FOURTH AMENDMENT AGREEMENT
THIS FOURTH AMENDMENT AGREEMENT (as amended from time to time, this
"Agreement"), dated as of September 15, 2000 (the "Fourth 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) The definition of "Completion Date" in the Existing LSA for
the Steamboat Project is changed from September 1, 2000 to October 23,
2000.
(b) The definition of "Steamboat Commercial Unit" in the Existing
LSA shall include the so-called "Parking Unit."
(c) The clause (a) of the definition of "Release Price" in the
Existing LSA for sales of Steamboat Quartershare Interests shall be
supplemented by adding the following at the end thereof:
7
; with respect to any sale of 50% of a Steamboat Quartershare
Interest (a so-called "1/8th Steamboat Quartershare Interest"), the
Release Price shall be the greater of (y) 50% of whatever the
Release Price would have been for the full Steamboat Quartershare
Interest in respect thereof or (z) prior to the payment in full of
the Steamboat Obligations, 50% of the sales price in respect thereof
(net of any brokerage commissions or other customary costs of such
sale) and, after the payment in full of the Steamboat Obligations,
25% of the sales price in respect thereof (net of any brokerage
commissions or other customary costs of such sale),
(d) There is hereby added at the end of the definition of
"Release Price" in the Existing LSA the following:
The Release Price for the so-called "Parking Unit" at the Steamboat
Project shall be (1) the payment to the Administrative Agent of any
cash payment paid to GSRP by the Steamboat Association in respect
thereof, (2) the collateral assignment to the Administrative Agent of
the promissory note from the Steamboat Association in respect
thereof, (3) the collateral assignment to the Administrative Agent of
the beneficial interest in the deed of trust securing said promissory
note and (4) the payment of all proceeds in respect thereof
(including, without limitation, all payments of principal and
interest) to the Administrative Agent. The payments of such proceeds
(including, without limitation, all payments of principal and
interest) shall be treated as the payment of a Release Price in
respect of a "Steamboat Commercial Unit" for purposes of Section
2.5(b)(iii) and Section 2.5(d) hereof.
(e) The furniture, furnishings, appliances, fixtures and
equipment, inventory, fittings, machinery, apparatus and personal property
of every nature found on or used in connection with the "Steamboat
Quartershare Units" and the "Steamboat Common Elements" (excluding those
areas designated as "Steamboat Limited Common Elements" appurtenant to the
"Steamboat Comercial Unit") in the Steamboat Project and conveyed by GSRP
to the Steamboat Association pursuant to a Bill of Sale dated September 15,
2000 (to be owned and held by the Steamboat Association as nominee for the
owners of Steamboat Quartershare Interests) are hereby released from the
security interests and Liens provided for in the Existing LSA and other
Steamboat Security Documents and the Administrative Agent, at the sole cost
and expense of GSRP, will execute and deliver to GSRP for recordation such
UCC-3 financing statements and other release documents as shall be
reasonably necessary to document the releases provided for in this clause
(e), provided that, the Administrative Agent shall have a security interest
and Lien under the Existing LSA and other Steamboat Security Documents in
and to the Borrower's rights to said furniture, furnishings, appliances,
fixtures and equipment, inventory, fittings, machinery, apparatus and
personal property arising from (i) Borrower's ownership of unsold Steamboat
Quartershare Interests and (ii) Borrower's having granted a security
interest and Lien in said unsold Steamboat Quartershare Interests to the
Administrative Agent (and Borrower hereby confirms haing granted said
security interest and Lien in the Existing LSA and other Steamboat Security
Documents).
(f) For the avoidance of doubt and in confirmation of the
understanding of all parties hereto, the modifications provided for in the
various Steamboat Project loan documents in that certain Modification of
Loan Documents executed by GSRP in favor of BankBoston, N.A. and recorded
on March 22, 1999 under Reception No. 507293, in Book 756, Page 676 of the
Clerk and Recorder of Routt County, Colorado are hereby rescinded and made
ineffective as if never entered into.
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; and
(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.
(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, 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 Fourth Amendment Closing
Date upon the parties hereto executing this Agreement and upon each of the
following conditions being satisfied:
(a) Third Modification Agreement. The Administrative Agent shall
have received an executed copy of the Modification Agreement No. 3
(Steamboat), a copy of which is attached hereto as Schedule A, and the same
shall have been recorded in the Office of the Clerk and Recorder of Routt
County, Colorado.
(b) Canyons Declaration. The Steamboat Declaration and Resort Map
shall have been recorded in the Office of the Clerk and Recorder of Routt
County, Colorado and the conditions set forth in Section 3.16(a) of the
Existing LSA shall have been satisfied in respect thereof.
(c) Parking Unit Note. The "Parking Unit" Note shall have been
collaterally assigned as set forth in the document attached hereto as
Schedule B and endorsed and delivered to the Administrative Agent and its
deed of trust shall have been recorded in the Office of the Clerk and
Recorder of Routt County, Colorado and a collateral assignment thereof to
the Administrative Agent (in the form of Schedule C attached hereto) shall
have been executed by GSRP and recorded in the Office of the Clerk and
Recorder of Routt County, Colorado.
(d) Declarant's Rights. GSRP shall have executed and caused to be
recorded in the Office of the Clerk and Recorder of Routt County, Colorado
the Steamboat Assignment of Declarant's Rights set forth on Schedule D
attached hereto.
(e) Proxy. The proxy in respect of the Steamboat Association,
substantially in the form of Schedule E attached hereto, shall have been
executed by GSRP and delivered to the Administrative Agent.
(e) Lease Confirmation Letter. A confirmation letter in respect
of the Steamboat Host Company lease, substantially in the form of Schedule
F attached hereto, shall have been received by the Administrative Agent.
(f) Notification. The notification to the Steamboat Association,
substantially in the form of Schedule G attached hereto, shall have
delivered to the Steamboat Association and receipt thereof acknowledged by
the Steamboat Association.
(g) Subordination Agreement. A subordination agreement,
substantially in the form of Schedule H attached hereto, shall have been
recorded immediately after the recordation of the Steamboat Declaration and
Map.
(h) Default Certificate. GSRP shall have executed and delivered to
the Administrative Agent the no default certificate set forth on Schedule I
attached hereto.
(i) Legal Opinions. GSRP shall have delivered to the
Administrative Agent the legal opinions from its Colorado counsel and its
inside counsel substantially in the forms thereof set forth in Schedules J
and K attached hereto.
(j) Title Insurance. GSRP shall have caused such endorsements to
the Title Insurance Policy {Blanket} in respect of the Steamboat Project to
have been executed and delivered to the Administrative Agent as the
Administrative Agent may reasonably request.
(k) Steamboat Declaration. GSRP shall have executed and delivered
to the Administrative Agent a copy of the Steamboat Declaration, which
shall be in form and substance satisfactory to the Administrative Agent.
(l) Bill of Sale. GSRP shall have delivered to the Administrative
Agent a copy of the bill of sale evidencing the sale by GSRP to the
Steamboat Association of certain furniture and furnishings in the Steamboat
Project, which are to be released from the security interest and Lien of
the Existing LSA and other Security Documents.
(m) 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).
GSRP agrees to hold the Subordination Agreement, as executed
by the Administrative Agent, referred to above and any written consent to
the Steamboat Project Map executed by the Administrative Agent in escrow
and not to record the same until the conditions set forth above have been
satisfied or until authorized to do so by an agent or attorney of the
Administrative Agent.
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
Steamboat Blanket Mortgage, the Steamboat Assignment of Rents and of the
Security Documents in and to the Collateral related to the Steamboat
Project to the Steamboat Declaration, as provided in Schedule G attached
hereto, and to release the security interest and Lien in and to the
aforesaid furniture and furnishings in the Steamboat Project.
(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 /s/ Timothy H. Greene By /s/ Nicholas L. Mecca
----------------------- -------------------------------
Name: Timothy H. Greene Name: Nicholas L. Mecca
Title: Vice President Real Estate Title: Division President
Lender:
FOOTHILL CAPITAL CORPORATION
By /s/ Robert J. Cambora
------------------------------
Name: Robert J. Cambora
Title: Senior Vice President
FINOVA CAPITAL CORPORATION
By /s/ Susan Babbitt
------------------------------
Name: Susan Babbitt
Title: Vice President
LITCHFIELD FINANCIAL CORPORATION
By /s/ James A. Yearwood
------------------------------
Name: James A. Yearwood
Title: Senior Vice President
Administrative Agent:
TEXTRON FINANCIAL CORPORATION
By /s/ Nicholas L. Mecca
---------------------------
Name: Nicholas L. Mecca
Title: Division President
AGREED AND CONSENTED TO:
L.B.O. HOLDING, INC.
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
MOUNT SNOW, LTD.
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
KILLINGTON, LTD.
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
SUNDAY RIVER SKIWAY CORPORATION
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
ASC UTAH, INC.
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
STEAMBOAT SKI & RESORT CORPORATION
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By /s/ Foster A. Stewart, Jr.
------------------------------
Name: Foster A. Stewart, Jr.
Title: Vice President
Schedule A
Modification Agreement No. 3
MODIFICATION AGREEMENT No. 3
(Steamboat)
THIS MODIFICATION AGREEMENT No. 3 (this "Agreement"), is made as of the
15th day of September, 2000, by and between GRAND SUMMIT RESORT PROPERTIES,
INC., a Maine corporation ("Grantor"), 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 Combination
Deed of Trust, Security Agreement and Fixture Financing Statement described
below, having a mailing address of 333 East River Drive, East Hartford,
Connecticut 06108.
R E C I T A L S :
- - - - - - - -
WHEREAS, Grantor executed and delivered to the Public Trustee of Routt
County, Colorado and the Administrative Agent that certain Combination Deed of
Trust, Security Agreement and Fixture Financing Statement, dated as of September
1, 1998, which was recorded September 28, 1998, under Reception No. 499719, in
Book 750 at Page 1631 in the Office of the Clerk and Recorder of Routt County,
Colorado (said Combination Deed of Trust, Security Agreement and Fixture
Financing Statement, as amended prior to the date hereof, being referred to in
this Agreement as the "Existing Deed of Trust"); and
WHEREAS, Grantor executed and delivered to Administrative Agent that
certain Assignment of Rents and Leases, dated as of September 1, 1998, which was
recorded September 28, 1998, under Reception No. 499720, in Book 750 at Page
1632 in the Office of the Clerk and Recorder of Routt County, Colorado (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, Grantor, Administrative Agent and the Lenders (as defined in the
Existing Deed of Trust) are, contemporaneously herewith, entering into that
certain Fourth Amendment Agreement to Loan and Security Agreement, dated as of
September 15, 2000, pursuant to which Grantor 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, Grantor 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. For the avoidance of doubt and in confirmation of the understanding
of Grantor and Administrative Agent, the modifications provided for in the
various Steamboat Project loan documents in that certain Modification of Loan
Documents executed by Grantor in favor of BankBoston, N.A. and recorded on March
22, 1999 under Reception No. 507293, in Book 756, Page 676 in the Office of the
Clerk and Recorder of Routt County, Colorado are hereby rescinded and are made
ineffective as if never made.
[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
September, 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 September,
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
to Modification Agreement No. 3
Exhibit 2
to Modification Agreement No. 3
See Lawyers Title Insurance Corporation Loan Title Insurance Policy No.
135-02-232932in respect of the Mortgaged Property as in effect on September 15,
2000.
Schedule B
Assignment of Property-Related Contract
ASSIGNMENT OF PROPERTY-RELATED CONTRACT
(Steamboat - August 2000)
THIS ASSIGNMENT OF PROPERTY-RELATED CONTRACT (this "Assignment"), is made
as of the 15th day of September, 2000, by GRAND SUMMIT RESORT PROPERTIES, INC.,
a Maine corporation having a principal place of business and a mailing address
of P.O. Box 450, Sunday River Road, Bethel, ME 04217 ("Assignor"), in favor of
TEXTRON FINANCIAL CORPORATION, not in its individual capacity but as
Administrative Agent under the LSA (the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Assignor, the Administrative Agent and the lenders that are
parties thereto (the "Lenders") have entered into that certain Loan and Security
Agreement (as amended, the "LSA"), dated as of September 1, 1998;
WHEREAS, the Lenders, subject to the terms and conditions of the LSA, have
agreed to make a advances (collectively, the "Loan") to Assignor in the maximum
principal amount of $105,000,000;
WHEREAS, in order to secure the Loan, Assignor has executed and delivered
to Administrative Agent (i) that certain Combination Deed of Trust, Security
Agreement and Fixture Financing Statement (Steamboat) (as amended from time to
time, the "Blanket Mortgage") dated as of September 1, 2000 encumbering certain
property therein described (the "Mortgaged Property"), including, among other
things, the real estate described on Exhibit A attached hereto and made a part
hereof ("Project"), and the buildings and improvements, fixtures and certain
personal property now or hereafter located thereon, (ii) the LSA, and (iii)
certain other documents and instruments (all amounts owing or to be owed from
time to time under the Blanket Mortgage, the LSA, the Notes defined in, and
issued pursuant to, the LSA and any of the other aforesaid documents and
instruments, together with all other obligations of Assignor in respect thereof,
being hereinafter collectively referred to as the "Indebtedness"); and
WHEREAS, Assignor has entered into, or is the beneficiary or payee of, the
agreements, contracts and instruments set forth on Schedule 1 attached hereto
and desires to grant to Administrative Agent a security interest in and lien
upon each of such agreements, contracts and instruments as additional security
for the Indebtedness and to cause all payments to be made thereunder to be paid
directly to the Administrative Agent for application to the Loan, as provided
for in the LSA; and
NOW THEREFORE, in order to induce the Lenders to enter into the Fourth
Amendment Agreement of even date herewith to the LSA and to subordinate the lien
of the Blanket Deed of Trust to that certain Declaration of Condominium and Plan
of Quarter Share Ownership and in consideration therefor, and in consideration
of Ten Dollars
($10.00) and other good and valuable consideration to Assignor paid (the receipt
and sufficiency whereof are hereby acknowledged), Assignor hereby agrees as
follows:
1. As security for the Indebtedness, Assignor hereby assigns, transfers
and sets over to Administrative Agent, and grants to Administrative Agent a
security interest in, and lien upon, the following (collectively, the
"Collateral"):
(a) all of Assignor's right, title and interest in, to and under
the agreements, contracts, and instruments set forth on Schedule 1 attached
hereto and made a part hereof, together with any modifications, supplements
or replacements to any of the foregoing, in each case, whether now existing
or hereafter acquired (collectively, the "Assigned Agreements");
(b) all of Assignor's rights, powers, privileges, claims and
benefits now existing or hereafter arising under any or all of the Assigned
Agreements;
(c) (i) all of Assignor's right, title and interest in and to any
and all funds from time to time held pursuant to any of the Assigned
Agreements, and (ii) all other funds from time to time paid or payable to
Assignor, or to any other person or entity at the direction or for the
benefit of Assignor, under or pursuant to any of the Assigned Agreements
(including, without limitation, all payments under the Parking Unit
Promissory Note (as such term is defined on Schedule 1 hereto); and
(d) all proceeds of the foregoing collateral.
2. (a) This Assignment is executed only as security for the
Indebtedness, and, therefore, the execution and delivery of this Assignment
shall not subject Administrative Agent or any Lender to, or transfer or pass to
Administrative Agent or any Lender, or in any way affect or modify, the
liability of Assignor under any or all of the Assigned Agreements, it being
understood and agreed that notwithstanding this Assignment, all of the
obligations of Assignor to each and every other party under each and every one
of the Assigned Agreements shall be and remain enforceable by such other party,
its successors and assigns, only against Assignor or persons other than
Administrative Agent and the Lenders and the successors and assigns of such
persons, and that neither the Administrative Agent nor the Lenders have assumed
any of the obligations or duties of Assignor under or with respect to the
Assigned Agreements.
(b) This Assignment shall not operate to place responsibility for
the control, care, management or repair of the Project, or any part thereof,
upon Administrative Agent or the Lenders, nor shall it operate to make
Administrative Agent or any Lender liable for the performance or observance of
any terms, conditions, covenants or agreements contained in any of the Assigned
Agreements, or for any dangerous or defective condition of the Project, or for
any negligence in the management, upkeep, repair or control of the Resort
resulting in loss or injury or death to any tenant, occupant, licensee, employee
or stranger, or for duties of Assignor under or with respect to the Assigned
Agreements.
3. To protect the security afforded by this Assignment, Assignor
represents, warrants and agrees as follows:
(a) Assignor will faithfully abide by, perform and discharge each
and every material obligation, covenant, condition, duty and agreement
which each or any of the Assigned Agreements provides are to be kept,
observed or performed by Assignor;
(b) the Assigned Agreements entered into prior to the date hereof
are in full force and effect, and Assignor will take all action which might
reasonably be required to keep the Assigned Agreements in full force and
effect and to keep them from expiring or being canceled, rescinded or
terminated;
(c) Assignor will not amend, cancel, rescind, abridge, modify or
terminate any Assigned Agreement or waive, release, discharge or consent to
the release of any other party to any Assigned Agreement of or from any
obligation, covenant, condition or agreement to be kept, observed or
performed by such other party (except to the extent required by applicable
law);
(d) without the prior written consent of Administrative Agent,
Assignor will not take any action (including, without limitation, the
exercise of any right or option) which would permit, or give rise to a
right permitting, any other party to any Assigned Agreement, or any other
person or entity whatsoever, to cancel, rescind or terminate any Assigned
Agreement (except to the extent required by applicable law);
(e) Assignor will enforce, short of termination, the performance
and observance of each and every material covenant and condition of each of
the Assigned Agreements to be performed or observed by the other party or
parties thereto;
(f) at Assignor's sole cost and expense, Assignor will appear in
and defend any action or proceeding arising under, growing out of or in any
manner connected with the rights, obligations, covenants, conditions,
duties, agreements or liabilities of Assignor under any of the Assigned
Agreements or Administrative Agent's right, title and security interest in
and to the Collateral;
(g) should Assignor fail to make any payment, do any act which
this Assignment prohibits or refrain from any act which this Assignment
requires, then Administrative Agent may, but shall have no obligation to
(and shall not thereby release Assignor from any obligation hereunder),
make such payment or do or prevent such act in such manner and to such
extent as Administrative Agent may deem necessary or advisable to protect
the security provided hereby, which rights of Administrative Agent shall
specifically include, without limiting Administrative Agent's general
powers herein granted, the right to appear in and defend any action or
proceeding purporting to affect the security hereof and the rights or
powers of Administrative Agent hereunder (or any of them), and also the
right to perform and discharge each and every one, or any one or more, of
the obligations, covenants, conditions, duties and agreements of Assignor
contained in any one or more of the Assigned Agreements; and in exercising
any such powers, Administrative Agent may pay necessary or advisable costs
and expenses and incur and pay reasonable attorneys' fees, and Assignor
will reimburse Administrative Agent for such costs, expenses and fees;
(h) Assignor is the lawful owner of the Collateral with full right
to pledge, deliver, assign and transfer the Collateral to Administrative
Agent; none of the Collateral has been previously mortgaged, pledged,
hypothecated or assigned, by operation of law or otherwise, whether
absolutely, conditionally, collaterally or otherwise, and, so long as this
Assignment is in effect, Assignor shall not further assign, transfer or
otherwise encumber its interest in any of the Collateral; and
(i) each of the Assigned Agreements is legal, valid, binding
and enforceable in accordance with its terms; no party under any of the
Assigned Agreements is, or with the giving of notice or the passage of
time, or both, would be, in default thereunder; and all material
obligations, covenants, conditions, duties and agreements have been kept,
observed and performed as required thereunder.
4. Assignor hereby irrevocably authorizes Administrative Agent, and
appoints Administrative Agent the agent and attorney-in-fact of Assignor, at
Administrative Agent's option, to give any and all notices and to take any and
all other actions required under any of the Assigned Agreements, or to receive
any funds or realize upon any other rights or benefits thereunder. Such
appointment shall be deemed to be coupled with an interest. Assignor shall
obtain the consent of the Steamboat Grand Resort Hotel Condominium Association,
Inc. to the collateral assignment of each of the Assigned Agreements to the
Administrative Agent and to making payment to the Administrative Agent of all
payments under the Assigned Agreements as may be directed by the Administrative
Agent in writing. Assignor agrees to endorse and deliver the Parking Unit
Promissory Note to the Administrative Agent and to execute and record a
collateral assignment of the Parking Unit Deed of Trust (as defined in Schedule
1 hereto) substantially in the form of Exhibit B hereto.
5. This Assignment and all rights herein assigned to Administrative
Agent shall survive the foreclosure of the Blanket Mortgage, and all estate,
right, title and interest of Administrative Agent in and to the Collateral shall
revert to Assignor only upon the execution of a written instrument by
Administrative Agent terminating this Assignment or upon a voluntary release by
Administrative Agent of the Blanket Mortgage, which release shall be delivered
in connection with the payment in full of all Indebtedness.
6. Assignor will, from time to time, do and perform any other act or
acts, will execute, acknowledge, deliver and file, register, record and deposit
(and will refile, reregister, rerecord and redeposit whenever required) any and
all further instruments required by law or reasonably requested by
Administrative Agent in order to confirm, or further assure, the interests of
Administrative Agent hereunder, and will take such actions and execute such
instruments and documents as Administrative Agent may reasonably request to
facilitate Administrative Agent's exercise of Assignor's rights, obligations and
duties under the Assigned Agreements or otherwise with respect to the
Collateral.
7. Administrative Agent may assign all or any of the rights assigned to
it hereby, or arising under any of the Assigned Agreements, including, without
limitation, the right to receive any or all payments due or to become due. In
the event of any such assignment, such successor or assign of Administrative
Agent shall enjoy all rights and privileges and be subject to all obligations of
Administrative Agent hereunder.
8. The substantive laws of the State of Colorado shall govern the
validity, construction, enforcement and interpretation of this Assignment, to
the extent required by principles of conflicts of laws recognized in such State;
otherwise, the laws of the State of Maine shall govern.
9. Assignor shall keep Administrative Agent reasonably informed as to
the status of the Assigned Agreements and the compliance by the parties thereto
with their respective obligations thereunder. Assignor shall give Administrative
Agent, at the place for giving notices to Administrative Agent under the LSA,
(a) copies of all written notices or written communications to or from any party
to any of the Assigned Agreements claiming any default, breach or violation by
any party thereto, (b) promptly after the effectiveness thereof, copies of all
material leases, contracts, permits, licenses, certificates and other documents
or agreements similar in nature to any of the Assigned Agreements that may
hereafter replace or amend any of the Assigned Agreements or that may hereafter
come into effect, and (c) within five (5) days after request by Administrative
Agent, copies of all Assigned Agreements then in effect.
10. By its acceptance of this Assignment, Administrative Agent hereby
agrees with Assignor that, so long as an Event of Default (as defined in the
LSA) has not occurred, Administrative Agent will not exercise or enforce, or
seek to exercise or enforce, or avail itself of, any of the rights, powers,
privileges, authorizations or benefits assigned and transferred to
Administrative Agent pursuant to this Assignment, and Assignor may exercise or
enforce, or seek to exercise or enforce, such rights, powers, privileges,
authorizations or benefits, provided that all payments in respect of the
Assigned Agreements shall be paid directly to the Administrative Agent and shall
be treated and applied to the Indebtedness in the same manner as "Release
Prices" in respect of "Steamboat Commercial Units", as more particularly
provided for in Section 2.5 of the LSA.
11. Administrative Agent shall have all the rights and remedies of a
secured party under the Uniform Commercial Code of the State of Maine with
respect to the Collateral, and any other rights and remedies provided by law or
equity or provided hereunder or under any other document executed in connection
with the Loan.
12. Assignor shall indemnify and hold Administrative Agent and each
Lender harmless from and against any and all claims, demands, liabilities,
losses, lawsuits, judgments, costs and expenses (including, without limitation,
attorneys' fees) to which Administrative Agent or such Lender may become
exposed, or which Administrative Agent or such Lender may incur, in exercising
any of its rights under this Assignment or due to the execution of this
Assignment, and shall otherwise pay when due, or reimburse Administrative Agent
or such Lender upon demand for, any and all costs and expenses incurred by
Administrative Agent or such Lender in connection with the Indebtedness.
13. This Assignment is not intended to create any partnership or joint
venture between Assignor, Administrative Agent or the Lenders.
14. No delay, omission or failure of Administrative Agent to exercise
its rights under this Assignment upon the occurrence of any Default or Event of
Default, and no waiver of any Default or Event of Default, shall be deemed to
waive, exhaust or impair Administrative Agent's ability or right to exercise
such rights at a later time with respect to such Default or Event of Default or
with respect to any other Event of Default, as the case may be.
15. This Assignment shall bind and inure to the benefit of the heirs,
executors, administrators, personal representatives, successors and assigns of
Assignor and Administrative Agent.
16. A carbon, photographic or other reproduction of this Assignment or
any financing statement relating to this Assignment shall be sufficient to be
effective as a financing statement.
[Remainder of page intentionally blank; next page is signature page]
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed as
of the day and year first above written.
Signed in the Presence of: GRAND SUMMIT RESORT PROPERTIES, INC.,
as Assignor
__________________________ 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:______________
The assignments provided for herein to the Administrative Agent are hereby
consented to by the undersigned. The undersigned agrees to make all payments in
respect of the Assigned Agreements directly to the Administrative Agent as it
may direct in writing.
STEAMBOAT GRAND RESORT HOTEL CONDOMINIUM ASSOCIATION, INC.
By__________________________
Name:
Title:
Schedule 1
That certain Promissory Note (the "Parking Unit Note") made by the
Steamboat Grand Resort Hotel Condominium Association, Inc. to the order of the
Assignor in the stated principal amount of $6,500,000 and the Deed of Trust,
Assignment of Rents and Security Agreement securing the same (the "Parking Unit
Deed of Trust");
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
EXHIBIT B
COLLATERAL ASSIGNMENT
FOR GOOD AND VALUABLE CONSIDERATION, GRAND SUMMIT RESORT PROPERTIES, INC.,
a Maine Corporation ("Borrower"), hereby collaterally assigns and transfers,
without recourse, to Textron Financial Corporation, a Delaware corporation
having a mailing address of 333 East River Drive, East Hartford, CT 06108, in
its capacity as Administrative Agent under that certain Loan and Security
Agreement (as amended, the "LSA"), dated as of September 1, 1998, with Borrower,
as collateral for Borrower's obligations under said LSA all of Borrower's right,
title and interest under that certain Deed of Trust, Assignment of Rents and
Security Agreement dated as of September 15, 2000, by and between The Steamboat
Grand Resort Hotel Condominium Association, Inc., a non-profit corporation
organized and existing under the laws of Colorado, as Grantor and the Public
Trustee of Routt County, recorded in the records of Routt County, Colorado on
_________________, 2000, in Book _________ at Page _____, Reception No.
____________, pursuant to which the Grantor irrevocably granted and conveyed to
the Public Trustee, in trust for the benefit of Borrower, certain property
described therein to secure, inter alia, the payment of amounts due under
Grantor's Promissory Note in the original principal amount of $6,500,000.
GRAND SUMMIT RESORT PROPERTIES, INC.
A Maine Corporation
By:_________________________________
Its
ACKNOWLEDGMENT
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
The foregoing instrument was acknowledgment before me this _______ day of
_________, 2000 by ________________________________ as ____________________ of
GRAND SUMMIT RESORT PROPERTIES, INC.
WITNESS my hand and seal.
___________________________________
Notary Public
[SEAL]
My commission expires:_________________
Schedule C
Collateral Assignment of Parking Unit Deed of Trust
COLLATERAL ASSIGNMENT
COLLATERAL ASSIGNMENT
FOR GOOD AND VALUABLE CONSIDERATION, GRAND SUMMIT RESORT PROPERTIES, INC.,
a Maine Corporation ("Borrower"), hereby collaterally assigns and transfers,
without recourse, to Textron Financial Corporation, a Delaware corporation
having a mailing address of 333 East River Drive, East Hartford, CT 06108, in
its capacity as Administrative Agent under that certain Loan and Security
Agreement (as amended, the "LSA"), dated as of September 1, 1998, with Borrower,
as collateral for Borrower's obligations under said LSA all of Borrower's right,
title and interest under that certain Deed of Trust, Assignment of Rents and
Security Agreement dated as of September 15, 2000, by and between The Steamboat
Grand Resort Hotel Condominium Association, Inc., a non-profit corporation
organized and existing under the laws of Colorado, as Grantor and the Public
Trustee of Routt County, recorded in the records of Routt County, Colorado on
_________________, 2000, in Book _________ at Page _____, Reception No.
____________, pursuant to which the Grantor irrevocably granted and conveyed to
the Public Trustee, in trust for the benefit of Borrower, certain property
described therein to secure, inter alia, the payment of amounts due under
Grantor's Promissory Note in the original principal amount of $6,500,000.
GRAND SUMMIT RESORT PROPERTIES, INC.
A Maine Corporation
By:_________________________________
Its
ACKNOWLEDGMENT
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
The foregoing instrument was acknowledgment before me this _______ day of
_________, 2000 by ________________________________ as ____________________ of
GRAND SUMMIT RESORT PROPERTIES, INC.
WITNESS my hand and seal.
___________________________________
Notary Public
[SEAL]
My commission expires:_________________
Schedule D
Collateral Assignment of Declarant's Rights
COLLATERAL ASSIGNMENT OF DECLARANT'S RIGHTS
(Steamboat)
This COLLATERAL ASSIGNMENT OF DECLARANT'S RIGHTS (this "Agreement") is made
as of the 15th day of September, 2000.
1. Background. Textron Financial Corporation, a Delaware corporation
having a principal place of business at 333 East River Drive, East Hartford,
Connecticut 06108 ("Administrative Agent"), in its capacity as administrative
agent under that certain Loan and Security Agreement (as amended, the "LSA"),
dated as of September 1, 1998 among Grand Summit Resort Properties, Inc., a
Maine corporation having a principal place of business at P.O. Box 450, Sunday
River Road, Bethel, ME 04217 (the "Borrower"), and the lenders that are parties
thereto is the holder (on behalf of the aforesaid lenders) of a certain
Combination Deed of Trust, Security Agreement and Fixture Financing Statement
(Steamboat) given by the Borrower, dated as of September 1, 1998, and recorded
in Routt County, Colorado (the "Land Records") in Book 750, Page 1631 (as
amended from time to time, the "Deed of Trust"). The Borrower is the declarant
(the "Declarant") under that certain Declaration of Condominium and Plan of
Quarter Share Ownership, more particularly described on Schedule 1 attached
hereto (as amended from time to time, the "Declaration"), relating to the
Steamboat Project, as defined in the LSA and more particularly described on
Exhibit A hereto (the "Project").
Except as otherwise specifically stated herein, capitalized terms used
herein without definition shall have the meaning given to such terms in the
Declaration.
In consideration of the foregoing, and of the mutual promises and covenants
herein contained and contained in the LSA, the Administrative Agent and the
Declarant have entered into this Agreement.
2. Confirmation of the Deed of Trust. The Declarant hereby acknowledges
and confirms that, in granting the Deed of Trust to the Administrative Agent and
entering into the LSA with the Administrative Agent and the lenders that are
parties thereto, Declarant granted to the Administrative Agent a security
interest in all of Declarant's rights and interests with respect to the property
described in the Deed of Trust and the LSA. Declarant does hereby
unconditionally and irrevocably grant to Administrative Agent a security
interest in and a lien upon, and collaterally assign, Declarant's rights as a
declarant under the Declaration and all other rights which are reserved to the
Declarant in the Declaration, including, without limitation, Declarant's rights
under Section 5.1, Section 15.5 and Article 16 of the Declaration and
Declarant's development rights and special declarant rights (as such terms are
defined in the Colorado Common Interest Ownership Act, as amended)(collectively,
the "Declarant's Rights"). The aforesaid grant is hereby made for the purpose of
securing the payment and performance of the obligations of Declarant under the
Deed of Trust and the LSA, and the terms and provisions of the Deed of Trust and
the LSA are incorporated herein by reference, as if set forth at length herein.
Such grant is in addition to and not in substitution for any rights which the
Administrative Agent and/or the lenders that are parties to the LSA may now have
or hereafter acquire under the law of the State in which the Project is
situated.
3. Additional Covenants of Declarant. The Declarant hereby further
covenants and agrees with Administrative Agent as follows:
3.1 That the Declarant will not, without the prior written consent of
Administrative Agent: (a) exercise any of the Declarant's Rights in any
manner that materially and adversely affects the operation of Mortgaged
Property (as defined in the Deed of Trust) or the Project situated thereon
(provided, however, for the sake of clarity, Declarant shall not be
required to obtain the prior written consent of Administrative Agent to
exercise any of its Declarants' Rights to complete construction of the
first phase of the Project and complete development and construction of the
second phase of the Project), (b) take any action, or omit any action, the
result of which taking or omission would be the loss, abridgment or
termination of any of such Declarant's Rights or (c) amend or modify, or
approve any amendment or modification of, the Declaration that would modify
or amend any right or remedy provided for in Article 8 or in Sections
14.11, 14.12 or 14.13 or Article 16 of the Declaration.
3.2 That the Declarant shall fully perform all obligations, duties,
agreements and conditions to be performed by the Declarant under the terms
and provisions of the Declaration and under the laws of the State in which
the Project is situated, and that the Declarant shall provide
Administrative Agent with such evidence of such performance as
Administrative Agent may reasonably request from time to time.
3.3 The Declarant acknowledges and agrees that Administrative Agent
is not responsible for any of the obligations or liabilities of the
Declarant under the Declaration and the applicable laws of the State of
Colorado, including without limitation, any obligation or liability of any
kind to any purchaser of quartershare interests, residential units or
commercial units at the Mortgaged Property, and Declarant specifically
acknowledges and agrees that in executing this Agreement Administrative
Agent makes no warranties or covenants to any person or party as to title,
merchantability, fitness for any particular purpose, physical condition, or
otherwise, as to the Mortgaged Property, or any portion thereof, whether
such be express or implied. The Declarant further acknowledges and agrees
that neither the execution of this Agreement by Administrative Agent nor
the execution of the Deed of Trust, the LSA or any other agreement or
instrument in connection therewith shall relieve the Declarant from any of
its obligations or duties under the Declaration or the applicable laws of
the State of Colorado, and that Administrative Agent shall have no duties
or obligations under the Declaration or under the applicable laws of the
State of Colorado until such time as it should succeed to the status of
Declarant in accordance with the Declaration or pursuant to a deed in lieu
of foreclosure under the Deed of Trust or otherwise by law, equity or
agreement.
3.4 The Declarant hereby warrants to Administrative Agent that as of
the date hereof, except as previously disclosed in writing to the
Administrative Agent, (a) it has not executed any prior conveyance or
assignment of any Declarant's Rights or other rights reserved by it in the
Declaration; (b) that it has not performed any acts nor executed any
instruments which might prevent Administrative Agent from exercising the
terms and provisions of the Deed of Trust, the LSA, this Agreement or any
other document executed and delivered by Declarant to Administrative Agent
or which would limit Administrative Agent in the exercise of its rights
thereunder or hereunder; (c) that as of the date hereof, the Declarant is
the sole owner of the Declarant's Rights; and (d) that the Declarant's
Rights have been validly created and reserved in accordance with all
applicable requirements of the laws of the State in which the Project is
situated.
4. Miscellaneous. This Agreement, and the covenants, conditions,
warranties, and representations herein contained, shall inure to and bind the
successors and assigns of the Declarant and Administrative Agent. Wherever used,
the singular number shall include the plural, and the use of any gender shall be
applicable to all genders. If any obligation or portion of this Agreement is
determined to be invalid or unenforceable under law, it shall not affect the
validity or enforcement of the remaining obligations or portions hereof. This
Agreement is to be construed under the laws of the State of Colorado. All
covenants, conditions, provisions, warranties, and other undertakings of
Declarant contained in this Agreement, or in the Deed of Trust, LSA or any other
agreement executed and delivered by Declarant in connection therewith,
heretofore, concurrently or hereafter entered into, shall be deemed cumulative
to and not in derogation or substitution of any of the terms, covenants,
conditions or agreements of Declarant herein contained. The failure or delay of
Administrative Agent to exercise or enforce any rights, liens, powers or
remedies hereunder or under any of the aforesaid agreements shall not operate as
a waiver of such liens, rights, powers and remedies, but all such liens, rights,
powers and remedies shall continue in full force and effect. All liens, rights,
powers and remedies herein provided for are cumulative and none are exclusive.
Declarant shall do any and all things necessary, or take any action requested by
Administrative Agent, to carry out the intent of this Agreement. Upon the full
and final payment of the Indebtedness, the Admininistrative Agent shall (at the
sole cost and expense of the Declarant) promptly execute and deliver to
Declarant a voluntary release and termination of this Agreement in recordable
form.
5. Duplicate Originals, Execution in Counterpart. Two or more duplicate
originals hereof may be signed by the parties, each of which shall be an
original but all of which together shall constitute one and the same instrument.
This Agreement may be executed in one or more counterparts and shall be
effective when at least one counterpart shall have been executed by each party
hereto, and each set of counterparts which, collectively, show execution by each
party hereto shall constitute one duplicate original.
[Remainder of page intentionally blank; next page is signature page]
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the date and year first above written.
Signed and Acknowledged GRAND SUMMIT RESORT
in the Presence of: PROPERTIES, INC.
____________________ By__________________________________
Name: Its:
____________________
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
as in the Presence of: CORPORATION, Administrative Agent
_________________________ By________________________________
Name: Its:
_________________________
Name:
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 2000, by ______________, the _______________ of Textron
Financial Corporation, a Delaware corporation, on behalf of said corporation.
____________________________________
Notary Public
My Commission Expires:
SCHEDULE 1
Declaration of Condominium and Plan of Quarter Share Ownership, dated
__________, recorded on _______________, at Reception No. ________ in the Office
of the Clerk and Recorder of Routt County, Colorado, together with that certain
map entitled ["__________________________"], dated ________, and recorded as
Plan Number __________ in the Office of the Clerk and Recorder of Routt County,
Colorado.
EXHIBIT A
PROPERTY DESCRIPTION
Schedule E
Proxy
PROXY
This PROXY, dated as of September 15, 2000, is granted by GRAND SUMMIT
RESORT PROPERTIES, INC., a Maine corporation ("Grantor"), having an office in
Bethel, Maine, to TEXTRON FINANCIAL CORPORATION, a Delaware corporation
("Grantee"), not in its individual capacity but as administrative agent for the
lenders (collectively, the "Lenders") under that certain Loan and Security
Agreement, dated as of September 1, 1998, among Grantor, Grantee and such
Lenders (as amended from time to time, the "LSA").
R E C I T A L S:
A. Grantor, the Lenders and Grantee have entered into the LSA pursuant
to which the Lenders have agreed, upon the terms and conditions set forth
therein, to lend to Grantor up to $105,000,000.
B. All capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed thereto in the LSA.
C. Grantor is the owner of certain unsold Quartershare Interests,
Residential Units and Commercial Units in the Steamboat Project.
D. As the owner of such unsold Quartershare Interests, Residential Units
and Commercial Units, Grantor has the right to vote on certain matters as more
particularly described in the Declaration of Condominium and Plan of
Quartershare Ownership recorded on ________, 2000, in Reception No. ____ of the
real property records of Routt County, Colorado and the By-Laws in respect
thereof.
NOW, THEREFORE, in order to induce the Lenders to enter into the Fourth
Amendment Agreement to the LSA and to make Advances to Borrower pursuant to the
LSA, and in consideration therefor, and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
Grantor hereby unconditionally and irrevocably appoints Grantee (with full right
of substitution), by and through any officer thereof, to vote in the name and in
the place of Grantor, on all matters with respect to which owners of
Quartershare Interests, Residential Units and Commercial Units in the Steamboat
Project may be entitled to vote, with the same force and effect as Grantor, at
all and any times during the existence of an Event of Default under the LSA or
in connection with any material casualty, taking or condemnation of the
Steamboat Project or any part thereof. The appointment provided for herein shall
be irrevocable. Grantor shall, upon the request of Grantee, promptly file this
Proxy with the Secretary of the Steamboat Grand Resort Hotel Condominium
Association, a Colorado non-profit corporation. An affidavit provided to the
Secretary of such Association by Grantee as to the existence of any Event of
Default under the LSA or in respect of any material casualty, taking or
condemnation of the aforesaid Project or any part thereof shall be sufficient
proof for this Proxy to at once become operative and the Secretary may rely on
such affidavit. Grantor shall do all such other things (including, without
limitation, executing new Proxies in favor of Grantee from time to time) in
order to comply with the Declaration and By-Laws of such Association.
It is the intention of Grantor that this Proxy comport with the
requirements of the By-Laws of the aforesaid Association in respect of proxies.
GRANTOR:
GRAND SUMMIT RESORT PROPERTIES, INC.
By:_________________________________
Name:
Title:
STATE OF ______________________
COUNTY OF _____________________ ________ ____, 2000
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:
(Seal)
Schedule F
Commercial Lease Confirmation Letter
STEAMBOAT SKI & RESORT CORPORATION
September 15, 2000
Textron Financial Corporation, as Administrative
Agent
333 East River Drive
East Hartford, CT 06108
Re: Lease Agreement dated as of September 3, 1998 by and between Grand
Summit Resort Properties, Inc.and Steamboat Ski & Resort Corporation
for the commercial condominium units at the Steamboat Grand Resort
Hotel Condominium Condominium
Dear Ladies and Gentlemen:
At the request of Grand Summit Resort Properties, Inc., we hereby confirm
to you that the above-captioned Lease Agreement is in full force and effect, no
default of Grand Summit Resort Properties, Inc. exists thereunder of which we
are aware and we acknowledge that Grand Summit Resort Properties, Inc. has
collaterally assigned the above-captioned Lease Agreement to you and that all
payments of rent thereunder are to be made to you as you may direct, in writing.
Sincerely,
Schedule G
First Mortgagee Letter
TEXTRON FINANCIAL CORPORATION
333 East River Drive
East Hartford, CT 06108
September 15, 2000
VIA HAND DELIVERY
Steamboat Grand Resort Hotel Condominium Association, Inc.
2300 Mt. Werner Circle
Steamboat Springs, Colorado 80487
Dear Ladies and Gentlemen:
The undersigned, in its capacity as administrative agent on behalf of
certain lenders, is the holder of a Deed of Trust, Security Agreement and
Fixture Financing Statement, dated as of September 28, 1998, and recorded on
September 28, 1998 at Reception Number 499719 in Book 750 at Page 1631 in the
office of the Clerk and Recorder of Routt County, Colorado, as amended from time
to time. Said Deed of Trust, Security Agreement and Fixture Financing Statement
encumbers all condominium units and quartershare estates created by that certain
Declaration of Condominium and Plan of Quartershare Ownership recorded at
Reception No. ___ of the Clerk and Recorder of Routt County, Colorado. The name
and address of the beneficiary of the aforesaid Deed of Trust, Security
Agreement and Fixture Financing Statement is:
Textron Financial Corporation, as Administrative Agent
333 East River Drive
East Hartford, CT 06108
Attention: Robert Edelson
The name of the owner of the aforesaid condominium units and quartershare
estates is Grand Summit Resort Properties, Inc.
The aforesaid Deed of Trust, Security Agreement and Fixture Financing
Statement is a first priority deed of trust.
Textron Financial Corporation hereby requests that all notices of actions
provided for in Section 8.3 of the aforesaid Declaration be given to it.
The undersigned, in its capacity as administrative agent on behalf of
certain lenders, is the collateral assignee of a Deed of Trust, dated as of
September 15, 2000, and recorded on September 15, 2000 at Reception Number
______ in the office of the Clerk and Recorder of Routt County, Colorado, as
amended from time to time. Said Deed of Trust encumbers the "Parking
Unit"created by that certain Declaration of Condominium and Plan of Quartershare
Ownership recorded at Reception No. ___ of the Clerk and Recorder of Routt
County, Colorado. The name and address designated for notice by the beneficiary
of the aforesaid Deed of Trust is:
Textron Financial Corporation, as Administrative Agent
333 East River Drive
East Hartford, CT 06108
Attention: Robert Edelson
The name of the owner of the aforesaid Parking Unit is Steamboat Grand
Resort Hotel Condominium Association, Inc.
The aforesaid Deed of Trust is a first priority deed of trust.
Textron Financial Corporation hereby requests that all notices of actions
provided for in Section 8.3 of the aforesaid Declaration be given to it.
Sincerely,
Receipt Acknowledged:
STEAMBOAT GRAND RESORT HOTEL CONDOMINIUM ASSOCIATION, INC.
By_____________________________
Name:
Title:
Date: September __, 2000
Schedule H
Subordination Agreement
SUBORDINATION AGREEMENT
KNOW ALL BY THESE PRESENTS:
THAT, WHEREAS, GRAND SUMMIT RESORT PROPERTIES, INC., a Maine corporation
("Borrower") executed
(a) that certain Combination Deed of Trust, Security Agreement and
Fixture Financing Statement (Steamboat) (the "Deed of Trust"), dated as of
September 28, 1998 and recorded on September 28, 1998 under Reception No.
499719 in Book 750 at Page 1631 in the Office of the Clerk and Recorder of
Routt County, Colorado, securing indebtedness (the "Indebtedness")
evidenced by
1. Steamboat Construction Project Advance Note dated September 28,
1998 in favor of Textron Financial Corporation in the stated
principal amount of $22,000,000 (subject to adjustments which may
not increase the amount of said Note in excess of $40,000,000) and
also securing a junior tranche of indebtedness of $10,000,000
2. Steamboat Inventory Advance Note dated September 28, 1998 in
favor of Textron Financial Corporation in the stated principal
amount of $18,600,000 (subject to adjustments which may not increase
the amount of said Note in excess of $30,000,000)
3. Canyons Construction Project Advance Note dated September 28,
1998 in favor of Textron Financial Corporation in the stated
principal amount of $11,300,000 (subject to adjustments which not
increase the amount of said Note in excess of $40,000,000)
4. Canyons Inventory Advance Note dated September 28, 1998 in
favor of Textron Financial Corporation in the stated principal
amount of $11,300,000 (subject to adjustments which may not increase
the amount of said Note in excess of $40,000,000)
5. Steamboat Construction Project Advance Note dated September 28,
1998 in favor of Green Tree Financial Servicing Corporation
(assigned to Conseco Finance Servicing Corporation and further
assigned to Foothill Capital Corporation) n the stated principal
amount of $16,450,000 (subject to adjustments which not increase the
amount of said Note in excess of $30,000,000)
6. Steamboat Inventory Advance Note dated September 28, 1998 in
favor of Green Tree Financial Servicing Corporation (assigned to
Conseco Finance Servicing Corporation and further assigned to
Foothill Capital Corporation) in the stated principal amount of
$16,450,000 (subject to adjustments which may not increase the
amount of said Note in excess of $30,000,000)
7. Canyons Construction Project Advance Note dated September 28,
1998 in favor of Green Tree Financial Servicing Corporation
(assigned to Conseco Finance Servicing Corporation and further
assigned to Foothill Capital Corporation) in the stated principal
amount of $8,500,000 (subject to adjustments which not increase the
amount of said Note in excess of $30,000,000).
8. Canyons Inventory Advance Note dated September 28, 1998 in
favor of Green Tree Financial Servicing Corporation (assigned to
Conseco Finance Servicing Corporation) in the stated principal
amount of $8,500,000 (subject to adjustments which may not increase
the amount of said Note in excess of $30,000,000).
9. Steamboat Construction Project Advance Note dated June 24, 1999
in favor of Litchfield Financial Servicing Corporation in the stated
principal amount of $5,500,000 (subject to adjustments which may not
increase the amount of said Note in excess of $10,000,000)
10. Steamboat Inventory Advance Note dated June 24, 1999 in favor
of Litchfield Financial Servicing Corporation in the stated
principal amount of $5,500,000 (subject to adjustments which may not
increase the amount of said Note in excess of $10,000,000)
11. Canyons Construction Project Advance Note dated June 24, 1999
in favor of Litchfield Financial Servicing Corporation in the stated
principal amount of $2,850,000 (subject to adjustments which may not
increase the amount of said Note in excess of $10,000,000)
12. Canyons Inventory Advance Note dated June 24, 1999 in favor of
Litchfield Financial Servicing Corporation in the stated principal
amount of $2,850,000 (subject to adjustments which may not increase
the amount of said Note in excess of $10,000,000)
13. Canyons Construction Project Advance Note dated June 24, 1999
in favor of Finova Capital Corporation in the stated principal
amount of $30,000,000
14. Canyons Inventory Advance Note dated June 24, 1999 in favor of
Finova Capital Corporation in the stated principal amount of
$30,000,000
which Deed of Trust was recorded on September 28, 1998, at Reception
Number 499719 in Book 750 at Page 1631 of the real property records
of Routt County, Colorado, for the use of the Administrative Agent
on behalf of certain lenders and creditors referred to therein and
which Mortgage is a lien against the property described herein (the
"Property") and
(b) that certain Assignment of Rents and Leases (the "Assignment of
Rents"), dated as of September 28, 1998, securing the Indebtedness,
which Assignment of Rents was recorded on September 28, 1998 at
Reception Number 499720 in Book 750 at Page 1632 of the real
property records of Routt County, Colorado, for the benefit of the
Administrative Agent on behalf of certain lenders and creditors
referred to therein and which Assignment of Rents is a lien against
certain leases, rents, profits, and other income revenues or
payments in respect of the Property; and
(c) the LSA for the benefit of the lenders and other creditors
referred to therein and which LSA creates a security interest and
lien in respect of the Property and all improvements now and
hereafter located thereon including all facilities, roadways,
furnishings, equipment and all other appurtenances thereunto
belonging; and
WHEREAS, the Borrower has executed a Declaration of Condominium and Plan of
Quartershare Ownership and recorded the same on September ___, 2000, in Book
_______, at Page _______, of the real property records of Routt County, Colorado
(the "Declaration"), and Borrower has executed that certain Condominium Map and
Plat and recorded the same on September __, 2000, in Book ____, at Page_____ of
the real property records of Routt County, Colorado (the "Map"); and
WHEREAS, Borrower intends to develop the Property as an interval interest
resort including the sale and conveyance of interval interests under Colorado
law and in connection therewith Borrower has executed the Declaration to subject
the property to such regime; and
WHEREAS, Borrower has requested the Administrative Agent to consent to, join
in, and subordinate the lien of its Deed of Trust, Assignment of Rents and LSA
to the Declaration which the Administrative Agent, acting on behalf of the
lenders under the LSA, is willing to do, provided that (a) its Deed of Trust,
Assignment of Rents and LSA shall otherwise be and remain a first lien against
the Condominium Units, including, furnishings, equipment and all other
appurtenances thereunto belonging, created by the Declaration and subject to any
other encumbrances and releases expressly permitted under the Deed of Trust,
Assignment of Rents or LSA, (b) its Deed of Trust, Assignment of Rents and LSA
shall otherwise be and remain a first lien against all of the other property of
the Borrower described in the Deed of Trust, Assignment of Rents, and LSA
(including, without limitation, the rights of the Borrower in and to the
unreleased quartershare interests, residential units, commercial units,
development rights and special declarant rights that arise as a result of the
recordation of the Declaration, the purchase and sale agreements in respect
thereof and all of the proceeds in respect thereof )and (c) all payments in
respect to of the Lease Agreement dated as of September 3, 1998, between Grand
Summit Resort Properties, Inc. as lessor and Steamboat Ski Resort Corporation as
lessee, between the Borrower and Steamboat Grand Resort Hotel Condominium
Condominium Association , Inc. and that certain promissory note from Steamboat
Grand Resort Hotel Condominium Condominium Association, Inc. to the Borrower in
the stated principal amount of $6,500,000, shall continue to be made directly to
the Administrative Agent free and clear of any claim thereto under the
Declaration.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt whereof is hereby acknowledged, the
undersigned Administrative Agent hereby consents to and joins in the execution
and recording of the Declaration and Map and agrees that the lien of its Deed of
Trust, Assignment of Rents, and LSA, to the extent above described, shall be and
hereby are made subordinate, secondary, and subject to the Declaration and to
the Map, as each may be amended in accordance with its terms from time to time,
and to the effect thereof (including without limitation the creation of Common
Elements).
Further, Administrative Agent agrees to execute such additional evidence of
subordination of its Deed of Trust, Assignment of Rents and LSA as may be
reasonably requested by Borrower (at Borrower's sole cost).
By execution and recording of this Subordination Agreement, the Administrative
Agent agrees and acknowledges that the Property described in the Deed of Trust
and Assignment of Rents shall hereinafter be described in accordance with the
Map and the Declaration.
Dated this _____ day of September, 2000
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 September,
2000, by ______________, the _______________ of Textron Financial Corporation, a
Delaware corporation, on behalf of said corporation
________________________________
Notary Public
Print Name:
My Commission Expires:
[Seal]
Schedule I
Default Certificate
CERTIFICATE OF OFFICER
GRAND SUMMIT RESORT PROPERTIES, INC., AS BORROWER
I, ____________________, hereby certify that I am the _______ of GRAND
SUMMIT RESORT PROPERTIES, INC. (the "Borrower"), a Maine corporation, and that,
as such, I am authorized to execute and deliver this Certificate in the name and
on behalf of the Borrower, and that:
1. This certificate is being delivered to Textron Financial Corporation,
as Administrative Agent, pursuant to Section 3.16 of the Borrower's Loan and
Security Agreement (as amended, the "LSA"), dated as of September 1, 1998 with
Textron Financial Corporation, as Administrative Agent, Textron Financial
Corporation, as a lender, and the other lenders party thereto. The terms used in
this Certificate and not defined herein shall have the respective meanings
ascribed to them in the LSA.
2. No Default or Event of Default exists under the LSA.
IN WITNESS WHEREOF, I have executed this Certificate in the name and on
behalf of the Borrower and under its corporate seal this ____ day of September,
2000.
______________________________
Name:
Schedule J
Form of Colorado Legal Opinions
(Date)
Textron Financial Corporation, as Administrative Agent and on behalf of the
Lenders (as defined below)
333 East River Drive
East Hartford, CT 06108
Re: Loan and Security Agreement (as amended from time to time, the "LSA")
among Textron Financial Corporation, as Administrative Agent,
("Administrative Agent"), Grand Summit Resort Properties, Inc., as
borrower ("Borrower"), Textron Financial Corporation, as lender, and
the other lenders party thereto (Textron Financial Corporation and the
other lenders are referred to, collectively, as the "Lenders"), dated
as of September 1, 1998 - $145,000,000 loan facility (the "Loan")
Ladies and Gentlemen:
We are Colorado counsel for the Borrower and Grand Summit Steamboat
Condominium Association, Inc., a Colorado nonprofit corporation (the "Steamboat
Association"). Capitalized term used but not defined herein are used with the
meanings assigned to them in the LSA.
In connection with the transactions contemplated by the LSA, we have
represented the Borrower with respect to certain Colorado matters. In connection
with the establishment of a condominium and quartershare regimen at the
Steamboat Project we have represented the Steamboat Association.
You have requested that we opine (1) as to the continued enforceability of
the Steamboat Blanket Mortgage and certain other Security Documents in respect
of the Steamboat Project after giving effect to the Administrative Agent's
execution and delivery of that certain Subordination Agreement of even date
herewith, as contemplated in Section 3.16 of the LSA, and the execution and
delivery by the parties to the LSA of the Fourth Amendment Agreement of even
date herewith, (2) as to the enforceability of certain licenses and financing
documents to be entered into by the Steamboat Association and (3) on the legal
sufficiency of those certain documents executed and recorded by the Borrower
relating to the condominium and quartershare regimen being established at the
Steamboat Project under the Colorado Common Ownership Interest Act, as amended
and the Colorado Condominium Ownership Act, as amended (collectively, the
"Acts").
In connection with our representation of the Borrower and the Steamboat
Association and for purposes of this opinion, we have made such investigations
of law and fact as we have deemed necessary and relevant as a basis for our
opinion hereinafter set forth, and have examined originals or copies identified
to our satisfaction of the following documents:
(a) the LSA including the Fourth Amendment Agreement thereto;
(b) the Blanket Mortgage for the Steamboat Project;
(c) the Assignment of Rent for the Steamboat Project;
(d) the Subordination Agreement of even date herewith executed by the
Administrative Agent;
(e) the Assignment of Declarant's Rights for the Steamboat Project,
(f) Declaration of Condominium and Plan of Quarter Share Ownership
("Declaration") to be recorded in the real property records of Routt
County, Colorado;
(g) Bylaws of The Steamboat Grand Resort Hotel Condominium
Association, Inc. (the "Bylaws");
(h) Articles of Incorporation of [Grand Summit Steamboat Condominium
Association, Inc.] (the "Articles of Incorporation");
(i) a Promissory Note (the "Parking Unit Note") made by the Steamboat
Association to the order of Borrower in the stated principal amount of
$6,500,000 and the Deed of Trust, Assignment of Rents and Security
Agreement securing the same (the "Parking Unit Deed of Trust;" the Parking
Unit Note and the Parking Unit Deed of Trust are referred to herein,
collectively, as the "Parking Unit Financing Documents");
(j) Collateral Assignment (the "Collateral Assignment") of the Parking
Unit Financing Documents.
In rendering our opinion, we have made such investigations of law as we
have deemed necessary and relevant as a basis for our opinion, and we have
assumed, with your concurrence, the following:
(i) the authenticity of all documents submitted to us as originals;
(ii) the conformity of any documents submitted to us as copies to
their respective authentic originals;
(iii) the authenticity of all signatures (other than those of officers
and directors of Borrower or the Steamboat Association);
(iv) as to each Person other than the Borrower and the Steamboat
Association, the power and authority of such Person to execute and deliver,
and the due authorization, execution and delivery by such Person of, all
documents, instruments and agreements to which such Person is a party; and
(v) that the Borrower is the owner of the Collateral and has rights
therein.
In addition, in rendering our opinion, we have made no independent
investigation as to any matter of fact in any opinion contained herein nor have
we independently verified any information obtained from the officers of the
Borrower, except as set forth herein.
Based upon the foregoing, it is our opinion that:
2. The Blanket Mortgage, the Assignment of Rents, the Assignment of
Declarant's Rights for the Steamboat Project and Collateral Assignment
constitute, to the extent Colorado law is applicable thereto, the valid and
binding obligations of the Borrower, enforceable in accordance with their
respective terms, except as such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles affecting the availability of equitable remedies.
The Parking Unit Financing Documents constitute, to the extent Colorado law
is applicable thereto, the valid and binding obligations of the Steamboat
Association, enforceable in accordance with its terms, except as such terms may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles affecting the
availability of equitable remedies.
3. The Parking Unit Note does not bear a rate of interest, require a
calculation of the accrual of interest or provide for any other charges or for
the application of payments which contravene any usury law or other law or
statute of the State of Colorado which regulates or limits the amount of
interest that may be contracted for or charged, the calculation of such interest
or the application of payments to principal, interest and other charges.
4. Each of the Blanket Mortgage and the Assignments of Rent for the
Steamboat Project continues to be effective to create a valid and enforceable
Lien with respect to the Property described therein under Colorado law and
secures the Loan, including, without limitation, all future Advances that may be
made by the Lenders pursuant to the LSA. Each of the Assignment of Declarant's
Rights and the Collateral Assignment is effective to create a valid and
enforceable Lien with respect to the Property described therein under Colorado
law and secures the Loan, including, without limitation, all future Advances
that may be made by the Lenders pursuant to the LSA.
5. When executed by the Borrower, acknowledged and recorded together
with the plat and plans in respect thereof in the real property records of Routt
County, Colorado in accordance with the Act, the Declaration (with the Bylaws
attached thereto) is sufficient to create a time-span estate condominium project
under the Act.
5. The Steamboat Association has been duly formed as a nonprofit
corporation, is validly existing and is in good standing, in each case, under
applicable Colorado law.
The foregoing opinions are based on, and are limited to, the law of the
State of Colorado and the relevant law of the United States of America as they
presently exist.
Schedule K
Inside Counsel's Opinion
(Date)
Textron Financial Corporation, as Administrative Agent and on behalf of the
Lenders (as defined below)
333 East River Drive
East Hartford, CT 06108
Re: Loan and Security Agreement (as amended from time to time, the "LSA")
among Textron Financial Corporation, as Administrative Agent,
("Administrative Agent"), Grand Summit Resort Properties, Inc., as
borrower ("Borrower"), Textron Financial Corporation, as lender, and
the other lenders party thereto (Textron Financial Corporation and the
other lenders are referred to, collectively, as the "Lenders"), dated
as of September 1, 1998 - $145,000,000 loan facility (the "Loan")
Ladies and Gentlemen:
I am the [general] counsel for the Borrower. In connection with the
transactions contemplated by the LSA, I have represented the Borrower.
Capitalized term used but not defined herein are used with the meanings assigned
to them in the LSA.
You have requested that I opine as to the continued enforceability of the
LSA and the other Security Documents under Maine law in respect of the Steamboat
Project after giving effect to the Administrative Agent's execution and delivery
of that certain Subordination Agreement of even date herewith, as contemplated
in Section 3.16 of the LSA, and the execution and delivery by the parties to the
LSA of the Fourth Amendment Agreement of even date herewith.
In connection with my representation of the Borrower and for purposes of
this opinion, I have made such investigations of law and fact as I have deemed
necessary and relevant as a basis for my opinion hereinafter set forth, and have
examined originals or copies identified to my satisfaction of the following
documents:
(a) the LSA including the Fourth Amendment Agreement thereto;
(b) the Blanket Mortgage for the Steamboat Project;
(c) the Assignment of Rent for the Steamboat Project;
(d) the Subordination Agreement of even date herewith executed by
the Administrative Agent;
(e) the Assignment of Declarant's Rights for the Steamboat
Project,
(f) a Promissory Note (the "Parking Unit Note") made by the
Steamboat Association to the order of Borrower in the stated principal
amount of $6,500,000 and the Deed of Trust, Assignment of Rents and
Security Agreement securing the same (collectively, the "Parking Unit Deed
of Trust;" the Parking Unit Note and the Parking Unit Deed of Trust are
referred to herein, collectively, as the "Parking Unit Financing
Documents"); and
(i) Collateral Assignment (the "Collateral Assignment") of the
Parking Unit Financing Documents.
In rendering my opinion, I have made such investigations of law as I
have deemed necessary and relevant as a basis for my opinion, and I have
assumed, with your concurrence, the following:
(i) the authenticity of all documents submitted to me as originals;
(ii) the conformity of any documents submitted to me as copies to
their respective authentic originals;
(iii) the authenticity of all signatures (other than those of officers
and directors of Borrower);
(iv) as to each Person other than the Borrower, the power and
authority of such Person to execute and deliver, and the due authorization,
execution and delivery by such Person of, all documents, instruments and
agreements to which such Person is a party; and
(v) that the Borrower is the owner of the Collateral and has rights
therein.
Based upon the foregoing, it is my opinion that the LSA, as amended by the
Fourth Amendment Agreement, the Blanket Mortgage for the Steamboat Project, the
Assignment of Rents for the Steamboat Project, the Assignment of Declarant's
Rights for the Steamboat Project and the Collateral Assignment constitute, to
the extent Maine law is applicable thereto, the valid and binding obligations of
the Borrower, enforceable in accordance with their respective terms.
The opinion set forth above is subject to the following qualifications and
assumptions:
(i) the enforceability of any obligation of the Borrower may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other
laws or rules of law or equity affecting the enforcement generally of
creditors rights and remedies, the discretion of the Court before which
equitable relief is requested, and laws relating to fraudulent transfers or
conveyances, preferences and equitable subordination;
(ii) no opinion is given herein as to the enforceability of any
provision of any agreement relating to confirming jurisdiction of, or venue
in, any court, waivers of jury trials, defenses or other remedies, or
establishing evidentiary standards;
(iii) no opinion is given herein as to whether any provision of the
above documents or any right granted to the Administrative Agent pursuant
thereto is specifically enforceable in equity or as to the availability of
any specific remedies;
(iv) no opinion is given as to security interests in (a) any bank
accounts or policies of insurance (except to the extent proceeds thereof
are subject to Article 9 of the Uniform Commercial Code), or (b) any
contracts, licenses or permits not assignable or limited in assignability
by their terms or by law, except for any account or a general intangible
for money due or to become due thereunder;
(v) the enforcement of any of your rights will in all cases be subject
(a) to your implied duty of good faith and fair dealing and (b) as to any
of your rights to collateral security, to your duty to act in a
commercially reasonably manner;
(vi) no opinion is expressed as to whether a court will enforce your
rights to exercise remedies upon the happening of a nonmaterial breach of
the Security Documents (including material breaches of nonmaterial
provisions thereof);
(vii) no opinion is expressed as to the enforceability of any
indemnity, hold harmless, exculpation or contribution obligation to the
extent that such indemnity, hold harmless, exculpation, contribution or
reimbursement obligation is, with respect to any action, omission, event or
circumstance, contrary to public policy, or which prospectively releases a
party from liability for its wrongful or negligent acts;
(viii) no opinion is expressed as to the enforceability of any
provision of the above documents which purports to grant a power of
attorney in favor the Administrative Agent in connection with the
collection of rent or otherwise;
(ix) no opinion is expressed as to the effect of the following on
enforceability of the above documents;
(I) avoidance of liens granted on property of the Borrower
Property under the U.S. Bankruptcy Code or the Maine Uniform
Fraudulent Transfers Act (or similar statutory or common law schemes
of Vermont or New Hampshire) as a fraudulent or preferential transfer
for less than reasonably equivalent value or transfers made while the
transferor was insolvent or which render the transferor insolvent; or
(II) avoidance of liens granted on Property of the Borrower under
the doctrine of equitable subordination.
(x) no opinion is expressed as to individual remedial provisions of
the above documents, which may be limited or rendered unenforceable by
applicable laws or interpretations; however in my opinion such laws and
interpretations do not, subject to the other assumptions, qualifications
and exceptions and limitations of this letter, affect the overall validity
of such documents or interfere with substantial realization of the
principal benefits purported to be provided by such documents;
(xi) the rights of the Administrative Agent to take possession of the
Collateral may be limited to circumstances in which the Administrative
Agent can take possession "peaceably" and without use of force;
(xii) determination of damages and entitlement to reimbursement for
costs and expenses (including, without limitation, attorneys' fees) is
within the judicial discretion of the court before which such relief is
requested;
(xiii) the statutes of Maine provide that the acceptance by a secured
lender of anything of value for application against mortgage debt during
the pendency of a foreclosure action shall, in the absence of an agreement
to the contrary, waive the foreclosure action; therefore provisions of any
Mortgage purporting to provide such an agreement to the contrary may not be
enforceable unless affirmed or ratified by the Borrower at the time partial
payments are made and received during the pendency of foreclosure;
(xiv) pursuant to the holding of the Maine Supreme Judicial Court in
Canal National Bank v. Becker, 431 A.2d 71 (Me. 1981), a mortgagor is
permitted to introduce parole evidence to show that the parties did not
intend an advance made subsequent to the recording of a mortgage to be
secured by a previously granted mortgage, and, to this extent, evidence may
be admitted to vary the terms of any of the Security Documents;
(xv) no opinion is expressed with respect to the validity or
enforceability of provisions of any of the Security Documents purporting to
render ineffective an otherwise valid waiver of the terms of such Security
Document on account of the lack of a writing;
(xvi) assignment to the Administrative Agent of any interest in a
Borrower's trademarks in connection with a foreclosure proceeding or
otherwise will be invalid unless the Administrative Agent is also at such
time in possession of the good will associated with said trademarks and
sufficient assets of Borrower's business to reproduce the goods and/or
services designated by such trademarks;
(xvii) no opinion is expressed as to whether or not the after acquired
property provisions of the above documents give rise to a valid lien in
subsequent specific trademark and/or patent applications and/or
registrations without recordation of an instrument specifically describing
the same and the Administrative Agent's interest therein and subjecting
such interest to the lien created by said security documents; and
(xviii) no opinion is expressed as to any provision of the above
documents which provides for the payment of interest on interest (other
than the funding by Lenders of construction period interest or the funding
of transactional costs as set forth in the LSA) or increased rates of
interest in the event of a default and/or late charges upon delinquency in
payments or in the event of a default, liquidation damages or prepayment of
premiums, if any, to the extent they are deemed to be penalties or
forfeitures, or authorizes the Lenders to set-off and apply any deposits at
any time held, and any other indebtedness at any time owing, by the Lenders
to or for the account of the Borrower. Although a right of set off is not
contrary to law, I call your attention to a lender's obligation of good
faith and fair dealing and the possibility that unilateral exercise of a
right of set off could, in certain circumstances, be deemed contrary to
that obligation or public policy.
(xix) no opinion is expressed as to the effect on this opinion of: (i)
the compliance or non-compliance of the Lenders with any state, federal or
other laws or regulations applicable to it; or (ii) the legal or regulatory
status or the nature of the business of the Lenders.
This opinion is provided solely for the benefit of the addressees hereof,
their successors or assigns, for use in connection with the execution and
delivery of the aforesaid Subordination Agreement, and no other person may rely
upon this opinion without my prior written consent.