FIRST AMENDMENT AGREEMENT
THIS FIRST AMENDMENT AGREEMENT (this "First Amendment Agreement"),
dated as of August 20, 2001 among GRAND SUMMIT RESORT PROPERTIES, INC., a Maine
corporation, (herein referred to as "GSRP") and TEXTRON FINANCIAL CORPORATION, a
Delaware corporation("TFC").
W I T N E S S E T H:
A. WHEREAS, GSRP and TFC entered into that certain Statement of Intention and
Special Additional Financing Agreement dated July 25, 2000 (as amended to but
excluding the date hereof, the "Existing SOI" and, as amended hereunder, the
"Amended SOI"), pursuant to which the TFC agreed to make subordinated loans to
GSRP in accordance with the terms of the Existing SOI;
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing SOI and in Section 1 of that certain Fifth Amendment
Agreement (the "Fifth Amendment Agreement"), dated as of August 20, 2001, among
GSRP, TFC, as lender and Administrative Agent, and the other lenders that are
parties thereto, which Fifth Amendment Agreement amends that certain Loan and
Security Agreement, dated as of September 28, 1998, among GSRP, TFC, as lender
and administrative agent, and Green Tree Financial Services Corporation, as a
lender (as amended to the date hereof, the "Existing LSA" and, after giving
effect to the Fifth Amendment Agreement, the "Amended LSA"); and
C. WHEREAS, GSRP and TFC have agreed to certain amendments to the Existing SOI
as described and set forth below;
NOW, THEREFORE, in consideration of the TFC's and GSRP's agreements
hereunder, and in consideration of other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the TFC and GSRP hereby
agree as follows:
1. Fifth Amendment Agreement. TFC hereby consents to and approves the
Fifth Amendment Agreement and all actions provided to be taken therein (subject
to the terms and conditions thereof) with respect to GSRP, First Colorado/PCL
and the Administrative Agent.
2. The Subordinated Loan Tranche Advance. GSRP and TFC agree that
Subordinated Loan Tranche Advances may be made through December 31, 2001;
Section 2 of the Existing SOI is hereby so amended. On the date on which the
Final Steamboat Construction Cost Advance is made under Section 2 of the Fifth
Amendment Agreement and subject to this First Amendment Agreement becoming
effective on the First Amendment Effective Date, TFC agrees to advance to GSRP
up to $3,058,336.15 (TFC agrees that such advance may be made in escrow pursuant
to the escrow to be established under the Steamboat Settlement Agreement and the
2001 Escrow Letter, as such terms are defined in the Fifth Amendment Agreement;
interest shall commence to accrue on such advance when made into such escrow).
On each date thereafter on which a Steamboat Penthouse Construction Advance is
made under the Fifth Amendment Agreement, TFC agrees to make a Subordinated Loan
Tranche Advance to the extent of availability, if any, under the Amended SOI and
further subject to the satisfaction of the conditions precedent set forth in
Section 3(b), (c), (d) and (e) of the Existing SOI.
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3. Waiver. Upon this First Amendment Agreement becoming effective on
the First Amendment Effective Date, each Default and/or Event of Default
existing at such time and arising from or otherwise in respect of the failure of
GSRP to perform its obligations under the Existing SOI or the Existing LSA or
any of the Steamboat Security Documents with respect to or in respect of (a) the
Steamboat Assignment of Construction Contract (including, without limitation,
any improper notification of change orders thereunder), (b) the disputes under
the Steamboat Construction Contract which are the subject of the Steamboat
Settlement Agreement, (c) the Steamboat Construction Project Borrowing Base and
Section 2.5(c)(ii) of the Existing LSA, (d) the Completion Date for the
Steamboat Project, (e) Sections 3.8 and 7.2(i) of the Existing LSA with respect
to the mechanic's liens recorded by the Steamboat General Contractor and other
subcontractors in respect of the Steamboat Project and with respect to the
mechanic's lien recorded by IBI Group (for $166,431.15) in respect of the
Canyons Project, (f) Section 2(b)(7) of the Existing SOI are hereby waived and
(g) any and all defaults existing as of the date hereof under that certain
Collateral Assignment dated July 25, 2000 between TFC and GSRP. No other Default
or Event of Default (whether occurring prior to the date hereof or hereafter)
shall be deemed waived, and TFC hereby reserves all of its rights and remedies
under the Amended SOI, the Amended LSA, the other Security Documents, at law and
in equity with respect thereto.
4. Release of Northeastern Commercial Core Assets. Upon this First
Amendment Agreement becoming effective on the First Amendment Effective Date,
TFC agrees and consents to the releases of the Blanket Mortgages and the other
Security Documents in respect of the Northeastern Commercial Core Assets and the
Beneficial Improvements Agreements and Host Company Lease payments (if any)
related thereto. No other Collateral shall be released or deemed released by
virtue thereof.
5. Final Fee Component Amounts. (i) Upon this First Amendment
Agreement becoming effective on the First Amendment Effective Date, Section
1(k)(B)(2) of the Existing SOI shall be amended and restated as follows:
(2) in one lump sum a final payment fee (the "Final Fee"),
which shall be payable on the earlier of the Subordinated Loan
Tranche Maturity Date or the date on which all principal of
the Subordinated Loan Tranche is fully paid (such date is
referred to herein as the "Final Payment Date"), equal to the
sum of the Final Fee Component Amounts for each of the
Subordinated Loan Tranche Advances, where a "Final Fee
Component Amount" for a Subordinated Loan Tranche Advance
shall equal the difference between the original outstanding
principal amount of such Subordinated Loan Tranche Advance
minus the discounted net present value of each payment of
interest and principal in respect of such Subordinated Loan
Tranche Advance determined in accordance with customary
financial practice by using a discount period of one month and
a monthly interest rate equal to 2.083333% (or such lesser
rate as may be required by Paragraph 6(a) hereof) and by
discounting each such payment of principal and interest from
the date on which such payment was made to the date when such
Subordinated Loan Tranche Advance was originally extended by
the Special Subordinated Lender (for purposes of determining
interest to be discounted in respect of any Subordinated Loan
Tranche Advance, only the interest payments accruing at 20%
per annum thereon shall be included therein and such interest
payments shall be deemed paid on the dates on which they are
actually paid in cash and any of such interest payments that
are deferred, in accordance with the terms hereof, to the
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Final Payment Date shall be deemed, for purposes of this
determination, to have been paid in cash on the First
Amendment Effective Date; any other cash payments made in
respect of the principal amount of any outstanding
Subordinated Loan Tranche Advance made after the First
Amendment Effective Date shall be deemed to have been made on
the First Amendment Effective Date for purposes of calculating
the Final Fee Component Amount in respect of such Subordinated
Loan Tranche Advance); no interest shall accrue on the unpaid
portion of the Final Fee;
(ii) Upon this First Amendment Agreement becoming effective on the
First Amendment Effective Date, Section 1(k)(C) of the Existing SOI shall be
amended and restated as follows:
(C) (i) to pay to the Special Subordinated Lender,
solely in its capacity as the subordinated lender hereunder,
as requested by it from time to time during the term of the
Subordinated Loan Tranche after the payment in full of the
Syndication Fee, its reasonable costs and fees, which (1) in
the aggregate shall not exceed $1,000,000 or such lesser
amount as may be required by Section 6(a) hereof (the
"Participation/Syndication Costs") and (2) shall have been
incurred or will be incurred by TFC, solely in its capacity as
the Special Subordinated Lender hereunder, in connection with
obtaining one or more participants for the Subordinated Loan
Tranche; such Participation/Syndication Costs shall be
incurred only if determined to be necessary by TFC in the
exercise of its professional judgment in order to attract
participants in the prevailing loan/participation market for
commercial loans; the funding of the payment of such
Participation/Syndication Costs will be limited to 15% of the
"free and clear proceeds" arising from the Collateral referred
to in Paragraph 2(b)(iii)(4) below; GSRP acknowledges that TFC
is required by its internal lending constraints to reduce its
aggregate loan exposure under this Statement of Intention and
Agreement to $5,000,000 or less as soon as possible after
November 30, 2000 and that the payment of such
Participation/Syndication Costs is essential to assist in
achieving that reduction; and
(iii) Upon this First Amendment Agreement becoming effective on the
First Amendment Effective Date, a new clause (ii) is hereby added to Section
1(k)(C) of the Existing SOI shall be amended and restated as follows:
(ii) to pay to the Textron Financial Corporation
solely as a "Steamboat Lender" and/or a "Canyons Lender" under
the Existing LSA, as amended by that certain Fourth Amendment
Agreement dated as of September 15, 2000 and Fifth Amendment
Agreement dated as of August 20, 2001 thereto (as so amended
and thereafter further amended, the "LSA") as requested by it
from time to time prior to the March 31, 2003, its reasonable
costs and fees, which (1) in the aggregate shall not exceed
$1,000,000 (the "Steamboat/Canyons Construction Loan
Participation/Syndication Costs;" Steamboat/Canyons
Construction Loan Participation/Syndication Costs and
Participation/Syndication Costs are referred to hereinafter,
collectively, as "Participation/Syndication Costs") and (2)
shall have been incurred or will be incurred by TFC, solely in
its capacity as a Steamboat Lender and/or Canyons Lender under
the LSA, in connection with obtaining one or more participants
for its share of the Canyons Loan and/or the Steamboat Loan;
such Steamboat/Canyons Construction Loan
Participation/Syndication Costs shall be incurred only if
determined to be necessary by TFC in the exercise of its
professional judgment in order to attract participants in the
prevailing loan/participation market for commercial loans; the
funding of the payment of such Steamboat/Canyons Construction
Loan Participation/Syndication Costs will be limited to 15% of
the "free and clear proceeds" arising from the Collateral
referred to in Paragraph 2(b)(iii)(4) below; GSRP acknowledges
that TFC is required by its internal lending constraints to
reduce its aggregate loan exposure under the Steamboat Loan
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and/or the Canyons Loan to $25,000,000 or less as soon as
possible after November 30, 2000 and that the payment of such
Steamboat/Canyons Construction Participation/Syndication Costs
is essential to assist in achieving that reduction; the fees
to be paid under subparagraph (i) above and this subparagraph
(ii) are separate and distinct and TFC is not obligated to
pursue participations or syndications of the Subordinated Loan
Tranche at the same time as it is pursuing participations or
syndication of the Steamboat Loan and/or Canyons Loan.
6. Sales of Steamboat Quartershare Interests; Colorado First/PCL
Documents and the Steamboat Settlement Agreement. Anything contained in the
Existing SOI or the Existing LSA to the contrary notwithstanding, the failure by
GSRP to comply with its undertakings in the Colorado First/PCL Promissory Note
and/or in the Colorado First/PCL Deed of Trust shall constitute an immediate
Event of Default, provided that GSRP's failure to pay in full on the maturity
date of the Colorado First/PCL Promissory Note all amounts then due thereunder
shall not constitute an event of default under the Amended SOI, the Amended LSA
or any of the other Security Documents (including, without limitation, Section
8.1(h) of the Existing LSA). The foregoing notwithstanding, it shall be an
immediate Event of Default if GSRP shall have failed to close sufficient sales
of Steamboat Quartershare Interests prior to May 17, 2002 in order to fully pay
the Colorado First/PCL Promissory Note and to obtain the full release of the
Colorado First/PCL Deed of Trust by such date. GSRP shall not amend or modify
the Colorado First/PCL Promissory Note, Colorado First/PCL Deed of Trust or the
Steamboat Settlement Agreement without the prior written consent of the TFC.
7. Penthouse Construction. GSRP agrees to complete the construction of
all of the Steamboat Residential Units located in the penthouse of the Steamboat
Project on or prior to December 31, 2001 in accordance with the Plans for the
Steamboat Project and to obtain by such date for each of such Units a
certificate of occupancy issued by City of Steamboat, Colorado. GSRP agrees to
promptly provide to TFC copies of all construction contracts in connection with
the aforesaid completion of said "penthouse units", which contracts shall be
fixed price contracts and shall, in the aggregate, demonstrate that the
completion of construction of said "penthouse units" (in accordance with the
Plans for the Steamboat Project and on or prior to December 31, 2001) can be
effected for a fixed price not in excess of $1,600,000 and shall otherwise be in
form and substance satisfactory to TFC. GSRP agrees to effect no change order
and initiate or otherwise allow no construction change directives in respect of
such construction contracts without the prior written consent of TFC. All
contractors, subcontractors, suppliers and laborers in respect of the completion
of the construction of the "penthouse units" shall, to the extent requested by
the Administrative Agent, subordinate and make junior to the liens of the
Administrative Agent on behalf of TFC in and to the Steamboat Project all of
their respective mechanic's, materialmen's and laborer's liens, and the
subordination documentation in respect thereof shall be satisfactory in both
form and substance to TFC. All construction contracts in respect of the
completion of the "penthouse units" shall be collaterally assigned to the
Administrative Agent pursuant to assignment documents in form and substance
satisfactory to TFC and each contractor thereunder shall have consented to such
assignment in a written consent that shall also be in form and substance
satisfactory to TFC. GSRP acknowledges that TFC may provide limited financing
for the completion of the construction of the "penthouse units" through
additional Subordinated Loan Tranche Advances, which shall only be available to
the extent of availability, if any, under the Amended LSA and until December 31,
2001, shall be subject to the same conditions precedent as the Steamboat
Penthouse Construction Advances under the Fifth Amendment Agreement and to
Sections 3(b), (c), (d) and (e) of the Amended SOI , shall be subject to the
Parent's making the necessary funds available to GSRP on a timely basis to cover
projected liquidity shortfalls in the Budget, and shall be subject to no Default
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or Event of Default existing under the Amended LSA, no default or event of
default existing under the Amended SOI and no default or event of default
existing under the Fleet/ASCRP Loan Documents. TFC agrees that the pledged cash
under the Steamboat Pledged Cash Agreement may be used to pay for, in part, the
completion of such construction and such cash shall be made available to GSRP on
the same terms and conditions as any Steamboat Penthouse Construction Advance is
made available to GSRP (subject to such additional conditions of release as may
be set forth in the Steamboat Pledged Cash Agreement) and shall be made
available to GSRP for such purposes only when GSRP shall have fully utilized the
aforesaid limited financing under the Amended LSA and the Amended SOI. For the
avoidance of doubt, Section 3.8 of the Existing LSA shall continue to have full
application to the completion of the construction of the aforesaid "penthouse
units." Prior to commencing the work with respect to the aforesaid "penthouse
units," GSRP shall certify and otherwise demonstrate to TFC that it has
sufficient cash on hand or other cash equivalent availability to pay for all
costs in respect of such work and that it or its Parent has taken appropriate
measures to assure the continued availability of such cash or cash equivalents
(all of which shall be satisfactory to TFC). Upon the issuance of final
certificates of occupancy for each of the Steamboat Residential Units located in
the penthouse of the Steamboat Project, the Administrative Agent shall release
its lien and security interest in the remaining amount of cash pledged under the
Steamboat Pledged Cash Agreement. Upon the issuance of a certificate of
occupancy for any of the aforesaid "penthouse units," GSRP shall promptly close
any Contracts in respect thereof.
8. Miscellaneous. The covenants and undertakings of GSRP set forth in
this First Amendment Agreement shall be incorporated into and made a part of the
Existing SOI. For the avoidance of doubt and by way of confirmation of the
requirements of the Existing SOI, the Subordinated Loan Tranche Obligations
constitute and are "Steamboat Obligations" under the Amended LSA and all
"Release Prices," all payments under the Host Company Lease Agreements, all
proceeds from the sale of Commercial Units and any other payments derived from
any of the Projects that become payable after all of the Canyons Obligations and
all of the Steamboat Obligations other than the Subordinated Loan Tranche
Obligations have been paid in full shall be paid by the Administrative Agent to
TFC for application to the Subordinated Loan Tranche Obligations. The
Subordinated Loan Tranche Amendment Attachment to Steamboat Project Advance Note
of Textron Financial Corporation dated as July 25, 2000 states that the
principal sum thereof is due on August 1, 2005; the Existing SOI establishes a
maturity date for the same of August 1, 2003; the Subordinated Loan Tranche
Amendment Attachment to Steamboat Project Advance Note of Textron Financial
Corporation dated as July 25, 2000 is hereby amended and modified to make the
maturity date thereof August 1, 2003.
9. Representations and Warranties. GSRP hereby represents and warrants
as of the date hereof as follows, which representations and warranties are
hereby incorporated into and made part of the Amended SOI:
9.1 Except as otherwise disclosed on Schedule 1 attached
hereto, each of the representations and warranties contained in Section
4 of the Existing SOI is true and correct as of the date hereof.
9.2 Except with respect to the Permitted Exceptions and as
other provided for in the Existing SOI, all Liens granted for the
benefit of TFC under the Existing SOI and the other Security Documents
are duly granted, valid, perfected and prior in right to all other
Liens that now or hereafter may be granted to or held by any other
Person.
9.3 The execution and delivery of this First Amendment
Agreement, the Fifth Amendment Agreement, the Steamboat Cash Pledge
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Agreement, the Modification Documents and the other documents and
instruments contemplated herein and in the Fifth Amendment Agreement,
and compliance by GSRP with all of the provisions of this First
Amendment Agreement, the Existing SOI, 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 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.
9.4 Neither the nature of GSRP, nor of any of its businesses
or Properties, nor any relationship between GSRP and any other Person,
nor any circumstance in connection with the execution or delivery of
this First Amendment Agreement and the other documents contemplated in
connection herewith, nor the operation of any Project and the sale, or
offering for sale, of any Quartershare Interest of any of the Projects
by GSRP, is such as to require a consent, approval or authorization of,
or filing, registration or qualification with, any governmental
authority on the part of GSRP, as a condition of the execution,
delivery or performance of this First Amendment Agreement, the Fifth
Amendment Agreement, the Steamboat Settlement Agreement, the Steamboat
Cash Pledge Agreement and the other documents contemplated in
connection herewith.
9.5 GSRP will not be, on or after the date hereof, a party to
any contract or agreement which restricts its right or ability to incur
indebtedness under, or prohibits the execution of, or compliance with,
this First Amendment Agreement by GSRP. GSRP has not agreed or
consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its Property constituting the
Collateral, whether now owned or hereafter acquired, to be subject to a
Lien other than Permitted Exceptions and the Liens for the benefit of
TFC, and all Liens for the benefit of TFC in respect of such Collateral
remain in full force and effect.
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9.6 GSRP is not entering into this First Amendment Agreement
and the transactions contemplated hereby, and does not intend to incur
any obligations hereunder or otherwise make any transfers in connection
herewith, with the actual intent to hinder, delay or defraud either
present or future creditors. After giving effect to the consummation of
the transactions contemplated by this First Amendment Agreement and the
making of the advances contemplated hereunder, (a) the assets of GSRP
at a fair valuation thereof on a going concern basis will not be less
than its debts, (b) GSRP is not currently engaged in or about to engage
in a business or transaction for which its remaining assets are
unreasonably small in relation to such business or transaction, and (c)
GSRP will be able to pay its respective debts as they become due.
"Debt" for purposes of this Section 9.6 means any liability on a claim,
and "claim" means (i) any right to payment, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (ii) any right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or
not such right to an equitable remedy is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured.
9.7 After giving effect to this First Amendment Agreement, 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. No material adverse change has occurred in or in respect of
the Collateral or any one or more of the Projects that has not been
disclosed to the TFC. The Obligations continue to be Senior Debt under,
and as defined in, the ASC Indenture and no default or event of default
exists under such Indenture and, after giving effect to the purchase of
the Sold Commercial Assets by ASC or a subsidiary thereof, no defaults
or events of default will exist under said Indenture or any other
agreement for indebtedness for borrowed money, any financing lease or
any guaranty of any of the foregoing to which ASC or any subsidiary
thereof is a party. No default by the Parent in the payment of
indebtedness for borrowed money, any financing lease or any guarantee
issued by the Parent in respect of indebtedness for borrowed money or
any financing lease exists. GSRP has not issued and is not otherwise
obligated in respect of any obligation of the Parent, ASC or any
subsidiary of ASC for borrowed-money indebtedness, any financing lease
or any guaranty.
10. Conditions to Effectiveness. This First Amendment Agreement shall
become effective on the date (the "First Amendment Effective Date") on which the
parties hereto shall have executed this First Amendment Agreement and each of
the following conditions shall have been satisfied:
10.1 Warranties and Representations True as of First Amendment
Effective Date. The warranties and representations contained or
referred to in this First Amendment Agreement shall be true in all
material respects on the First Amendment Effective Date with the same
effect as though made on and as of that date. TFC shall have received a
certificate, in form and substance satisfactory to the TFC, dated as of
the First Amendment Effective Date, signed by an Executive
Vice-President or Vice President of GSRP and certifying that the
warranties and representations of GSRP contained in this First
Amendment Agreement are true in all material respects on the First
Amendment Effective Date.
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10.2 Secretary's Certificates.
The TFC shall have received a certificate of the Secretary or
any Assistant Secretary of GSRP, in form and substance reasonably
satisfactory to the TFC, dated as of the First Amendment Effective
Date, certifying
(i) the adoption by the Board of Directors of GSRP of
a resolution authorizing GSRP to enter into this First
Amendment Agreement, the Fifth Amendment Agreement, the
Steamboat Settlement Agreement, the Steamboat Intercreditor
and Collateral Sharing Agreement and the transactions and
instruments contemplated hereby and thereby and to sell the
Northeastern Commercial Core Assets to ASC or a subsidiary
thereof, and
(ii) the incumbency and authority of, and verifying
the specimen signatures of, the officers of GSRP authorized to
execute and deliver this First Amendment Agreement, the Fifth
Amendment Agreement, the Modification Agreements (referred to
below), the Steamboat Pledged Cash Agreement, the Steamboat
Intercreditor and Collateral Sharing Agreement and the other
documents contemplated hereunder.
10.3 Legal Opinion. GSRP shall have delivered to TFC and the
Lenders a legal opinion from its General Counsel in form and substance
reasonably satisfactory to the Lenders and TFC.
10.4 Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 6(c) of Existing SOI
pursuant to invoices or other bills submitted to GSRP.
10.5 Fifth Amendment Agreement. The Fifth Amendment
Agreement shall be in full force and effect and the Fifth Amendment
Effective Date shall have occurred.
10.6 Proceedings. All actions taken in connection with the
execution of this First Amendment Agreement and all documents and
papers relating thereto shall be satisfactory to the TFC and its
counsel. The TFC and its counsel shall have received copies of such
documents and papers as it or such counsel may reasonably request in
connection therewith, all in form and substance satisfactory to the
TFC and its counsel.
11. Miscellaneous.
11.1 This First Amendment Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.2 This First Amendment Agreement shall be governed by the
internal laws of the State of Maine. To the extent any provision of
this First Amendment Agreement is not enforceable under applicable law,
such provision shall be deemed null and void and shall have no effect
on the remaining portions of this Agreement.
11.3 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
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"hereto" refer to this First Amendment Agreement as a whole and not to
any particular Section or other subdivision.
11.4 All warranties, representations and covenants made by
GSRP herein or in the Existing SOI or in any certificate or other
instrument delivered by it or on its behalf under this Agreement or in
the Existing SOI shall be considered to have been relied upon by the
Lenders and shall survive the execution and delivery of this First
Amendment Agreement.
11.5 Except as explicitly amended by, or otherwise provided
for in, this First Amendment Agreement , the Existing SOI, the Notes
and the other Security Documents remain in full force and effect under
their respective terms as in effect immediately prior to the
effectiveness of this First Amendment Agreement, and GSRP hereby
affirms all of its obligations thereunder.
11.6 This First Amendment 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.]
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IN WITNESS WHEREOF, the parties have executed this First Amendment
Agreement as of the day and year first above written.
GSRP: TFC:
GRAND SUMMIT RESORT PROPERTIES, INC. TEXTRON FINANCIAL CORPORATION
By /s/ Foster A. Stewart, Jr. By /s/ Nicholas L. Mecca
------------------------------- ---------------------------------
Name: Foster A. Stewart, Jr. Name: Nicholas L. Mecca
Title: Senior Vice President and Title: Division President
General Counsel
The undersigned confirms that all indebtedness of GSRP owing to the undersigned
is junior and subordinate to all indebtedness of GSRP owing to TFC under the
Amended SOI pursuant to that certain Subordination Agreement dated as of
September 1, 1998, as amended. All of such indebtedness of GSRP owing to TFC
under the Amended SOI shall qualify as "Senior Debt" under the Amended SOI and
further confirms that all of the Subordinated Loan Tranche Loan constitutes and
is a "Permitted Construction Loan" under the Fleet/ASCRP Loan Documents and the
"Construction Loan Repayment Date" in respect thereof shall not occur until all
of the obligations under the Amended LSA and Amended SOI shall have been paid in
full.
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By /s/ Foster A. Stewart, Jr.
Name: Foster A. Stewart, Jr.
Title: Senior Vice President and
General Counsel
Schedule 1
Exceptions to Representations and Warranties
None.