be deemed null and void and shall
have no effect on the remaining portions of this First Amendment
Agreement.
(c) Section Headings and Table of Contents and Construction.
The titles of the Sections appear as a matter of convenience only, do
not constitute a part hereof and shall not affect the construction
hereof. The words "herein," "hereof," "hereunder" and "hereto" refer to
this First Amendment Agreement as a whole and not to any particular
Section or other subdivision.
(d) Survival. All warranties, representations and covenants
made by GSRP herein or in any certificate or other instrument delivered
by it or on its behalf under this First Amendment Agreement shall be
considered to have been relied upon by the Lenders and shall survive
the execution and delivery of this First Amendment Agreement.
(e) Effect of Amendment. Except as explicitly amended by, or
otherwise provided for in, this First Amendment Agreement , the
Existing LSA, the Notes and the other Security Documents remain in full
force and effect under their respective terms as in effect immediately
prior to the effectiveness of this First Amendment Agreement, and GSRP
hereby affirms all of its obligations thereunder.
(f) Administrative Agent; Trust Agreement. The Lenders hereby
instruct the Administrative Agent, as administrative agent under the
Existing LSA and trustee under that certain Trust Agreement referred to
in the Maine Blanket Mortgage, to execute and deliver all necessary
instruments, certificates and documents required in its reasonable
judgment to consummate the transactions contemplated in this First
Amendment Agreement, including, without limitation, the Modification
Agreements.
[Remainder of page intentionally left blank. Next page is signature page.]
IN WITNESS WHEREOF, the parties have executed this First Amendment
Agreement as of the day and year first above written.
GSRP: Lender:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By______________________________ By_____________________________
Name: Name:
Title: Title:
Lender:
GREEN TREE FINANCIAL SERVICING
CORPORATION
By_____________________________
Name:
Title:
Administrative Agent:
TEXTRON FINANCIAL CORPORATION
By_______________________________
Name:
Title:
AGREED AND CONSENTED TO:
L.B.O. HOLDING, INC.
By_____________________________
Name:
Title:
MOUNT SNOW, LTD.
By_____________________________
Name:
Title:
KILLINGTON, LTD.
By_____________________________
Name:
Title:
SUNDAY RIVER SKIWAY CORPORATION
By_____________________________
Name:
Title:
ASC UTAH, INC.
By_____________________________
Name:
Title:
STEAMBOAT SKI & RESORT CORPORATION
By_____________________________
Name:
Title:
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By_____________________________
Name:
Title:
Schedule 1
PART 1:
The following are conditions precedent to the making of an Interim Steamboat
Construction Project Advance:
(1) No Interim Steamboat Construction Project Advance shall be made
(a) unless the proceeds thereof are to be used to satisfy
Construction Costs in respect of the Steamboat Project and no Equity
Moneys are available that are designated to be used to satisfy such
Costs under the Budget for the Steamboat Project;
(b) if the proceeds thereof are to be used to reimburse GSRP
for any Equity Moneys previously used to satisfy Construction Costs in
respect of the Steamboat Project, FF&E Costs in respect of the
Steamboat Project and/or Sales, Marketing & Other Costs in respect of
the Steamboat Project;
(c) if a Default or Event of Default under Section 8.1(e) of
the Amended LSA shall then exist that has not been waived by the
Steamboat Construction Project Required Lenders,
(d) if the aggregate amount of the purchase prices payable
under Validated Contracts arising from the sale of Steamboat
Quartershare Interests is less than $16,500,000, provided that, until
the earlier of (I) December 31, 1999 and (II) 60 days after GSRP shall
have obtained its subdivision license in Colorado, GSRP may satisfy the
requirements under this clause (E) by having Reservation Contracts
having an aggregate amount of purchase prices of not less than
$23,700,000;
(2) On the date of the making of any Interim Steamboat Construction
Project Advance (and after giving effect thereto) the aggregate outstanding
principal amount of all Interim Steamboat Construction Project Advances
(including, without limitation, the Overadvance) and all Steamboat Interest
Advances shall not exceed $12,000,000;
(3) on the date of the making of any Interim Steamboat Construction
Project Advance (and after giving effect thereto) the aggregate original
principal amount of all Steamboat Construction Project Advances (including,
without limitation, the Overadvance) made hereunder shall not exceed the amount
described in clause (a) of the definition of Steamboat Construction Project
Borrowing Base (without giving effect to the proviso with respect thereto)
determined as of such date;
(4) the original principal amount of each Interim Steamboat
Construction Project Advance to be made in respect of Construction Costs of the
Steamboat Project, at the time of the making thereof, shall have been determined
by excluding from such Construction Costs a contractor's retainage of 10% of the
first one-half of the applicable Construction Costs (such 10% so reserved from
any such Construction Costs is referred to herein as the "Steamboat Retainage
Amount;" for purposes of the avoidance of doubt, the Steamboat Retainage Amount
shall be based upon the full amount of certified Construction Costs for the
Steamboat Project and shall remain as a retainage until the final payment
thereof);
(5) no more than one Interim Steamboat Construction Project Advance
shall be made during any weekly period and no Interim Steamboat Construction
Project Advance shall be made if any other Construction Project Advance was made
during such weekly period;
(6) each Interim Steamboat Construction Project Advance shall only
relate or be attributable to the Steamboat Project;
(7) no Interim Steamboat Construction Project Advance shall be in
an amount of less than $50,000;
(8) BankBoston, N.A. shall have not terminated its forbearance under
the Syndication Waiver Agreement;
(9) no amendment or modification of the Syndication Waiver Agreement
shall have been effected that would have a material adverse effect on the
Steamboat Loan, the Steamboat Security Documents and/or the Collateral in
respect of the Steamboat Project without the prior written consent of the
Required Steamboat Lenders;
(10) BankBoston, N.A. shall have not declined to fund any advance under
the Parent/BKB Credit Agreement that was scheduled to be funded prior to, or is
scheduled to be funded contemporaneously with, the then current Interim
Steamboat Construction Project Advance;
(11) all requests and supporting materials (including, without
limitation, reconciliations to the Parent Revised Budget) delivered to
BankBoston, N.A. during the Syndication Period, as required under the Parent/BKB
Credit Agreement or the Syndication Waiver Agreement, prior to the then current
Interim Steamboat Construction Project Advance shall have also been delivered to
each of the Lenders and such materials shall show that the Parent, GSRP and the
Parent's other subsidiaries were in compliance with the Parent Revised Budget;
(12) GSRP shall have submitted to the Administrative Agent any
amendments and/or modifications to the Plans for the Steamboat Project, which
amendments and modifications shall be acceptable to the Administrative Agent in
its sole discretion. GSRP shall have submitted to the Administrative Agent any
amendments and/or modifications to the Budget for the Steamboat Project, which
amendments and/or modifications shall be acceptable to the Administrative Agent
in its sole discretion;
(13) no change orders in respect of the Construction Contract for the
Steamboat Project or for any of the other Construction Projects shall have been
effected without the prior written consent of the Administrative Agent if any
such change order for such Project has a cost of in excess of $50,000 or if such
change order and all other such change orders for such Project have an aggregate
cost in excess of $200,000;
(14) no change orders in respect of the Construction Contract for the
Steamboat Project shall have been effected without the prior written consent of
the Administrative Agent if any such change order results in (i) a material
modification in the architectural, mechanical or structural design of the
building to be constructed in respect of such Project or (ii) a material change
in the quality of workmanship or materials to be used in any such building or
(iii) a delay in the final completion date for the construction of such building
beyond March 1, 2000;
(15) no material modifications to the architectural contract with the
Architect for the Steamboat Project shall have been effected without the prior
written consent of the Administrative Agent;
(16) the Construction Contract for the Steamboat Project shall not
have been terminated;
(17) a request for an Interim Steamboat Construction Project Advance
(a) shall be in writing,
(b) GSRP shall attach to such request a fully executed and
completed Construction Cost Certificate (with all attachments
thereto, including, without limitation, an Architect's
Construction Cost Certificate),
(c) shall show the calculation of any Retainage Amounts,
(d) shall certify that the conditions to borrowing set forth
in this Schedule are satisfied, and
(e) shall have been delivered to the office of the
Administrative Agent and the TFC Architect at least 10 Business
Days in advance of the requested funding date.
The requirements in clause (a) through clause (e) above shall be
satisfied in the sole opinion of the Administrative Agent and the TFC
Architect. GSRP acknowledges that the Lenders making Interim Steamboat
Construction Project Advances shall not make such Advances in respect
of costs which have not been approved by them. The Lenders making
Construction Project Advances agree with GSRP that the costs set forth
in the revised Budget for the Steamboat Project are acceptable to them
and that neither they nor the Administrative Agent shall unreasonably
withhold its approval in respect of costs corresponding to those in
such revised Budget subject to (i) such costs conforming to the
amounts, conditions, assumptions and requirements of such revised
Budget, (ii) the proper incurrence and documentation of such costs, and
(iii) the submission of proper written certification in respect of such
costs from GSRP, the Steamboat General Contractor, the Architect for
the Steamboat Project and the TFC Architect, as provided for above.
(18) GSRP shall have delivered to the Administrative Agent title
insurance endorsements to the Title Insurance Policy {Blanket} in respect of the
Steamboat Project in form and substance reasonably satisfactory to the
Administrative Agent whereby the effective date of such Title Insurance Policy
{Blanket} shall be made the date of such funding, all exclusions and/or
exceptions not satisfactory to the Administrative Agent shall have been removed
or appropriate endorsements in respect thereof shall have been obtained. Such
Title Insurance Policy {Blanket} shall be in an amount not less than the sum of
the aggregate principal amount of the outstanding Construction Project Advances
and Interest Advances for the Steamboat Project on such funding date, after
giving effect to the making of such Interim Steamboat Construction Project
Advance. All premiums in respect of such endorsement to such Title Insurance
Policy {Blanket} shall have been paid in full and evidence thereof shall have
been delivered to the Administrative Agent;
(19) the proceeds of such Interim Steamboat Construction Project
Advance shall be disbursed by the Administrative Agent, acting as the
Disbursement Agent, directly to the Steamboat General Contractor or as such
General Contractor may direct in writing;
(20) all Loan Costs shall have been paid in full, provided that the
aggregate amount of fees payable by GSRP to the Administrative Agent, as the
Disbursement Agent, shall not exceed $40,000 (costs and expenses to be in
addition thereto) and the per Construction Project Advance portion thereof will
be approximately $3,077 (costs and expenses to be in addition thereto);
(21) the BankBoston Interim Steamboat Project Advance is outstanding
under the Parent/BKB Credit Agreement and has not been accelerated or otherwise
made immediately due and payable;
(22) in connection with the first Interim Steamboat Construction
Project Advance, all of the Security Documents that had previously been executed
and delivered to the Lenders and Administrative Agent by GSRP prior to the First
Amendment Agreement and assigned to BankBoston, as Agent under the Parent/BKB
Credit Agreement, pursuant to that certain Transfer and Assignment of
Instruments and Documents dated March 10, 1999 shall have been re-assigned and
conveyed and delivered back to the Administrative Agent and the Lenders and any
and all modifications effected thereto in connection with the BankBoston Interim
Steamboat Project Advance shall be acceptable to the Administrative Agent and
the Lenders, in their sole discretion, and all additional amendments,
modifications and allonges required or contemplated by the First Amendment
Agreement with respect thereto shall have been executed, delivered and recorded;
(23) in connection with the first Interim Steamboat Construction
Project Advance (and if not previously paid), GSRP shall have paid to Textron
the $100,000 commitment fee referred to in Section 4(e) of the First Amendment
Agreement;
(24) each of the Modification Agreements shall have been recorded in
the land records of the appropriate jurisdiction and the subordinating parties
required to consent to the Modification Agreement for the Canyons Blanket
Mortgage shall have executed such Modification Agreement evidencing such consent
to the extent the same is required to preserve priority of lien of the Canyons
Blanket Mortgage. GSRP shall have assigned to Administrative Agent all
Property-Related Contracts not previously assigned; and
(25) GSRP shall have delivered the appropriate endorsements to the
Title Insurance Policy {Blanket} required in connection with the Modification
Agreements and such other endorsements necessary to reflect the re-assignment of
the Steamboat Security Documents, the making of the Overadvance and the
recharacterization of the Overadvance as an Interim Steamboat Construction
Project Advance.
(26) GSRP shall have delivered to the Administrative Agent a legal
opinion in respect of the Steamboat Project regarding its registration and
compliance with timeshare regulations in Colorado and copies of all material
subcontractor agreements.
PART II
Upon the full syndication of the Steamboat Construction Project
Advances and the Canyons Construction Project Advances, a portion of the
proceeds of the first Steamboat Construction Project Advance made thereafter may
be used by GSRP or the GSRP SPV, as the case may be, to make a distribution to
its "parent company" for the ultimate purpose of having the Parent pay the
BankBoston Interim Steamboat Project Advance.
Schedule 2
[Syndication Standstill Agreement]
Schedule 3
Intentionally Omitted.
Schedule 4
Intentionally Omitted.
Schedule 5
[Revised Steamboat Project Budget]
Schedule 6
[Parent Revised Budget]
Please see Schedule 7 below.
Schedule 7
[Parent Draws]
Schedule 8
[Canyons Construction Project Advances]
Schedule 9
[Interim Steamboat Construction Project Cost Advances]
Schedule 10
The representation in Section 4.6 of the Existing LSA is hereby modified by
referring to the pending litigation among GSRP, Textron, Green Tree and Xxxx and
Xxxx relating to the Jordan Bowl Project.
The representation in Section 4.15 is hereby modified by referring to the
restriction on indebtedness contained in the Syndication Letter.
Exhibit X-0 - 0
Xxxxxxx X-0
MODIFICATION AGREEMENT No. 2
(Attitash)
THIS MODIFICATION AGREEMENT No.2 (this "Agreement"), is made as of the
5th day of April, 1999, by and between GRAND SUMMIT RESORT PROPERTIES, INC., a
Maine corporation ("Mortgagor"), whose address is X.X. Xxx 000, Xxxxxx Xxxxx
Xxxx, Xxxxxx, XX 00000 for the benefit of TEXTRON FINANCIAL CORPORATION, a
Delaware corporation, as administrative agent for Textron Financial Corporation,
as lender, and Green Tree Financial Servicing Corporation, as lender
(collectively, the "Lenders") (in such capacity herein referred to as the
"Mortgagee"), having a mailing address of 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxx 00000.
R E C I T A L S :
WHEREAS, Mortgagor has granted to Mortgagee a lien pursuant to that
certain Mortgage, Assignment of Rents and Security Agreement, dated as of August
1, 1997, by and between Mortgagor and Mortgagee, which was recorded August 21,
1997, in Book 1711 at Page 590 in the Office of the Xxxxxxx County, New
Hampshire Registry of Deeds and was amended by that certain Modification
Agreement dated as of September 1, 1998 and recorded September 28, 1998 in Book
1768 at Page 752 in the Office of the Xxxxxxx County, New Hampshire Registry of
Deeds (said Mortgage being referred to in this Agreement as the "Existing
Mortgage"); and
WHEREAS, Mortgagor, as assignor, executed an Assignment of Rents and
Leases dated as of August 1, 1997 to Mortgagee, as assignee, which was recorded
August 21, 1997, in Book 1711, at Page 622 in the Office of the Xxxxxxx County,
New Hampshire Registry of Deeds and was amended by that certain Modification
Agreement dated as of September 1, 1998 and recorded September 28, 1998 in Book
1768 at Page 752 in the Office of the Xxxxxxx County, New Hampshire Registry of
Deeds)(said Assignment of Rents and Leases being referred to in this Agreement
as the "Existing Assignment of Rents"); and
WHEREAS, Mortgagor and Mortgagee are, contemporaneously herewith,
entering into that certain First Amendment Agreement to Loan and Security
Agreement, dated as of April 5, 1999, pursuant to which Mortgagor and Mortgagee
are effecting certain changes in and to the Loan and Security Agreement dated as
of September 1, 1998 and referred to in the Existing Mortgage as "LSA II;" and
WHEREAS, Mortgagor and Mortgagee desire to amend the Existing Mortgage
and the Existing Assignment of Rents to reflect the aforesaid changes.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing recitals, of the
covenants and agreements hereinafter stated, and for other good and valuable
consideration received to the mutual satisfaction of the parties hereto, the
undersigned hereby agree as follows:
1. Modification to the Existing Mortgage.
Each reference in the Existing Mortgage to the determination of the
rate of interest borne by the Notes II, as defined therein, shall be deemed a
reference to the definition of "Interest Rate," as set forth below:
Interest Rate -- means, with respect to the Steamboat
Loan, the Canyons Loan, the Jordan Bowl Loan, the Attitash
Loan, the Killington Loan and/or the Mt. Snow Loan, (a) prior
to the Full Syndication Date (as such term is defined in LSA
II), the Original Prime Interest Rate and (b) on and after the
Full Syndication Date, the New Prime Rate or the LIBOR
Interest Rate, as may be selected by all of the Lenders that
have made Advances in respect of the applicable Loan, as
provided for in LSA II.
LIBOR Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) the remainder (if positive) of
(1) the sum of 2.50% plus the Prime Rate (as
defined in LSA II) then in effect for such
month minus (2)One-Month LIBOR (as defined
in LSA II) then in effect for such month,
plus
(ii) One-Month LIBOR then in effect
for such month.
New Prime Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) 2.50%, plus
(ii) the Prime Rate then in effect
for such month.
Original Prime Interest Rate -- means, with respect
to any calendar month, a per annum rate of interest equal to
the greater of:
(a) 9.25%, or
(b) the sum of
(i) 1.50%, plus
(ii) the Prime Rate then in effect
for such month.
Nothing in this clause (1) shall restrict or limit the application of a default
rate of interest, as provided for in LSA II, as such term is defined in the
Existing Mortgage. Each reference in the Existing Mortgage to "145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
"Maximum Outstanding Loan Limit" shall mean, at any time,(a) if no Mezzanine
Debt (as defined in LSA II) is required, $105,000,000 or (b) if Mezzanine Debt
is required, the lesser of (i) $145,000,000 and (ii) the remainder of (y)
$153,000,000 minus (z) the amount of Mezzanine Debt originally raised and funded
by either GSRP or the GSRP SPV(as defined in LSA II).
The Existing Mortgage, as modified herein, is hereby ratified and
confirmed by Mortgagor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Mortgage, as
herein modified, shall continue in full force and effect, affected by this
Agreement only to the extent of the amendments and modifications expressly set
forth herein.
2. Modification to the Existing Assignment of Rents.
Each reference in the Existing Assignment of Rents to "$145,000,000"
shall be deemed to be a reference to "Maximum Outstanding Loan Limit." The
Existing Assignment of Rents, as modified herein, is hereby ratified and
confirmed by Mortgagor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Assignment of
Rents, as herein modified, shall continue in full force and effect, affected by
this Agreement only to the extent of the amendments and modifications expressly
set forth herein.
3. Continued Force and Effect.
Except as expressly provided in this Agreement and in the aforesaid
Modification Agreement, neither the Existing Mortgage nor the Existing
Assignment of Rents has been modified or otherwise amended.
4. Miscellaneous.
The Recitals set forth at the beginning of this Agreement are
incorporated in and made a part of this Agreement by this reference. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same Agreement. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns. This Agreement
and the obligations of such parties hereunder are and at all times shall be
deemed to be for the exclusive benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
and nothing set forth herein shall be deemed to be for the benefit of any other
person. Nothing set forth in this paragraph shall be deemed or construed to
create, recognize or allow any assignment or transfer of rights not otherwise
provided for in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
Signed and Acknowledged GRAND SUMMIT RESORT PROPERTIES, INC.
in the Presence of
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF MAINE )
) ss.
COUNTY OF )
PERSONALLY APPEARED the above-named ______________________________,
_____________________________ 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,
-----------------------------------
Notary Public/Attorney at Law
Print Name:_________________________
My commission expires:______________
Signed and Acknowledged TEXTRON FINANCIAL CORPORATION, as
in the Presence of: Administrative Agent
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this20th day of
April, 1999, by ______________, the _______________ of Textron Financial
Corporation, a Delaware corporation, on behalf of said corporation.
-------------------------------
Notary Public
My Commission Expires:
Exhibit X-0 - 0
Xxxxxxx X-0
MODIFICATION AGREEMENT No. 2
(Killington)
THIS MODIFICATION AGREEMENT No.2 (this "Agreement"), is made as of the
5th day of April, 1999, by and between GRAND SUMMIT RESORT PROPERTIES, INC., a
Maine corporation ("Mortgagor"), whose address is X.X. Xxx 000, Xxxxxx Xxxxx
Xxxx, Xxxxxx, XX 00000 for the benefit of TEXTRON FINANCIAL CORPORATION, a
Delaware corporation, as administrative agent for Textron Financial Corporation,
as lender, and Green Tree Financial Servicing Corporation, as lender
(collectively, the "Lenders") (in such capacity herein referred to as the
"Mortgagee"), having a mailing address of 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxx 00000.
R E C I T A L S :
WHEREAS, Mortgagor has granted to Mortgagee a lien pursuant to that
certain Mortgage, Assignment of Rents and Security Agreement, dated as of
September 25, 1997, by and between Mortgagor and Mortgagee, which was recorded
September 25, 1997, in Book 159 at Page 121 in the Sherburne, Vermont Town
Clerk's Office and was amended by that certain Modification Agreement dated as
of September 1, 1998 and recorded October 14, 1998 in Book 174 at Page 168 in
the Sherburne, Vermont Town Clerk's Office (said Mortgage being referred to in
this Agreement as the "Existing Mortgage");
WHEREAS, Mortgagor has executed and delivered an Assignment of Rents
and Leases dated as of September 25, 1997 to Mortgagee, as assignee, which was
recorded September 25, 1997, in Book 159, at Page 141 in the Sherburne, Vermont
Town Clerk's Office and was amended by that certain Modification Agreement dated
as of September 1, 1998 and recorded October 14, 1998 in Book174 at Page 168 in
the Sherburne, Vermont Town Clerk's Office (said Assignment of Rents and Leases
being referred to in this Agreement as the "Existing Assignment of Rents"); and
WHEREAS, Mortgagor and Mortgagee are, contemporaneously herewith,
entering into that certain First Amendment Agreement to Loan and Security
Agreement, dated as of April 5, 1999, pursuant to which Mortgagor and Mortgagee
are, among other things, changing the rate of interest under that certain Loan
and Security Agreement dated as of September 1, 1998 and referred to in the
Existing Mortgage as "LSA II;" and
WHEREAS, Mortgagor and Mortgagee desire to amend the Existing Mortgage
and the Existing Assignment of Rents to reflect the aforesaid changes.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing recitals, of the
covenants and agreements hereinafter stated, and for other good and valuable
consideration received to the mutual satisfaction of the parties hereto, the
undersigned hereby agree as follows:
1. Modification to the Existing Mortgage.
Each reference in the Existing Mortgage to the determination of the
rate of interest borne by the Notes II, as defined therein, shall be deemed a
reference to the definition of "Interest Rate" as set forth below:
Interest Rate -- means, with respect to the Steamboat
Loan, the Canyons Loan, the Jordan Bowl Loan, the Attitash
Loan, the Killington Loan and/or the Mt. Snow Loan, (a) prior
to the Full Syndication Date (as such term is defined in LSA
II), the Original Prime Interest Rate and (b) on and after the
Full Syndication Date, the New Prime Rate or the LIBOR
Interest Rate, as may be selected by all of the Lenders that
have made Advances in respect of the applicable Loan, as
provided for in LSA II.
LIBOR Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) the remainder (if positive) of
(1) the sum of 2.50% plus the Prime Rate (as
defined in LSA II) then in effect for such
month minus (2)One-Month LIBOR (as defined
in LSA II) then in effect for such month,
plus
(ii) One-Month LIBOR then in effect
for such month.
New Prime Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) 2.50%, plus
(ii) the Prime Rate then in effect
for such month.
Original Prime Interest Rate -- means, with respect
to any calendar month, a per annum rate of interest equal to
the greater of:
(a) 9.25%, or
(b) the sum of
(i) 1.50%, plus
(ii) the Prime Rate then in effect
for such month.
Nothing in this clause (1) shall restrict or limit the application of a default
rate of interest, as provided for in LSA II, as such term is defined in the
Existing Mortgage. Each reference in the Existing Mortgage to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
"Maximum Outstanding Loan Limit" shall mean, at any time,(a) if no Mezzanine
Debt (as defined in LSA II) is required, $105,000,000 or (b) if Mezzanine Debt
is required, the lesser of (i) $145,000,000 and (ii) the remainder of (y)
$153,000,000 minus (z) the amount of Mezzanine Debt originally raised and funded
by either GSRP or the GSRP SPV(as defined in LSA II).
2. Modification to the Existing Assignment of Rents.
Each reference in the Existing Assignment of Rents to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
Existing Assignment of Rents, as modified herein, is hereby ratified and
confirmed by Mortgagor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Assignment of
Rents, as herein modified, shall continue in full force and effect, affected by
this Agreement only to the extent of the amendments and modifications expressly
set forth herein.
3. Continued Force and Effect.
Except as expressly provided in this Agreement and in the aforesaid
Modification Agreement, neither the Existing Mortgage nor the Existing
Assignment of Rents has been modified or otherwise amended.
4. Miscellaneous.
The Recitals set forth at the beginning of this Agreement are
incorporated in and made a part of this Agreement by this reference. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same Agreement. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns. This Agreement
and the obligations of such parties hereunder are and at all times shall be
deemed to be for the exclusive benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
and nothing set forth herein shall be deemed to be for the benefit of any other
person. Nothing set forth in this paragraph shall be deemed or construed to
create, recognize or allow any assignment or transfer of rights not otherwise
provided for in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
Signed and Acknowledged GRAND SUMMIT RESORT PROPERTIES, in the Presence of:
INC.
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF MAINE )
) ss.
COUNTY OF )
PERSONALLY APPEARED the above-named ______________________________,
_____________________________ 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,
-----------------------------------
Notary Public/Attorney at Law
Print Name:_________________________
My commission expires:______________
Signed and Acknowledged TEXTRON FINANCIAL CORPORATION, as
in the Presence of: Administrative Agent
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this2 0th day of
April, 1999, by ______________, the _______________ of Textron Financial
Corporation, a Delaware corporation, on behalf of said corporation.
-------------------------------
Notary Public
My Commission Expires:
Exhibit A-3 - [PG NUMBER]
Exhibit A-3
MODIFICATION AGREEMENT No. 2
(Mount Snow)
THIS MODIFICATION AGREEMENT No.2 (this "Agreement"), is made as of the
5th day of April, 1999, by and between GRAND SUMMIT RESORT PROPERTIES, INC., a
Maine corporation ("Mortgagor"), whose address is X.X. Xxx 000, Xxxxxx Xxxxx
Xxxx, Xxxxxx, XX 00000 for the benefit of TEXTRON FINANCIAL CORPORATION, a
Delaware corporation, as administrative agent for Textron Financial Corporation,
as lender, and Green Tree Financial Servicing Corporation, as lender
(collectively, the "Lenders") (in such capacity herein referred to as the
"Mortgagee"), having a mailing address of 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxx 00000.
R E C I T A L S :
WHEREAS, Mortgagor has granted to Mortgagee a lien pursuant to that
certain Mortgage, Assignment of Rents and Security Agreement, dated as of
September 25, 1997, by and between Mortgagor and Mortgagee, which was recorded
September 25, 1997, in Book 155 at Page 582 in the Dover, Vermont Town Clerk's
Office and was amended by that certain Modification Agreement dated as of
September 1, 1998 and recorded October 14, 1998 in Book 167 at Page 57in the
Dover, Vermont Town Clerk's Office (said Mortgage being referred to in this
Agreement as the "Existing Mortgage"); and
WHEREAS, Mortgagor has executed and delivered Assignment of Rents and
Leases dated as of September 25, 1997 to Mortgagee, as assignee, which was
recorded September 25, 1997, in Book 156, at Page 001 in the Dover, Vermont Town
Clerk's Office and was amended by that certain Modification Agreement dated as
of September 1, 1998 and recorded October 14, 1998 in Book 167 at Page 57 in the
Dover, Vermont Town Clerk's Office said Assignment of Rents and Leases being
referred to in this Agreement as the "Existing Assignment of Rents"); and
WHEREAS, Mortgagor and Mortgagee are, contemporaneously herewith,
entering into that certain First Amendment Agreement to Loan and Security
Agreement, dated as of April 5, 1999, pursuant to which Mortgagor and Mortgagee
are, among other things, changing the rate of interest under that certain Loan
and Security Agreement dated as of September 1, 1998 and referred to in the
Existing Mortgage as "LSA II;" and
WHEREAS, Mortgagor and Mortgagee desire to amend the Existing Mortgage
and the Existing Assignment of Rents to reflect the aforesaid changes.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing recitals, of the
covenants and agreements hereinafter stated, and for other good and valuable
consideration received to the mutual satisfaction of the parties hereto, the
undersigned hereby agree as follows:
1. Modification to the Existing Mortgage.
Each reference in the Existing Mortgage to the determination of the
rate of interest borne by the Notes II, as defined therein, shall be deemed a
reference to the definition of "Interest Rate" as set forth below:
Interest Rate -- means, with respect to the Steamboat
Loan, the Canyons Loan, the Jordan Bowl Loan, the Attitash
Loan, the Killington Loan and/or the Mt. Snow Loan, (a) prior
to the Full Syndication Date (as such term is defined in LSA
II), the Original Prime Interest Rate and (b) on and after the
Full Syndication Date, the New Prime Rate or the LIBOR
Interest Rate, as may be selected by all of the Lenders that
have made Advances in respect of the applicable Loan, as
provided in LSA II.
LIBOR Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) the remainder (if positive) of
(1) the sum of 2.50% plus the Prime Rate (as
defined in LSA II) then in effect for such
month minus (2)One-Month LIBOR (as defined
in LSA II) then in effect for such month,
plus
(ii) One-Month LIBOR then in effect
for such month.
New Prime Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) 2.50%, plus
(ii) the Prime Rate then in effect
for such month.
Original Prime Interest Rate -- means, with respect
to any calendar month, a per annum rate of interest equal to
the greater of:
(a) 9.25%, or
(b) the sum of
(i) 1.50%, plus
(ii) the Prime Rate then in effect
for such month.
Nothing in this clause (1) shall restrict or limit the application of a default
rate of interest, as provided for in LSA II, as such term is defined in the
Existing Mortgage. Each reference in the Existing Mortgage to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
"Maximum Outstanding Loan Limit" shall mean, at any time,(a) if no Mezzanine
Debt (as defined in LSA II) is required, $105,000,000 or (b) if Mezzanine Debt
is required, the lesser of (i) $145,000,000 and (ii) the remainder of (y)
$153,000,000 minus (z) the amount of Mezzanine Debt originally raised and funded
by either GSRP or the GSRP SPV(as defined in LSA II).
2. Modification to the Existing Assignment of Rents.
Each reference in the Existing Assignment of Rents to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
Existing Assignment of Rents, as modified herein, is hereby ratified and
confirmed by Mortgagor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Assignment of
Rents, as herein modified, shall continue in full force and effect, affected by
this Agreement only to the extent of the amendments and modifications expressly
set forth herein.
3. Continued Force and Effect.
Except as expressly provided in this Agreement and in the aforesaid
Modification Agreement, neither the Existing Mortgage nor the Existing
Assignment of Rents has been modified or otherwise amended.
4. Miscellaneous.
The Recitals set forth at the beginning of this Agreement are
incorporated in and made a part of this Agreement by this reference. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same Agreement. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns. This Agreement
and the obligations of such parties hereunder are and at all times shall be
deemed to be for the exclusive benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
and nothing set forth herein shall be deemed to be for the benefit of any other
person. Nothing set forth in this paragraph shall be deemed or construed to
create, recognize or allow any assignment or transfer of rights not otherwise
provided for in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
Signed and Acknowledged GRAND SUMMIT RESORT PROPERTIES, in the Presence of:
INC.
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF )
) ss.
COUNTY OF )
PERSONALLY APPEARED the above-named ______________________________,
_____________________________ 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,
-----------------------------------
Notary Public/Attorney at Law
Print Name:_________________________
My commission expires:______________
Signed and Acknowledged TEXTRON FINANCIAL CORPORATION, as
in the Presence of: Administrative Agent
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this 20th day of
April, 1999, by ______________, the _______________ of Textron Financial
Corporation, a Delaware corporation, on behalf of said corporation.
-------------------------------
Notary Public
My Commission Expires:
Exhibit A-4 - [PG NUMBER]
Exhibit A-4
MODIFICATION AGREEMENT No. 1
(Jordan Bowl)
THIS MODIFICATION AGREEMENT No. 1 (this "Agreement"), is made as of the
5th day of April, 1999, by and between GRAND SUMMIT RESORT PROPERTIES, INC., a
Maine corporation ("Grantor"), whose address is X.X. Xxx 000, Xxxxxx Xxxxx Xxxx,
Xxxxxx, XX 00000 for the benefit of TEXTRON FINANCIAL CORPORATION, a Delaware
corporation, as trustee under that certain Collateral Trust Indenture for the
benefit of Textron Financial Corporation, as lender, and Green Tree Financial
Servicing Corporation, as lender (collectively, the "Lenders") (in such capacity
herein referred to as the "Grantee"), having a mailing address of 00 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000.
R E C I T A L S :
WHEREAS, Grantor granted to Grantee a mortgage lien as provided in and
evidenced by that certain Mortgage, Assignment of Rents and Security Agreement,
dated as of September 1, 1998, by and between Grantor and Grantee, which was
recorded September 28, 1998, in Book 2614 at Page 152 in the Oxford County,
Maine Registry of Deeds (said Mortgage being referred to in this Agreement as
the "Existing Mortgage"); and
WHEREAS, Grantor has executed and delivered Assignment of Rents and
Leases dated as of September 1, 1998, as assignee, which was recorded September
28, 1998 in Book 2614, at Page 174 in the Oxford County, Maine Registry of Deeds
(the "Existing Assignment of Rents"); and
WHEREAS, Grantor and Grantee are, contemporaneously herewith, entering
into that certain First Amendment Agreement to Loan and Security Agreement,
dated as of April 5, 1999, pursuant to which Grantor and Grantee are, among
other things, changing the rate of interest under that certain Loan and Security
Agreement dated as of September 1, 1998 and referred to in the Existing Mortgage
as the "LSA;" and
WHEREAS, Grantor and Grantee desire to amend the Existing Mortgage and
the Assignment of Rents to reflect the aforesaid changes.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing recitals, of the
covenants and agreements hereinafter stated, and for other good and valuable
consideration received to the mutual satisfaction of the parties hereto, the
undersigned hereby agree as follows:
1. Modification to the Existing Mortgage.
Each reference in the Existing Mortgage to the determination of the
rate of interest borne by the Notes, as defined therein, shall be deemed a
reference to the definition of "Interest Rate" as set forth below:
Interest Rate -- means, with respect to the Steamboat
Loan, the Canyons Loan, the Jordan Bowl Loan, the Attitash
Loan, the Killington Loan and/or the Mt. Snow Loan, (a) prior
to the Full Syndication Date (as such term is defined in LSA),
the Original Prime Interest Rate and (b) on and after the Full
Syndication Date, the New Prime Rate or the LIBOR Interest
Rate, as may be selected by all of the Lenders that have made
Advances in respect of the applicable Loan, as provided for in
LSA II.
LIBOR Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) the remainder (if positive) of
(1) the sum of 2.50% plus the Prime Rate (as
defined in LSA ) then in effect for such
month minus (2)One-Month LIBOR (as defined
in LSA ) then in effect for such month, plus
(ii) One-Month LIBOR then in effect
for such month.
New Prime Interest Rate -- means, with respect to any
calendar month, a per annum rate of interest equal to the
greater of:
(a) 9.50%, or
(b) the sum of
(i) 2.50%, plus
(ii) the Prime Rate then in effect
for such month.
Original Prime Interest Rate -- means, with respect
to any calendar month, a per annum rate of interest equal to
the greater of:
(a) 9.25%, or
(b) the sum of
(i) 1.50%, plus
(ii) the Prime Rate then in effect
for such month.
Nothing in this clause (1) shall restrict or limit the application a default
rate of interest, as provided for in the LSA , as such term is defined in the
Existing Mortgage. Each reference in the Existing Mortgage to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
"Maximum Outstanding Loan Limit" shall mean, at any time,(a) if no Mezzanine
Debt (as defined in the LSA) is required, $105,000,000 or (b) if Mezzanine Debt
is required, the lesser of (i) $145,000,000 and (ii) the remainder of (y)
$153,000,000 minus (z) the amount of Mezzanine Debt originally raised and funded
by either GSRP or the GSRP SPV(as defined in the LSA).
The following references in the Existing Mortgage are hereby amended
and restated in their entirety:
(1) "Steamboat Construction Project Advance Promissory Note
dated September 1, 1998, from Grantor to Textron Financial Corporation,
in the original stated principal amount of $15,000,000" is amended and
restated as follows: "Steamboat Construction Project Advance Promissory
Note dated September 1, 1998, from Grantor to Textron Financial
Corporation, in the original stated principal amount of $12,000,000;"
(2) "Steamboat Inventory Advance Promissory Note dated
September 1, 1998, from Grantor to Textron Financial Corporation, in
the original stated principal amount of $15,000,000" is amended and
restated as follows: "Steamboat Inventory Advance Promissory Note dated
September 1, 1998, from Grantor to Textron Financial Corporation, in
the original stated principal amount of $0";
(3) "Canyons Construction Project Advance Promissory Note
dated September 1, 1998, from Grantor to Textron Financial Corporation,
in the original stated principal amount of $15,000,000" is amended and
restated as follows: "Canyons Construction Project Advance Promissory
Note dated September 1, 1998, from Grantor to Textron Financial
Corporation, in the original stated principal amount of $40,000,000" ;
(4) "Canyons Inventory Advance Promissory Note dated September
1, 1998, from Grantor to Textron Financial Corporation, in the original
stated principal amount of $15,000,000" is amended and restated as
follows: "Canyons Inventory Advance Promissory Note dated September 1,
1998, from Grantor to Textron Financial Corporation, in the original
stated principal amount of $40,000,000;"
(5) "Steamboat Construction Project Advance Promissory Note
dated September 1, 1998, from Grantor to Green Tree Financial Servicing
Corporation, in the original stated principal amount of $15,000,000" is
amended and restated: "Steamboat Construction Project Advance
Promissory Note dated September 1, 1998, from Grantor to Green Tree
Financial Servicing Corporation, in the original stated principal
amount of $0;"
(6) "Steamboat Inventory Advance Promissory Note dated
September 1, 1998, from Grantor to Green Tree Financial Servicing
Corporation, in the original stated principal amount of $15,000,000 is
amended and restated as follows: "Steamboat Inventory Advance
Promissory Note dated September 1, 1998, from Grantor to Green Tree
Financial Servicing Corporation, in the original stated principal
amount of $0;"
(7) "Canyons Construction Project Advance Promissory Note
dated September 1, 1998, from Grantor to Green Tree Financial Servicing
Corporation, in the original stated principal amount of $15,000,000" is
amended and restated as follows: "Canyons Construction Project Advance
Promissory Note dated September 1, 1998, from Grantor to Green Tree
Financial Servicing Corporation, in the original stated principal
amount of $30,000,000;"
(8) "Canyons Inventory Advance Promissory Note dated September
1, 1998, from Grantor to Green Tree Financial Servicing Corporation, in
the original stated principal amount of $15,000,000" is amended and
restated as follows: "Canyons Inventory Advance Promissory Note dated
September 1, 1998, from Grantor to Green Tree Financial Servicing
Corporation, in the original stated principal amount of $30,000,000."
2. Modification to the Existing Assignment of Rents.
Each reference in the Existing Assignment of Rents to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
Existing Assignment of Rents, as modified herein, is hereby ratified and
confirmed by Mortgagor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Assignment of
Rents, as herein modified, shall continue in full force and effect, affected by
this Agreement only to the extent of the amendments and modifications expressly
set forth herein.
3. Continued Force and Effect.
Except as expressly provided in this Agreement, neither the Existing
Mortgage nor the Existing Assignment of Rent has been modified or otherwise
amended.
4. Miscellaneous.
The Recitals set forth at the beginning of this Agreement are
incorporated in and made a part of this Agreement by this reference. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same Agreement. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns. This Agreement
and the obligations of such parties hereunder are and at all times shall be
deemed to be for the exclusive benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
and nothing set forth herein shall be deemed to be for the benefit of any other
person. Nothing set forth in this paragraph shall be deemed or construed to
create, recognize or allow any assignment or transfer of rights not otherwise
provided for in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
Signed and Acknowledged GRAND SUMMIT RESORT PROPERTIES, in the Presence of: INC.
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF )
) ss.
COUNTY OF )
PERSONALLY APPEARED the above-named ______________________________,
_____________________________ 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,
-----------------------------------
Notary Public/Attorney at Law
Print Name:_________________________
My commission expires:______________
Signed and Acknowledged TEXTRON FINANCIAL CORPORATION, as
in the Presence of: Administrative Agent
_______________________________ By________________________________
Name: Name:
Title:
-------------------------------
Name:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this ___ day of
_______________, 1999, by ______________, the _______________ of Textron
Financial Corporation, a Delaware corporation, on behalf of said corporation.
-------------------------------
Notary Public
My Commission Expires:
Exhibit A-5 - [PG NUMBER]
Exhibit A-5
MODIFICATION AGREEMENT No. 1
(Steamboat)
THIS MODIFICATION AGREEMENT No. 1 (this "Agreement"), is made as of the
5th day of April, 1999, by and between GRAND SUMMIT RESORT PROPERTIES, INC., a
Maine corporation ("Grantor"), whose address is X.X. Xxx 000, Xxxxxx Xxxxx Xxxx,
Xxxxxx, XX 00000 for the benefit of TEXTRON FINANCIAL CORPORATION, a Delaware
corporation, as Beneficiary under that certain Combination Deed of Trust,
Security Agreement and Fixture Financing Statement, having a mailing address of
000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxx, Xxxxxxxxxxx00000.
R E C I T A L S :
WHEREAS, Grantor executed and delivered to Beneficiary that certain
Combination Deed of Trust, Security Agreement and Fixture Financing Statement,
dated as of September 1, 1998, which was recorded September 28, 1998, in Book
750 at Page 1631 in the Office of the Clerk and Recorder for Routt County,
Colorado (said Combination Deed of Trust, Security Agreement and Fixture
Financing Statement being referred to in this Agreement as the "Existing Deed of
Trust"); and
WHEREAS, Grantor executed and delivered to Beneficiary that certain
Assignment of Rents and Leases, dated as of September 1, 1998, which was
recorded September 28, 1998, in Book 750 at Page 1632 in the Office of the Clerk
and Recorder for Routt County, Colorado (said Assignment of Leases and Rents
being referred to in this Agreement as the "Existing Assignment of Rents") in
respect of the premises described on Exhibit A attached hereto; and
WHEREAS, Grantor and Grantee are, contemporaneously herewith, entering
into that certain First Amendment Agreement to Loan and Security Agreement,
dated as of April 5, 1999, pursuant to which Grantor and Grantee are effecting
certain changes under that certain Loan and Security Agreement dated as of
September 1, 1998 and referred to in the Existing Deed of Trust as the "LSA;"
and
WHEREAS, Grantor and Grantee desire to amend the Existing Deed of Trust
and the Existing Assignment of Rents to reflect the aforesaid changes.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing recitals, of the
covenants and agreements hereinafter stated, and for other good and valuable
consideration received to the mutual satisfaction of the parties hereto, the
undersigned hereby agree as follows:
1. Modification to the Existing Deed of Trust.
Each reference in the Existing Deed of Trust to "$145,000,000" shall be
deemed to be a reference to the"Maximum Outstanding Loan Limit. The "Maximum
Outstanding Loan Limit" shall mean, at any time,(a) if no Mezzanine Debt (as
defined in the LSA) is required, $105,000,000 or (b) if Mezzanine Debt is
required, the lesser of (i) $145,000,000 and (ii) the remainder of (y)
$153,000,000 minus (z) the amount of Mezzanine Debt originally raised and funded
by either GSRP or the GSRP SPV(as defined in the LSA). The reference in the
Existing Deed of Trust to the "Construction Project Advance Promissory Note from
Grantor to Textron Financial Corporation dated September 28, 1998 in the
original stated principal amount of $15,000,000" is hereby amended to read as
follows: "Construction Project Advance Promissory Note from Grantor to Textron
Financial Corporation dated September 28, 1998 in the original stated principal
amount (as amended) of $12,000,000 . The reference to the "Construction Project
Advance Promissory Note from Grantor to Green Tree Financial Servicing
Corporation dated September 28, 1998 in the original stated principal amount of
$15,000,000" is hereby deleted. The Existing Deed of Trust, as modified herein,
is hereby ratified and confirmed by Grantor, and every provision, covenant,
grant, condition, obligation, right and power contained in and under the
Existing Deed of Trust, as herein modified, shall continue in full force and
effect, affected by this Agreement only to the extent of the amendments and
modifications expressly set forth herein.
2. Modification to the Existing Assignment of Rents.
Each reference in the Existing Assignment of Rents to "$145,000,000"
shall be deemed to be a reference to the"Maximum Outstanding Loan Limit." The
Existing Assignment of Rents, as modified herein, is hereby ratified and
confirmed by Grantor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Assignment of
Rents, as herein modified, shall continue in full force and effect, affected by
this Agreement only to the extent of the amendments and modifications expressly
set forth herein.
3. Continued Force and Effect.
Except as expressly provided in this Agreement, neither the Existing
Deed of Trust nor the Existing Assignment of Rent has been modified or otherwise
amended.
4. Miscellaneous.
The Recitals set forth at the beginning of this Agreement are
incorporated in and made a part of this Agreement by this reference. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same Agreement. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns. This Agreement
and the obligations of such parties hereunder are and at all times shall be
deemed to be for the exclusive benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
and nothing set forth herein shall be deemed to be for the benefit of any other
person. Nothing set forth in this paragraph shall be deemed or construed to
create, recognize or allow any assignment or transfer of rights not otherwise
provided for in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
GRAND SUMMIT RESORT PROPERTIES, INC.
By________________________________
Name:
Its:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 20th day of
April, 1999 by _________, _________ of Grand Summit Resort Properties, Inc., a
Maine corporation, on behalf of such corporation.
Before me,
-----------------------------------
Notary Public/Attorney at Law
Print Name:_________________________
My commission expires:______________
TEXTRON FINANCIAL CORPORATION, as
Administrative Agent
By________________________________
Name:
Its:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this day of April,
1999, by ______________, the _______________ of Textron Financial Corporation, a
Delaware corporation, on behalf of said corporation.
-------------------------------
Notary Public
My Commission Expires:
Exhibit A
Exhibit A-6 - [PG NUMBER]
Exhibit A-6
MODIFICATION AGREEMENT No. 1
(Canyons)
THIS MODIFICATION AGREEMENT No. 1 (this "Agreement"), is made as of the
5th day of April, 1999, by and between GRAND SUMMIT RESORT PROPERTIES, INC., a
Maine corporation ("Trustor"), whose address is X.X. Xxx 000, Xxxxxx Xxxxx Xxxx,
Xxxxxx, XX 00000 for the benefit of TEXTRON FINANCIAL CORPORATION, a Delaware
corporation, as Administrative Agent under that certain Deed of Trust,
Assignment of Rents, Security Agreement and Financing Statement, having a
mailing address of 000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxx,
Xxxxxxxxxxx00000.
R E C I T A L S :
WHEREAS, Trustor executed and delivered to Administrative Agent that
certain Deed of Trust, Assignment of Rents, Security Agreement and Financing
Statement, dated as of September 1, 1998, which was recorded December 31, 1998,
in Book 1217 at Page 184 in the Office of the Recorder of Summit County, Utah
(said Deed of Trust, Assignment of Rents, Security Agreement and Financing
Statement being referred to in this Agreement as the "Existing Deed of Trust");
and
WHEREAS, Trustor executed and delivered to Administrative Agent that
certain Assignment of Rents and Leases, dated as of September 1, 1998, which was
recorded December 31, 1998, in Book 1217 at Page 200 in the Office of the
Recorder of Summit County, Utah (said Assignment of Leases and Rents being
referred to in this Agreement as the "Existing Assignment of Rents") in respect
of the premises described on Exhibit A attached hereto; and
WHEREAS, Trustor, Administrative Agent and the Lenders (as defined in
the Existing Deed of Trust) are, contemporaneously herewith, entering into that
certain First Amendment Agreement to Loan and Security Agreement, dated as of
April 5, 1999, pursuant to which Trustor and Lenders are effecting certain
changes in and to that certain Loan and Security Agreement dated as of September
1, 1998 and referred to in the Existing Deed of Trust as the "LSA;" and
WHEREAS, Trustor and Grantee desire to amend the Existing Deed of Trust
and the Existing Assignment of Rents to reflect the aforesaid changes.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing recitals, of the
covenants and agreements hereinafter stated, and for other good and valuable
consideration received to the mutual satisfaction of the parties hereto, the
undersigned hereby agree as follows:
Exhibit A-6 - [PG NUMBER]
1. Modification to the Existing Deed of Trust.
Each reference in the Existing Deed of Trust to "$145,000,000" shall be
deemed to be a reference to the"Maximum Outstanding Loan Limit. The "Maximum
Outstanding Loan Limit" shall mean, at any time,(a) if no Mezzanine Debt (as
defined in the LSA) is required, $105,000,000 or (b) if Mezzanine Debt is
required, the lesser of (i) $145,000,000 and (ii) the remainder of (y)
$153,000,000 minus (z) the amount of Mezzanine Debt originally raised and funded
by either GSRP or the GSRP SPV(as defined in the LSA). The reference in the
Existing Deed of Trust to the "Construction Project Advance Promissory Note from
Trustor to Textron Financial Corporation dated September 28, 1998 in the
original stated principal amount of $15,000,000" is hereby amended to read as
follows: "Construction Project Advance Promissory Note from Trustor to Textron
Financial Corporation dated September 28, 1998 in the original stated principal
amount (as amended) of $40,000,000 . The reference to the "Construction Project
Advance Promissory Note from Trustor to Green Tree Financial Servicing
Corporation dated September 28, 1998 in the original stated principal amount of
$15,000,000" is hereby amended to read as follows: "Construction Project Advance
Promissory Note from Trustor to Green Tree Financial Servicing Corporation dated
September 28, 1998 in the original stated principal amount (as amended) of
$30,000,000. The Existing Deed of Trust, as modified herein, is hereby ratified
and confirmed by Trustor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Deed of Trust,
as herein modified, shall continue in full force and effect, affected by this
Agreement only to the extent of the amendments and modifications expressly set
forth herein.
2. Modification to the Existing Assignment of Rents.
Each reference in the Existing Assignment of Rents to "$145,000,000"
shall be deemed to be a reference to the "Maximum Outstanding Loan Limit." The
Existing Assignment of Rents, as modified herein, is hereby ratified and
confirmed by Trustor, and every provision, covenant, grant, condition,
obligation, right and power contained in and under the Existing Assignment of
Rents, as herein modified, shall continue in full force and effect, affected by
this Agreement only to the extent of the amendments and modifications expressly
set forth herein.
3. Continued Force and Effect.
Except as expressly provided in this Agreement, neither the Existing
Deed of Trust nor the Existing Assignment of Rent has been modified or otherwise
amended.
4. Miscellaneous.
The Recitals set forth at the beginning of this Agreement are
incorporated in and made a part of this Agreement by this reference. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same Agreement. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns. This Agreement
and the obligations of such parties hereunder are and at all times shall be
deemed to be for the exclusive benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
and nothing set forth herein shall be deemed to be for the benefit of any other
person. Nothing set forth in this paragraph shall be deemed or construed to
create, recognize or allow any assignment or transfer of rights not otherwise
provided for in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
GRAND SUMMIT RESORT PROPERTIES, INC.
By________________________________
Name:
Its:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 20th day of
April, 1999 by _________, _________ of Grand Summit Resort Properties, Inc., a
Maine corporation, on behalf of such corporation.
Before me,
-----------------------------------
Notary Public/Attorney at Law
Print Name:_________________________
My commission expires:______________
TEXTRON FINANCIAL CORPORATION, as
Administrative Agent
By________________________________
Name:
Its:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this day of April,
1999, by ______________, the _______________ of Textron Financial Corporation, a
Delaware corporation, on behalf of said corporation.
-------------------------------
Notary Public
My Commission Expires:
Exhibit A
