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ACCESSION, LOAN SALE AND SECOND AMENDMENT AGREEMENT
RE:
LOAN AND SECURITY AGREEMENT
AMONG
GRAND SUMMIT RESORT PROPERTIES, INC., AS BORROWER
AND
TEXTRON FINANCIAL CORPORATION, AS ADMINISTRATIVE AGENT
AND
THE LENDERS LISTED HEREIN, AS LENDERS, FINOVA CAPITAL CORPORATION AND
LITCHFIELD FINANCIAL CORPORATION
DATED JUNE 24, 1999
ACCESSION, LOAN SALE AND SECOND AMENDMENT AGREEMENT
THIS ACCESSION, LOAN SALE AND SECOND AMENDMENT AGREEMENT (as amended
from time to time, this "Agreement"), dated June 24, 1999 (the "Second Amendment
Closing Date") among GRAND SUMMIT RESORT PROPERTIES, INC., a Maine corporation,
(herein referred to as "GSRP"), FINOVA CAPITAL CORPORATION ("FINOVA"), a
Delaware corporation, LITCHFIELD FINANCIAL CORPORATION ("LITCHFIELD"), a
Massacusetts corporation, the lenders listed on the signature pages hereof(each
individually referred to herein as an "Original Lender" and, collectively, the
"Original Lenders;" the Original Lenders and FINOVA and Litchfield are referred
to herein, individually, as a "Lender," and collectively, as 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
Original 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 Original 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, and to add to the Existing
LSA, as amended hereby, (1) FINOVA as a Canyons Construction Project Advance
Lender and as a Canyons Inventory Advance Lender and (2) Litchfield as a Canyons
Construction Project Advance Lender, a Canyons Inventory Advance Lender, a
Steamboat Construction Project Advance Lender, a Steamboat Inventory Advance
Lender, an Attitash Inventory Advance Lender, a Jordan Bowl Inventory Advance
Lender, a Killington Inventory Advance Lender and a Mt. Snow Inventory Advance
Lender;
NOW, THEREFORE, in consideration of the Administrative Agent's, the
Lenders,' FINOVA's, Litchfield'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 Administrative Agent, the
Original Lenders, FINOVA, Litchfield and GSRP hereby agree as follows:
1. ACCESSION; SALE OF CERTAIN EXISTING LOANS.
(a) FINOVA Accession.Textron Financial Corporation, in its
individual capacity, does hereby exercise its right under Section
2.6(c) of the Existing LSA and adds FINOVA to the Existing LSA, as
amended hereby, as a Canyons Construction Project Advance Lender and a
Canyons Inventory Advance Lender, with all of the respective rights and
obligations in respect thereof that are provided for in the Existing
LSA, as amended hereby. The Canyons Construction Project Advance
Commitment of FINOVA shall be as set forth on Attachment 1 hereto and
such Commitment of FINOVA shall be in addition to any existing Canyons
Construction Project Advance Commitments of the Original Lenders, as
shown on Attachment 2 hereto, but subject to the reallocation of such
existing Commitments as described on said Attachment 2. The Canyons
Inventory Advance Commitment of FINOVA shall be as set forth on
Attachment 1 hereto and such Commitment of FINOVA shall be in addition
to any existing Canyons Inventory Advance Commitments of the Original
Lenders, as shown on Attachment 2 hereto, but subject to the
reallocation of such existing Commitments as described on said
Attachment 2. FINOVA does hereby agree to become, and does hereby
accept its becoming, a party to the Existing LSA, as amended hereby, as
a Canyons Construction Project Advance Lender with the Canyons
Construction Project Advance Commitment set forth on Attachment 1
hereto and a Canyons Inventory Advance Lender with the Canyons
Inventory Advance Commitment set forth on Attachment 1 hereto, and
FINOVA further agrees to be bound by the terms and conditions of the
Existing LSA, as amended hereby. GSRP, by its execution and delivery of
this Agreement, hereby approves of the adding of FINOVA to the Existing
LSA, as amended hereby, as a Canyons Construction Project Advance
Lender and a Canyons Inventory Advance Lender. Each of the
Administrative Agent and the Original Lenders acknowledges receipt of a
copy of this Agreement. GSRP agrees to deliver to FINOVA on the Second
Amendment Closing Date (a) a Canyons Construction Project Advance Note
reflecting the Canyons Construction Project Advance Commitment of
FINOVA set forth on Attachment 1 hereto and (b) a Canyons Inventory
Advance Note reflecting the Canyons Inventory Advance Commitment of
FINOVA set forth on Attachment 1 hereto.
(b) Sale to FINOVA of a Portion of the Existing Canyons Loan.
(i) GSRP hereby represents and warrants to the
Original Lenders, the Administrative Agent, and FINOVA that
the outstanding principal amount of the Canyons Loan (together
with accrued and unpaid interest thereon) as of the Second
Amendment Closing Date is as set forth on Attachment 3 hereto.
Textron Financial Corporation, as an Original Lender, hereby
confirms and warrants to FINOVA that the amount set forth on
Attachment 3 and identified as its share of the Canyons Loan
(together with accrued and unpaid interest thereon) as of the
Second Amendment Closing Date is correct. Green Tree Financial
Servicing Corporation, as an Original Lender, hereby confirms
and warrants to FINOVA that the amount set forth on Attachment
3 and identified as its share of the Canyons Loan (together
with accrued and unpaid interest thereon) as of the Second
Amendment Closing Date is correct.
(ii) Textron Financial Corporation, as an Original
Lender pursuant to Section 2.6(b) of the Existing LSA, hereby
sells, assigns and transfers to FINOVA, and FINOVA hereby
accepts from Textron Financial Corporation the sale,
assignment and transfer, of a 50.0% undivided interest in
Textron Financial Corporation's share of the Canyons Loan, as
set forth on Attachment 3 hereto, which undivided interest
consists of a principal amount of $3,842,513.63 and an accrued
and unpaid interest amount of $22,557.35, and FINOVA agrees,
on the Second Amendment Closing Date and contemporaneously
with the consummation of such sale, assignment and transfer,
to pay to Textron Financial Corporation, as provided for in
Section 1(i)(x) below, a purchase price in respect of such
50.0% undivided interest of $3,865,070.98. In connection with
the foregoing sale, assignment and transfer, FINOVA assumes
from Textron Financial Corporation (and Textron Financial
Corporation is relieved from) the obligations, if any, of a
Canyons Construction Project Advance Lender under the Amended
LSA and other Security Documents to the extent of such sale,
assignment and transfer. GSRP consents to the aforesaid sale,
assignment, transfer and assumption.
(iii) Green Tree Financial Servicing Corporation, as
an Original Lender pursuant to Section 2.6(b) of the Existing
LSA, hereby sells, assigns and transfers to FINOVA, and FINOVA
hereby accepts from Green Tree Financial Servicing Corporation
the sale, assignment and transfer, of a 50.0% undivided
interest in Green Tree Financial Servicing Corporation's share
of the Canyons Loan, as set forth on Attachment 3 hereto,
which undivided interest consists of a principal amount of
$3,842,513.64 and an accrued and unpaid interest amount of
$22,557.35, and FINOVA agrees, on the Second Amendment Closing
Date and contemporaneously with the consummation of such sale,
assignment and transfer, to pay to Green Tree Financial
Servicing Corporation, as provided for in Section 1(i)(x)
below, a purchase price in respect of such 50.0% undivided
interest of $3,865,070.99. In connection with the foregoing
sale, assignment and transfer, FINOVA assumes from Green Tree
Financial Servicing Corporation (and Green Tree Financial
Servicing Corporation is relieved from) the obligations, if
any, of a Canyons Construction Project Advance Lender under
the Amended LSA and other Security Documents to the extent of
such sale, assignment and transfer. GSRP consents to the
aforesaid sale, assignment, transfer and assumption.
(iv) GSRP agrees that the principal amounts set forth
in subclauses (ii) and (iii) above being sold, assigned and
transferred by Textron Financial Corporation and Green Tree
Financial Servicing Corporation, respectively, to FINOVA shall
be deemed to be immediately outstanding under the Canyons
Construction Project Advance Note to be delivered to FINOVA by
GSRP pursuant to Section 1(a) hereof, and the accrued and
unpaid interest being sold, assigned and transferred therewith
shall also be deemed outstanding under such Construction
Project Advance Note and due and payable on the next scheduled
interest payment date under the Amended LSA, and GSRP further
agrees to note all of the foregoing on such Canyons
Construction Project Advance Note and in its books and
records. GSRP further agrees that the sale, assignment and
transfer of the aforesaid amounts of the Canyons Loan by
Textron Financial Corporation and Green Tree Financial
Servicing Corporation to FINOVA shall be treated for all
purposes under the Amended LSA as if FINOVA had extended
Canyons Construction Project Advances to GSRP in respect
thereof and FINOVA shall have a 100% interest therein. On and
after the Second Amendment Closing Date, neither Textron
Financial Corporation nor Green Tree Financial Servicing
Corporation shall have any right, title or interest in and to
the aforesaid sold, assigned and transferred principal and
interest and the Administrative Agent agrees to pay the same,
when received by it from GSRP and in accordance with the
Amended LSA, directly to FINOVA.
(c) Litchfield Accession. Textron Financial Corporation, in
its individual capacity, does hereby exercise its right under Section
2.6(c) of the Existing LSA and adds Litchfield to the Existing LSA, as
amended hereby, as a Canyons Construction Project Advance Lender, a
Canyons Inventory Advance Lender, a Steamboat Construction Project
Advance Lender and a Steamboat Inventory Advance Lender with all of the
respective rights and obligations in respect thereof that are provided
for in the Existing LSA, as amended hereby. The Canyons Construction
Project Advance Commitment of Litchfield shall be as set forth on
Attachment 1 hereto and such Commitment shall be in addition to any
existing Canyons Construction Project Advance Commitments of the
Original Lenders, as shown on Attachment 2 hereto, but subject to the
reallocation of such existing Commitments as described on said
Attachment 2. The Canyons Inventory Advance Commitment of Litchfield
shall be as set forth on Attachment 1 hereto and such Commitment shall
be in addition to any existing Canyons Inventory Advance Commitments of
the Original Lenders, as shown on Attachment 2 hereto, but subject to
the reallocation of such existing Commitments as described on said
Attachment 2. The Steamboat Construction Project Advance Commitment of
Litchfield shall be as set forth on Attachment 1 hereto and such
Commitment shall be in addition to any existing Steamboat Construction
Project Advance Commitments of the Original Lenders, as shown on
Attachment 2 hereto, but subject to the reallocation of such existing
Commitments as described on said Attachment 2. The Steamboat Inventory
Advance Commitment of Litchfield shall be as set forth on Attachment 1
hereto and such Commitment shall be in addition to any existing
Steamboat Inventory Advance Commitments of the Original Lenders, as
shown on Attachment 2 hereto, but subject to the reallocation of such
existing Commitments as described on said Attachment 2. Litchfield does
hereby agree to become, and does hereby accept its becoming, a party to
the Existing LSA, as amended hereby, as a Canyons Construction Project
Advance Lender with the Canyons Construction Project Advance Commitment
set forth on Attachment 1 hereto, a Canyons Inventory Advance Lender
with the Canyons Inventory Advance Commitment set forth on Attachment 1
hereto, a Steamboat Construction Project Advance Lender with the
Steamboat Construction Project Advance Commitment set forth on
Attachment 1 hereto and a Steamboat Inventory Advance Lender with the
Steamboat Inventory Advance Commitment set forth on Attachment 1
hereto, and Litchfield further agrees to be bound by the terms and
conditions of the Existing LSA, as amended hereby. GSRP, by its
execution and delivery of this Agreement, hereby approves of the adding
of Litchfield to the Existing LSA, as amended hereby, as a Canyons
Construction Project Advance Lender, a Canyons Inventory Advance
Lender, a Steamboat Construction Project Advance Lender, and a
Steamboat Inventory Advance Lender. Each of the Administrative Agent
and the Original Lenders acknowledges receipt of a copy of this
Agreement. GSRP agrees to deliver to Litchfield on the Second Amendment
Closing Date (a) a Canyons Construction Project Advance Note reflecting
the Canyons Construction Project Advance Commitment of Litchfield set
forth on Attachment 1 hereto, (b) a Canyons Inventory Advance Note
reflecting the Canyons Inventory Advance Commitment of Litchfield set
forth on Attachment 1 hereto, (c) a Steamboat Construction Project
Advance Note reflecting the Steamboat Construction Project Advance
Commitment of Litchfield set forth on Attachment 1 hereto, and (d) a
Steamboat Inventory Advance Note reflecting the Steamboat Inventory
Advance Commitment of Litchfield set forth on Attachment 1 hereto.
(d) Sale to Litchfield of a Portion of the Existing Loans.
(i) GSRP hereby represents and warrants to the
Original Lenders, the Administrative Agent and Litchfield that
the outstanding principal amount of each of the Loans
(together with accrued and unpaid interest thereon) as of the
Second Amendment Closing Date is as set forth on Attachment 3
hereto. Textron Financial Corporation, as an Original Lender,
hereby confirms and warrants to Litchfield that the amount set
forth on Attachment 3 and identified as its share of such
Loans (together with accrued and unpaid interest thereon) as
of the Second Amendment Closing Date is correct. Green Tree
Financial Servicing Corporation, as an Original Lender, hereby
confirms and warrants to Litchfield that the amount set forth
on Attachment 3 and identified as its share of the Loans
(together with accrued and unpaid interest thereon) as of the
Second Amendment Closing Date is correct.
(ii) Textron Financial Corporation, as an Original
Lender and pursuant to Section 2.6(b) of the Existing LSA,
hereby sells, assigns and transfers to Litchfield, and
Litchfield hereby accepts from Textron Financial Corporation
the sale, assignment and transfer, of a 12.50% undivided
interest in Textron Financial Corporation's share of the
Steamboat Loan, as set forth on Attachment 3 hereto, which
undivided interest consists of a principal amount of
$1,285,965.75 and an accrued and unpaid interest amount of
$7,565.85, and Litchfield agrees, on the Second Amendment
Closing Date and contemporaneously with the consummation of
such sale, assignment and transfer, to pay to Textron
Financial Corporation, as provided for in Section 1(i)(x)
below, an aggregate purchase price in respect of such
undivided interests of $1,293,531.60. In connection with the
foregoing sale, assignment and transfer but only to the extent
of such sale, assignment and transfer, Litchfield assumes from
Textron Financial Corporation (and Textron Financial
Corporation is relieved from) the obligations, if any, of a a
Steamboat Construction Project Advance Lender. GSRP consents
to the aforesaid sale, assignment, transfer and assumption.
(iii) Green Tree Financial Servicing Corporation, as
an Original Lender and pursuant to Section 2.6(b) of the
Existing LSA, hereby sells, assigns and transfers to
Litchfield, and Litchfield hereby accepts from Green Tree
Financial Servicing Corporation the sale, assignment and
transfer, of
(A) a 12.50% undivided interest in Green
Tree Financial Servicing Corporation's share of the
Canyons Loan, as set forth on Attachment 3 hereto,
which undivided interest consists of a principal
amount of $960,628.41 and an accrued and unpaid
interest amount of $5,639.34,
(B) a 25.0% undivided interest in Green Tree
Financial Servicing Corporation's share of the
Attitash Loan, as set forth on Attachment 3 hereto,
which undivided interest consists of a principal
amount of $80,921.37 and an accrued and unpaid
interest amount of $490.33,
(C) a 25.0% undivided interest in Green Tree
Financial Corporation's share of the Jordan Bowl
Loan, as set forth on Attachment 3 hereto, which
undivided interest consists of a principal amount of
$684,723.87 and an accrued and unpaid interest amount
of $4,118.08,
(D) a 25.0% undivided interest in Green Tree
Financial Servicing Corporation's share of the
Killington Loan, as set forth on Attachment 3 hereto,
which undivided interest consists of a principal
amount of $505,282.61 and an accrued and unpaid
interest amount of $3,164.58, and
(E) a 25.0% undivided interest in Green Tree
Financial Servicing Corporation's share of the Mt.
Snow Loan, as set forth on Attachment 3 hereto, which
undivided interest consists of a principal amount of
$1,185,480.62 and an accrued and unpaid interest
amount of $7,070.92,
and Litchfield agrees, on the Second Amendment Closing Date
and contemporaneously with the consummation of such sale,
assignment and transfer, to pay to Green Tree Financial
Servicing Corporation, as provided for in Section 1(i)(x)
below, an aggregate purchase price in respect of such
undivided interests of $3,437,520.13. In connection with the
foregoing sale, assignment and transfer but only to the extent
of such sale, assignment and transfer, Litchfield assumes from
Green Tree Financial Servicing Corporation (and Green Tree
Financial Servicing Corporation is relieved from) the
obligations, if any, of a Canyons Construction Project Advance
Lender, a Steamboat Construction Project Advance Lender, an
Attitash Inventory Advance Lender, a Jordan Bowl Inventory
Advance Lender, a Killington Inventory Advance Lender, and a
Mt. Snow Inventory Advance Lender, as the case may be, under
the Amended LSA and other Security Documents. GSRP consents to
the aforesaid sale, assignment, transfer and assumption.
(iv) GSRP agrees that the principal amounts set forth
in subclauses (iii)(A) above in respect of the Canyons Loan
being sold, assigned and transferred by Green Tree Financial
Servicing Corporation to Litchfield shall be deemed to be
immediately outstanding under the Canyons Construction Project
Advance Note (as a Canyons Construction Project Advance) to be
delivered to Litchfield by GSRP pursuant to Section 1(c)
hereof, and the accrued and unpaid interest being sold,
assigned and transferred therewith shall also be deemed
outstanding under such Construction Project Advance Note and
due and payable on the next scheduled interest payment date
under the Amended LSA, and GSRP further agrees to note all of
the foregoing on such Canyons Construction Project Advance
Note and in its books and records. GSRP further agrees that
the sale, assignment and transfer of the aforesaid amounts of
the Canyons Loan by Green Tree Financial Servicing Corporation
to Litchfield shall be treated for all purposes under the
Amended LSA as if Litchfield had extended Canyons Construction
Project Advances to GSRP in respect thereof and Litchfield
shall have a 100% interest therein. On and after the Second
Amendment Closing Date, Green Tree Financial Servicing
Corporation shall not have any right, title or interest in and
to the aforesaid sold, assigned and transferred principal and
interest and the Administrative Agent agrees to pay the same,
when received by it from GSRP and in accordance with the terms
of the Amended LSA, to Litchfield,
(v) GSRP agrees that the principal amount set forth
in subclause (ii)(B) above in respect of the Steamboat Loan
being sold, assigned and transferred by Textron Financial
Corporation to Litchfield shall be deemed to be immediately
outstanding under the Steamboat Construction Project Advance
Note to be delivered to Litchfield by GSRP pursuant to Section
1(c) hereof, and the accrued and unpaid interest being sold,
assigned and transferred therewith shall also be deemed
outstanding under such Steamboat Construction Project Advance
Note and due and payable on the next scheduled interest
payment date under the Amended LSA, and GSRP further agrees to
note all of the foregoing on such Steamboat Construction
Project Advance Note and in its books and records. GSRP
further agrees that the sale, assignment and transfer of the
aforesaid amounts of the Steamboat Loan by Textron Financial
Corporation to Litchfield shall be treated for all purposes
under the Amended LSA as if Litchfield had extended Steamboat
Construction Project Advances to GSRP in respect thereof and
Litchfield shall have a 100% interest therein. On and after
the Second Amendment Closing Date, Textron Financial
Corporation shall not have any right, title or interest in and
to the aforesaid sold, assigned and transferred principal and
interest and the Administrative Agent agrees to pay the same,
when received by it from GSRP in accordance with the terms of
the Amended LSA, to Litchfield,
(vi) GSRP acknowledges that the principal amounts set
forth in subclause (iii)(B) above in respect of the Attitash
Loan are being sold, assigned and transferred by Green Tree
Financial Servicing Corporation to Litchfield. GSRP agrees to
deliver to Litchfield on the Second Amendment Closing Date an
Attitash Inventory Advance Note in the aggregate principal
amount equal to the sum of the principal amounts set forth in
subclause (iii)(B) above and such amounts shall be deemed to
be immediately outstanding under such Attitash Inventory
Advance Note; the aforesaid accrued and unpaid interest shall
also be deemed outstanding under such Attitash Inventory
Advance Note and shall be due and payable on the next
scheduled interest payment date under the Amended LSA; GSRP
agrees to note all of the foregoing on such Attitash Inventory
Advance Note and in its books and records. GSRP further agrees
that the sale, assignment and transfer of the aforesaid
amounts of the Attitash Loan by Green Tree Financial Servicing
Corporation to Litchfield shall be treated for all purposes
under the Amended LSA as an assignment thereof pursuant to
Section 2.6(b) of the Existing LSA, as amended hereby, and
Litchfield, and only Litchfield, shall have a 100% interest
therein. On and after the Second Amendment Closing Date, Green
Tree Financial Servicing Corporation shall not have any right,
title or interest in and to the aforesaid principal and
interest sold, assigned and transferred to Litchfield, and the
Administrative Agent agrees to pay the same, when received by
it from GSRP in accordance with the terms of the Amended LSA,
to Litchfield, GSRP further acknowledges that the Attitash
Inventory Advance Commitment has been fully utilized prior to
the Second Amendment Closing Date and, as a result thereof,
Litchfield shall have no obligations thereunder to make any
further Attitash Inventory Advances.
(vii) GSRP acknowledges that the principal amounts
set forth in subclause (iii)(C) above in respect of the Jordan
Bowl Loan are being sold, assigned and transferred by Green
Tree Financial Servicing Corporation to Litchfield. GSRP
agrees to deliver to Litchfield on the Second Amendment
Closing Date a Jordan Bowl Inventory Advance Note in the
aggregate principal amount equal to the sum of the principal
amounts set forth in subclause (iii)(C) above and such amounts
shall be deemed to be immediately outstanding under such
Jordan Bowl Inventory Advance Note; the aforesaid accrued and
unpaid interest shall also be deemed outstanding under such
Jordan Bowl Inventory Advance Note and shall be due and
payable on the next scheduled interest payment date under the
Amended LSA; GSRP agrees to note all of the foregoing on such
Jordan Bowl Inventory Advance Note and in its books and
records. GSRP further agrees that the sale, assignment and
transfer of the aforesaid amounts of the Jordan Bowl Loan by
Green Tree Financial Servicing Corporation to Litchfield shall
be treated for all purposes under the Amended LSA as an
assignment thereof pursuant to Section 2.6(b) of the Existing
LSA, as amended hereby, and Litchfield, and only Litchfield,
shall have a 100% interest therein. On and after the Second
Amendment Closing Date, Green Tree Financial Servicing
Corporation shall not have any right, title or interest in and
to the aforesaid principal and interest sold, assigned and
transferred to Litchfield, and the Administrative Agent agrees
to pay the same, when received by it from GSRP in accordance
with the terms of the Amended LSA, to Litchfield. GSRP further
acknowledges that the Jordan Bowl Inventory Advance Commitment
has been fully utilized prior to the Second Amendment Closing
Date and, as a result thereof, Litchfield shall have no
obligations thereunder to make any further Jordan Bowl
Inventory Advances.
(viii) GSRP acknowledges that the principal amounts
set forth in subclause (iii)(D) above in respect of the
Killington Loan are being sold, assigned and transferred by
Green Tree Financial Servicing Corporation to Litchfield. GSRP
agrees to deliver to Litchfield on the Second Amendment
Closing Date a Killington Inventory Advance Note in the
aggregate principal amount equal to the sum of the principal
amounts set forth in subclause (iii)(D) above and such amounts
shall be deemed to be immediately outstanding under such
Killington Inventory Advance Note; the aforesaid accrued and
unpaid interest shall also be deemed outstanding under such
Killington Inventory Advance Note and shall be due and payable
on the next scheduled interest payment date under the Amended
LSA; GSRP agrees to note all of the foregoing on such
Killington Inventory Advance Note and in its books and
records. GSRP further agrees that the sale, assignment and
transfer of the aforesaid amounts of the Killington Loan by
Green Tree Financial Servicing Corporation to Litchfield shall
be treated for all purposes under the Amended LSA as an
assignment thereof pursuant to Section 2.6(b) of the Existing
LSA, as amended hereby, and Litchfield, and only Litchfield,
shall have a 100% interest therein. On and after the Second
Amendment Closing Date, Green Tree Financial Servicing
Corporation shall not have any right, title or interest in and
to the aforesaid principal and interest sold, assigned and
transferred to Litchfield, and the Administrative Agent agrees
to pay the same, when received by it from GSRP in accordance
with the terms of the Amended LSA, to Litchfield. GSRP further
acknowledges that the Killington Inventory Advance Commitment
has been fully utilized prior to the Second Amendment Closing
Date and, as a result thereof, Litchfield shall have no
obligations thereunder to make any further Killington
Inventory Advances.
(ix) GSRP acknowledges that the principal amounts set
forth in subclause (iii)(E) above in respect of the Mt. Snow
Loan are being sold, assigned and transferred by Green Tree
Financial Servicing Corporation to Litchfield. GSRP agrees to
deliver to Litchfield on the Second Amendment Closing Date a
Mt. Snow Inventory Advance Note in the aggregate principal
amount equal to the sum of the principal amounts set forth in
subclause (iii)(E) above and such amounts shall be deemed to
be immediately outstanding under such Mt. Snow Inventory
Advance Note; the aforesaid accrued and unpaid interest shall
also be deemed outstanding under such Mt. Snow Inventory
Advance Note and shall be due and payable on the next
scheduled interest payment date under the Amended LSA; GSRP
agrees to note all of the foregoing on such Mt. Snow Inventory
Advance Note and in its books and records. GSRP further agrees
that the sale, assignment and transfer of the aforesaid
amounts of the Mt. Snow Loan by Green Tree Financial Servicing
Corporation to Litchfield shall be treated for all purposes
under the Amended LSA as an assignment thereof pursuant to
Section 2.6(b) of the Existing LSA, as amended hereby, and
Litchfield, and only Litchfield, shall have a 100% interest
therein. On and after the Second Amendment Closing Date, Green
Tree Financial Servicing Corporation shall not have any right,
title or interest in and to the aforesaid principal and
interest sold, assigned and transferred to Litchfield, and the
Administrative Agent agrees to pay the same, when received by
it from GSRP in accordance with the terms of the Amended LSA,
to Litchfield, GSRP further acknowledges that the Mt. Snow
Inventory Advance Commitment has been fully utilized prior to
the Second Amendment Closing Date and, as a result thereof,
Litchfield shall have no obligations thereunder to make any
further Mt. Snow Inventory Advances.
(e) Original Lenders' Commitment Adjustments.
(i) Textron Financial Corporation, as an Original
Lender, Green Tree Financial Servicing Corporation, as an
Original Lender, and GSRP agree, in light of Sections 1(a),
1(b), 1(c) and 1(d) above and Section 1(f) below, to the
further modifications of the existing Canyons Construction
Project Advance Commitments, Canyons Inventory Advance
Commitments, Steamboat Construction Project Advance
Commitments and Steamboat Inventory Advance Commitments of
Textron Financial Corporation and Green Tree Financial
Corporation, respectively, as are set forth in Attachment 2
hereto.
(ii) The Canyons Construction Project Advance Note,
the Canyons Inventory Advance Note, the Steamboat Construction
Project Advance Note and the Steamboat Inventory Advance Note
of Green Tree Financial Servicing Corporation are each hereby
amended to reflect the changes in the Canyons Construction
Project Advance Commitment, the Canyons Inventory Advance
Commitment, the Steamboat Construction Project Advance
Commitment and the Steamboat Inventory Advance Commitment of
Green Tree Financial Servicing Corporation, as set forth on
Attachment 2 hereto, and the sales, assignments and transfers
in respect of the Canyons Loan described in Sections 1(b) and
1(d) hereof; and the Canyons Construction Project Advance
Commitment, the Canyons Inventory Advance Commitment, the
Steamboat Construction Project Advance Commitment and the
Steamboat Inventory Advance Commitment of Green Tree Financial
Servicing Corporation as set forth in its signature block to
the Existing LSA is hereby conformed to Attachment 3. GSRP
agrees to execute and deliver allonges, in form and substance
satisfactory to Green Tree Financial Servicing Corporation on
the Second Amendment Closing Date, reflecting the above
changes in respect of its Canyons Construction Project Advance
Note, Canyons Inventory Advance Note, Steamboat Construction
Project Advance Note and Steamboat Inventory Advance Note, and
Green Tree Financial Servicing Corporation agrees to attach
such allonges to its Canyons Construction Project Advance
Note, Canyons Inventory Advance Note, Steamboat Construction
Project Advance Note and Steamboat Inventory Advance Note.
GSRP further agrees to execute and deliver to Green Tree
Financial Servicing Corporation new Attitash Inventory Advance
Notes, Jordan Bowl Inventory Advance Notes, Killington
Inventory Advance Notes and Mt. Snow Inventory Advance Notes,
dated as of the Second Amendment Agreement Date, and
reflecting the sales, transfers and assignments in respect
thereof set forth in Section 1(d) above.
(iii) The Canyons Construction Project Advance Note,
the Canyons Inventory Advance Note, the Steamboat Construction
Project Advance Note and the Steamboat Inventory Advance Note
of Textron Financial Corporation are each hereby amended to
reflect the changes in the Canyons Construction Project
Advance Commitment, the Canyons Inventory Advance Commitment,
the Steamboat Construction Project Advance Commitment and the
Steamboat Inventory Advance Commitment of Textron Financial
Corporation, as set forth on Attachment 2 hereto; and the
Canyons Construction Project Advance Commitment, the Canyons
Inventory Advance Commitment, the Steamboat Construction
Project Advance Commitment and the Steamboat Inventory Advance
Commitment of Textron Financial Corporation as set forth in
its signature block to the Existing LSA is hereby conformed to
Attachment 3; and GSRP agrees to execute and deliver allonges,
in form and substance satisfactory to Textron Financial
Corporation on the Second Amendment Closing Date, reflecting
the above, and Textron Financial Corporation agrees to attach
such allonges to its Canyons Construction Project Advance
Note, Canyons Inventory Advance Note, Steamboat Construction
Project Advance Note and Steamboat Inventory Advance Note.
GSRP further agrees to execute and deliver to Textron
Financial Corporation new Attitash Inventory Advance Notes,
Jordan Bowl Inventory Advance Notes, Killington Inventory
Advance Notes and Mt. Snow Inventory Advance Notes, dated as
of the Second Amendment Agreement Date, and reflecting the
sales, transfers and assignments in respect thereof set forth
in Section 1(d) above.
(f) Sale to Green Tree Financial Servicing Corporation of a
Portion of the Steamboat Loan.
(i) GSRP hereby represents and warrants to the
Original Lenders and the Administrative Agent that the
outstanding principal amount of the Interim Steamboat
Construction Project Advances comprising the Steamboat Loan
(together with accrued and unpaid interest thereon) as of the
Second Amendment Closing Date is as set forth on Attachment 3
hereto. Textron Financial Corporation, as an Original Lender,
hereby confirms and warrants to Green Tree Financial Servicing
Corporation that the amount set forth on Attachment 3 and
identified as its share of the Steamboat Loan (together with
accrued and unpaid interest thereon) as of the Second
Amendment Closing Date is correct.
(ii) Textron Financial Corporation, as an Original
Lender, hereby sells, assigns and transfers to Green Tree
Financial Servicing Corporation, and Green Tree Financial
Servicing Corporation hereby accepts from Textron Financial
Corporation the sale, assignment and transfer, of a 37.50%
undivided interest in Textron Financial Corporation's share of
the Steamboat Loan, as set forth on Attachment 3 hereto, which
undivided interest consists of a principal amount of
$3,857,897.25 and an accrued and unpaid interest amount of
$22,697.54.
(iii) GSRP agrees that the principal amounts set
forth in subclause (ii) above being sold, assigned and
transferred by Textron Financial Corporation to Green Tree
Financial Servicing Corporation shall be deemed to be
immediately outstanding under the Steamboat Construction
Project Advance Note of Green Tree Financial Servicing
Corporation, and the accrued and unpaid interest being sold,
assigned and transferred therewith shall also be deemed
outstanding under such Construction Project Advance Note and
due and payable on the next scheduled interest payment date
under the Amended LSA, and GSRP further agrees to note all of
the foregoing on the allonge to the Steamboat Construction
Project Advance Note to be delivered to Green Tree Financial
Servicing Corporation, as contemplated under Section 1(e)
hereof, and in the books and records of GSRP. GSRP further
agrees that the sale, assignment and transfer of the aforesaid
amount of the Steamboat Loan by Textron Financial Corporation
to Green Tree Financial Servicing Corporation shall be treated
for all purposes under the Amended LSA as if Green Tree
Financial Servicing Corporation had extended a Steamboat
Construction Project Advances to GSRP in respect thereof and
Green Tree Financial Corporation shall have a 100% interest
therein. On and after the Second Amendment Closing Date,
Textron Financial Corporation shall not have any right, title
or interest in and to the aforesaid sold, assigned and
transferred principal and interest and the Administrative
Agent agrees to pay the same, when received by it from GSRP in
accordance with the terms of the Amended LSA, directly to
Green Tree Financial Servicing Corporation.
(iv) To the extent that the Steamboat Loan sold,
assigned and transferred to Green Tree Financial Servicing
Corporation or retained by Textron Financial Corporation
consists of Interim Steamboat Construction Project
Construction Advances or Steamboat Interest Advances in
respect thereof, such Interim Construction Project Advances
and Steamboat Interest Advances shall be treated for all
purposes on and after the Second Amendment Closing Date as
"Steamboat Construction Project Advances" and "Steamboat
Interest Advances" and the Interim Steamboat Construction
Project Advance Commitment is hereby terminated. For the
avoidance of doubt, the terminating of the Interim Steamboat
Construction Project Advance Commitment shall have no effect
on the Steamboat Construction Project Advance Commitments and
the Steamboat Inventory Advance Commitments.
(g) Interest; Allocations.
(i) With respect to the Canyons Loan and the
Steamboat Loan, the interest portion thereof (as shown on
Attachment 3 hereto) purchased herein by FINOVA, Litchfield
and Green Tree Financial Servicing Corporation, as the case
may be, shall be treated as a Canyons Interest Advance and a
Steamboat Interest Advance made by FINOVA, Litchfield and
Green Tree Financial Servicing Corporation, as the case may
be, on the scheduled interest payment date therefor. Remaining
interest accrued on the Canyons Loan and Steamboat Loan after
the Second Amendment Closing Date shall be paid by way of
Canyons Interest Advances and Steamboat Interest Advances, as
provided in Section 2.4(c) of the Existing LSA.
(ii) As payments are received in respect of the
Attitash Loan, the Jordan Bowl Loan, the Killington Loan and
the Mt. Snow Loan, Litchfield, Textron Financial Corporation
and Green Tree Financial Servicing Corporation shall each
individually determine, in consultation with GSRP, how such
principal payments are to allocated to its Steamboat
Construction Project Advance Commitment and its Canyons
Construction Project Advance Commitment, as contemplated in
Attachment 3 hereto.
(h) Amendments. The parties hereto agree that the Existing LSA
is, and shall be deemed to be, amended and modified by the terms and
provisions of this Section 1 and Attachments 1, 2 and 3 hereto.
(i) Representations; Miscellaneous Provisions.
(i) Each of FINOVA, Litchfield, Textron Financial
Corporation and Green Tree Financial Servicing Corporation
represent and warrant to each other that (A) it is a company
duly organized and validly existing and has all necessary
power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated herein and perform
its obligations hereunder and (B) its execution and delivery
of and performance of its obligations under this Agreement and
the consummation of the transactions contemplated herein have
been duly authorized and approved and will not contravene any
law or regulation or any contract or other obligations binding
on it.
(ii) FINOVA represents and warrants to Textron
Financial Corporation and Green Tree Financial Servicing
Corporation that it is an Eligible Assignee and that no
further action or authorization is necessary for it to
consummate the transactions contemplated under this Agreement.
Litchfield represents and warrants to Textron Financial
Corporation and Green Tree Financial Servicing Corporation
that it is an Eligible Assignee and that no further action or
authorization is necessary for it to consummate the
transactions contemplated under this Agreement.
(iii) Textron Financial Corporation, as a seller of
the undivided interests in and to its share of the Steamboat
Loan, as shown on Attachment 3 hereto, represents and warrants
to Litchfield, as the buyer of the same, that
(A) Textron Financial Corporation owns all
right, title and interest in and to the portion of
the Steamboat Loan sold, assigned and transferred to
Litchfield under this Section 1, as shown on
Attachment 3 hereto, which portion of the Steamboat
Loan is free and clear of all security interests,
liens, charges, encumbrances and rights of others
(other than those of GSRP under the Amended LSA) and
is, to the best of Textron Financial Corporation's
knowledge, free of any adverse claims or defenses or
rights of offset of GSRP,
(B) no further action or authorization is
required for Textron Financial Corporation to effect
such sale, assignment and transfer, and
(C) Textron Financial Corporation has not
received notice of the existence of any Default or
Event of Default (other than any that Textron
Financial Corporation knows is no longer continuing
after giving effect to this Agreement and the
transactions contemplated herein).
(iv) Textron Financial Corporation, as a seller of
the undivided interests in and to its share of the Canyons
Loan to FINOVA, as shown on Attachment 3 hereto, represents
and warrants to FINOVA, as the buyer of the same, that
(A) Textron Financial Corporation owns all
right, title and interest in and to the portion of
the Canyons Loan sold, assigned and transferred to
FINOVA under this Section 1, as shown on Attachment 3
hereto, which portion of the Canyons Loan is free and
clear of all security interests, liens, charges,
encumbrances and rights of others (other than those
of GSRP under the Amended LSA) and is, to the best of
Textron Financial Corporation's knowledge, free of
any adverse claims or defenses or rights of offset of
GSRP,
(B) no further action or authorization is
required for Textron Financial Corporation to effect
such sale, assignment and transfer, and
(C) Textron Financial Corporation has not
received notice of the existence of any Default or
Event of Default (other than any that Textron
Financial Corporation knows is no longer continuing
after giving effect to this Agreement and the
transactions contemplated herein).
(v) Textron Financial Corporation, as a seller of the
undivided interests in and to its share of the Steamboat Loan
to Green Tree Financial Servicing Corporation, as shown on
Attachment 3 hereto, represents and warrants to Green Tree
Financial Servicing Corporation, as the buyer of the same,
that
(A) Textron Financial Corporation owns all
right, title and interest in and to the portion of
the Steamboat Loan sold, assigned and transferred to
Green Tree Financial Servicing Corporation under this
Section 1, as shown on Attachment 3 hereto, which
portion of the Steamboat Loan is free and clear of
all security interests, liens, charges, encumbrances
and rights of others (other than those of GSRP under
the Amended LSA) and is, to the best of Textron
Financial Corporation's knowledge, free of any
adverse claims or defenses or rights of offset of
GSRP,
(B) no further action or authorization is
required for Textron Financial Corporation to effect
such sale, assignment and transfer, and
(C) Textron Financial Corporation has not
received notice of the existence of any Default or
Event of Default (other than any that Textron
Financial Corporation knows is no longer continuing
after giving effect to this Agreement and the
transactions contemplated herein).
(vi) Green Tree Financial Servicing Corporation, as a
seller of the undivided interests in and to its share of the
Canyons Loan, the Steamboat Loan, the Attitash Loan, the
Jordan Bowl Loan, the Killington Loan and the Mt. Snow Loan to
Litchfield, as shown on Attachment 3 hereto, represents and
warrants to Litchfield, as the buyer of the same, that
(A) Green Tree Financial Servicing
Corporation owns all right, title and interest in and
to the portion of the Canyons Loan, the Attitash
Loan, the Jordan Bowl Loan, the Killington Loan and
the Mt. Snow Loan sold, assigned and transferred to
Litchfield under this Section 1, as shown on
Attachment 3 hereto, which portion of the Canyons
Loan, the Attitash Loan, the Jordan Bowl Loan, the
Killington Loan and the Mt. Snow Loan is free and
clear of all security interests, liens, charges,
encumbrances and rights of others (other than those
of GSRP under the Amended LSA) and is, to the best of
Green Tree Financial Servicing Corporation's
knowledge, free of any adverse claims or defenses or
rights of offset of GSRP,
(B) no further action or authorization is
required for Green Tree Financial Servicing
Corporation to effect such sale, assignment and
transfer, and
(C) Green Tree Financial Servicing
Corporation has not received notice of the existence
of any Default or Event of Default (other than any
that Green Tree Financial Servicing Corporation knows
is no longer continuing after giving effect to this
Agreement and the transactions contemplated herein).
(vi) Green Tree Financial Servicing Corporation, as a
seller of the undivided interests in and to its share of the
Canyons Loan to FINOVA, as shown on Attachment 3 hereto,
represents and warrants to FINOVA, as the buyer of the same,
that
(A) Green Tree Financial Servicing
Corporation owns all right, title and interest in and
to the portion of the Canyons Loan sold, assigned and
transferred to FINOVA under this Section 1, as shown
on Attachment 3 hereto, which portion of the Canyons
Loan is free and clear of all security interests,
liens, charges, encumbrances and rights of others
(other than those of GSRP under the Amended LSA) and
is, to the best of Green Tree Financial Servicing
Corporation's knowledge, free of any adverse claims
or defenses or rights of offset of GSRP,
(B) no further action or authorization is
required for Green Tree Financial Servicing
Corporation to effect such sale, assignment and
transfer, and
(C) Green Tree Financial Servicing
Corporation has not received notice of the existence
of any Default or Event of Default (other than any
that Green Tree Financial Servicing Corporation knows
is no longer continuing after giving effect to this
Agreement and the transactions contemplated herein).
(vii) Each of FINOVA, Litchfield, Green Tree
Financial Servicing Corporation and Textron Financial
Corporation acknowledges to each other that it is entering
into the transactions contemplated herein on the basis of its
own investigation and evaluation of the creditworthiness of
GSRP and the Collateral and such other issues and information
as each of them has judged appropriate and prudent, without
reliance on any representation or warranty made by the
Administrative Agent or the seller to such Person of the
interests being purchased hereunder except for representations
and warranties set forth herein.
(viii) Neither Textron Financial Corporation nor
Green Tree Financial Servicing Corporation, as sellers of the
interests in the Loans, as described on Attachment 3 hereto,
shall have any responsibility to any buyer thereof hereunder
with respect to (A) the due execution, legality, validity,
enforceability, genuineness, sufficiency, or collectibility of
the Loans, the Collateral and/or the Security Documents, (B)
any representations, warranties or other statements made in or
in connection with any of the Security Documents by GSRP, (C)
the financial condition or creditworthiness of GSRP, the
Parent or any other third party, (D) the performance of or
compliance with any of the terms or provisions of the Security
Documents by GSRP or any other third party , (E) the
performance of or compliance with any of the terms of the
Parent/BKB Credit Facility by the Parent or any other third
party or (F) the inspection of any of the Property, books or
records of GSRP.
(ix) If Textron Financial Corporation, as a seller of
the interests in the Loans, as described on Attachment 3
hereto, shall receive any payments from the Administrative
Agent or GSRP that otherwise have been sold, assigned and
transferred to FINOVA, Litchfield or Green Tree Financial
Servicing Corporation hereunder, it shall hold the same in
trust for such Person and promptly deliver the same to such
Person. If Green Tree Financial Servicing Corporation, as a
seller of the interests in the Loans, as described on
Attachment 3 hereto, shall receive any payments from the
Administrative Agent or GSRP that otherwise have been sold,
assigned and transferred to FINOVA or Litchfield hereunder, it
shall hold the same in trust for such Person and promptly
deliver the same to such Person.
(x) Payments to Litchfield under the Amended LSA
shall be made as provided for in Attachment 4 hereto. Payments
to FINOVA under the Amended LSA shall be made as provided for
in Attachment 4 hereto. Notices to Litchfield under the
Amended LSA shall be sent to the address as set forth in
Attachment 4 hereto. Notices to FINOVA under the Amended LSA
shall be sent to the address as set forth in Attachment 4
hereto. Payments to Textron Financial Corporation under this
Section 1shall be made as provided for in Attachment 4 hereto.
Payments to Green Tree Financial Servicing Corporation under
this Section 1 shall be made as provided for in Attachment 4
hereto.
2. AMENDMENTS OF EXISTING LSA.
The Existing LSA is hereby amended as follows:
(a) Amended and Restated Defined Terms. The following new
term is hereby added to Section 1.1 of the Existing LSA:
Maximum Outstanding Loan Limit - means, at any time,
$105,000,000.
Second Amendment Agreement -- means that certain
Accession, Loan Sale and Second Amendment Agreement, dated
June 24,1999, which amends and supplements this Agreement.
(b) Full Syndication Date. GSRP, the Administrative Agent,
FINOVA, Litchfield, Green Tree Financial Servicing Corporation, as an
Original Lender, and Textron Financial Corporation, as an Original
Lender, agree and acknowledge that the Full Syndication Date shall be
deemed to have occurred on the Second Amendment Closing Date and that
the Syndication Period shall be deemed terminated as of the Second
Amendment Closing Date. All restrictions in the Existing LSA in respect
of the Steamboat Construction Borrowing Base with respect to the
Syndication Period shall cease and be of no further force and effect
after the Second Amendment Closing Date.
(c) Interim Steamboat Construction Advance. The Interim
Steamboat Construction Advance Commitment is hereby terminated and the
outstanding principal balance of the Interim Steamboat Construction
Advance is hereby made part of the Steamboat Construction Project
Advance Note of Textron Financial Corporation, as a Steamboat
Construction Project Advance Lender and shall be subject to the sales,
assignments and transfers provided for in respect thereof in Section 1
hereof.
(d) Deliveries; Special Conditions; Special Undertakings.
(i) GSRP agrees to deliver, or cause to be delivered, to each
Steamboat Construction Project Advance Lender and each Canyons
Construction Project Advance Lender (unless such Lender shall
specifically request not to be covered by this subclause (e)) all
documents, certificates, requests and other deliverables in respect of
its particular Advance (including, without limitation, all Construction
Cost Certificates, the Final Construction Cost Certificate, all
Architect's Construction Cost Certificates, the Architect's Final
Construction Cost Certificate and all Nonconstruction Cost Certificates
in respect of the Steamboat Project or the Canyons Project, as the case
may be) that it delivers to the Administrative Agent with respect to
each requested Steamboat Construction Project Advance, each requested
Canyons Construction Project Advance, the Canyons Inventory Advance and
the Steamboat Inventory Advance, and GSRP further agrees to address, or
cause to be addressed, each of such documents, certificates, requests
and other deliverables to each such Lender (in addition to the
Administrative Agent).
(ii) The Administrative Agent agrees to have its architects or
other experts in respect of the Canyons Project or the Steamboat
Project address any certificates delivered to it in respect of such
Project also to each Steamboat Construction Project Advance Lender and
each Canyons Construction Project Advance Lender (unless such Lender
shall specifically request not to be covered by this subclause (e)) so
that each such Lender may rely thereon.
(iii) GSRP acknowledges and agrees that each Steamboat
Construction Project Advance Lender and each Canyons Construction
Project Advance Lender (unless such Lender shall specifically request
not to be covered by this subclause (e)) shall not be obligated to fund
any Steamboat Construction Project Advance, any Canyons Construction
Project Advance, the Steamboat Inventory Advance or the Canyons
Inventory Advance unless and until it is satisfied, in its reasonable
discretion, that all conditions precedent thereto have been satisfied.
(iv) GSRP acknowledges and agrees that each Steamboat
Construction Project Advance Lender and each Canyons Construction
Project Advance Lender (unless such Lender shall specifically request
not to be covered by this subclause (e)) shall not be obligated to fund
any Steamboat Construction Project Advance, any Canyons Construction
Project Advance, the Steamboat Inventory Advance or the Canyons
Inventory Advance if, in its reasonable discretion, it determines that
the Administrative Agent or GSRP is in default of any of its duties or
obligations to such Lender under the Amended LSA and/or any other
Security Document.
(v) GSRP acknowledges and agrees that all information and
financial statements and other reports to be provided under Section
7.14 of the Amended LSA by GSRP shall be directly delivered by GSRP to
each Steamboat Construction Project Advance Lender and each Canyons
Construction Project Advance Lender as well as the other Lenders and
the Administrative Agent. GSRP agrees to deliver to each Steamboat
Construction Project Advance Lender and each Canyons Construction
Project Advance Lender and each of the other Lenders copies of each of
American Ski Company's Quarterly Reports on Form 10-Q and Annual
Reports on Form 10-K filed by American Ski Company with the Securities
Exchange Commission after the Second Amendment Closing Date reasonably
promptly after the filing thereof.
(vi) The Administrative Agent agrees to deliver to each of the
Canyons Construction Project Advance Lenders, each of Canyons Inventory
Advance Lenders, each of the Steamboat Construction Project Advance
Lenders and each of the Steamboat Inventory Advance Lenders with
respect to each Steamboat Construction Project Advance, each Steamboat
Inventory Advance, each Canyons Construction Project Advance and each
Canyons Inventory Advance in which such Lender is participating, at
least three (3) Business Days prior to the making of any such Advance,
a written notice thereof, which written notice shall contain the
following information: (w) the total amount of such Advance, (x) the
Pro Rata Share of each Lender in respect of such Advance, (y) the
calculation of the Pro Rata Share percentage of such Lender in respect
of such Advance and (z) the advance date for such Advance. The
deliveries set forth in this clause (vi) shall be an additional
condition precedent to the making of any Advance referred to in this
clause (vi).
(e) Canyons Project.
(i) The definitions of "Canyons Construction Project Advance
Commitment" and "Canyons Inventory Advance Commitment" in Section 1.1
are hereby amended and restated in their entirety as follows:
Canyons Construction Project Advance Commitment--
means, with respect to each Canyons Construction Project
Advance Lender, the amount set forth underneath its signature
hereto, as amended by the Second Amendment Agreement, or as
otherwise set forth on Attachment 1 to the Second Amendment
Agreement, as the case may be, with respect to the making of
Canyons Construction Project Advances and Canyons Interest
Advances, provided that
(a) the Canyons Construction Project Advance Commitment of
FINOVA Capital Corporation shall never exceed 50% of the Canyons
Construction Project Borrowing Base,
(b) the Canyons Construction Project Advance
Commitment of the other Canyons Construction Project
Advance Lenders (other than FINOVA Capital
Corporation) shall be equal to their respective
ratable share (based on their respective commitment
amounts set forth underneath their respective
signatures hereto with respect to the making of
Canyons Construction Project Advances and Canyons
Interest Advances -excluding in any case from such
determination the commitment of FINOVA Capital
Corporation) of the difference between (i) the
Canyons Construction Project Borrowing Base minus
(ii) the amount of the Canyons Construction Project
Advance Commitment of FINOVA Capital Corporation
determined in clause (a) above (but in no case shall
the Canyons Construction Project Advance Commitment
of any such other Canyons Construction Project
Advance Lenders exceed the aforesaid amount set forth
underneath their respective signatures hereto with
respect to the making of Canyons Construction Project
Advances and Canyons Interest Advances, and
(c) the amount of the Canyons Construction
Project Advance Commitment shall be adjusted to give
effect to any assumptions of such Commitments
permitted under Section 2.3(a)(i) hereof and any
assignments of Commitments permitted under Section
2.6(b) hereof.
Canyons Inventory Advance Commitment-- means, with
respect to each Canyons Inventory Advance Lender, the amount
set forth underneath its signature hereto with respect to the
Canyons Inventory Advances, provided that
(a) the Canyons Inventory Advance Commitment
of FINOVA Capital Corporation shall never exceed 50%
of the then outstanding aggregate principal balance
of all of the Canyons Construction Project Advances
and Canyons Interest Advances,
(b) the Canyons Inventory Advance Commitment
of the other Canyons Inventory Advance Lenders (other
than FINOVA Capital Corporation) shall be equal to
their ratable share (based on their respective
commitment amounts set forth underneath their
respective signatures hereto with respect to the
making of Canyons Inventory Advances -- excluding in
any case from such determination the commitment of
FINOVA Capital Corporation) of the difference between
(i) the aggregate then outstanding principal amount
of all of the Canyons Construction Project Advances
and Canyons Interest Advances minus (ii) the amount
of the Canyons Inventory Advance Commitment of FINOVA
Capital Corporation determined in clause (a) above
(but in no case shall the Canyons Inventory Advance
Commitment of any such other Canyons Inventory
Advance Lenders exceed the aforesaid amount set forth
underneath their respective signatures hereto with
respect to the making of Canyons Inventory Advances,
and
(c) the amount of the Canyons Inventory Advance
Commitment shall be adjusted to give effect to any
assumptions of such Commitments permitted under Section
2.3(a)(i) hereof and any assignments of Commitments
permitted under Section 2.6(b) hereof. (ii) GSRP, the
Original Lenders, the Administrative Agent, FINOVA and
Litchfield agree that Section 2.1(b)(i)(D) of the Existing
LSA is hereby amended and restated as follows:
(D) if the aggregate amount of the purchase
prices payable under Validated Contracts arising from
the sales of Canyons Quartershare Interests is less
than $42,900,000.
(iii) GSRP, the Original Lenders, the Administrative
Agent, FINOVA and Litchfield agree that Section 2.1(b)(ii) of
the Existing LSA is hereby amended and restated as follows:
(ii) (A) on the date of the making of any
Canyons Construction Project Advance (and after
giving effect thereto) the aggregate outstanding
principal amount of all Construction Project Advances
made hereunder with respect to all of the Projects
shall not exceed the Aggregate Construction Project
Borrowing Base, determined as of such date, (B) on
the date of the making of any Canyons Construction
Project Advance hereunder (and after giving effect
thereto) the aggregate original principal amount of
all Advances made hereunder shall not exceed
$177,000,000, provided that in making such
calculation there shall be no duplication in respect
of any Construction Project Advance or Advances which
shall have been refinanced by an Inventory Advance,
(C) on the date of the making of any Canyons
Construction Project Advance hereunder (and after
giving effect thereto) the sum of the aggregate
original principal amount of all Canyons Construction
Project Advances and the aggregate original principal
amount of all Canyons Interest Advances made by all
Canyons Construction Project Advance Lenders shall
not exceed $75,000,000 and the sum of the aggregate
original principal amount of all Canyons Construction
Project Advances and the aggregate original principal
amount of all Canyons Interest Advances made by
FINOVA Capital Corporation shall not exceed
$37,500,000 and (D) on the date of the making of any
Canyons Construction Project Advance hereunder (and
after giving effect thereto) the aggregate
outstanding principal amount of all Canyons
Construction Project Advances and all Canyons
Interest Advances held by FINOVA Capital Corporation
shall not exceed (1) 50% of the aggregate outstanding
principal amount of all Canyons Construction Project
Advances and all Canyons Interest Advances held by
all Canyons Construction Project Advance Lenders and
(2) $30,000,000.
(iv) GSRP, the Original Lenders, the Administrative
Agent, FINOVA and Litchfield agree that Section 2.4(c)(iii)(B)
of the Existing LSA is hereby amended and restated as follows:
(B) GSRP hereby requests the Canyons
Construction Project Advance Lenders (such request to
be deemed a standing request unless rescinded in
writing by GSRP), and hereby authorizes the Canyons
Construction Project Advance Lenders, to make an
advance (each such advance to be made by the Canyons
Construction Project Advance Lenders is referred to
herein as a "Canyons Interest Advance") to it on the
10th day of each calendar month during the Canyons
Commitment Period in an amount equal to the lesser of
(y) the amount of accrued interest due and payable on
such day to the Canyons Construction Project Advance
Lenders in respect of the Canyons Loan and (z) an
amount, which when added to the aggregate outstanding
principal amounts of all prior Canyons Construction
Project Advances and Canyons Interest Advances would
not exceed the Canyons Construction Project Borrowing
Base, and the Canyons Construction Project Advance
Lenders agree, subject only to the lack of existence
of a Default or Event of Default and to the
satisfaction of the conditions set forth below, to
extend their respective Pro Rata Shares of each such
Canyons Interest Advance to GSRP, provided that all
of the proceeds of each such Pro Rata Share shall be
used by the Canyons Construction Project Advance
Lender related to such Pro Rata Share for the sole
purpose of satisfying (in whole or part, as the case
may be) the accrued interest due and payable on such
10th day of such month and GSRP hereby irrevocably
authorizes and instructs such use. To the extent that
the amount of any such Canyons Interest Advance is
insufficient to pay in full the amount of such
interest due and payable on such 10th day of such
month or no such Canyons Interest Advance is made,
GSRP shall pay, on such 10th day, the balance of
interest due and payable on such 10th day. In
connection with any such Canyons Interest Advance,
GSRP shall deliver to the Administrative Agent title
insurance endorsements to the Title Insurance Policy
{Blanket} in respect of the Canyons Project in form
and substance reasonably satisfactory to the
Administrative Agent whereby the effective date of
such Title Insurance Policy {Blanket} shall be made
the date of such Canyons Interest Advance, all
exclusions and/or exceptions not satisfactory to the
Administrative Agent shall have been removed or
appropriate endorsements in respect thereof shall
have been obtained; such Title Insurance Policy
{Blanket} shall be in an amount not less than the sum
of the principal amount of the Canyons Loan
outstanding after giving effect to such Canyons
Interest Advance. All premiums in respect of such
endorsement to such Title Insurance Policy {Blanket}
shall have been paid in full and evidence thereof
shall have been delivered to the Administrative
Agent. No Canyons Inventory Advance Lender shall be
obligated to make any Canyons Interest Advance. The
additional conditions to any Canyons Interest Advance
referred to above are as follows: (1) on the date of
the making of any Canyons Interest Advance hereunder
(and after giving effect thereto) the sum of the
aggregate original principal amount of all Canyons
Construction Project Advances and the aggregate
original principal amount of all Canyons Interest
Advances made by all Canyons Construction Project
Advance Lenders shall not exceed $75,000,000 and the
sum of the aggregate original principal amount of all
Canyons Construction Project Advances and the
aggregate original principal amount of all Canyons
Interest Advances made by FINOVA Capital Corporation
shall not exceed $37,500,000 and (2) on the date of
the making of any Canyons Interest Advance hereunder
(and after giving effect thereto) the aggregate
outstanding principal amount of all Canyons
Construction Project Advances and all Canyons
Interest Advances held by FINOVA Capital Corporation
shall not exceed (y) 50% of the aggregate outstanding
principal amount of all Canyons Construction Project
Advances and all Canyons Interest Advances held by
all Canyons Construction Project Advance Lenders and
(z) $30,000,000.
(v) GSRP, the Original Lenders, the Administrative
Agent, FINOVA and Litchfield agree that Section 2.5(f) of the
Existing LSA is hereby amended by adding the following
language at the end of such Section:
Notwithstanding anything to the contrary in
this Section 2.5(f), the proceeds of sales of the
types described in the first sentence of this Section
2.5(f) with respect to the Canyons Project shall be
paid to the Administrative Agent, but the
Administrative Agent shall apply such proceeds as set
forth in Section 2.5(b)(ii) hereof instead of
depositing such proceeds in the Cash Collateral
Account. Although prepayment of the Canyons Loan from
such proceeds is not permitted during the first 12
months of the term of this Agreement, if sales of the
types described above do occur, GSRP shall pay a
Prepayment Premium in respect thereof to the
Administrative Agent (and disbursed to the Canyons
Lenders in accordance with their Pro Rata Shares of
the Canyons Loan), which Prepayment Premium shall be
deemed to be 3% of the amount prepaid, and, in
addition, the Canyons Required Lenders shall be
entitled to exercise any other remedies provided to
them under this Agreement.
Notwithstanding anything to the contrary in
this Section 2.5(f), the proceeds of sales of the
types described in the first sentence of this Section
2.5(f) with respect to the Steamboat Project shall be
paid to the Administrative Agent, but the
Administrative Agent shall apply such proceeds as set
forth in Section 2.5(b)(ii) hereof instead of
depositing such proceeds in the Cash Collateral
Account. Although prepayment of the Steamboat Loan
from such proceeds is not permitted during the first
12 months of the term of this Agreement, if sales of
the types described above do occur, GSRP shall pay a
Prepayment Premium in respect thereof to the
Administrative Agent (and disbursed to the Steamboat
Lenders in accordance with their Pro Rata Shares of
the Steamboat Loan), which Prepayment Premium shall
be deemed to be 3% of the amount prepaid, and, in
addition, the Steamboat Required Lenders shall be
entitled to exercise any other remedies provided to
them under this Agreement.
(vi) GSRP, the Original Lenders, the Administrative
Agent, FINOVA and Litchfield agree that Section 3.5(c)(ii) of
the Existing LSA is hereby amended by adding the following
language at the end of such Section:
Notwithstanding anything to the contrary in
this Section 3.5(c)(ii), if such losses for the
Canyons Project exceed $1,000,000, the Administrative
Agent is authorized to collect and receive the
insurance proceeds for such losses, and each
insurance company is authorized and directed to make
payment for all such loses directly to the
Administrative Agent instead of to GSRP. In the event
any insurance company fails to disburse directly and
solely to the Administrative Agent, but disburses
instead either solely to GSRP or to GSRP (and/or any
Association) and the Administrative Agent jointly,
GSRP agrees immediately to endorse and transfer, or
cause to be endorsed and transferred, such proceeds
to the Administrative Agent, and upon its failure to
so endorse and transfer, GSRP unconditionally and
irrevocably appoints Administrative Agent as GSRP's
agent and attorney-in-fact, coupled with an interest,
to endorse and transfer such proceeds to the
Administrative Agent on behalf of the Lenders. After
deducting from said insurance proceeds all of its
expenses incurred in the collection and
administration of such sums, including attorneys'
fees, the Administrative Agent will apply the net
proceeds to the repair and/or restoration of the
Canyons Project subject to and in accordance with the
scope and plans for such repair and restoration
approved by the Administrative Agent in accordance
with this Section 3.5(c)(ii).
Notwithstanding anything to the contrary in
this Section 3.5(c)(ii), if such losses for the
Steamboat Project exceed $1,000,000, the
Administrative Agent is authorized to collect and
receive the insurance proceeds for such losses, and
each insurance company is authorized and directed to
make payment for all such loses directly to the
Administrative Agent instead of to GSRP. In the event
any insurance company fails to disburse directly and
solely to the Administrative Agent, but disburses
instead either solely to GSRP or to GSRP (and/or any
Association) and the Administrative Agent jointly,
GSRP agrees immediately to endorse and transfer, or
cause to be endorsed and transferred, such proceeds
to the Administrative Agent, and upon its failure to
so endorse and transfer, GSRP unconditionally and
irrevocably appoints Administrative Agent as GSRP's
agent and attorney-in-fact, coupled with an interest,
to endorse and transfer such proceeds to the
Administrative Agent on behalf of the Lenders. After
deducting from said insurance proceeds all of its
expenses incurred in the collection and
administration of such sums, including attorneys'
fees, the Administrative Agent will apply the net
proceeds to the repair and/or restoration of the
Steamboat Project subject to and in accordance with
the scope and plans for such repair and restoration
approved by the Administrative Agent in accordance
with this Section 3.5(c)(ii).
(vii) GSRP, the Original Lenders, the Administrative
Agent, FINOVA and Litchfield agree that Section 6.2(d) of the
Existing LSA is hereby amended by adding the following
language at the end of such Section:
With respect to any Canyons Construction
Project Advance, the aggregate total increase in the
construction costs for all change orders for the
Canyons Project shall not exceed $200,000 without the
prior written consent of FINOVA, and no change orders
involving a material modification of the design of
the building, a material change in the quality of
workmanship or materials or a material delay in
completion of construction in respect of the Canyons
Project shall have been approved without the prior
written consent of FINOVA.
(viii) GSRP, the Original Lenders, the Administrative
Agent, FINOVA and Litchfield agree that Section 10 of the
Existing LSA is hereby amended by adding the following
language at the end of such Section:
(I) As a point of clarification, if the
Administrative Agent resigns or is removed under
Section 10.5 hereof, such Administrative Agent shall
stay in place and perform all of its duties under
this Agreement in accordance with the terms hereof
until its successor is appointed. Upon appointment of
its successor, the existing Administrative Agent
shall take all actions necessary to transfer its
rights, duties and obligations to the successor
Administrative Agent, including, without limitation,
the transfer and continued perfection of all rights
with respect to bank accounts, liens, security
interests, assignments, insurance policies, bonds,
title insurance policies, claims, books, records,
etc.
(II) The instrument or concurrent
instruments delivered by the Required Parties to GSRP
and the Administrative Agent to remove the
Administrative Agent under Section 10.5 shall require
the signatures of all Required Parties other than
Textron Financial Corporation but shall not require
the signature of Textron Financial Corporation so
long as Textron Financial Corporation is the
Administrative Agent.
(III) Notwithstanding anything to the
contrary in Section 10.5, the resignation or removal
of the Administrative Agent shall not affect the
liability of the Administrative Agent due to any
actions taken or omitted to be taken by it in its
role of Administrative Agent that constitutes gross
negligence or wilful misconduct on the part of the
Administrative Agent.
(IV) As a point of clarification, Lenders'
agreement under Section 10.9 hereof to pay to
Administrative Agent the fees described therein shall
not be construed to require the Lenders to pay
out-of-pocket the fees that Borrower owes to the
Administrative Agent, and such fees are to be paid
only by deduction from payments received from
Borrower.
(V) Notwithstanding anything to the contrary
in Section 10.10 hereof or anything contained
elsewhere in this Agreement or the Security
Documents, the Canyons Construction Project Required
Lenders (or after the date of the Canyons Inventory
Advance, the Canyons Inventory Required Lenders, as
applicable, the "Canyons Required Lenders") shall be
competent, and no other group of Lenders (whether
decisions are to be made by Required Parties, Project
Required Lenders or otherwise pursuant to this
Agreement or the Security Documents) shall be
competent, to approve and/or to direct the
Administrative Agent as to any action (or decision
not to act) under this Agreement or the Security
Documents with respect to the Canyons Project, the
Canyons Loan, the Canyons Obligations or the
Collateral arising from the Canyons Project
(including, without limitation, the exercise of all
rights and remedies with respect thereto, any
acceleration of the Canyons Loan, and any foreclosure
of the Collateral arising from the Canyons Project).
Without limiting the foregoing, the Canyons Required
Lenders shall be competent to direct the
Administrative Agent regarding actions to be taken
with respect to Events of Default, acceleration,
foreclosure and other collection actions, insurance
proceeds, casualty proceeds, title insurance
policies, actions, insurance proceeds, casualty
proceeds, title insurance policies, performance
bonds, litigation and other matters involving the
Canyons Project or the Canyons Project Lenders
regardless of the fact that liens, lawsuits,
insurance policies, title policies, bonds, and other
documents and agreements may be in the name of
Textron Financial Corporation in its role as
Administrative Agent.
Notwithstanding anything to the contrary in
Section 10.10 hereof or anything contained elsewhere
in this Agreement or the Security Documents, the
Steamboat Construction Project Required Lenders (or
after the date of the Steamboat Inventory Advance,
the Canyons Inventory Required Lenders, as
applicable, the "Steamboat Required Lenders") shall
be competent, and no other group of Lenders (whether
decisions are to be made by Required Parties, Project
Required Lenders or otherwise pursuant to this
Agreement or the Security Documents) shall be
competent, to approve and/or to direct the
Administrative Agent as to any action (or decision
not to act) under this Agreement or the Security
Documents with respect to the Steamboat Project, the
Steamboat Loan, the Steamboat Obligations or the
Collateral arising from the Steamboat Project
(including, without limitation, the exercise of all
rights and remedies with respect thereto, any
acceleration of the Steamboat Loan, and any
foreclosure of the Collateral arising from the
Steamboat Project). Without limiting the foregoing,
the Steamboat Required Lenders shall be competent to
direct the Administrative Agent regarding actions to
be taken with respect to Events of Default,
acceleration, foreclosure and other collection
actions, insurance proceeds, casualty proceeds, title
insurance policies, actions, insurance proceeds,
casualty proceeds, title insurance policies,
performance bonds, litigation and other matters
involving the Steamboat Project or the Steamboat
Project Lenders regardless of the fact that liens,
lawsuits, insurance policies, title policies, bonds,
and other documents and agreements may be in the name
of Textron Financial Corporation in its role as
Administrative Agent.
(f) Indemnification Limitation.
(i) Neither FINOVA nor Litchfield shall be obligated
to indemnify the Administrative Agent under Section 10.4 of
the Amended LSA in respect of any liabilities, obligations,
losses, claims, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind or nature
whatsoever incurred by the Administrative Agent and referred
to in said Section 10.4 that arose prior to the Second
Amendment Closing Date or were connected with the performance
of duties of the Administrative Agent prior to the Second
Amendment Closing Date under the Amended LSA and/or under the
other Security Documents. Any such indemnification referred to
above in this clause (g) required under Section 10.4 of the
Amended LSA shall be effected as if FINOVA and Litchfield were
not Lenders.
(ii) With respect to the Administrative Agent's right
to indemnity under Section 10.4 hereof, FINOVA's Pro Rata
Share indemnification of the Administrative Agent is hereby
limited to such matters indemnified thereunder that arise from
acts of the Administrative Agent taken at the direction of the
Canyons Required Lenders after the Second Amendment Closing
Date.
(iii) With respect to the Administrative Agent's
right to indemnity under Section 10.4 hereof, Litchfield's Pro
Rata Share indemnification of the Administrative Agent is
hereby limited to such matters indemnified thereunder that
arise from acts of the Administrative Agent taken at the
direction of Required Lenders as to which Litchfield is a
member after the Second Amendment Closing Date.
(iv) With respect to the Administrative Agent's right
to indemnity under Section 10.4 hereof, Green Tree's Pro Rata
Share indemnification of the Administrative Agent is hereby
limited to such matters indemnified thereunder that arise from
acts of the Administrative Agent taken at the direction of
Required Lenders as to which Green Tree is a member after the
Second Amendment Closing Date.
(v) With respect to the Administrative Agent's right
to indemnity under Section 10.4 hereof, Textron's Pro Rata
Share indemnification of the Administrative Agent is hereby
limited to such matters indemnified thereunder that arise from
acts of the Administrative Agent taken at the direction of
Required Lenders as to which Textron is a member after the
Second Amendment Closing Date.
(g) Indemnification by Administrative Agent. In accordance
with Section 10.2(c) of the Amended LSA and subject to the limitations
and qualifications set forth therein, the Administrative Agent hereby
agrees and confirms that it shall be liable to FINOVA and Litchfield
(together with their respective officers, directors, employees and
agents) for its gross negligence and its willful conduct in respect of
actions taken or omitted to be taken by the Administrative Agent prior
to the Second Amendment Closing Date under or in connection with the
Amended LSA and the other Security Documents.
(h) Special Reports. An additional sentence is hereby to the
end of Section 7.14(h) of the Existing LSA:
In connection with the delivery of each of the
quarterly statements referred to in Section 7.14(b)
above, Borrower shall deliver to each Lender a matrix
which shall show, as of the end of the quarterly
period then being reported upon, the outstanding
principal balance, the remaining Commitment
availability, the Pro Rata Share of such remaining
Commitments and the percentage of the aggregate
outstanding principal amount of Advances of such
Lender in respect of the Steamboat Loan, Canyons
Loan, the Attitash Loan, the Killington Loan, the
Mount Snow Loan and the Jordan Bowl Loan.
5. WARRANTIES AND REPRESENTATIONS
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 LSA:
(a) Warranties and Representations True and Correct. Except as
otherwise disclosed on Attachment 5 hereto, each of the representations
and warranties contained in Section 4 of the Existing LSA (other than
Section 4.4 thereof) is true and correct as of the date hereof. Without
limiting the foregoing and in addition thereto, GSRP hereby:
(i) represents and warrants, except with respect to
the Permitted Exceptions, that all Liens granted to the
Administrative Agent under the Existing LSA 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; and
(ii) acknowledges that no claims, actions, causes of
actions, offsets, counterclaims and/or liabilities exist against,
or are held by it in respect of, any Original Lender or the
Administrative Agent under the Existing LSA or any of the
Security Documents.
(b) Transaction Is Legal and Authorized. The execution and
delivery of this Agreement and the other documents and instruments
contemplated herein, and compliance by GSRP with all of the provisions
of this Agreement, the Existing LSA, as amended hereby, and each of the
other documents set forth above are:
(i) within the corporate powers of GSRP;
(ii) valid and legal acts and will not conflict with,
or result in any breach in any of the provisions of, or
constitute a default under, or result in the creation of any
Lien (except Liens contemplated under any of the Security
Documents) 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.
(c) Governmental Consent. 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.
(d) 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 and all Liens in favor of the Administrative
Agent in respect of such Collateral remain in full force and effect.
(e) Brokers' Fees. There are no brokers and finders which are
entitled to receive compensation for their services rendered to GSRP
with respect to the transactions described in this Agreement.
(f) 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. Since the Closing Date, no
material adverse change has occurred in or in respect of the Collateral
or any one or more of the Projects. After giving effect to this
Agreement, no default or event of default exists under the Parent/BKB
Credit Facility.
(g) Canyons Project. Attachment 6 hereto correctly reflects
the nature and composition of the equity contributions in respect of
the Canyons Project.
6. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT
This Agreement shall become effective on the Second Amendment Closing
Date upon the parties hereto executing this Agreement and upon each of the
following conditions being satisfied:
(a) Secretary's Certificates.
The Administrative Agent shall have received a certificate of
the Secretary or any Assistant Secretary of GSRP, in form and substance
reasonably satisfactory to the Administrative Agent, dated as of the
Second Amendment Closing Date, certifying
(i) the adoption by the Board of Directors of GSRP of
a resolution authorizing GSRP to enter into this Agreement and
the transactions and instruments contemplated hereby, and
(ii) the incumbency and authority of, and verifying
the specimen signatures of, the officers of GSRP authorized to
execute and deliver this Agreement and the other documents
contemplated hereunder.
(b) Legal Opinion. GSRP shall have delivered to Administrative
Agent and the Lenders a legal opinion from its General Counsel in form
and substance reasonably satisfactory to the Lenders and Administrative
Agent.
(c) Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 11.2(d) of Existing LSA
pursuant to invoices or other bills submitted to GSRP (including the
fees and disbursements of counsel to Textron Financial Corporation) and
all costs and expenses of FINOVA and Litchfield in connection with
their becoming Lenders under the Existing LSA, as amended hereby
(including the reasonable fees and disbursements of counsel to FINOVA
and counsel to Litchfield).
(d) Other Documents.
(i) GSRP shall have executed and delivered (A) the
allonges referred to in Section 1 hereof to Textron Financial
Corporation and Green Tree Financial Servicing Corporation;
(B) the Canyons Construction Project Advance Note and Canyons
Inventory Advance Note to FINOVA; (C) the Canyons Construction
Project Advance Note, the Canyons Inventory Advance Note, the
Steamboat Construction Project Advance Note, the Steamboat
Inventory Advance Note, the Attitash Inventory Advance Note,
the Jordan Bowl Inventory Advance Note, the Killington
Inventory Advance Note and the Mt. Snow Inventory Advance Note
to Litchfield; (D) the Attitash Inventory Advance Note, the
Jordan Bowl Inventory Advance Note, the Killington Inventory
Advance Note and the Mt. Snow Inventory Advance Note to
Textron Financial Corporation; and (E) the Attitash Inventory
Advance Note, the Jordan Bowl Inventory Advance Note, the
Killington Inventory Advance Note and the Mt. Snow Inventory
Advance Note to Green Tree Financial Servicing Corporation.
(ii) GSRP shall have delivered to the Administrative
Agent date-down endorsements in respect of the Blanket
Mortgages and such endorsements shall show no Liens in and to
the Projects other than Permitted Exceptions.
(iii) GSRP shall have obtained the written consent of
BankBoston, N.A., as agent under the Parent/BKB Credit
Facility to this Agreement and a written acknowledgment
(addressed to GSRP and each of the Lenders) from the Parent
that no default or event of default under, and as defined in,
the Parent/BKB Credit Facility exists as of the Second
Amendment Closing Date (and after giving effect to the
transactions contemplated herein).
(g) Fees. At the time of closing of FINOVA';s accession under
Section 1(a) hereof and its purchases under Section 1(b) hereof with
respect to the Canyons Loan, GSRP shall have paid to FINOVA a fee of
$300,000 in consideration of its becoming a Lender in respect of the
Canyons Project. GSRP shall have paid to Litchfield a fee of $100,000
in consideration of its becoming a Lender in respect of the Canyons
Project, the Steamboat Project, the Attitash Project, the Jordan Bowl
Project, the Killington Project and the Mt. Snow Project.
7. 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.
(f) Administrative Agent; Trust Agreement. The Original
Lenders hereby instruct the Administrative Agent, as administrative
agent under the Existing LSA and trustee under that certain Trust
Agreement referred to in the Maine Blanket Mortgage, to execute and
deliver this Agreement and all necessary instruments, certificates and
documents required in its reasonable judgment to consummate the
transactions contemplated in this Agreement.
(g) 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 CORPORATION
PROPERTIES, INC.
By /s/ Mark P. Girard By /s/ Nicholas L. Mecca
------------------------------ ----------------------------
Name: Mark P. Girard Name: Nicholas L. Mecca
Title: Vice President Title: Vice President
Lender:
GREEN TREE FINANCIAL SERVICING CORPORATION
By /s/ C.A. Gouskos
------------------------------
Name: C.A. Gouskos
Title: Senior Vice President
FINOVA CAPITAL CORPORATION
By /s/ Gayle R. McKenzie
------------------------------
Name: Gayle R. McKenzie
Title: Vice President
LITCHFIELD FINANCIAL CORPORATION
By /s/ James R. Yearwood
------------------------------
Name: James R. Yearwood
Title: Senior Vice President
Administrative Agent:
TEXTRON FINANCIAL CORPORATION
By /s/ Nicholas L. Mecca
------------------------------
Name: Nicholas L. Mecca
Title: Vice 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/ Mark P. Girard
------------------------------
Name: Mark P. Girard
Title: Vice President