THIRD AMENDMENT AGREEMENT
THIS THIRD AMENDMENT AGREEMENT (as amended from time to time, this
"Agreement"), dated January __, 2000 (the "Third Amendment Closing Date") 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
with the certain of the Lenders and the Administrative Agent dated as of
September 1, 1998 (as amended to but excluding the date hereof, the "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 the Existing LSA;
B. WHEREAS, capitalized terms used herein shall have the meanings
ascribed to the same in the Existing LSA unless otherwise defined herein;
C. WHEREAS, the parties to the Existing LSA have agreed to certain
amendments to the Existing LSA, as described and set forth below;
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. Amendments. The parties hereto agree that the Existing LSA is,
and shall be deemed to be, amended and modified as follows:
(a) Schedule 3 to the Existing LSA, to the extent it pertains
to Grand Summit Resort Hotel at The Canyons, is hereby amended and
restated in its entirety as set forth in Schedule A attached hereto.
(b) Schedule 4 to the Existing LSA is amended so that the
reference to "Schedule B to the First American Title Insurance Policy
issued in connection with the Construction Project Advances for the
Canyons Project" in said Schedule 4 refers to such Schedule B with
respect to the First American Title Insurance Policy as in effect on
the date hereof.
2. Warranties and Representations
GSRP hereby represents and warrants as of the date hereof as follows:
(a) Transaction Is Legal and Authorized. The execution and
delivery of this Agreement and the other documents and instruments
contemplated herein, and compliance by GSRP with all of the provisions
of this 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 and the liens, if any, created by recordation of The
Canyons Resort Village Management Agreement dated November 15,
1999 (the "VMA") and the Declaration of Condominium and Record
of Survey Map for Grand Summit Resort Hotel at The Canyons
("Declaration")) 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.
(b) Governmental Consent. Except for consents, approvals,
permits, licenses, authorizations, and registrations required in the
normal course of GSRP's business, 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 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 Agreement and the other documents
contemplated in connection herewith.
(c) 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 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 not permitted under the Existing LSA, as
amended hereby (the liens, if any, of the VMA and Declaration being
permitted hereunder), and all Liens in favor of the Administrative
Agent in respect of such Collateral remain in full force and effect.
(d) 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 Agreement.
3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT
This Agreement shall become effective on the Third Amendment
Closing Date upon the parties hereto executing this Agreement and upon each of
the following conditions being satisfied:
(a) Second Modification Agreement. The Administrative Agent
shall have received an executed copy of the Second Modification
Agreement, a copy of which is attached hereto as Scheduler B.
(b) Canyons Declaration. The Canyons Declaration and Resort
Map shall have been recorded in the real property records of Summit
County, Utah and the conditions set forth in Section 3.16(a) of the
Existing LSA shall have been satisfied in respect thereof.
(c) Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 11.2 of Existing LSA
pursuant to invoices or other bills submitted to GSRP (including the
fees and disbursements of counsel to Textron Financial Corporation).
4. Miscellaneous
(a) Parties, Successors and Assigns. This 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 Agreement shall be governed by the
internal laws of the State of Maine. To the extent any provision of
this 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 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 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 the Existing LSA or in any certificate or
other instrument delivered by it or on its behalf under this Agreement
or in the Existing LSA shall be considered to have been relied upon by
the Lenders and shall survive the execution and delivery of this
Agreement.
(e) Effect of Amendment. Except as explicitly amended by, or
otherwise provided for in, this 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 Agreement, and GSRP hereby affirms all of its
obligations thereunder. Subject to the satisfaction of the conditions
precedent hereto, the Administrative Agent is hereby authorized to
subordinate the liens of the Canyons Blanket Mortgage, the Canyons
Assignment of Rents and of the Security Documents in and to the
Collateral related to the Canyons Project to the Declaration and the
VMA.
(f) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of
which together shall constitute one instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but
together signed by all, of the parties hereto.
[Remainder of page intentionally left blank. Next page is signature page.]
IN WITNESS WHEREOF, the parties have executed this 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:
FINOVA CAPITAL CORPORATION
By_________________________________
Name:
Title:
LITCHFIELD FINANCIAL 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 A
Schedule B
MODIFICATION AGREEMENT No. 2
(Canyons)
THIS MODIFICATION AGREEMENT No. 2 (this "Agreement"), is made as of
the __ day of January, 2000, by and between GRAND SUMMIT RESORT PROPERTIES,
INC., a Maine corporation ("Trustor"), whose address is P.O. Box 450, Sunday
River Road, Bethel, ME 04217 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 described below,
having a mailing address of 333 East River Drive, East Hartford,
Connecticut06108.
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, as amended prior to the date hereof, 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, as amended
prior to the date hereof, being referred to in this Agreement as the "Existing
Assignment of Rents") in respect of the premises described on Exhibit A attached
thereto; and
WHEREAS, Trustor, Administrative Agent and the Lenders (as defined in
the Existing Deed of Trust) are, contemporaneously herewith, entering into that
certain Third Amendment Agreement to Loan and Security Agreement, dated as of
January __, 2000, 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, as amended prior to the date hereof, 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.
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.
Exhibit A to the Existing Deed of Trust is hereby amended and restated
in its entirety as set forth on Exhibit 1 to this Agreement. Exhibit B to the
Existing Deed of Trust is hereby amended and restated in its entirety as set
forth on Exhibit 2 to this Agreement.
2. Modification to the Existing Assignment of Rents.
Exhibit A to the Existing Assignment of Rents is hereby amended and
restated in its entirety as set forth on Exhibit 1 to this Agreement.
3. Continued Force and Effect.
Except as expressly provided in this Agreement, the Existing Deed of
Trust and the Existing Assignment of Rent shall continue in full force and
effect as provided for therein.
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.
[Next Page is the Signature Page]
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 ___ day of
January, 2000 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
January, 2000, by ______________, the _______________ of Textron Financial
Corporation, a Delaware corporation, on behalf of said corporation
-------------------------------
Notary Public
Print Name:
My Commission Expires:
[Seal]
Exhibit 1
1. All Units and Quartershare Estates of GRAND SUMMIT RESORT HOTEL AT THE
CANYONS, a Utah Condominium Project, together with an appurtenant undivided
interest in the Common Elements as established and identified in (i) the
Declaration of Condominium for GRAND SUMMIT RESORT HOTEL AT THE CANYONS dated
January _____, 2000, and recorded on January ____, 2000, as Entry No.
___________, in Book _______, Beginning at Page ___ in the Official Records of
the Summit County, Utah Recorder's Office, and (ii) the Record of Survey Map for
GRAND SUMMIT RESORT HOTEL AT THE CANYONS recorded January ___, 2000, as Entry
No. _______ in the Official Records of the Summit County, Utah Recorder's
Office.
Also known as:
BEGINNING at the South Quarter corner of Section 36, Township 1 South,
Range 3 East, Salt Lake Base & Meridian; thence North 1088.68 feet;
thence East 646.20 feet to the true point of beginning, (basis of
bearing being North 89(Degree)59'43" West between the Southeast corner
of Section 36, Township 1 South, Range 3 East, Salt Lake Base &
Meridian and the said South Quarter corner of Section 36); thence
North 4(Degree)50'26" West 86.01 feet; thence North 40(Degree)09'34"
East 59.12 feet; thence North 49(Degree)50'26" West 25.90 feet; thence
North 40(Degree)09'34" East 39.00 feet; thence South 49(Degree)50'26"
East 25.90 feet; thence North 40(Degree)09'34" East 45.50 feet; thence
South 49(Degree)50'26" East 5.50 feet; thence North 40(Degree)09'34"
East 2.88 feet; thence South 49(Degree)50'26" East 1.50 feet; thence
North 40(Degree)10'23" East 7.84 feet; thence North 85(Degree)09'34"
East 38.80 feet; thence North 04(Degree)50'26" West 1.50 feet; thence
North 85(Degree)09'34" East 27.83 feet; thence South 04(Degree)50'26"
East 1.50 feet; thence North 85(Degree)09'19" East 19.15 feet; thence
North 04(Degree)50'45" West 1.50 feet; thence North 85(Degree)09'15"
East 21.98 feet; thence North 04(Degree)50'26" West 2.78 feet; thence
North 85(Degree)09'34" East 29.90 feet; thence South 04(Degree)50'26"
East 2.78 feet; thence North 85(Degree)09'15" East 29.51 feet; thence
North 35(Degree)06'09" East 10.67 feet; thence South 53(Degree)47'40"
East 11.14 feet; thence North 35(Degree)06'09" East 17.80 feet; thence
South 54(Degree)53'51" East 36.07 feet; thence South 35(Degree)06'09"
West 12.93 feet; thence North 75(Degree)09'34" East 31.04 feet; thence
South 14(Degree)50'26" East 22.17 feet; thence South 75(Degree)09'34"
West 29.88 feet; thence South 14(Degree)50'26" East 88.53 feet; thence
South 75(Degree)09'34" West 7.00 feet; thence South 14(Degree)50'33"
East 8.58 feet; thence North 75(Degree)09'38" East 1.50 feet; thence
South 14(Degree)50'26" East 20.58 feet; thence North 75(Degree)09'34"
East 4.33 feet; thence South 14(Degree)50'26" East 32.67 feet; thence
South 75(Degree)09'34" West 4.33 feet; thence South 14(Degree)50'26"
East 20.58 feet; thence South 75(Degree)09'34" West 1.50 feet; thence
South 14(Degree)50'26" East 19.17 feet; thence North 75(Degree)09'34"
East 1.50 feet; thence South 14(Degree)50'26" East 20.58 feet; thence
North 75(Degree)09'34" East 11.31 feet; thence South 14(Degree)50'26"
East 32.67 feet; thence South 75(Degree)09'34" West 11.31 feet; thence
South 14(Degree)50'26" East 20.58 feet; thence South 75(Degree)09'34"
West 1.50 feet; thence South 14(Degree)50'26" East 14.58 feet; thence
South 75(Degree)09'34" West 18.38 feet; thence South 14(Degree)50'26"
East 10.46 feet; thence South 75(Degree)09'34" West 29.76 feet; thence
South 14(Degree)50'26" East 6.58 feet; thence South 75(Degree)09'34"
West 19.42 feet; thence South 14(Degree)50'26" East 6.54 feet; thence
South 75(Degree)09'34" West 31.83 feet; thence North 14(Degree)50'26"
West 6.54 feet; thence South 75(Degree)09'34" West 224.16 feet; thence
South 14(Degree)50'26" East 0.82 feet; thence South 75(Degree)09'34"
West 23.00 feet; thence North 14(Degree)50'26" West 41.75 feet; thence
South 75(Degree)09'34" West 3.76 feet; thence North 14(Degree)50'26"
West 126.50 feet; thence North 75(Degree)09'34" East 3.76 feet; thence
North 14(Degree)50'26" West 36.64 feet to the point of beginning.
Contains 2.81 acres more or less.
2. TOGETHER WITH all easements, rights and benefits arising under The Canyons
Resort Village Management Agreement dated November 15, 1999, and recorded on
December 15, 1999, as Entry No. 555285, in Book 1300, Beginning at Page 1, and
amended by the First Amendment to The Canyons Resort Village Management
Agreement, dated December 17, 1999, and recorded on December 17, 1999, as Entry
No. 555434, in Book 1300, beginning at Page 668, and by the Second Amendment to
The Canyons Resort Village Management Agreement, dated January ___, 2000, and
recorded on January __, 2000, as Entry No. ______, in Book ____, beginning at
Page ___ of the records of the Summit County Recorder's Office and
3. TOGETHER WITH an easement for access and utilitie s, being a 40 foot wide
right of way and non-exclusive utility easement over, through and across propety
described below as provided for in that certain Easement Agreement by and
between Wolf Mountain Resorts, L.C. and Grand Summit Resort Properties, Inc.,
recorded on December 31, 1998, as Entry No. 00526588, in Book 1217, Beginning at
Page 152 in the Official Records of the Summit County, Utah Recorder's Office:
BEGINNING at a point on the Westerly line of the Red Pine right of
way, said point being North 89(Degree)59'43" West along the Section
line 706.01 feet and North 58.93 feet from the Southeast Corner of
Section 36, Township 1 South, Range 3 East, Salt Lake Base and
Meridian (basis of bearing being North 89(Degree)59'43" West between
the said Southeast Corner of Section 36 and the South Quarter Corner
of said Section 36), said point being the true point of beginning;
then North 85(Degree)00'15" West 67.61 feet to the point of curvature
of a 250 foot radius tangent curve to the right; then Northwesterly
along the arc of said curve 163.55 feet through a central angle of
37(Degree)28'59"; then North 47(Degree)31'16" West 465.83 feet to the
point of curvature of a 200 foot radius tangent curve to the left;
thence Northwesterly along the arc of said curve 84.41 feet through a
central angle of 24(Degree)10'59"; thence North 71(Degree)42'15" West
72.83 feet to the point of curvature of a 150 foot radius tangent
curve to the right; thence Northwesterly along the arc of said curve
187.76 feet through a central angle of 71(Degree)43'03"; thence North
00(Degree)00'48" East 220.63 feet to the point of curvature of a 100
foot radius tangent curve to the left; then Northwesterly along the
arc of said curve 179.79 feet through a central angle of
103(Degree)00'48"; thence South 77(Degree)00'00" West 85.77 feet to
the point of curvature of a 125 foot radius tangent curve to the
right; thence Northwesterly along the arc of said curve 41.46 feet
through a central angle of 19(Degree)00'21" to the point of
termination, said point being on the Southerly boundary of the Grand
Sumit Hotel property line, right of way lines extend to said property
line and said Red Pine Westerly right of way line.
Exhibit 2
See First American Title Insurance Policy in respect of the Mortgaged Property
as in effect on January ___, 2000.