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FOURTH AMENDMENT AGREEMENT
THIS FOURTH AMENDMENT AGREEMENT (as amended from time to time, this
"Fourth Amendment Agreement"), dated as of June 30, 2005 among GRAND SUMMIT
RESORT PROPERTIES, INC., a Maine corporation (herein referred to as "GSRP"), and
TEXTRON FINANCIAL CORPORATION, a Delaware corporation (herein referred to as
"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,
"Amended SOI"), pursuant to which 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 Eighth Amendment
Agreement (the "Eighth Amendment Agreement"), dated as of June 30, 2005, among
GSRP, TFC, as lender and Administrative Agent, and the other lenders that are
parties to that certain Loan and Security Agreement, dated as of September 28,
1998, among GSRP, TFC, as lender and administrative agent, and said other
lenders (as amended to the date here of, the "Existing LSA" and, after giving
effect to the Eighth Amendment Agreement, the "Amended LSA"); and
C. WHEREAS, the parties to the Existing SOI have agreed to certain amendments to
the Existing SOI, as described and set forth below, which amendments are
intended to be coordinated with the Eighth Amendment Agreement;
NOW, THEREFORE, in consideration of 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, TFC and GSRP hereby
agree as follows:
1. Eighth Amendment Agreement. TFC hereby consents to and approves the
Eighth Amendment Agreement and consents to and approves all actions provided to
be taken therein (subject to the terms and conditions thereof) with respect to
GSRP, the Administrative Agent and the lenders that are parties thereto. The
amended and restated definition of "Release Price" and the amendments to Section
2.5(b), Section 2.5(f) and Section 3.15 of the Existing LSA and the amendment of
the other terms and provisions of the Existing LSA are hereby adopted and
incorporated into the Existing SOI. Any inconsistency between such provisions
and terms, as the same shall apply to the Subordinated Loan Tranche Obligations
under, and as defined in, the Amended SOI, and the provisions and terms of the
Amended SOI shall be governed by such new provisions and terms. TFC and GSRP
further agree that any further modifications to the Amended SOI required by
GSRP's election of any Commercial Release Price Option, as defined in the Eighth
Amendment Agreement, shall be entered into by GSRP and TFC reasonably promptly
and pursuant to customary and reasonable documentation in connection with the
exercise and consummation of any such Commercial Release Price Option by GSRP.
All legal fees incurred by TFC in connection with any such documentation shall
be borne by GSRP.
2. Definition of Existing LSA. The "Existing LSA," as such term is
defined in Section 1(a) of the Existing SOI shall be deemed to mean and include
the "Amended LSA," as defined herein.
3. Section 1(k) of the Existing SOI. Section 1(k) of the Existing SOI
is hereby amended by adding a new subclause (D) at the end thereof as follows:
(D) GSRP agrees that the aggregate outstanding
principal amount of Subordinated Loan Tranche Advances shall not exceed
the following amounts at the following dates:
================================================================================
Test Date Maximum Outstanding Principal Amount
of Subordinated Loan Tranche Advances
- ------------------------- ------------------------------------------------------
June 30, 2006 $10,000,000
- ------------------------- ------------------------------------------------------
December 31, 2006 $8,000,000
- ------------------------- ------------------------------------------------------
March 31, 2007 $5,000,000
- ------------------------- ------------------------------------------------------
June 30, 2007 $2,500,000
- ------------------------- ------------------------------------------------------
November 30, 2007 $0
================================================================================
4. Section 2(b) of the Existing SOI. Section 2(b) of the Existing SOI
is hereby amended by adding a new subclause (iv) at the end thereof as follows:
(iv) GSRP agrees that the aggregate outstanding
principal amount of Subordinated Loan Tranche Advances shall not exceed
the following amounts at the following dates:
================================================================================
Test Date Maximum Outstanding Principal Amount
of Subordinated Loan Tranche Advances
- ------------------------- ------------------------------------------------------
June 30, 2006 $10,000,000
- ------------------------- ------------------------------------------------------
December 31, 2006 $8,000,000
- ------------------------- ------------------------------------------------------
March 31, 2007 $5,000,000
- ------------------------- ------------------------------------------------------
June 30, 2007 $2,500,000
- ------------------------- ------------------------------------------------------
November 30, 2007 $0
================================================================================
5. 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:
5.1 Except as set forth in Schedule 1 hereto, each of the
representations and warranties contained in Section 4 of the Existing
SOI is true and correct as of the date hereof.
5.2 Except with respect to the Permitted Exceptions (as
defined in the Existing SOI), all Liens (as defined in the Existing
SOI) granted to TFC under the Existing SOI and the other Security
Documents (as defined in the Existing SOI) 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.
5.3 The execution and delivery of this Fourth Amendment
Agreement, the Eighth Amendment Agreement, and the other documents and
instruments contemplated herein and in the Eighth Amendment Agreement,
and compliance by GSRP with all of the provisions of this Fourth
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;
(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.
5.4 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 Fourth Amendment Agreement and the other documents contemplated in
connection herewith, nor the operation of any Project (as defined in
the Existing SOI) and the sale, or offering for sale, of any
Quartershare Interest (as defined in the Existing SOI) 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 Fourth Amendment Agreement,
the Eighth Amendment Agreement, and the other documents contemplated in
connection herewith.
5.5 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 Fourth 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 (as defined in the Existing SOI), whether now owned or
hereafter acquired, to be subject to a Lien other than Permitted
Exceptions and all Liens in favor of TFC in respect of such Collateral
remain in full force and effect.
5.6 After giving effect to this Fourth Amendment Agreement, no
Default (as defined in the Existing SOI) or Event of Default (as
defined in the Existing SOI) 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 TFC. No defaults or events of default exist under
any other agreement for indebtedness for borrowed money, any financing
lease or any guaranty of any of the foregoing to which GSRP is a party.
GSRP has not issued and is not otherwise obligated in respect of any
obligation of the Parent (as defined in the Existing SOI), American
Skiing Company or any subsidiary of American Skiing Company for
borrowed-money indebtedness.
6. Conditions to Effectiveness. This Fourth Amendment Agreement shall
become effective on the date (the "Fourth Amendment Effective Date") on which
the parties hereto shall have executed this Fourth Amendment Agreement and each
of the following conditions shall have been satisfied:
6.1 Warranties and Representations True as of First Amendment
Effective Date. The warranties and representations contained or
referred to in this Fourth Amendment Agreement shall be true in all
material respects on the Fourth 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 TFC, dated as of the
Fourth Amendment Effective Date, signed by a Senior Vice-President or
Vice President of GSRP and certifying that the warranties and
representations of GSRP contained in this Fourth Amendment Agreement
are true in all material respects on the Fourth Amendment Effective
Date.
6.2 Secretary's Certificates.
TFC shall have received a certificate of the Secretary or any
Assistant Secretary of GSRP, in form and substance reasonably
satisfactory to TFC, dated as of the Fourth Amendment Effective Date,
certifying
(i) the adoption by the Board of Directors of GSRP of
a resolution authorizing GSRP to enter into this Fourth
Amendment Agreement, the Eighth Amendment Agreement, and the
transactions and instruments contemplated hereby and thereby,
and
(ii) the incumbency and authority of, and verifying
the specimen signatures of, the officers of GSRP authorized to
execute and deliver this Fourth Amendment Agreement, the
Eighth Amendment Agreement, the Modification Agreements
(referred to below), and the other documents contemplated
hereunder.
6.3 Opinion. GSRP shall have delivered to TFC a legal opinion
from its General Counsel in form and substance reasonably satisfactory
to TFC.
6.4 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.
6.5 Eighth Amendment Agreement. The Eighth Amendment Agreement
shall be in full force and effect.
6.6 Proceedings. All actions taken in connection with the
execution of this Fourth Amendment Agreement and all documents and
papers relating thereto shall be satisfactory to TFC and its counsel.
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 TFC and its
counsel.
7. Miscellaneous.
7.1 This Fourth Amendment Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
7.2 This Fourth Amendment Agreement shall be governed by the
internal laws of the State of Maine. To the extent any provision of
this Fourth 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 Fourth Amendment Agreement.
7.3 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
"hereto" refer to this Fourth Amendment Agreement as a whole and not to
any particular Section or other subdivision.
7.4 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 TFC and
shall survive the execution and delivery of this Fourth Amendment
Agreement.
7.5 Except as explicitly amended by, or otherwise provided for
in, this Fourth 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 Fourth Amendment Agreement, and GSRP hereby
affirms all of its obligations thereunder.
7.6 This Fourth 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. This Fourth Amendment
Agreement may be executed in counterpart by facsimile signature, which
signatures shall be treated as, and shall have the effect of original
and manually executed signatures.
7.7 GSRP hereby releases, remises, acquits and forever
discharges the Administrative Agent and TFC and their respective
employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, officers, directors, partners, predecessors,
successors and assigns, subsidiary corporations, parent corporations,
and related corporate divisions (all of the foregoing hereinafter
called the "Released Parties"), from any and all actions and causes of
action, judgments, executions, suits, debts, claims, demands,
liabilities, obligations, damages and expenses of any and every
character, whether known or unknown, fixed or contingent, asserted or
unasserted, direct or indirect, at law or in equity, of whatsoever kind
or nature, whether heretofore or hereafter arising for or because of
any matter or things done, omitted or suffered to be done by any of the
Released Parties prior to and including the date of execution hereof,
arising out of or in any way connected with (a) the SOI, the Amended
LSA, the Steamboat Notes of TFC or the other Notes or Security
Documents, as amended from time to time (including, without limitation,
this Fourth Amendment Agreement and the Eighth Amendment Agreement) and
(b) the Subordinated Loan Tranche (all of the foregoing hereinafter
called the "Released Matters"). GSRP hereby acknowledges that the
agreements set forth in this Fourth Amendment Agreement are intended to
be in full satisfaction of all or any alleged injuries or damages
arising in connection with the Released Matters. GSRP hereby represents
and warrants to Administrative Agent and TFC that GSRP has not
purported to transfer, assign or otherwise convey any of its right,
title or interest in any Released Matter to any other person and that
the foregoing constitutes a full and complete release of all Released
Matters.
7.8 The parties hereto agree that the Existing SOI, as amended
hereby, and the Amended LSA, as amended by the Eighth Amendment
Agreement, are intended to be one instrument and agreement, subject to
the terms and conditions hereof and thereof.
[Remainder of page intentionally left blank. Next page is signature page.]
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment
Agreement as of the day and year first above written.
GSRP: TFC:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By:/s/Helen Wallace By:/s/Alicia-Ann J Duncanson
- ------------------------ --------------------------------
Name: Helen Wallace Name: Alicia-Ann J Duncanson
Title:CFO & Senior VP Title:Vice President
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.
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By:/s/Helen Wallace
- -------------------------
Name: Helen Wallace
Title:CFO & Senior VP
Schedule 1
With respect to Section 4(a) of the Existing SOI, all representations and
warranties of the Existing LSA are subject to the same exceptions and carve-outs
as are set forth in the Eighth Amendment Agreement.