WAIVER LETTER
As of September 30, 2005
VIA OVERNIGHT COURIER AND FAX - 435-615-4780
Grand Summit Resort Properties, Inc.
136 Heber Avenue, Suite 303
Park City, Utah 84060
Attention: Betsy Wallace
VIA OVERNIGHT COURIER AND FAX - 207-615-4849
Grand Summit Resort Properties, Inc.
One Monument Way
Portland, Maine 04104
Attn: General Counsel
Re: Loan and Security Agreement (as amended to the date hereof, the
"LSA"), dated as of September 1, 1998, among Grand Summit
Properties, Inc., a Maine corporation ("GSRP"), Textron Financial
Corporation, a Delaware corporation, as administrative agent
("Administrative Agent"), and FINOVA Capital Corporation,
Foothill Capital Corporation, Litchfield Financial Corporation
and Textron Financial Corporation, as lenders (collectively, the
"Lenders")
Dear Ladies and Gentlemen:
Reference is made to the LSA. Capitalized terms used but not defined
herein shall have the meanings ascribed to the same in the LSA.
GSRP is hereby notified that it has failed to comply with Section
2.5(c)(iii) of the LSA by not reducing the outstanding principal balance of the
Advances to $10,000,000 as of September 30, 2005. This failure to comply with
Section 2.5(c)(iii) constitutes an Event of Default under Section 8.1(a) of the
LSA (the "9/30/05 Event of Default").
The 9/30/05 Event of Default also constitutes an Event of Default under
that certain Statement of Intention and Special Additional Financing Agreement
(as amended, the "SOI") dated July 25, 2000 by and between GSRP and Textron
Financial Corporation, as special subordinated lender (the "Special Subordinated
Lender").
GSRP has requested that the Administrative Agent on behalf of itself,
as a Lender and the Special Subordinated Lender, and the other Lenders waive the
9/30/05 Event of Default. In connection with such request, GSRP has represented
and warranted to the Administrative Agent, the Lenders and the Special
Subordinated Lender that, after giving effect to such waiver, no Default or
Event of Default will exist.
Pursuant to the request of GSRP and in reliance on the foregoing
representation and warranty, the Administrative Agent on behalf of itself, as a
Lender and the Special Subordinated Lender, and the other Lenders hereby waives
the 9/30/05 Event of Default provided that GSRP pays to the Administrative Agent
on behalf of the Lenders and Special Subordinated Lender a fee of $5,608 on or
prior to close of business of the Administrative Agent on October 5, 2005.
Except with respect to the waiver of the 9/30/05 Event of Default, as
set forth above, nothing in this letter is intended to create or constitute a
waiver, modification, relinquishment or forbearance by the Administrative Agent,
the Lenders or the Special Subordinated Lender of any Default or Event of
Default or of any of their respective rights and remedies under the LSA, the
other Security Documents or the SOI, at law or in equity, all of which rights
and remedies are hereby expressly reserved. Nothing in this letter constitutes,
or shall be deemed to constitute, an agreement by the Administrative Agent, the
Lenders or the Special Subordinated Lender to grant any future waiver,
indulgence, deferral, amendment, cure period or consent with respect to the LSA,
the other Security Documents or the SOI, the Loans, the Subordinated Loan
Tranche Obligations under and as defined in the SOI, any other Obligations or
any payments in respect thereof. Except with respect to the 9/30/05 Event of
Default, neither this letter nor any course of dealing by the Administrative
Agent, the Lenders and/or the Special Subordinated Lender shall affect the
Administrative Agent's, the Lenders' and/or the Special Subordinated Lender's
rights under the LSA, the other Security Documents or the SOI. For the avoidance
of doubt, no Default or Event of Default other than the 9/30/05 Event of Default
is being waived by this letter. The Administrative Agent, the Lenders and the
Special Subordinated Lender expect that GSRP shall strictly comply with the
terms of the LSA, the other Security Documents and the SOI, including, without
limitation, complying with the requirements of Section 2.5(c)(iii) of the LSA
with respect to each of the dates set forth in said Section occurring after
September 30, 2005.
Please execute and return to us a copy of this letter attached hereto
to reflect your confirmation of, and agreement with respect to, the foregoing,
whereupon this waiver shall then become effective. If we shall have not received
an executed copy of this letter from you by October 5, 2005 together with the
payment of the aforesaid fee, this letter and the waiver contained herein shall
be deemed null and void.
TEXTRON FINANCIAL
CORPORATION, as Administrative
Agent on behalf of the Lenders, and
on its own behalf as the Special
Subordinated Lender
By: /s/AAJ Duncanson
----------------------
Name: Alicia-Ann J. Duncanson
Title: Vice President-Structure
CONFIRMED AND AGREED TO:
GRAND SUMMIT RESORT PROPERTIES, INC.
By: /s/Helen Wallace
----------------------------
Name: Helen Wallace
Title: Chief Financial Officer and
Senior Vice President