LOAN AGREEMENT
THIS AGREEMENT dated this 6th day of May, 1994, by and between VERMONT ECONOMIC
DEVELOPMENT AUTHORITY, a body corporate and politic and a public instrumentality
of the State of Vermont with a principal office at 00 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 ("Lender"), and ASCUTNEY MOUNTAIN RESORT, L.P. and
ASCUTNEY MOUNTAIN RESORT HOTEL, L.P., limited partnerships organized and
existing under the laws of the State of Delaware, with a place of business at
West Windsor, Vermont (hereinafter referred to respectively as "AM Resort" and
"AMR Hotel" and collectively as "Borrowers").
WHEREAS, Borrowers have applied to Lender for a loan to finance, in part,
the acquisition of and improvements to the Ascutney Mountain Resort, so-called,
situated in West Windsor, Vermont (hereinafter referred to as the "Project");
and
WHEREAS, Lender is willing to make such a loan to the Borrowers on the
terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
THE LOAN
SECTION 1.01: THE LOAN NOTE AND RATE
Subject to the terms and conditions of this Agreement, Lender hereby agrees
to lend to Borrowers, and Borrowers hereby agree to borrow from Lender, the sum
of Four Hundred Thousand Dollars ($400,000.00) (hereinafter referred to as the
"Loan"). The obligation of the Borrowers to repay the Loan shall be evidenced by
the promissory note (hereinafter referred to as the "Note") of the Borrowers in
a form satisfactory to Lender dated the date on which the Loan is made
(hereinafter referred to as the "Closing") payable to the order of Lender in the
principal amount of Four Hundred Thousand Dollars ($400,000.00) with interest
thereon at the Rate specified therein (hereinafter referred to as the "Rate").
SECTION 1.02: THE TERM AND REPAYMENT
The term of the Loan shall be ten (10) years. The Note shall be repaid in
120 equal installments of principal and interest calculated daily by reference
to a repayment term or amortization period of fifteen (15) years. All payments
shall be applied first to interest and then to principal. All payments shall be
timely made to Lender, or its order, at or to 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, or at such other address as the holder thereof may designate in
writing.
SECTION 1.03: PURPOSE OF LOAN
The purpose of the Loan is to finance a portion of the cost of the
acquisition and improvement of the Ascutney Mountain Resort, so-called, situated
in West Windsor, Vermont.
ARTICLE II
BORROWERS' REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant the following:
SECTION 2.01: DULY ORGANIZED
AM Resort and AMR Hotel are limited partnerships duly organized, validly
existing and in good standing under the laws of the State of Delaware and have
the authority to enter into this Agreement and take such action as is required
hereunder.
SECTION 2.02: DULY AUTHORIZED
AM Resort and AMR Hotel are duly authorized, qualified and licensed under
all applicable laws, regulations, ordinances and orders of public authority to
carry on their businesses and hold each and every license, permit and other
regulatory approval necessary to conduct their business operations at West
Windsor, Vermont.
SECTION 2.03: LEGALLY BINDING INSTRUMENTS
When this Agreement is executed by the Borrowers and Lender, and when the
Note is executed and delivered by the Borrowers for value, each such instrument
shall constitute the legal, valid and binding obligation of the Borrowers in
accordance with its terms. Each Security Agreement and Instrument, Financing
Statement, Mortgage Deed and other lien on real or personal property shall
constitute legal, valid and binding liens free and clear of all prior liens and
encumbrances, except as otherwise expressly provided for herein.
SECTION 2.04: NO LEGAL SUITS
There are no claims, actions, suits or proceedings instituted or filed and,
to the best of the Borrowers' knowledge, there are no claims, actions, suits or
proceedings threatened at law or in equity or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality that would have a materially adverse effect on the Project or
the Borrowers' performance of this Agreement, except Appellant's right to appeal
or move for rehearing the decision dated April 29, 1994 of the United States
Court of Appeals, Second Circuit, in Xxxxxxxxxx x. Xxxxxx, Docket No. 93-5116.
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SECTION 2.05: NO LEGAL AUTHORIZATION NEEDED
No authorization, consent or approval, or any formal exemption of any
governmental body, regulatory authority (federal, state or local) or mortgagee,
creditor or third party is or was necessary to the valid execution and delivery
by the Borrowers of this Agreement, the Note, or any Security Agreement or
Instrument, Financing Statement or Mortgage.
SECTION 2.06: NOT IN DEFAULT
Borrowers are not in default of any obligation, covenant or condition
contained in any bond, debenture, note or other evidence of indebtedness or any
mortgage, security agreement or collateral instrument securing the same.
SECTION 2.07: NO UNREMEDIED ADVERSE CHANGE
The Borrowers certify that there has been no unremedied material adverse
change since the date of loan application or loan approval in the financial
condition of Borrowers, or the organization, operation, business prospects,
fixed properties or personnel of the Borrowers.
ARTICLE III
CONDITIONS TO CLOSING
The obligation of the Lender to make the Loan shall be subject to the
fulfillment at the time of closing of each of the following conditions:
SECTION 3.01: EXECUTION OF AUTHORIZATION
The Borrowers shall have executed and delivered, in a form satisfactory to
Lender and its legal counsel, this Loan Agreement, the Note, Mortgage Deed,
Security Agreement and Financing Statements granting to Lender security in the
real property and improvements thereto, machinery and equipment, accounts
receivable and inventory that are to be or have been acquired, constructed,
created, produced, generated or improved with the Loan proceeds, together with
such other security instruments, guaranties, certificates, documents and
assurances as Lender or its legal counsel may require. Said Mortgage Deed,
Security Agreement, Financing Statements and other security instruments shall
represent a valid and enforceable lien upon the property described therein, free
and clear of all liens and encumbrances upon such property, except as otherwise
expressly provided for therein, herein or otherwise in writing by Lender.
SECTION 3.02: ADDITIONAL SECURITY
The Borrowers shall have complied with, delivered or caused to be delivered
such other or additional security as Lender or its legal counsel may require,
including but not limited to, for
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example, subordination agreements, personal guaranties or guaranties by
Borrowers' general partners and the pledge of collateral not otherwise expressly
referred to herein.
SECTION 3.03: REPRESENTATIONS AND WARRANTIES
All representations and warranties of Borrowers set forth herein shall be
accurate as of the closing date as though such representations and warranties
have been made as of that time.
SECTION 3.04: OPINION OF LEGAL COUNSEL TO BORROWER
The Borrowers shall have delivered, or cause to be delivered to Lender, in
a form acceptable to legal counsel for Lender, an opinion of legal counsel to
Borrowers, which addresses, among other issues, the capacity and authority of
the Borrowers to perform under the terms of this Loan Agreement and the
documents referred to herein; the compliance of Borrowers' Project plans with
all local, State of Vermont and federal environmental, zoning, planning,
sanitary, land use and related statutes, rules and regulations and that all
permits necessary or incidental to the Project have issued or been obtained by
Borrowers; the status of title to Borrowers' real and/or personal property and
the marketability thereof; and the enforceability of the security documents
executed and delivered hereunder. Legal counsel to Lender shall be entitled to
require such opinion to address any issues deemed pertinent by counsel and to
require such supporting documentation as may also be deemed material to the
opinion.
SECTION 3.05: COMPLIANCE WITH AGREEMENT
The Borrowers shall have complied with each term, provision and condition
of this Agreement required to be complied with before the closing date.
SECTION 3.06: EXTENSION OF CREDIT BY FLEET BANK-NH
The Borrowers shall have received additional financing for the Project in
the form of a loan from Fleet Bank-NH in the amount of One Million Two Hundred
Fifty Thousand Dollars ($1,250,000.00), and a loan from Springfield Regional
Development Corporation in the amount of Forty Thousand Dollars ($40,000.00).
Said loan from Fleet Bank-NH to be in the form of a Reducing Revolver Credit
Facility for a term of eight (8) years. The loan from Springfield Regional
Development Corporation may be in the form of an equity pass-through type loan.
SECTION 3.07: CONTRIBUTION OF CAPITAL
The Borrowers shall have received in the form of a contribution to capital
a sum of not less than $1,500,000.00 from their limited and general partners,
which sum shall be available for employment as equity to fund costs and expenses
of the Project.
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SECTION 3.08: APPROVAL OF LENDER'S COUNSEL
All actions, undertakings, instruments and documents required to carry out
this Agreement or incidentally related thereto, including related legal matters,
have been approved by counsel to Lender, which shall not be unreasonably
withheld or delayed.
SECTION 3.09: BORROWERS' CERTIFICATE REGARDING HAZARDOUS MATERIALS AND
SOLID WASTES
Borrowers shall have provided Lender with a sworn statement as to whether
any hazardous materials or solid wastes have been disposed or generated on, upon
or within the property pledged as security for repayment of the Note, or will be
generated on such property, and if so, the nature and extent of same, the
location where the hazardous materials or solid wastes have been disposed of or
will be stored or deposited and, if located upon this pledged property. The
nature and extent of same and how the hazardous materials and solid wastes have
been or will be disposed of, stored or deposited and whether such disposal,
storage and deposit has been or will be pursuant to a federal or state permit.
A true copy of any such permit shall be attached to Borrowers' certificate.
SECTION 3.10: JOINT AND SEVERAL PERSONAL GUARANTY OF XXXXXX XXXXXXXXXXX AND
XXXXX XXXXXXXXXXX
There shall have been delivered to Lender, in a form satisfactory to legal
counsel for Lender, the unconditional joint and several personal guaranties of
the Note and the Loan by Xxxxxx Xxxxxxxxxxx and Xxxxx Xxxxxxxxxxx.
SECTION 3.11: GUARANTY OF SNOWDANCE SKI COMPANY AND SNOWDANCE HOTEL
COMPANY
There shall have been delivered to Lender, in a form satisfactory to legal
counsel for Lender, the unconditional guaranties of the Note and the Loan by
Snowdance Ski Company and Snowdance Hotel Company.
ARTICLE IV
AFFIRMATIVE COVENANTS OF THE BORROWERS
The Borrowers agree to comply with the following covenants from the date
hereof until Lender has been fully repaid with interest, unless Lender, its
successors or assigns, shall otherwise consent in writing:
SECTION 4.01: PAYMENT OF THE LOAN
The Borrowers agree to immediately pay when due the principal and
interest on the Note according to its terms and conditions and to immediately
pay when due any other amounts that
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may become due and payable to Lender under or pursuant to the terms of this
Agreement or the documents executed and delivered in connection herewith.
SECTION 4.02: PAYMENT OF ORIGINATION FEE AND LENDER'S EXPENSES
In consideration of Lender's expenses associated with processing and
servicing this Loan, the Borrowers agree to pay to Lender at closing an
origination fee of two percent (2%) of the principal amount of the Loan
($8,000.00) and all engineering and extraordinary legal expenses that may be
incurred in connection with review and assessment of the Project and closing of
the Loan.
SECTION 4.03: COMPLIANCE WITH CLOSING DOCUMENTS
The Borrowers agree to comply with each term, condition and provision of
all documents and instruments required under the terms of this Loan Agreement
including, but not limited to, the Note, Real Property Mortgage, Security
Agreement, Financing Statements and other documents granting security for the
Loan to be made hereunder.
SECTION 4.04: MAINTAIN AND INSURE PROPERTY
The Borrowers agree at all times to maintain the property provided as
security for this Loan in such condition and repair that Lender's security will
be adequately protected. The Borrowers also agree to maintain during the term of
the Loan adequate hazard insurance policies covering fire and such other
hazards, including but not limited to windstorm, lightning, hail, business
interruption, explosion, riot, civil commotion, aircraft, vehicle, marine,
smoke, builder's risk, public liability, property damage, flood or mudslide, or
any other hazard insurance that may be required to protect the security, in an
amount that is at least the lesser of the depreciated replacement value of the
insured property, the amount of the Loan or sufficient to prevent the Borrowers
from becoming co-insurers and issued by companies satisfactory to Lender with
acceptable loss payee clauses in favor of Lender under a standard or New York
Mortgage Interest Clause which shall provide a minimum of thirty (30) days'
written notice to Lender prior to cancellation. Borrowers agree Lender
may advance and pay any unpaid premiums necessary to maintain adequate hazard
insurance coverage upon the secured property and that any sums so paid shall, at
the sole discretion of Lender, be immediately due and payable or be added to the
principal indebtedness of the Note and bear interest at the Rate provided for
therein.
SECTION 4.05: MAINTAIN WORKER'S COMPENSATION INSURANCE
The Borrowers agree at all times to maintain worker's compensation
insurance in accordance with the applicable provisions of Vermont Statutes
Annotated.
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SECTION 4.06: MAINTAIN AND SUBMIT FINANCIAL STATEMENTS; CERTIFICATION
The Borrowers agree to maintain quarterly internally compiled financial
statements and balance sheets and to provide the said financial statements and
balance sheets to Lender within 45 days of the end of the accounting period. The
Borrowers also agree to submit to Lender within 90 days of the end of its fiscal
year CPA reviewed annual income statements and balance sheets. Such financial
statements shall be submitted to Lender as long as the Note remains unpaid.
In addition, year end financial statements shall be accompanied by a
certification of a certified public accountant that at fiscal year end Borrowers
were in compliance with all loan covenants set forth in this Loan Agreement, in
a form acceptable to Lender.
SECTION 4.07: PAY ALL TAXES
The Borrowers agree to pay and discharge all taxes, assessments and
governmental charges upon them or against their properties prior to the date
upon which penalties attach thereto, except that the Borrowers shall not be
required to pay any such tax, assessment or governmental charge which is being
contested by them in good faith by or through appropriate proceedings. Borrowers
agree Lender may advance and pay any taxes or assessments made against or upon
the secured property and that any sums so paid shall, at the sole discretion of
Lender, be immediately due and payable or be added to the principal indebtedness
of the Note and bear interest at the Rate provided for therein.
SECTION 4.08: MAINTAIN EXISTENCE
The Borrowers agree to maintain their existence under Delaware law, and
their rights, privileges and franchises within the State of Vermont and to
qualify and remain qualified to do business in good standing under the laws of
the State of Vermont.
SECTION 4.09: RIGHT TO INSPECTION
The Borrowers agree to grant Lender, until the Note has been fully repaid
with interest, the right at reasonable hours to inspect the real and/or personal
property pledged to secure this Loan. The Borrowers further agree to provide
Lender free access to the Borrowers' premises for the purpose of such inspection
to determine the condition of such real and personal property and real estate.
SECTION 4.10: NULL AND VOID COVENANTS
The Borrowers agree that in the event any provision of this Loan Agreement,
any other instrument executed at closing or the application thereof to any
person or circumstance shall be
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declared null and void, invalid, or held for any reason to be unenforceable
by a court of competent jurisdiction, the remainder of such agreement shall
nevertheless remain in full force and effect, and to this end, the provisions of
all covenants, conditions and agreements described herein are deemed separate.
SECTION 4.11: EXPENSES AND CLOSING COSTS
The Borrowers agree to pay all fees, expenses and charges in respect to the
Loan, or its making, or the transfer of security to Lender or in any way
connected therewith, including but not limited to applicable title insurance and
survey costs, recording and filing fees, property transfer taxes, if any, and
any other taxes, fees and expenses in connection with this transaction or with
the enforcement of this Loan Agreement, the Note, the Mortgage Deeds and
Security Agreement.
SECTION 4.12: INDEMNIFICATION
The Borrowers agree to indemnify and save Lender or its successors and
assigns harmless against any and all liability with respect to, or resulting
from, any delay in discharging any obligation of the Borrowers.
SECTION 4.13: HAZARDOUS MATERIAL AND SOLID WASTE INDEMNIFICATION
The Borrowers hereby agree to indemnify and save Lender and its successors
and assigns harmless from any and all liability resulting from any storage or
disposal of hazardous materials or solid wastes upon the property pledged as
security for repayment of the Note, which such indemnification shall include,
but not be limited to, the cost and expense of clean-up and response to such
storage or disposal.
SECTION 4.14: COMPLIANCE WITH ENVIRONMENTAL REGULATIONS
The Borrowers agree to comply with all applicable federal and state
environmental regulations concerning the storage and disposal of hazardous
materials and solid wastes during the term of the Note, including any extensions
thereof.
SECTION 4.15: COMPLIANCE WITH CONDITIONS OF LOAN
Borrowers agree to comply with all covenants, terms and conditions imposed
by Fleet Bank-NH in connection with the Loan of said Bank to Borrower. All
covenants, terms and conditions of said loan from Fleet Bank-NH to Borrowers are
hereby incorporated by reference as affirmative covenants of the Borrowers in
this agreement.
SECTION 4.16: EXPENSES OF COLLECTION OR ENFORCEMENT
The Borrowers agree, if at any time the Borrowers default on any provision
of this Loan Agreement, to pay Lender or its successors and assigns, in addition
to any other amounts that may
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be due from the Borrowers, an amount equal to the reasonable costs and expenses
of collection, enforcement or correction of default incurred by Lender or its
assigns in such collection, enforcement or correction of default, including, but
not limited to, the fees, costs and expenses of legal representation of Lender.
SECTION 4.17: MAINTENANCE OF EMPLOYMENT
Borrowers shall maintain a reasonable level of employment, as required by
10 V.S.A. 'SS' 264, at the eligible facilities owned by Borrowers upon which
Lender is taking a mortgage as security for the Note. For the purposes of this
covenant, a reasonable level of employment shall be deemed not to have been
maintained whenever the Borrowers, employing collectively fifty (50) or more
employees at their facilities, permanently transfer, within any three (3) month
period, fifty percent (50%) or more of those employees or employment positions
to any out-of-state facility.
SECTION 4.18: OCCUPY AND UTILIZE ELIGIBLE FACILITY
As long as the Note remains unpaid, Borrowers agree to occupy and utilize
the Project as an eligible facility as that term is defined in 10 V.S.A.
'SS' 212(6).
ARTICLE V
NEGATIVE COVENANTS OF THE BORROWER
The Borrowers covenant and agree that, from the date hereof until payment
in full of the Note, unless Lender, its successors or assigns, shall otherwise
consent in writing, they will not enter into any agreement or other commitment
the performance of which would constitute a breach of any of the covenants
contained in this Loan Agreement including, but not limited to, the following:
SECTION 5.01: ENCUMBER THE MORTGAGED PROPERTY
The Borrowers will neither create nor suffer to exist any mortgage, pledge,
lien, charge or encumbrance, including liens arising from judgments, on the
property pledged as security for repayment of the Note ("Mortgaged Property"),
exclusive of that arising under the Mortgage Deed, Security Agreement and other
security instruments executed and delivered to Lender hereunder, or except as
otherwise agreed to in writing, in advance, by Lender, or the following: (i)
deposits under Workmen's Compensation, Unemployment Insurance and Social
Security laws; (ii) liens imposed by law such as carrier's, warehousemen's or
mechanic's liens incurred in good faith in the ordinary course of business, and
which do not in the aggregate have a material adverse effect on the Borrowers'
financial condition or the mortgaged property; and (iii) purchase money security
interests in machinery and equipment acquired by Borrowers subsequent to the
date of this Loan Agreement pursuant to Section 5.06(a) of
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this Agreement. Borrowers agree that any loan made to them by their limited
partners, general partners or directors shall be subordinate to the Loan of
Lender.
SECTION 5.02: PREPAYMENT OF OBLIGATIONS
The Borrowers shall not make payments of principal before the due date
thereof pursuant to the terms of a note or notes executed and delivered by
Borrowers to Fleet Bank-NH or Springfield Regional Development Corporation
without contemporaneous payment of a proportional percentage of the principal
due pursuant to the Note.
SECTION 5.03: CONVEY THE MORTGAGED PROPERTY
The Borrowers will not sell, convey, or suffer to be conveyed, lease,
assign, transfer, hypothecate or otherwise dispose of the Mortgaged Property
without the express prior written approval of Lender.
SECTION 5.04: CHANGE OF OWNERSHIP
The Borrowers will not, without the express prior written approval of
Lender, permit or cause to occur any material change in the ownership,
structure, control or operation of AM Resort or AMR Hotel, including but not
limited to:
(a) merger into or consolidation with any other person, firm,
corporation or business entity;
(b) any dissolution, termination or liquidation of the Borrowers or
transfer of a majority interest, including but not limited to the pledge,
encumbrance or hypothecation of such interest; or
(c) any transfer, alienation or conveyance of Borrowers' capital
assets or properties outside of the ordinary course of business.
For purposes of this Section 5.04, a "material change" is any change in
which majority control is lost, gained, transferred or conveyed.
SECTION 5.05: CHANGE OF THE PROJECT
The Borrowers will neither permit nor suffer to exist, without the prior
written consent of Lender, any material change in the Project's plans and/or
specifications as same are represented by the existing plans and specifications
heretofore submitted to Lender by Borrowers in connection with the Loan
application. A material change will include any significant variance in the
accepted plans and specifications and increases in contract prices, and/or
additional financial obligation with respect to the construction of improvements
on the Mortgaged Property.
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SECTION. 5.06: RESTRICTION UPON FINANCIAL ACTIVITIES
The Borrowers shall not, absent the prior written approval of Lender, which
shall not be unreasonably withheld if, in the sole discretion of Lender, the
financial operations of Borrowers justify approval, conduct, perform, commit nor
suffer any of the following:
(a) Purchase or lease of capital assets not included in the Project
having a fair market value in the aggregate in excess of $300,000 in any
fiscal year;
(b) Pay salaries, bonuses or compensation to any limited or general
partner of Borrowers, or any officer, director or shareholder of a general
partner of Borrowers or any guarantor of the Note in excess of $50,000 in
any fiscal year;
(c) Make loans to any partner, officer, director or shareholder of a
general partner or any guarantor of the Loan;
(d) Pay interest or principal on loans made to AM Resort or AMR Hotel
from a partner, officer or director of a general partner or any guarantor
of the Loan;
(e) Merge or be consolidated by, into or with any other business
entity;
(f) Acquire any business entity;
(g) Be acquired by any business entity;
(h) Substantially revise or restructure the ownership of Borrowers
which, for purposes of this Section 5.06(h), shall be defined to be any
change in majority control of either Borrower;
(i) Form, capitalize or acquire any subsidiary; or
(j) Make distributions to limited or general partners of Borrowers,
except for distributions sufficient to offset the income tax liabilities of
the partners due to income earned by Borrowers.
ARTICLE VI
EVENTS OF DEFAULT AND ACCELERATION
The entire unpaid principal of the Note, and the interest accrued thereon,
shall become immediately due and payable, without any notice or demand of any
kind or any presentment or protest, if any one of the following events
(hereinafter referred to as an "Event of Default") shall occur, whether
voluntarily or
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involuntarily, or without limitation occurring or brought about by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court or any order, rules or regulations of any administrative or governmental
body:
SECTION 6.01: NON-PAYMENT OF LOAN
If the Borrowers shall fail to make payment when due of any installment of
principal on the Note, or interest accrued thereon, and if the default shall
remain unremedied for twenty (20) days after the mailing of notice of such
default to Borrowers.
SECTION 6.02: NON-PAYMENT OF OTHER INDEBTEDNESS
If default shall be made in the payment when due of any installment of
principal or of interest on any of Borrowers' other indebtedness and if such
default shall remain unremedied for twenty (20) days after the mailing of notice
of such default to Borrowers.
SECTION 6.03: INCORRECT REPRESENTATION OR WARRANTY
Any representation or warranty contained in this Loan Agreement or in any
certificate furnished pursuant hereto, shall prove to have been incorrect when
made in any material respect.
SECTION 6.04: DEFAULT IN COVENANTS
The Borrowers shall default in the performance of any other term, covenant
or agreement contained in this Loan Agreement, and such default shall continue
unremedied for twenty (20) days after the mailing of notice of such default to
Borrowers.
SECTION 6.05: VOLUNTARY INSOLVENCY
The Borrowers shall become insolvent or shall cease to pay its debts as
they mature or shall voluntarily file a petition seeking reorganization of, or
the appointment of, a receiver, trustee or the pursuit of liquidation of the
Borrowers or a substantial portion of their assets, or to effect a plan or other
arrangements with creditors, or shall be adjudicated bankrupt, or shall make a
voluntary assignment for the benefit of creditors.
SECTION 6.06: INVOLUNTARY INSOLVENCY
If an involuntary petition shall be filed against the Borrowers under any
bankruptcy, insolvency or similar law seeking the reorganization of or the
appointment of any receiver, trustee or liquidator for the Borrowers, or of a
substantial part of the property of the Borrowers, or a writ or warrant of
attachment or similar process shall be issued against a substantial part of the
property of the Borrowers, and such petition shall not be dismissed, or such
writ or warrant of attachment or similar
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process shall not be released or bonded, within sixty (60) days after filing or
levy thereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01: WAIVER OF NOTICE
No failure or delay on the part of the Lender in exercising any right,
power or remedy shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof or the exercise of any other right, power or remedy hereunder. No
modification or waiver of any provision of this Loan Agreement or of the Note,
nor of any event will be effective unless the same shall be reduced to a
writing, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No notice to or demand
upon the Borrowers in any case shall entitle the Borrowers to any other or
further notice or demand in similar or other circumstances.
SECTION 7.02: NOTICES
All notices, consents, requests, demand and other communications hereunder
shall be in writing and shall be deemed to have been duly given to a party
hereto if mailed by certified mail, postage prepaid, to the Lender and the
Borrowers at the following addresses:
If to Lender: Vermont Economic Development Authority
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Borrowers: Ascutney Mountain Resort, L.P.
Attention: Xxxxx X. Xxxxxxxxxxx
P. O. Xxx 000
Xxxxxxxxxxx, XX 00000
Ascutney Mountain Resort Hotel, L.P.
Attention: Xxxxx X. Xxxxxxxxxxx
P. O. Xxx 000
Xxxxxxxxxxx, XX 00000
SECTION 7.03: SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All agreements, representations and warranties made by the Borrowers herein
or in any other document or certificate delivered to Lender in connection with
the transactions contemplated by this Loan Agreement shall survive the delivery
of this Agreement, the Note, the Mortgage Deed and the Security
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Agreement hereunder, and shall continue in full force and effect so long as the
Note is outstanding.
SECTION 7.04: SUCCESSORS AND ASSIGNS
This Loan Agreement shall be binding upon the Borrowers, their successors
and permitted assigns, provided however, that the Borrowers may not assign or
transfer any rights hereunder without the prior written consent of Lender. This
Agreement shall inure to the benefit of Lender, its successors and assigns, and,
except as otherwise expressly provided in particular provisions hereof, all
subsequent holders of the Note.
SECTION 7.05: COUNTERPARTS
This Loan Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 7.06: GOVERNING LAW
This Loan Agreement, the Note, the Security Agreements and Financing
Statements, the Mortgage Deed and each and every other document contemplated
hereby shall be deemed contracts made under the laws of the State of Vermont,
and for all purposes shall be construed in accordance with the laws of the State
of Vermont.
SECTION 7.07: ARTICLE AND SECTION HEADINGS
Article and section headings used in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
subscribed and their seals affixed as of the date and the year first above
written.
[signature]
----------------------
Witness
VERMONT ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ XXXX X. XXXXXX
-------------------------
Xxxx X. Xxxxxx, Manager
ASCUTNEY MOUNTAIN RESORT,
L.P., By its General partner,
Snowdance Ski Company
[signature] By: /s/ XXXXX X. XXXXXXXXXXX
--------------------- ---------------------------
Witness President and Duly
Authorized Agent of
Snowdance Ski Company
-00-
XXXXXXXX XXXXXXXX XXXXXX
HOTEL, L.P., By its General
Partner, Snowdance Hotel
Company
[signature] By: /s/ XXXXX X. XXXXXXXXXXX
--------------------- -------------------------------
Witness President and Duly
Authorized Agent of
Snowdance Hotel Company
-15-
AGREEMENT BETWEEN
VERMONT ECONOMIC DEVELOPMENT AUTHORITY,
XXXXX X. XXXXXXXXXXX, XXXXXX X. XXXXXXXXXXX,
SNOWDANCE SKI COMPANY AND SNOWDANCE HOTEL COMPANY
THIS AGREEMENT made as of the date and year hereinafter referred to by and
between Vermont Economic Development Authority ("VEDA"), Xxxxxx X. Xxxxxxxxxxx
and Xxxxx X. Xxxxxxxxxxx (collectively "Plausteiners"), Snowdance Ski Company
("Snowdance Ski") and Snowdance Hotel Company ("Snowdance Hotel").
WHEREAS, Ascutney Mountain Resort, L.P. and Ascutney Mountain Resort Hotel,
L.P. ("Borrowers") have applied to VEDA for a loan in the principal amount of
Four Hundred Thousand Dollars ($400,000.00) with interest at 5.5% and a term of
ten (10) years (the "Loan"); and
WHEREAS, as a condition precedent to making said loan, VEDA has required
Plausteiners, Snowdance Ski and Snowdance Hotel to guarantee payment of the
Promissory Note evidencing such loan (the "Note") and to comply with certain
requirements of the Loan Agreement entered into by and between Borrowers and
VEDA (the "Loan Agreement"); and
WHEREAS, Snowdance Ski is the general partner and Plausteiners are the
limited partners of Ascutney Mountain Resort, L.P., and Xxxxx Xxxxxxxxxxx is the
sole shareholder of Snowdance Ski; and
WHEREAS, Snowdance Hotel is the general partner and Plausteiners are the
limited partners of Ascutney Mountain Resort Hotel, L.P., and Xxxxx Xxxxxxxxxxx
is the sole shareholder of Snowdance Hotel;
NOW, THEREFORE, for and in consideration of One Dollar and Other Good and
Valuable Consideration paid to the Borrowers, Plausteiners, Snowdance Ski and
Snowdance Hotel by VEDA, and in order to induce VEDA to make the loan to
Borrowers, the parties hereto agree as follows:
1. Plausteiners agree to submit personal financial statements to VEDA
contemporaneous with execution of the within Agreement and annually within 90
days of the end of Borrowers' fiscal year, as long as the Note remains unpaid.
2. Snowdance Ski and Snowdance Hotel each agree to submit CPA reviewed
annual financial statements to VEDA contemporaneous with execution of the within
Agreement and annually within 90 days of the end of Borrowers' fiscal year, as
long as the Note remains unpaid.
3. Plausteiners, Snowdance Ski and Snowdance Hotel agree to comply with the
restrictions upon financial activities set forth in Section 5.06 of the Loan
Agreement and to be bound thereby.
4. Plausteiners, Snowdance Ski and Snowdance Hotel certify there has been
no unremedied material adverse change since the date of Borrowers' loan
application or loan approval in the financial condition of Plausteiners,
Snowdance Ski and Snowdance Hotel.
5. This Agreement shall be construed pursuant to and in accordance with the
laws of the State of Vermont, shall inure to the benefit of and bind the
successors and assigns of each of the
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parties hereto, and may be executed in several counterparts, each of which shall
constitute but one and the same original.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
this _____ day of May, 1994.
VERMONT ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ XXXX X. XXXXXX
------------------------
Xxxx X. Xxxxxx, Manager
/s/ XXXXXX X. XXXXXXXXXXX
-------------------------
Xxxxxx X. Xxxxxxxxxxx
/s/ XXXXX X. XXXXXXXXXXX
-------------------------
Xxxxx X. Xxxxxxxxxxx
SNOWDANCE SKI COMPANY
By: /s/ XXXXX X. XXXXXXXXXXX
-------------------------
Its President and Duly
Authorized Agent
SNOWDANCE HOTEL COMPANY
By: /s/ XXXXX X. XXXXXXXXXXX
-------------------------
Its President and Duly
Authorized Agent
3
TERM PROMISSORY NOTE
$400,000.00 West Windsor, Vermont
May 6, 1994
FOR VALUE RECEIVED, the undersigned, ASCUTNEY MOUNTAIN RESORT, L.P. and
ASCUTNEY MOUNTAIN RESORT HOTEL, L.P. ("Borrowers"), jointly and severally
promise to pay to VERMONT ECONOMIC DEVELOPMENT AUTHORITY ("Lender"), or order,
the principal sum of Four Hundred Thousand Dollars ($400,000.00) in lawful
currency of the United States of America, with interest thereon from the date
hereof until paid at the rate of five and five-tenths percent (5.5%) per annum,
in 120 equal monthly installments of $3,268.33 each, commencing on the 6th day
of June, 1994, and on the 6th day of each succeeding month thereafter until May
6, 2004, when the entire indebtedness evidenced by this Note, including accrued
interest, if not sooner paid, shall be due and payable in full.
Each of such installments shall be applied first in the payment of interest
and the remainder in the reduction of the principal amount of this note.
Payments shall be made at the office of the Lender in Montpelier, Vermont.
Borrowers reserve the right to prepay the principal sum outstanding, in
whole or in part, without incurring penalty, fine, interest or premium charge.
If default is made in the payment of any installment of principal or
interest due on this Note, or if default is made in the performance of any other
term, condition, provision or covenant of the Loan Agreement by and between
Borrowers and Lender of even date herewith (the "Loan Agreement"), or of any
Mortgage Deed or Security Agreement securing this Note, and if such default
continues for more than twenty (20) days after the mailing of notice thereof by
Lender to Borrowers, as set forth in the Loan Agreement, the entire unpaid
principal balance hereof and accrued thereon shall at once become due and
payable, without further notice. If default occurs in this Note, the undersigned
agrees to reimburse the Lender for all reasonable attorney's fees and expenses
and all other reasonable fees, costs and expenses incurred by Lender in
connection with the default, as provided in the Loan Agreement. Borrowers
further agree that all of the terms, conditions, provisions and covenants in the
Loan Agreement and other instruments executed and delivered as security for this
Note are incorporated herein by reference and made a part hereof, including, but
not limited to, events of default and the Lender's
rights as to acceleration of the indebtedness evidenced by this Note. Failure to
exercise any option provided for herein shall not constitute a waiver of such
right in the event of a subsequent default or the right to exercise same at any
other time.
All parties to this Note, whether principal, surety, guarantor, endorser or
accommodation maker, hereby waive presentment for payment, demand, protest,
notice of protest and notice of dishonor, and agree that the receipt of interest
in advance or the extension of time shall not relinquish or discharge any
endorser, surety, accommodation maker or guarantor of this Note.
This Note shall be governed as to validity, interpretation, construction of
fact and in all other respects by the laws of the State of Vermont. If any
provision of this Note should conflict with applicable law, such conflict shall
not affect other provisions which can be given effect without the conflicting
provision, and to this end the provisions of this Note are declared to be
severable.
NOTICE TO CO-SIGNER:
YOUR SIGNATURE TO THIS NOTE MEANS THAT YOU ARE EQUALLY LIABLE FOR REPAYMENT
OF THIS NOTE. IF THE BORROWERS DO NOT PAY, THE LENDER HAS A LEGAL RIGHT TO
COLLECT FROM YOU.
ASCUTNEY MOUNTAIN RESORT,
L.P., By its General Partner,
Snowdance Ski Company
/s/ By: /s/
------------------------- ---------------------------
Witness President and Duly
Authorized Agent of
Snowdance Ski Company
ASCUTNEY MOUNTAIN RESORT
HOTEL, L.P., By its General
Partner, Snowdance Hotel
Company
/s/ By:/s/
------------------------- ---------------------------
Witness President and Duly
Authorized Agent of
Snowdance Hotel Company
MORTGAGE DEED
KNOW ALL MEN BY THESE PRESENTS, that ASCUTNEY MOUNTAIN RESORT, L.P., a
limited partnership organized and existing under the laws of the State of
Delaware, with its principal place of business at West Windsor, in the County of
Windsor and State of Vermont ("Mortgagor"), in consideration of Ten and More
Dollars ($10.00) paid to it by VERMONT ECONOMIC DEVELOPMENT AUTHORITY, a body
corporate and politic and a public instrumentality of the State of Vermont,
organized and existing pursuant to Title 10 of Vermont Statutes Annotated,
Chapter 13, with a principal office in Montpelier, County of Washington, State
of Vermont, ("Mortgagee"), the receipt of which is hereby acknowledged, do
hereby GIVE, GRANT, BARGAIN, SELL AND CONVEY unto the Mortgagee, its successors
and assigns forever, the following described premises situated in West Windsor,
in the County of Windsor and State of Vermont, viz:
Being all those same lands and premises described in Schedule A attached
hereto and made a part hereof as if set forth at length and in full herein.
TO HAVE AND TO HOLD such property unto Mortgagee and Mortgagee's successors
and assigns forever, together with all improvements now or hereafter erected on
the property, and all easements, rights, appurtenances, rents, royalties,
interests, water, water rights, and all fixtures now or hereafter attached to
the property, all of which, including replacements and additions thereto, shall
be deemed to be and remain a part of the property covered by this Mortgage, and
all of the foregoing, together with said property, are all hereafter
collectively referred to as the "Property";
And further, the said Mortgagor, for itself and its successors and assigns,
does covenant with the said Mortgagee, its successors and assigns, that until
the ensealing of these presents it is the sole owner of the premises above
described and has good right and title to convey the same in the manner
aforesaid; and that it is FREE FROM EVERY ENCUMBRANCE, except as aforesaid, and
it does hereby engage to WARRANT AND DEFEND the same against all lawful claims
whatsoever, except as aforesaid.
THE CONDITION OF THIS DEED is that if the said Mortgagor or its successors
and assigns shall well and truly pay or cause to be paid VERMONT ECONOMIC
DEVELOPMENT AUTHORITY, its successors or assigns, the principal sum of Four
Hundred Thousand Dollars ($400,000.00), as specified in one note in that amount
of even date, the terms of which are herein incorporated by reference, and any
renewal, substitution or replacements thereof, together with accrued interest
and any other amounts required to be paid pursuant to the terms thereof ("the
Note"), and to secure to Mortgagee the full and faithful payment and performance
of each and all of the following when due:
(a) The repayment of all amounts advanced by Mortgagee to Mortgagor,
whether now outstanding or hereafter arising, and whether absolute or
contingent;
(b) The payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Mortgage;
(c) The performance of the covenants and agreements of Mortgagor in this
Mortgage;
(d) The performance by Mortgagor of all other present or future agreements,
covenants and contracts between Mortgagor and Mortgagee, however arising;
(e) Any and all other indebtedness, obligations and loans owed or
guaranteed by Mortgagor to Mortgagee, whether now existing or hereafter arising,
and whether absolute or contingent; and
(f) All attorney's fees and expenses and all fees and expenses of other
experts employed by Mortgagee hereunder.
All of the previously referred to present and future debts, covenants,
contracts and obligations of Mortgagor to Mortgagee are hereafter referred to as
the "Obligations".
And the Mortgagor further COVENANTS AND AGREES that:
1. Mortgagor shall promptly pay when due the principal of and interest on
the Note, and the indebtedness evidenced by the Obligations, together with any
prepayment and late charges as provided in the Obligations, and shall fully and
promptly perform when due all of Mortgagor's other duties under the Obligations.
2. Mortgagor shall keep the buildings and improvements now or hereafter
erected on the Property insured by fire and extended coverage insurance policies
issued by insurance companies authorized to do business in the State of Vermont
in an amount approved by Mortgagee, with Mortgagee named as Mortgagee under a
standard mortgage clause providing for payment to Mortgagee in the event of loss
despite any defenses insurer may ahve against Mortgagor and providing for
cancellation or non-renewal of the policy only upon ten days' prior written
notice to Mortgagee. Insurers are authorized to make payment of loss directly
to Mortgagee, and Mortgagor shall pay all insurance premiums on said policies.
In the event of loss, the Mortgagor shall
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immediately give notice by mail to the Mortgagee which may make proof of loss if
not promptly made by the Mortgagor.
3. Mortgagor shall pay all land lease rental, all local, municipal, county,
state and federal taxes and assessments, water rents, sewage charges and other
governmental or municipal charges or assessments levied upon the Property or
upon the interests of the Mortgagee in the Property, and in the event of default
thereof, the Mortgagee may (but without obligation to do so) pay the same and
any insurance premiums due under paragraph 2 hereof, and the same, when so paid
by the Mortgagee, shall, with interest at the rate of 10% per annum, be
immediately due and payable or, at the sole option of the Mortgagee, be added to
the principal of the Note.
4. Mortgagor shall not convey or attempt to convey any equitable, legal or
other interests in the Property encumbered by this Mortgage, except a prior and
senior mortgage heretofore granted by Mortgage and Security Agreement dated
February 23, 1994, to Fleet Bank-NH, which appears of record in Book 50, at
pages 178-202 of the Town of West Windsor Land Records.
5. No sale of the Property and no forbearance on the part of the Mortgagee
and no extension given by the Mortgagee of the time for the payment of the
indebtedness hereby secured shall operate to release, discharge, modify, change
or affect the original liability of the Mortgagor in whole or in part.
6. Mortgagor shall not suffer liens superior to the lien hereby created to
attach to or be enforced against the Property premises or any part thereof,
except that referred to above in paragraph 4 hereof, and will keep said premises
in as good repair, order and condition as they now are or hereafter may be put
into and will not commit nor permit any strip or waste of the Property or any
part thereof, reasonable use and wear excepted.
7. The Mortgagee may, at its sole option, advance and pay any sums of money
that in its judgment may be necessary in order that this Mortgage shall at all
times be a prior mortgage upon the Property, except the prior and senior
mortgage interest conveyed to Fleet Bank-NH, and any and all sums of money so
advanced shall, with interest at the rate of 10% per annum, be immediately due
and payable, or, at the sole option of the Mortgagee, be added to the principal
indebtedness secured by this Mortgage.
8. The Mortgagor will comply with the provisions of a Loan Agreement
entered into between the Mortgagor and Mortgagee herein dated of even date
herewith, the provisions of which are incorporated herein by reference, and with
the terms of any agreement, mortgage note or Mortgage and Security Agreement
entered into between the Mortgagor and Fleet Bank-NH.
9. If there shall be a default in the payment of any installment of
principal or interest of the Note or if there be a default in the due observance
or performance of any other covenant, condition or agreement contained in this
Mortgage or the Loan Agreement dated of even date herewith, and such default
continues for more than twenty (20) days after the mailing of the notice thereof
by the Mortgagee to the Mortgagor, addressed to Xxxxx X. Xxxxxxxxxxx, President,
Snowdance Ski Company, General Partner, Ascutney Mountain Resort, L.P., X.X. Xxx
000, Xxxxxxxxxxx XX 00000, or to such other address as Mortgagor may request in
writing, then the entire unpaid principal balance of the Note secured hereby and
accrued interest theron and any other amounts provided for herein shall at once
become due and payable without further notice, at the option of the Mortgagee.
In
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the event of such acceleration, the Mortgagee may immediately start
proceedings to protect its interest. If the Mortgagor defaults, it hereby agrees
to pay all the reasonable costs and charges of any such proceeding including,
but not limited to foreclosure proceedings, together with Mortgagee's reasonable
attorney's fees in excess of 2% of the amount of this Mortgage, if applicable.
10. Mortgagor hereby assigns to Mortgagee the rents of the Property and all
profits derived from any and all uses of the Property, including but not limited
to those derived from business and business conducted thereon, provided that
Mortgagor shall, prior to acceleration under paragraph 9 hereof, or abandonment
of the Property, have the right to collect and retain such rents and profits as
they become due and payable. Upon acceleration of the Note or any other
Obligation or abandonment of the Property, Mortgagee in person, by agent, or by
judicially appointed receiver, shall be entitled to enter upon, take possession
of and manage the Property and to lease the Property or any part thereof, and to
collect the said rents and profits of the Property, including those past due.
All rents and profits collected by Mortgagee or the receiver shall be applied
first to payment of the cost of management of the Property and collection of
rents and profits, including but not limited to reasonable receiver's fees,
premiums on receiver's bonds and reasonable attorney's fees, and then to the sum
secured by this Mortgage. Mortgagee and the receiver shall be liable to account
only for those rents and profits actually received; Mortgagor hereby consents to
the appointment of such receiver.
11. This Mortgage includes a power of sale in accordance with 12 V.S.A.
'SS' 4531 et seq.
NOW THEREFORE, if the Mortgagor shall well and truly pay all amounts as
specified hereunder and as above provided according to the tenor and effect of
this instrument and shall faithfully perform all the other conditions and
covenants contained in this Mortgage and in the Note and in the Loan Agreement
dated May , 1994, then this Mortgage shall be void; otherwise the same shall
remain in full force and virtue in law.
IN WITNESS WHEREOF, the said Mortgagor, ASCUTNEY MOUNTAIN RESORT, L.P., has
caused its name to be hereunto subscribed and its seal hereto affixed by its
President and Duly Authorized Agent, this day of May, 1994.
ASCUTNEY MOUNTAIN RESORT, L.P.
BY: SNOWDANCE SKI COMPANY, ITS
GENERAL PARTNER
___________________________
Witness By:________________________________
President and Duly
Authorized Agent of
Snowdance Ski Company
___________________________
Witness
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STATE OF VERMONT
WINDSOR COUNTY, SS.
At in said County this day of May, 1994, personally appeared Xxxxx
X. Xxxxxxxxxxx, President and Duly Authorized Agent of Snowdance Ski Company,
General Partner of Ascutney Mountain Resort, L.P., and she acknowledged the
foregoing instrument by her subscribed to be her free act and deed, and the free
act and deed of Ascutney Mountain Resort, L.P.
Before me,_________________________
Notary Public
DISCHARGE
Vermont Economic Development Authority, by its duly authorized agent,
hereby acknowledges satisfaction of the Mortgage Deed within, and the same is
discharged at , on , A.D., 19 .
_________________________ _______________________
Witness
_________________________ _______________________
Witness
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SCHEDULE A
----------
Legal Description - Resort
---------------------------
It being all and the same lands and premises with all rights appurtenant
thereto conveyed by virtue of a Trustee's Deed dated September 1, 1993 from Xxxx
X. Xxxxxx, III, Trustee to Ascutney Mountain Resort, L.P., recorded in Book 49
at Pages 85-91 of the West Windsor Land Records and described in particular as
follows:
The following real property being 743.51 acres, more or less, together with
all buildings and improvements thereon and any and all easements, licenses,
rights and interests therein or appurtenant thereto (including, without
limitation, the easements, licenses, rights and interests described
hereinbelow), located in the Town of West Windsor, County of Windsor, State of
Vermont being more particularly described and/or depicted on a survey dated
April 21, 1988, revised April 23, 1988, and May 10, 1988, prepared by Xxxxxxxxxx
Surveys of Brownsville, Vermont entitled "Land of Mt. Ascutney Associates,
Brownsville, Vermont" comprising 2 sheets, being Drawing No. 88-737 and Drawing
No. 88-737A, a mylar thereof recorded on Pages 176-177 of the West Windsor Map
Rack:
1. Xxxxxxx 0, 0, 0, 00, 00, 00, 00X, 00X, and 20. Containing 575.44
acres, more or less, with all buildings and improvements thereon situated,
located on the southerly side of Vermont Route #44 in West Windsor
(Brownsville), Vermont, and further being described and commonly referred
to as the Mt. Ascutney Ski Area, owned by Mt. Ascutney Associates by virtue
of a Warranty Deed dated September 28, 1984 from Mt. Ascutney Corporation,
recorded in Book 29 at Pages 16-23 of the West Windsor Land Records, and a
Corrective Warranty Deed dated November 14, 1984 from Mt. Ascutney
Corporation, recorded in Book 29 at Pages 166-173 of the West Windsor Land
Records, and by virtue of a Warranty Deed dated November 12, 1984 from Mt.
Ascutney Corporation, recorded in Book 29 at Pages 128-130 of the West
Windsor Land Records.
2. Parcel 2. Containing 2.54 acres, more or less, with building thereon
situated, and further being described as Xxx X-0 of the Sky Hawk Village
Development, so-called, at Mt. Ascutney, owned by Mt. Ascutney Associates
by virtue of a Warranty Deed dated December 31, 1986 from Xxx X. Xxxxxxxx
and Xxxxx X. Xxxxxxxx, recorded in Book 35 at Pages 346-347 of the West
Windsor Land Records.
3. Parcel 3. Containing 2.26 acres, more or less, and further being
described as Lot T-5 of the Ascutney Mountain Village Development,
so-called, owned by Mt. Ascutney Associates by virtue of a Quit-Claim Deed
dated April 1, 1985 from Xxxxx X. Xxxxx, recorded in Book 32 at Pages
23-24 of the West Windsor Land Records.
4. Parcel 4. Containing 2.24 acres, more or less, and further being
described as Lot T-1 of the Ascutney Mountain Village Development,
so-called, owned by Mt. Ascutney Associates by virtue of a Quit-Claim Deed
dated April 1, 1985 from Xxxxx X. Xxxxx, recorded in Book 32 at Pages 25-26
of the West Windsor Land Records.
5. Parcel 5. Containing .98 acres, more or less, and further being
described as Lot S-65 of the Sky Hawk Village Development, so-called, owned
by Mt. Ascutney Associates by virtue of a Warranty Deed dated September 28,
1984 from Mt. Ascutney Corporation, recorded in Book 29 at Pages 24-26 of
the West Windsor Land Records.
6. Parcel 7. Containing 1.09 acres, more or less, and further being
described as Lot S-45 of the Sky Hawk Village Development, so-called, owned
by Mt. Ascutney Associates by virtue of a Warranty Deed dated March 16,
1987 from Xxx X. Xxxxx, recorded in Book 36 at Pages 194-196 of the West
Windsor Land Records.
7. XxXxxxx Parcel. Containing 1.07 acres, more or less, and further
being described as Lot S-46 of the Sky Hawk Village Development, so-called,
owned by Mt. Ascutney Associates by virtue of a Warranty Deed dated October
3, 1988 from Xxxxxxx and Xxxx XxXxxxx, recorded in Book 41 at Pages 102-103
of the West Windsor Land Records.
8. XxXxxxxxx Parcel. Containing 1.05 acres, more or less, and further
being described as Lot S-47 of the Sky Hawk Village Development, so-called,
owned by Mt. Ascutney Associates by virtue of a Warranty Deed dated March
26, 1988 from Xxxxxxx X. and Xxxxx X. XxXxxxxxx, recorded in Book 39 at
Pages 422-424 of the West Windsor Land Records.
9. Parcels 14 and 15. Containing 95.26 acres, more or less, with
right-of-way appurtenant thereto, located on both sides of Town Road No. 40
in West Windsor, Vermont, and further being described as property owned by
Mt. Ascutney Associates by virtue of a Warranty Deed dated September 28,
1984 from Summit Ventures Incorporated, recorded in Book 29 at Pages 29-33
of the West Windsor Land Records, and a Corrective Warranty Deed dated
November 14, 1984 from Summit Ventures Incorporated, recorded in Book 29 at
Pages 161-165 of West Windsor Land Records.
10. Parcel 16. Containing 2.09 acres, more or less, and further being
described as Xxx Xx. 0 xx xxx Xxxxxxxx Xxxxxxxx Xxxxxxx Development,
so-called, owned by Mt. Ascutney Associates by virtue of a Warranty Deed
dated December 18, 1984 from Xxxxxx X. Xxxxx, recorded in Book 30 at Pages
1-2 of the West Windsor Land Records.
11. Parcels 17A and 17B. Containing a total of 3.15 acres, more or less,
and further being described as Lots No. 3 and 4 of the Ascutney Mountain
Village Development, so-called, owned by Mt. Ascutney Associates by virtue
of a Warranty Deed dated June 18, 1985 from Xxxxxxxxx X. Xxxxxxxxx Xxxxx,
recorded in Book 32 at Pages 140-142 of the West Windsor Land Records.
12. Xxxxxxx 00X, 00X, 00X, 00X, and 18E. Containing a total of 51.2
acres, more or less, and further being described as the property owned by
Mt. Ascutney
Associates by virtue of a Warranty Deed dated July 18, 1985 from Summit
Ventures Incorporated, recorded in Book 32 at Pages 218-221 of the West
Windsor Land Records.
13. Village Road, so-called. That portion of Village Road, so-called,
extending from State Aid Highway 2 to Sky Hawk Lane, so-called, containing
by estimate 3.5 acres, more or less.
14. Xxxxx Parcel. Containing 1.64 acres, more or less, and further being
described as the property owned by Mt. Ascutney Associates by virtue of a
Warranty Deed dated November 13, 1987 from Xxxxxxxx X. Xxxxx and Xxxxxxx X.
Xxxxx, recorded in Book 39 at Pages 425-426 of the West Windsor Land
Records.
15. Easement granted pursuant to a Warranty Deed dated September 28,
1984 from Mt. Ascutney Corporation, recorded in Book 29 at Pages 16-23 of
the West Windsor Land Records, and a Corrective Warranty Deed dated
November 14, 1984 from Mt. Ascutney Corporation, recorded in Book 29 at
Pages 166-173 of the West Windsor Land Records.
16. Right of Way granted pursuant to a Warranty Deed dated March 16,
1987 from Xxx X. Xxxxx, recorded in Book 36 at Pages 194-196 of the West
Windsor Land Records.
17. Right of Way granted pursuant to a Warranty Deed dated October 3,
1988 from Xxxxxxx and Xxxx XxXxxxx, recorded in Book 41 at Pages 102-103 of
the West Windsor Land Records.
18. Right of Way granted pursuant to a Warranty Deed dated March 26,
1988 from Xxxxxxx X. and Xxxxx X. XxXxxxxxx, recorded in Book 39 at Pages
422-424 of the West Windsor Land Records.
19. Any rights to the land within Town Road 40 granted pursuant to a
Warranty Deed dated September 28, 1984 from Summit Ventures Incorporated,
recorded in Book 29 at Pages 29-33 of the West Windsor Land Records, and a
Corrective Warranty Deed dated November 14, 1984 from Summit Ventures
Incorporated, recorded in Book 29 at Pages 161-165 of the West Windsor Land
Records.
20. Rights in land granted pursuant to a Warranty Deed dated July 18,
1985 from Summit Ventures Incorporated, recorded in Book 32 at Pages
218-221 of the West Windsor Land Records.
21. Easements and rights granted pursuant to a Warranty Deed, from Mt.
Ascutney Associates, to Mt. Ascutney Associates Realty Company, Inc., dated
December
17, 1984 and recorded in the West Windsor Land Records on December 20, 1984
in Book 29, pages 253-258.
22. Spring Rights granted pursuant to a Warranty Deed, dated as of May
26, 1961 from Xxxxxxx and Xxxxxxxx Xxxxxxx to Mt. Ascutney Ski Area, Inc.,
recorded in the West Windsor Land Records in Book 14, Page 126.
23. All real property, improvements, leases, licenses, easements, rights
of way, and such other interests of Trustee in, to or pertaining to lands
and premises of the Debtors known as the Mt. Ascutney Ski Area and Resort
a/k/a the Mt. Ascutney Ski Resort, but specifically excluding any real
property, improvements, leases, licenses, rights-of-way, and easements
granted by Trustee to:
(a) Ascutney Mountain Resort Hotel, L.P., a Delaware limited
partnership, pursuant to the terms of that certain Trustee's Deed
(Hotel) bearing even date herewith;
(b) Ascutney Mountain Resort Realty, L.P., a Delaware limited
partnership, pursuant to the terms of that certain Trustee's Deed
(Mountain's Edge), bearing even date herewith; and
(c) Ascutney Mountain Resort, L.P., a Delaware limited partnership,
pursuant to the terms of that certain Trustee's Deed (Sewerline),
bearing even date herewith.
The references contained in Paragraphs 1 through 12 and Paragraph 14 of
this Exhibit A to any deeds or the previous owner of the property or interests
described therein are included solely for reference purposes and do not, in any
way, modify or limit the legal description of the property or interests insured
hereby.
MORTGAGE DEED
KNOW ALL MEN BY THESE PRESENTS, that ASCUTNEY MOUNTAIN RESORT HOTEL, L.P.,
a limited hotel partnership organized and existing under the laws of the State
of Delaware, with its principal place of business at West Windsor, in the County
of Windsor and State of Vermont ("Mortgagor"), in consideration of Ten and More
Dollars ($10.00) paid to it by VERMONT ECONOMIC DEVELOPMENT AUTHORITY, a body
corporate and politic and a public instrumentality of the State of Vermont,
organized and existing pursuant to Title 10 of Vermont Statutes Annotated,
Chapter 13, with a principal office in Montpelier, County of Washington, State
of Vermont, ("Mortgagee"), the receipt of which is hereby acknowledged, do
hereby GIVE, GRANT, BARGAIN, SELL AND CONVEY unto the Mortgagee, its successors
and assigns forever, the following described premises situated in West Windsor,
in the County of Windsor and State of Vermont, viz:
Being all those same lands and premises described in Schedule A
attached hereto and made a part hereof as if set forth at length and in
full herein.
TO HAVE AND TO HOLD such property unto Mortgagee and Mortgagee's successors
and assigns forever, together with all improvements now or hereafter erected on
the property, and all easements, rights, appurtenances, rents, royalties,
interests, water, water rights, and all fixtures now or hereafter attached to
the property, all of which, including replacements and additions thereto, shall
be deemed to be and remain a part of the property covered by this Mortgage, and
all of the foregoing, together with said property, are all hereafter
collectively referred to as the "Property";
And further, the said Mortgagor, for itself and its successors and assigns,
does covenant with the said Mortgagee, its successors and assigns, that until
the ensealing of these presents it is the sole owner of the premises above
described and has good right and title to convey the same in the manner
aforesaid; and that it is FREE FROM EVERY ENCUMBRANCE, except as aforesaid, and
it does hereby engage to WARRANT AND DEFEND the same against all lawful claims
whatsoever, except as aforesaid.
THE CONDITION OF THIS DEED is that if the said Mortgagor or its successors
and assigns shall well and truly pay or cause to be paid to VERMONT ECONOMIC
DEVELOPMENT AUTHORITY, its successors or assigns, the principal sum of Four
Hundred Thousand Dollars ($400,000.00), as specified in one note in that amount
of even date, the terms of which are herein incorporated by reference, and any
renewal, substitution or replacements thereof, together with accrued interest
and any other amounts required to be paid pursuant to the terms thereof ("the
Note"), and to secure to Mortgagee the full and faithful payment and performance
of each and all of the following when due:
(a) The repayment of all amounts advanced by Mortgagee to Mortgagor,
whether now outstanding or hereafter arising, and whether absolute or
contingent;
(b) The payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Mortgage;
(c) The performance of the covenants and agreements of Mortgagor in
this Mortgage;
(d) The performance by Mortgagor of all other present or future
agreements, covenants and contracts between Mortgagor and Mortgagee,
however arising;
(e) Any and all other indebtedness, obligations and loans owed or
guaranteed by Mortgagor to Mortgagee, whether now existing or hereafter
arising, and whether absolute or contingent; and
(f) All attorney's fees and expenses and all fees and expenses of
other experts employed by Mortgagee hereunder.
All of the previously referred to present and future debts, covenants,
contracts and obligations of Mortgagor to Mortgagee are hereafter referred to as
the "Obligations".
And the Mortgagor further COVENANTS AND AGREES that:
1. Mortgagor shall promptly pay when due the principal of and interest
on the Note, and the indebtedness evidenced by the Obligations, together
with any prepayment and late charges as provided in the Obligations, and
shall fully and promptly perform when due all of Mortgagor's other duties
under the Obligations.
2. Mortgagor shall keep the buildings and improvements now or
hereafter erected on the Property insured by fire and extended coverage
insurance policies issued by insurance companies authorized to do business
in the State of Vermont in an amount approved by Mortgagee, with Mortgagee
named as Mortgagee under a standard mortgage clause providing for payment
to Mortgagee in the event of loss despite any defenses insurer may have
against Mortgagor and providing for cancellation or non-renewal of the
policy only upon ten days' prior written notice to Mortgagee. Insurers are
authorized to make payment of loss directly to Mortgagee, and Mortgagor
shall pay all insurance premiums on said policies. In the event of loss,
the Mortgagor shall
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immediately give notice by mail to the Mortgagee which may make proof of loss if
not promptly made by the Mortgagor.
3. Mortgagor shall pay all land lease rental, all local, municipal,
county, state and federal taxes and assessments, water rents, sewage
charges and other governmental or municipal charges or assessments levied
upon the Property or upon the interests of the Mortgagee in the Property,
and in the event of default thereof, the Mortgagee may (but without
obligation to do so) pay the same and any insurance premiums due under
paragraph 2 hereof, and the same, when so paid by the Mortgagee, shall,
with interest at the rate of 10% per annum, be immediately due and payable
or, at the sole option of the Mortgagee, be added to the principal of the
Note.
4. Mortgagor shall not convey or attempt to convey any equitable,
legal or other interests in the Property encumbered by this Mortgage,
except a prior and senior mortgage heretofore granted by Mortgage and
Security Agreement dated February 23, 1994, to Fleet Bank-NH, which appears
of record in Book 50, at pages 178-202 of the Town of West Windsor Land
Records.
5. No sale of the Property and no forbearance on the part of the
Mortgagee and no extension given by the Mortgagee of the time for the
payment of the indebtedness hereby secured shall operate to release,
discharge, modify, change or affect the original liability of the Mortgagor
in whole or in part.
6. Mortgagor shall not suffer liens superior to the lien hereby
created to attach to or be enforced against the Property premises or any
part thereof, except that referred to above in paragraph 4 hereof, and will
keep said premises in as good repair, order and condition as they now are
or hereafter may be put into and will not commit nor permit any strip or
waste of the Property or any part thereof, reasonable use and wear
excepted.
7. The Mortgagee may, at its sole option, advance and pay any sums of
money that in its judgment may be necessary in order that this Mortgage
shall at all times be a prior mortgage upon the Property, except the prior
and senior mortgage interest conveyed to Fleet Bank-NH, and any and all
sums of money so advanced shall, with interest at the rate of 10% per
annum, be immediately due and payable, or, at the sole option of the
Mortgagee, be added to the principal indebtedness secured by this Mortgage.
8. The Mortgagor will comply with the provisions of a Loan Agreement
entered into between the Mortgagor and Mortgagee herein dated of even date
herewith, the provisions of which are incorporated herein by reference, and
with the terms of any agreement, mortgage note or Mortgage and Security
Agreement entered into between the Mortgagor and Fleet Bank-NH.
9. If there shall be a default in the payment of any installment of
principal or interest of the Note, or if there be a default in the due
observance or performance of any other covenant, condition or agreement
contained in this Mortgage or the Loan Agreement dated of even date
herewith, and such default continues for more than twenty (20) days after
the mailing of the notice thereof by the Mortgagee to the Mortgagor,
addressed to Xxxxx X. Xxxxxxxxxxx, President, Snowdance Hotel Company,
General Partner, Ascutney Mountain Resort Hotel, L.P., X.X. Xxx 000,
Xxxxxxxxxxx, XX 00000, or to such other address as Mortgagor may request
in writing, then the entire unpaid principal balance of the Note secured
hereby and accrued interest thereon and any other amounts provided for
herein shall at once become due and payable without further notice, at the
option of the Mortgagee. In
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the event of such acceleration, the Mortgagee may immediately start
proceedings to protect its interest. If the Mortgagor defaults, it hereby
agrees to pay all the reasonable costs and charges of any such proceeding
including, but not limited to foreclosure proceedings, together with
Mortgagee's reasonable attorney's fees in excess of 2% of the amount of
this Mortgage, if applicable.
10. Mortgagor hereby assigns to Mortgagee the rents of the Property
and all profits derived from any and all uses of the Property, including
but not limited to those derived from business and business conducted
thereon, provided that Mortgagor shall, prior to acceleration under
paragraph 9 hereof, or abandonment of the Property, have the right to
collect and retain such rents and profits as they become due and payable.
Upon acceleration of the Note or any other Obligation or abandonment of the
Property, Mortgagee in person, by agent, or by judicially appointed
receiver, shall be entitled to enter upon, take possession of and manage
the Property and to lease the Property or any part thereof, and to collect
the said rents and profits of the Property, including those past due. All
rents and profits collected by Mortgagee or the receiver shall be applied
first to payment of the cost of management of the Property and collection
of rents and profits, including but not limited to reasonable receiver's
fees, premiums on receiver's bonds and reasonable attorney's fees, and then
to the sum secured by this Mortgage. Mortgagee and the receiver shall be
liable to account only for those rents and profits actually received;
Mortgagor hereby consents to the appointment of such receiver.
11. This Mortgage includes a power of sale in accordance with 12
V.S.A. 'SS' 4531 et seq.
NOW THEREFORE, if the Mortgagor shall well and truly pay all amounts as
specified hereunder and as above provided according to the tenor and effect of
this instrument and shall faithfully perform all the other conditions and
covenants contained in this Mortgage and in the Note and in the Loan Agreement
dated May __, 1994, then this Mortgage shall be void; otherwise the same shall
remain in full force and virtue in law.
IN WITNESS WHEREOF, the said Mortgagor, ASCUTNEY MOUNTAIN RESORT HOTEL,
L.P., has caused its name to be hereunto subscribed and its seal hereto affixed
by its President and Duly Authorized Agent, this ___ day of May, 1994.
ASCUTNEY MOUNTAIN RESORT
HOTEL, L.P.
By: SNOWDANCE HOTEL COMPANY,
ITS GENERAL PARTNER
__________________________________ By: __________________________________
Witness President and Duly
Authorized Agent of
Snowdance Hotel Company
__________________________________
Witness
-4-
STATE OF VERMONT
WINDSOR COUNTY, SS.
At ________________________ in said County this ______ day of May, 1994,
personally appeared Xxxxx X. Xxxxxxxxxxx, President and Duly Authorized Agent of
Snowdance Hotel Company, General Partner of Ascutney Mountain Resort Hotel,
L.P., and she acknowledged the foregoing instrument by her subscribed to be her
free act and deed, and the free act and deed of Ascutney Mountain Resort Hotel,
L.P.
Before me, ______________________________
Notary Public
DISCHARGE
Vermont Economic Development Authority, by its duly authorized agent,
hereby acknowledges satisfaction of the Mortgage Deed within, and the same is
discharged at ___________________, on ______________________, A.D., 19___.
__________________________________ __________________________________
Witness
__________________________________ __________________________________
Witness
-5-
SCHEDULE A
Legal Description - Hotel
It being all and the same lands and premises with all rights appurtenant
thereto conveyed by virtue of a Trustee's Deed dated September 1, 1993 from Xxxx
X. Xxxxxx, III, Trustee to Ascutney Mountain Resort Hotel, L.P., recorded in
Book 49 at Pages 92-102 of the West Windsor Land Records and described in
particular as follows:
The following real property, together with any and all easements, licenses,
rights and interest therein or appurtenant thereto (including, without
limitation, the easements, licenses, rights and interests described
hereinbelow), located in the Town of West Windsor, County of Windsor, State of
Vermont:
The parcel shown as "Phase I - Mt. Ascutney Assoc. Realty Co., Inc."
on a survey dated April 21, 1988, revised April 23, 1988, and May 10, 1988,
prepared by Xxxxxxxxxx Surveys of Brownsville, Vermont entitled "Land of
Mt. Ascutney Associates, Brownsville, Vermont" comprising 2 sheets, being
Drawing No. 88-737 and Drawing No. 88-737A, a mylar thereof recorded on
Pages 176-177 of the West Windsor Map Rack, together with buildings and
improvements thereon situated, and further being described as the property
depicted on a survey dated December 7, 1984, revised December 13, 1984,
prepared by Xxxxxxxxxx Surveys of Brownsville, Vermont, Xxxxxx X.
Xxxxxxxxxx, Registered Land Surveyor, entitled "Property Survey for Mt.
Ascutney Associates - Mt. Ascutney Ski Area - Phase I (Built-Up Area) -
Brownsville, West Windsor, Vermont", Drawing No. 84-455-B, a mylar thereof
recorded at Page 135 of the West Windsor Map Rack, comprising two parcels
of land containing 25.9 acres, more or less (Site "A") and 3.2 acres, more
or less (Site "B"), together with that portion of Village Road, so-called,
situated between Sites "A" and "B" containing .7 acre, more or less,
totalling 29.8 acres, more or less, formerly owned by Mt. Ascutney
Associates Realty Company, Inc. by virtue of a Warranty Deed dated December
17, 1984 from Mt. Ascutney Associates, recorded in Book 29 at Pages 253-258
of the West Windsor Land Records.
Reference may also be made to a Termination of Declaration of Mt. Ascutney
Hotel Condominium dated January 12, 1994, recorded in Book 50 at Pages 35-36 of
the West Windsor Land Records, wherein the Declaration of Mt. Ascutney Hotel
Condominium dated December 17, 1984, recorded in Book 29 at Pages 282-318 of the
West Windsor Land Records was terminated.
SECURITY AGREEMENT
THIS AGREEMENT made this 6th day of May, 1994, under the laws of the State
of Vermont, between Ascutney Mountain Resort Hotel, L.P. ("Debtor"), whose
mailing address is P. O. Xxx 000, Xxxxxxxxxxx, XX 00000, and Vermont Economic
Development Authority ("Secured Party"), whose address is 00 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx;
W I T N E S S E T H
1. To secure the payment of an indebtedness in the amount of $400,000.00 as
evidenced by a note in the principal amount of $400,000.00 with interest at five
and five-tenths percent (5.5%) per annum for a term of ten (10) years (the
"Note"), and also to secure any other indebtedness or liability of the Debtor to
the Secured Party, direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, including all future advances or loans
which may be made at the option of the Secured Party ("Obligations"), Debtor
hereby grants and conveys to the Secured Party a security interest in, and
mortgages to the Secured Party,
(a) the property described in the schedule herein ("collateral"),
which collateral the Debtor represents will be used primarily in business;
(b) all property, goods and chattels of the same classes as those
scheduled, acquired by the Debtor subsequent to the execution of this
Agreement and prior to its termination;
(c) all proceeds, if any;
(d) all increases, substitutions, replacements, additions and
accessions thereto.
2. DEBTOR WARRANTS, COVENANTS AND AGREES AS FOLLOWS:
(a) Payment. To pay and perform all of the Obligations secured by this
Agreement according to their terms;
(b) Defend Title. To defend the title to the collateral against all
persons and against all claims and demands whatsoever, which collateral is
lawfully owned by the Debtor and is now free and clear of all liens,
security interests, claims, charges, encumbrances, taxes and assessments
except as may be set forth in the schedule;
(c) Assurance of Title. On demand of the secured party to:
i. furnish further assurance of title;
ii. execute any written agreement or do any other acts necessary
to effectuate the purposes and provisions of this Agreement;
iii. execute any instrument or statement required by law or
otherwise in order to perfect, continue or terminate the security
interest of the Secured Party in the collateral; and
iv. pay all costs of filing in connection therewith;
(d) Possession. To retain possession of the collateral during the
existence of this Agreement and not to sell, exchange, assign, loan,
deliver, lease, mortgage or otherwise dispose of same without the written
consent of the Secured Party except as may be set forth in the schedule;
-2-
(e) Location. To keep the collateral at the location identified as
Xxxxx 00, Xxxxxxxxxxx, XX 00000, and not to remove same (except in the
usual course of business for temporary periods) without the prior written
consent of the Secured Party;
(f) Liens. To keep the collateral free and clear of all liens,
charges, encumbrances, taxes and assessments, except the prior lien of
Fleet Bank-NH in the principal amount of $1,250,000, or as expressly agreed
to in writing by Lender provided, however, that any such lien, charge,
encumbrance or assessment which Debtor is actively contesting or making a
diligent effort to remove shall not be construed to be in violation of this
paragraph (f);
(g) Taxes. To pay, when due, all taxes, assessments and license fees
relating to the collateral provided, however, that any such tax, assessment
or license fee which Debtor is actively contesting, appealing or
challenging pursuant to statute shall not be construed to be in violation
of paragraph (g);
(h) Repairs. To keep the collateral, at Debtor's own cost and expense,
in working order and not to misuse, abuse or waste it or allow it to
deteriorate except for normal wear and tear and to make it and the books of
the Corporation available for inspection by the Secured Party at the
location specified in the schedule at all reasonable times and upon
reasonable notice;
(i) Insurance. To keep the collateral insured against loss by fire and
extended coverage, theft and other hazards as the Secured Party may
require. Policies shall be in such
-3-
form and amounts and with such companies as the Secured Party may designate
and the policies shall be obtained from responsible insurers authorized and
licensed to engage in the insurance business in the State of Vermont.
Certificates of insurance or policies shall name the Secured Party as an
additional insured as the holder of a security interest and shall be
deposited with the Secured Party who is authorized, but under no duty, to
obtain such insurance upon failure of the Debtor to do so. Policies shall
provide that there will be no cancellation or non-renewal without at least
thirty (30) days notice in writing to the Secured Party and that any
defenses the insurer may have against the Debtor will not be defenses
against the Secured Party. Debtor shall give immediate written notice to
the Secured Party and to insurers of loss or damage to the collateral and
shall promptly file proofs of loss with insurers. In the event of default
by Debtor as defined in Section 3(e), Debtor agrees to appoint the Secured
Party the attorney-in-fact for the Debtor in obtaining, adjusting and
canceling any such insurance and endorsing settlement drafts and agrees to
assign to the Secured Party all sums which may become payable under such
insurance, including return premiums and dividends, as additional security
for the indebtedness. At least twenty (20) days before the termination date
of any fire and extended coverage insurance policies covering all secured
property, Debtor shall provide Lender evidence that the policies are being
renewed or new policies will be in force on the termination date;
-4-
(j) Use of Loan Proceeds. To use the proceeds of the loan to pay part
of the purchase price of the machinery and equipment to be purchased with
the proceeds of the loans by Secured Party and Fleet Bank-NH ("Bank"), and
other costs incidental thereto as represented by Debtor in its application;
(k) Change of Address. To immediately notify the Secured Party in
writing of any change in or discontinuance of Debtor's place or places of
business and/or residence;
(1) Affixed to Realty. If the collateral has been attached to or is to
be attached to real estate, to provide a description of the real estate and
the name and address of the record owner as set forth in the schedule
herein; if the said collateral is attached to real estate prior to the
perfection of the security interest granted hereby, Debtor will, on demand
of the Secured Party, furnish the latter with a disclaimer or disclaimers,
signed by all persons having an interest in the real estate, of any
interest in the collateral which is prior to Secured Party's interest.
3. GENERAL PROVISIONS:
(a) Notes. Notes, if any, executed in connection with this Agreement,
are separate instruments and may be negotiated by the Secured Party without
releasing Debtor, the collateral or any guarantor or co-maker. Debtor
consents to any extension of time of payment. If there be more than one
Debtor, guarantor or co-maker of this Agreement or of Notes secured hereby,
the obligation of all shall be primary, joint and several;
-5-
(b) Non-Waiver. Waiver of, or acquiescence in, any default by the
Debtor, or failure of the Secured Party to insist upon strict performance
by the Debtor of any warranties or agreements in this Security Agreement,
shall not constitute a waiver of any subsequent or other default or
failure;
(c) Notices. Notices to either party shall be in writing and shall be
delivered personally or by mail addressed to the party at the address
herein set forth or otherwise designated in writing;
(d) Law Applicable. The Vermont Uniform Commercial Code shall govern
the rights, duties and remedies of the parties, and any provisions herein
declared invalid under any law shall not invalidate this Agreement or any
other provision thereof;
(e) Default. The following shall constitute a default by Debtor:
i. Non-Payment. Failure to pay the principal or interest on the
Note or any indebtedness owed to Secured Party when due;
ii. Violation. Failure by Debtor to comply with or perform any
provision of this Agreement, the Loan Agreement, the Note or mortgage
between Secured Party and Debtor, or loan agreements, notes, mortgages
or security agreements between Bank and Debtor;
iii. Misrepresentation. False or misleading representations or
warranties made by Debtor in this Agreement;
iv. Levy. Subjection of the collateral to levy of execution or
other judicial process;
v. Bankruptcy or Other Insolvency Proceedings. The Debtor making
a general assignment for the benefit of creditors, or filing a
petition in voluntary bankruptcy or seeking a reorganization or
consenting to
-6-
the appointment of a receiver of its property or allowing a petition
against it seeking declaration of bankruptcy or insolvency and the
failure by Debtor to vacate same within 60 days after the filing of
said petition;
vi. Liquidation. Liquidation or termination of the legal
existence of the Debtor or the death of both individual guarantors of
the Debtor's obligations;
vii. Impairment of Security. Any substantial reduction in the
value of the collateral or any act of the Debtor which substantially
imperils the prospect of full performance or satisfaction of the
Debtor's Obligations herein;
(f) Remedies on Default.
i. Acceleration. Upon default by the Debtor as defined hereunder,
and if such default shall remain unremedied for twenty (20) days after
notice of default is mailed to Debtor, then the Secured Party may at
its option declare all of the Obligations of this Agreement and the
Note secured hereby immediately due and payable without further
notice. In the event of default and in the event of acceleration, the
Secured Party shall have all the rights, remedies and privileges with
respect to repossession, retention and sale of the collateral and
disposition of the proceeds as are accorded to a secured party by the
applicable sections of the Uniform Commercial Code respecting
"Default" in effect as of the date of this Security Agreement;
ii. Attorneys' Fees, etc. Upon any default, the Secured Party
may consult an attorney and Debtor agrees to reimburse Secured Party
for all reasonable attorneys' fees and expenses as provided in the
Loan Agreement of even date between the Debtor and the Secured Party
and the legal and other expenses for pursuing, searching for,
receiving, taking, keeping, storing, advertising and selling the
collateral;
iii. Deficiency. The Debtor shall remain liable for any
deficiency resulting from a sale of the collateral and shall pay any
such deficiency forthwith on demand;
iv. Monies Advanced. If the Debtor shall default in the
performance of any of the provisions of this Agreement on the Debtor's
part to be performed, the Secured Party may perform same for the
Debtor's account and any monies expended in so doing shall be
chargeable with interest to the Debtor and added to the indebtedness
secured hereby;
-7-
v. Seizure. Assembling Collateral and Notice of Sale. In
conjunction with, addition to or substitution for those rights, the
Secured Party, at its discretion, may in a commercially reasonable
fashion: (1) enter upon Debtor's premises peaceably by the Secured
Party's own means or with legal process and take possession of the
collateral, or render it unusable, or dispose of the collateral on the
Debtor's premises and the Debtor agrees not to resist or interfere;
(2) require Debtor to assemble the collateral and make it available to
the Secured Party at a place to be designated by the Secured Party,
reasonably convenient to both parties (Debtor agrees that the Secured
Party's address as set forth above is a place reasonably convenient
for such assembling). Unless the collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a
recognized market, Secured Party will give Debtor reasonable notice of
the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to
be made. The requirements of reasonable notice will be met if such
notice is mailed, postage prepaid, to the address of the Debtor shown
above, at least three days before the time or sale or disposition;
(g) Assignment. The Secured Party may assign this Agreement and if
assigned the assignee shall be entitled, upon notifying the Debtor, to the
performance of all of Debtor's Obligations and agreements hereunder and the
assignee shall be entitled to all of the rights and remedies of the Secured
Party hereunder. Debtor will not assert against the assignee any claims or
defenses which the Debtor may have against the Secured Party. The Debtor
shall not assign this Agreement without the written consent of Secured
Party;
(h) Financing Statement. The Secured Party is hereby authorized to
file a Financing Statement;
(i) Captions. The Captions are inserted only as a matter of
convenience and for reference and in no way
-8-
define, limit or describe the scope of this Agreement nor the intent of any
provision thereof.
(j) Binding and Benefit. The terms, warranties and agreements herein
contained shall bind and inure to the benefit of the respective parties
hereto, and their respective legal representatives, successors and assigns.
(k) Miscellaneous. The gender and number used in this Agreement are
used as a reference term only and shall apply with the same effect whether
the parties are of the masculine or feminine gender, corporate or other
form, and the singular shall likewise include the plural. This Agreement
shall be construed pursuant to the laws of the State of Vermont.
IN WITNESS WHEREOF, the Parties have respectively signed these presents the
day and year first above written.
SECURED PARTY: VERMONT ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ XXXX X. XXXXXX
______________________________________
Xxxx X. Xxxxxx, Manager
DEBTOR: ASCUTNEY MOUNTAIN RESORT HOTEL,
L.P., by its General Partner,
Snowdance Hotel Company
By:
______________________________________
President and Duly
Authorized Agent of
Snowdance Hotel Company
-9-
SCHEDULE A TO SECURITY AGREEMENT
Ascutney Mountain Resort Hotel, L.P., Debtor
Vermont Economic Development Authority, Secured Party
This Security Agreement includes all right, title, estate and interest of
the Debtor in, to and under all of the following described property, whether now
owned by or owing to, or hereafter acquired by or arising in favor of, Debtor,
wherever located:
All fixtures as defined in the Uniform Commercial Code for the State
of Vermont (the "Code") in which Debtor now or hereafter has any interest,
to the extent of that interest, including, without limitation, all of the
fixtures, systems, machinery, apparatus, equipment and fittings of every
kind and nature whatsoever and all appurtenances and additions thereto and
substitutions or replacements thereof, now or hereafter attached or affixed
to or constituting a part of, or located in or upon, the Debtor's lands and
premises located on Route 44 in West Windsor, Vermont, including, without
limitation, all heating, electrical, mechanical, lighting, lifting,
plumbing, ventilating, air conditioning and air cooling, refrigerating,
incinerating, power, loading and unloading systems or apparatus, signs,
escalators, elevators, boilers, communication systems or apparatus,
switchboards, sprinkler and other fire prevention and extinguishing
fixtures, systems, machinery, apparatus and equipment, and all engines,
motors, turbines, dynamos, machinery, pipes, pumps, tanks, conduits and
ducts constituting a part of any of the foregoing;
All equipment (as defined in the Code) in which Debtor now or
hereafter has any interest, to the extent of that interest, including, but
not limited to, machinery, tools, office machines and equipment, computers
and appliances;
All inventory (as defined in the Code) in which Debtor now or
hereafter has any interest, to the extent of that interest, including,
without limitation, all inventory, merchandise, goods and other personal
property which are held by or on behalf of the Debtor for sale or lease or
are furnished or are to be furnished under a contract of service or which
constitute raw materials, work in process or materials used or consumed or
to be used or consumed in the Debtor's business, or the processing,
packaging, promotion, delivery or shipping of the same, and all finished
goods;
All other goods and personal property in which the Debtor has any
interest, to the extent of that interest, whether now or hereafter owned or
existing, leased, consigned by or to or acquired by Debtor, and wherever
located and miscellaneous property of whatsoever nature which are now or
may from time to time be incorporated in or
installed in or attached to or otherwise made part of or used in connection
with the Debtor's lands and premises located on Xxxxx 00, Xxxx Xxxxxxx,
Xxxxxxx;
All accounts and accounts receivable (as defined in the Code) in which
the Debtor now or hereafter has any interest, to the extent of that
interest, including any right of Borrower to payment for goods sold or
leased or for services rendered; all contract rights (as defined in the
Code) in which the Debtor now or hereafter has any interest; all general
intangibles (as defined in the Code) in which the Debtor now or hereafter
has any interest, to the extent of that interest;
All proceeds and products of the foregoing, including, without
limitation, (i) proceeds resulting from voluntary or involuntary
dispositions thereof and including, but not limited to, all property of any
type (including without limitation all accounts, chattel paper, deposit
accounts, instruments, equipment, inventory, consumer goods, farm products,
documents and general intangibles) that is acquired with any cash proceeds,
and (ii) all guarantees, insurance and rights against sureties Debtor may
have in connection therewith and all proceeds and products relating thereto
or therefrom, and all Debtor's right, title and interest in and to
additions, accessions, replacements and substitutions to and for the
foregoing, and all documents, ledger sheets and files of Debtor relating
thereto.
SECURITY AGREEMENT
THIS AGREEMENT made this 6th day of May, 1994, under the laws of the State
of Vermont, between Ascutney Mountain Resort, L.P. ("Debtor"), whose mailing
address is P. O. Xxx 000, Xxxxxxxxxxx, XX 00000, and Vermont Economic
Development Authority ("Secured Party"), whose address is 00 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx;
W I T N E S S E T H
1. To secure the payment of an indebtedness in the amount of $400,000.00 as
evidenced by a note in the principal amount of $400,000.00 with interest at
five and five-tenths percent (5.5%) per annum for a term of ten (10) years (the
"Note"), and also to secure any other indebtedness or liability of the Debtor to
the Secured Party, direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, including all future advances or loans
which may be made at the option of the Secured Party ("Obligations"), Debtor
hereby grants and conveys to the Secured Party a security interest in, and
mortgages to the Secured Party,
(a) the property described in the schedule herein ("collateral"),
which collateral the Debtor represents will be used primarily in business;
(b) all property, goods and chattels of the same classes as those
scheduled, acquired by the Debtor subsequent to the execution of this
Agreement and prior to its termination;
(c) all proceeds, if any;
(d) all increases, substitutions, replacements, additions and
accessions thereto.
2. DEBTOR WARRANTS, COVENANTS AND AGREES AS FOLLOWS:
(a) Payment. To pay and perform all of the Obligations secured by this
Agreement according to their terms;
(b) Defend Title. To defend the title to the collateral against all
persons and against all claims and demands whatsoever, which collateral is
lawfully owned by the Debtor and is now free and clear of all liens,
security interests, claims, charges, encumbrances, taxes and assessments
except as may be set forth in the schedule;
(c) Assurance of Title. On demand of the secured party to:
i. furnish further assurance of title;
ii. execute any written agreement or do any other acts necessary
to effectuate the purposes and provisions of this Agreement;
iii. execute any instrument or statement required by law or
otherwise in order to perfect, continue or terminate the security
interest of the Secured Party in the collateral; and
iv. pay all costs of filing in connection therewith;
(d) Possession. To retain possession of the collateral during the
existence of this Agreement and not to sell, exchange, assign, loan,
deliver, lease, mortgage or otherwise dispose of same without the written
consent of the Secured Party except as may be set forth in the schedule;
-2-
(e) Location. To keep the collateral at the location identified as
Xxxxx 00, Xxxxxxxxxxx, XX 00000, and not to remove same (except in the
usual course of business for temporary periods) without the prior written
consent of the Secured Party;
(f) Liens. To keep the collateral free and clear of all liens,
charges, encumbrances, taxes and assessments, except the prior lien of
Fleet Bank-NH in the principal amount of $1,250,000, or as expressly agreed
to in writing by Lender provided, however, that any such lien, charge,
encumbrance or assessment which Debtor is actively contesting or making a
diligent effort to remove shall not be construed to be in violation of this
paragraph (f);
(g) Taxes. To pay, when due, all taxes, assessments and license fees
relating to the collateral provided, however, that any such tax, assessment
or license fee which Debtor is actively contesting, appealing or
challenging pursuant to statute shall not be construed to be in violation
of paragraph (g);
(h) Repairs. To keep the collateral, at Debtor's own cost and expense,
in working order and not to misuse, abuse or waste it or allow it to
deteriorate except for normal wear and tear and to make it and the books of
the Corporation available for inspection by the Secured Party at the
location specified in the schedule at all reasonable times and upon
reasonable notice;
(i) Insurance. To keep the collateral insured against loss by fire and
extended coverage, theft and other hazards as the Secured Party may
require. Policies shall be in such
-3-
form and amounts and with such companies as the Secured Party may designate
and the policies shall be obtained from responsible insurers authorized and
licensed to engage in the insurance business in the State of Vermont.
Certificates of insurance or policies shall name the Secured Party as an
additional insured as the holder of a security interest and shall be
deposited with the Secured Party who is authorized, but under no duty, to
obtain such insurance upon failure of the Debtor to do so. Policies shall
provide that there will be no cancellation or non-renewal without at least
thirty (30) days notice in writing to the Secured Party and that any
defenses the insurer may have against the Debtor will not be defenses
against the Secured Party. Debtor shall give immediate written notice to
the Secured Party and to insurers of loss or damage to the collateral and
shall promptly file proofs of loss with insurers. In the event of default
by Debtor as defined in Section 3(e), Debtor agrees to appoint the Secured
Party the attorney-in-fact for the Debtor in obtaining, adjusting and
canceling any such insurance and endorsing settlement drafts and agrees to
assign to the Secured Party all sums which may become payable under such
insurance, including return premiums and dividends, as additional security
for the indebtedness. At least twenty (20) days before the termination date
of any fire and extended coverage insurance policies covering all secured
property, Debtor shall provide Lender evidence that the policies are being
renewed or new policies will be in force on the termination date;
-4-
(j) Use of Loan Proceeds. To use the proceeds of the loan to pay part
of the purchase price of the machinery and equipment to be purchased with
the proceeds of the loans by Secured Party and Fleet Bank-NH ("Bank"), and
other costs incidental thereto as represented by Debtor in its application;
(k) Change of Address. To immediately notify the Secured Party in
writing of any change in or discontinuance of Debtor's place or places of
business and/or residence;
(1) Affixed to Realty. If the collateral has been attached to or is to
be attached to real estate, to provide a description of the real estate and
the name and address of the record owner as set forth in the schedule
herein; if the said collateral is attached to real estate prior to the
perfection of the security interest granted hereby, Debtor will, on demand
of the Secured Party, furnish the latter with a disclaimer or disclaimers,
signed by all persons having an interest in the real estate, of any
interest in the collateral which is prior to Secured Party's interest.
3. GENERAL PROVISIONS:
(a) Notes. Notes, if any, executed in connection with this Agreement,
are separate instruments and may be negotiated by the Secured Party without
releasing Debtor, the collateral or any guarantor or co-maker. Debtor
consents to any extension of time of payment. If there be more than one
Debtor, guarantor or co-maker of this Agreement or of Notes secured hereby,
the obligation of all shall be primary, joint and several;
-5-
(b) Non-Waiver. Waiver of, or acquiescence in, any default by the
Debtor, or failure of the Secured Party to insist upon strict performance
by the Debtor of any warranties or agreements in this Security Agreement,
shall not constitute a waiver of any subsequent or other default or
failure;
(c) Notices. Notices to either party shall be in writing and shall be
delivered personally or by mail addressed to the party at the address
herein set forth or otherwise designated in writing;
(d) Law Applicable. The Vermont Uniform Commercial Code shall govern
the rights, duties and remedies of the parties, and any provisions herein
declared invalid under any law shall not invalidate this Agreement or any
other provision thereof;
(e) Default. The following shall constitute a default by Debtor:
i. Non-Payment. Failure to pay the principal or interest on the
Note or any indebtedness owed to Secured Party when due;
ii. Violation. Failure by Debtor to comply with or perform any
provision of this Agreement, the Loan Agreement, the Note or mortgage
between Secured Party and Debtor, or loan agreements, notes, mortgages
or security agreements between Bank and Debtor;
iii. Misrepresentation. False or misleading representations or
warranties made by Debtor in this Agreement;
iv. Levy. Subjection of the collateral to levy of execution or
other judicial process;
v. Bankruptcy or Other Insolvency Proceedings. The Debtor making
a general assignment for the benefit of creditors, or filing a
petition in voluntary bankruptcy or seeking a reorganization or
consenting to
-6-
the appointment of a receiver of its property or allowing a petition
against it seeking declaration of bankruptcy or insolvency and the
failure by Debtor to vacate same within 60 days after the filing of
said petition;
vi. Liquidation. Liquidation or termination of the legal
existence of the Debtor or the death of both individual guarantors of
the Debtor's obligations;
vii. Impairment of Security. Any substantial reduction in the
value of the collateral or any act of the Debtor which substantially
imperils the prospect of full performance or satisfaction of the
Debtor's Obligations herein;
(f) Remedies on Default.
i. Acceleration. Upon default by the Debtor as defined hereunder,
and if such default shall remain unremedied for twenty (20) days after
notice of default is mailed to Debtor, then the Secured Party may at
its option declare all of the Obligations of this Agreement and the
Note secured hereby immediately due and payable without further
notice. In the event of default and in the event of acceleration, the
Secured Party shall have all the rights, remedies and privileges with
respect to repossession, retention and sale of the collateral and
disposition of the proceeds as are accorded to a secured party by the
applicable sections of the Uniform Commercial Code respecting
"Default" in effect as of the date of this Security Agreement;
ii. Attorneys' Fees, etc. Upon any default, the Secured Party
may consult an attorney and Debtor agrees to reimburse Secured Party
for all reasonable attorneys' fees and expenses as provided in the
Loan Agreement of even date between the Debtor and the Secured Party
and the legal and other expenses for pursuing, searching for,
receiving, taking, keeping, storing, advertising and selling the
collateral;
iii. Deficiency. The Debtor shall remain liable for any
deficiency resulting from a sale of the collateral and shall pay any
such deficiency forthwith on demand;
iv. Monies Advanced. If the Debtor shall default in the
performance of any of the provisions of this Agreement on the Debtor's
part to be performed, the Secured Party may perform same for the
Debtor's account and any monies expended in so doing shall be
chargeable with interest to the Debtor and added to the indebtedness
secured hereby;
-7-
v. Seizure. Assembling Collateral and Notice of Sale. In
conjunction with, addition to or substitution for those rights, the
Secured Party, at its discretion, may in a commercially reasonable
fashion: (1) enter upon Debtor's premises peaceably by the Secured
Party's own means or with legal process and take possession of the
collateral, or render it unusable, or dispose of the collateral on the
Debtor's premises and the Debtor agrees not to resist or interfere;
(2) require Debtor to assemble the collateral and make it available to
the Secured Party at a place to be designated by the Secured Party,
reasonably convenient to both parties (Debtor agrees that the Secured
Party's address as set forth above is a place reasonably convenient
for such assembling). Unless the collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a
recognized market, Secured Party will give Debtor reasonable notice of
the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to
be made. The requirements of reasonable notice will be met if such
notice is mailed, postage prepaid, to the address of the Debtor shown
above, at least three days before the time or sale or disposition;
(g) Assignment. The Secured Party may assign this Agreement and if
assigned the assignee shall be entitled, upon notifying the Debtor, to the
performance of all of Debtor's Obligations and agreements hereunder and the
assignee shall be entitled to all of the rights and remedies of the Secured
Party hereunder. Debtor will not assert against the assignee any claims or
defenses which the Debtor may have against the Secured Party. The Debtor
shall not assign this Agreement without the written consent of Secured
Party;
(h) Financing Statement. The Secured Party is hereby authorized to
file a Financing Statement;
(i) Captions. The Captions are inserted only as a matter of
convenience and for reference and in no way
-8-
define, limit or describe the scope of this Agreement nor the intent of any
provision thereof.
(j) Binding and Benefit. The terms, warranties and agreements herein
contained shall bind and inure to the benefit of the respective parties
hereto, and their respective legal representatives, successors and assigns.
(k) Miscellaneous. The gender and number used in this Agreement are
used as a reference term only and shall apply with the same effect whether
the parties are of the masculine or feminine gender, corporate or other
form, and the singular shall likewise include the plural. This Agreement
shall be construed pursuant to the laws of the State of Vermont.
IN WITNESS WHEREOF, the Parties have respectively signed these presents the
day and year first above written.
SECURED PARTY: VERMONT ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ XXXX X. XXXXXX
______________________________________
Xxxx X. Xxxxxx, Manager
DEBTOR: ASCUTNEY MOUNTAIN RESORT,
L.P., by its General Partner,
Snowdance Ski Company
By:
______________________________________
President and Duly
Authorized Agent of
Snowdance Ski Company
-9-
SCHEDULE A TO SECURITY AGREEMENT
Ascutney Mountain Resort, L.P., Debtor
Vermont Economic Development Authority, Secured Party
This Security Agreement includes all right, title, estate and interest of
the Debtor in, to and under all of the following described property, whether now
owned by or owing to, or hereafter acquired by or arising in favor of, Debtor,
wherever located:
All fixtures as defined in the Uniform Commercial Code for the State
of Vermont (the "Code") in which Debtor now or hereafter has any interest,
to the extent of that interest, including, without limitation, all of the
fixtures, systems, machinery, apparatus, equipment and fittings of every
kind and nature whatsoever and all appurtenances and additions thereto and
substitutions or replacements thereof, now or hereafter attached or affixed
to or constituting a part of, or located in or upon, the Debtor's lands and
premises located on Route 44 in West Windsor, Vermont, including, without
limitation, all heating, electrical, mechanical, lighting, lifting,
plumbing, ventilating, air conditioning and air cooling, refrigerating,
incinerating, power, loading and unloading systems or apparatus, signs,
escalators, elevators, boilers, communication systems or apparatus,
switchboards, sprinkler and other fire prevention and extinguishing
fixtures, systems, machinery, apparatus and equipment, and all engines,
motors, turbines, dynamos, machinery, pipes, pumps, tanks, conduits and
ducts constituting a part of any of the foregoing;
All equipment (as defined in the Code) in which Debtor now or
hereafter has any interest, to the extent of that interest, including, but
not limited to, machinery, tools, office machines and equipment, computers
and appliances;
All inventory (as defined in the Code) in which Debtor now or
hereafter has any interest, to the extent of that interest, including,
without limitation, all inventory, merchandise, goods and other personal
property which are held by or on behalf of the Debtor for sale or lease or
are furnished or are to be furnished under a contract of service or which
constitute raw materials, work in process or materials used or consumed or
to be used or consumed in the Debtor's business, or the processing,
packaging, promotion, delivery or shipping of the same, and all finished
goods;
All other goods and personal property in which the Debtor has any
interest, to the extent of that interest, whether now or hereafter owned or
existing, leased, consigned by or to or acquired by Debtor, and wherever
located and miscellaneous property of whatsoever nature which are now or
may from time to time be incorporated in or
installed in or attached to or otherwise made part of or used in connection
with the Debtor's lands and premises located on Xxxxx 00, Xxxx Xxxxxxx,
Xxxxxxx;
All accounts and accounts receivable (as defined in the Code) in which
the Debtor now or hereafter has any interest, to the extent of that
interest, including any right of Borrower to payment for goods sold or
leased or for services rendered; all contract rights (as defined in the
Code) in which the Debtor now or hereafter has any interest; all general
intangibles (as defined in the Code) in which the Debtor now or hereafter
has any interest, to the extent of that interest;
All proceeds and products of the foregoing, including, without
limitation, (i) proceeds resulting from voluntary or involuntary
dispositions thereof and including, but not limited to, all property of any
type (including without limitation all accounts, chattel paper, deposit
accounts, instruments, equipment, inventory, consumer goods, farm products,
documents and general intangibles) that is acquired with any cash proceeds,
and (ii) all guarantees, insurance and rights against sureties Debtor may
have in connection therewith and all proceeds and products relating thereto
or therefrom, and all Debtor's right, title and interest in and to
additions, accessions, replacements and substitutions to and for the
foregoing, and all documents, ledger sheets and files of Debtor relating
thereto.
GUARANTY
THIS GUARANTY given by the undersigned, Xxxxx X. Xxxxxxxxxxx and Xxxxxx X.
Xxxxxxxxxxx ("Guarantors"), to induce Vermont Economic Development Authority
("Lender") to extend credit to or otherwise become the creditor of Ascutney
Mountain Resort, L.P. and Ascutney Mountain Resort Hotel, L.P. ("Borrowers").
In consideration of the foregoing, it is agreed:
1. Obligation. The Guarantors jointly and severally guarantee to Lender,
its successors and assigns, the prompt and full payment to the Lender when due
of the principal sum of $400,000.00 as evidenced by the Note of Borrowers dated
of even date herewith in the principal amount of $400,000.00 with interest at
the rate therein specified and a term of ten (10) years (the "Note"), and any
renewal or replacement thereof, which sum shall be due and payable in full ten
(10) years from the date thereof, including all principal, interest, attorney's
fees, costs and expenses of collection and any other charges becoming due under
the terms of said Note and the security instruments executed and delivered as
security for said Note. A copy of the Note is attached hereto as Exhibit A.
2. Term. The joint and several liability of the Guarantors shall continue
until payment is made of every obligation of the Borrowers now due or hereafter
to become due to Lender and until payment is made of any loss or damage incurred
by the Lender with respect to any matter covered by this Guaranty.
3. Consent to Lender's Acts. The Guarantors jointly and severally consent,
without affecting the Guarantors' liability to the Lender hereunder, that the
Lender may, without notice to or consent of the Guarantors, upon such terms as
it may deem advisable:
(a) Extend, in whole or in part, by renewal or otherwise, the time of
payment of any indebtedness owing by the Borrowers to the Lender or held by
the Lender as security for any such obligation;
(b) Release, surrender, exchange, modify, impair or extend the period
of duration or the time for performance or payment of any collateral
securing any obligation of the Borrowers to the Lender;
(c) Settle or compromise any claim of the Lender against the Borrowers
or against any other person, firm or corporation whose obligation is held
by the Lender as collateral security for any obligation of the Borrowers to
the Lender.
The Guarantors hereby ratify and affirm any such extension, renewal,
release, surrender, exchange, modification, impairment, settlement or
compromise; and all such actions shall be binding upon the Guarantors who hereby
waive all defenses, counterclaims or offsets which the Guarantors might have by
reason thereof.
4. Waiver. The Guarantors waive:
(a) Notice of presentment, demand for payment or protest of any of the
Borrowers' obligations or the obligation of any person, firm or corporation
held by the Lender as collateral security for the Borrowers' obligation,
-2-
acceptance and Notice of Acceptance of this Guaranty by the Lender, and the
Guarantors acknowledge that by the making of the loan to Borrowers the
Lender has accepted this Guaranty and given Notice of Acceptance to the
undersigned;
(b) Notice of the failure of any person, firm or corporation to pay to
the Lender any indebtedness held by the Lender as collateral security for
any obligation of the Borrowers; and
(c) All defenses, offsets and counterclaims which the Guarantors may
at any time have against the Borrowers are waived only to the extent that
they shall not be available to the Guarantors against the Lender.
5. Representations by Guarantors. The Guarantors represent that at the time
of the execution and delivery of this Guaranty nothing exists to impair the
effectiveness of the liability of the Guarantors to the Lender hereunder or the
immediate taking effect of this Guaranty as the sole agreement between the
Guarantors and the Lender with respect to the guaranty of the Borrowers'
obligation to the Lender.
6. Remedies. The Lender may at its option proceed in the first instance
against the Guarantors to collect any obligation covered by this Guaranty,
without first proceeding against the Borrowers or any other person, firm or
corporation and without first resorting to any property at any time held by the
Lender as collateral security.
7. Modifications. The whole of this Guaranty is herein set forth and there
is no verbal or other written agreement and no understanding or custom affecting
the terms hereof. This
-3-
Guaranty can be modified only by a written instrument signed by the party to be
charged therewith.
8. Benefit. This Guaranty is delivered and made in and shall be construed
pursuant to the laws of the State of Vermont and is binding upon the Guarantors
and their heirs, executors, administrators and legal representatives, and shall
inure to the benefit of the Lender, its successors and assigns.
IN WITNESS WHEREOF, the Guarantors have executed and delivered the within
Guaranty this _________ day of May, 1994.
------------------------------------ -----------------------------------
Witness Xxxxx X. Xxxxxxxxxxx
------------------------------------ -----------------------------------
Witness Xxxxxx X. Xxxxxxxxxxx
-4-
GUARANTY
THIS GUARANTY given by the undersigned, Snowdance Ski Company
("Guarantor"), to induce Vermont Economic Development Authority ("Lender") to
extend credit to or otherwise become the creditor of Ascutney Mountain Resort,
L.P. and Ascutney Mountain Resort Hotel, L.P. ("Borrowers").
In consideration of the foregoing, it is agreed:
1. Obligation. The Guarantor guarantees to Lender, its successors and
assigns, the prompt and full payment to the Lender when due of the principal sum
of $400,000.00 as evidenced by the Note of Borrowers dated of even date herewith
in the principal amount of $400,000.00 with interest at the rate therein
specified and a term of ten (10) years (the "Note"), and any renewal or
replacement thereof, which sum shall be due and payable in full ten (10) years
from the date thereof, including all principal, interest, attorney's fees, costs
and expenses of collection and any other charges becoming due under the terms of
said Note and the security instruments executed and delivered as security for
said Note. A copy of the Note is attached hereto as Exhibit A.
2. Term. The joint and several liability of the Guarantor shall continue
until payment is made of every obligation of the Borrowers now due or hereafter
to become due to Lender and until payment is made of any loss or damage incurred
by the Lender with respect to any matter covered by this Guaranty.
3. Consent to Lender's Acts. The Guarantor consents, without affecting the
Guarantor's liability to the Lender hereunder, that the Lender may, without
notice to or consent of the Guarantor, upon such terms as it may deem advisable:
(a) Extend, in whole or in part, by renewal or otherwise, the time of
payment of any indebtedness owing by the Borrowers to the Lender or held by
the Lender as security for any such obligation;
(b) Release, surrender, exchange, modify, impair or extend the period
of duration or the time for performance or payment of any collateral
securing any obligation of the Borrowers to the Lender;
(c) Settle or compromise any claim of the Lender against the Borrowers
or against any other person, firm or corporation whose obligation is held
by the Lender as collateral security for any obligation of the Borrowers to
the Lender.
The Guarantor hereby ratifies and affirms any such extension, renewal,
release, surrender, exchange, modification, impairment, settlement or
compromise; and all such actions shall be binding upon the Guarantor who hereby
waives all defenses, counterclaims or offsets which the Guarantor might have by
reason thereof.
4. Waiver. The Guarantor waives:
(a) Notice of presentment, demand for payment or protest of any of the
Borrowers' obligations or the obligation of any person, firm or corporation
held by the Lender as collateral security for the Borrowers' obligation,
-2-
acceptance and Notice of Acceptance of this Guaranty by the Lender, and the
Guarantor acknowledges that by the making of the loan to Borrowers the
Lender has accepted this Guaranty and given Notice of Acceptance to the
undersigned;
(b) Notice of the failure of any person, firm or corporation to pay to
the Lender any indebtedness held by the Lender as collateral security for
any obligation of the Borrowers; and
(c) All defenses, offsets and counterclaims which the Guarantor may at
any time have against the Borrowers are waived only to the extent that
they shall not be available to the Guarantor against the Lender.
5. Representations by Guarantor. The Guarantor represents that at the time
of the execution and delivery of this Guaranty nothing exists to impair the
effectiveness of the liability of the Guarantor to the Lender hereunder or the
immediate taking effect of this Guaranty as the sole agreement between the
Guarantor and the Lender with respect to the guaranty of the Borrowers'
obligation to the Lender.
6. Remedies. The Lender may at its option proceed in the first instance
against the Guarantor to collect any obligation covered by this Guaranty,
without first proceeding against the Borrowers or any other person, firm or
corporation and without first resorting to any property at any time held by the
Lender as collateral security.
7. Modifications. The whole of this Guaranty is herein set forth and there
is no verbal or other written agreement and no understanding or custom affecting
the terms hereof. This
-3-
Guaranty can be modified only by a written instrument signed by the party to be
charged therewith.
8. Benefit. This Guaranty is delivered and made in and shall be construed
pursuant to the laws of the State of Vermont and is binding upon the Guarantor
and its successors and legal representatives, and shall inure to the benefit of
Lender, its successors and assigns.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by its Duly Authorized Agent and delivered this _______ day of May, 1994.
SNOWDANCE SKI COMPANY
________________________________ By: ______________________________
Witness Xxxxx X. Xxxxxxxxxxx,
President and Duly
Authorized Agent
________________________________
Witness
-4-
GUARANTY
THIS GUARANTY given by the undersigned, Snowdance Hotel Company
("Guarantor"), to induce Vermont Economic Development Authority ("Lender") to
extend credit to or otherwise become the creditor of Ascutney Mountain Resort,
L.P. and Ascutney Mountain Resort Hotel, L.P. ("Borrowers").
In consideration of the foregoing, it is agreed:
1. Obligation. The Guarantor guarantees to Lender, its successors and
assigns, the prompt and full payment to the Lender when due of the principal sum
of $400,000.00 as evidenced by the Note of Borrowers dated of even date herewith
in the principal amount of $400,000.00 with interest at the rate therein
specified and a term of ten (10) years (the "Note"), and any renewal or
replacement thereof, which sum shall be due and payable in full ten (10) years
from the date thereof, including all principal, interest, attorney's fees,
costs and expenses of collection and any other charges becoming due under the
terms of said Note and the security instruments executed and delivered as
security for said Note. A copy of the Note is attached hereto as Exhibit A.
2. Term. The joint and several liability of the Guarantor shall continue
until payment is made of every obligation of the Borrowers now due or hereafter
to become due to Lender and until payment is made of any loss or damage incurred
by the Lender with respect to any matter covered by this Guaranty.
3. Consent to Lender's Acts. The Guarantor consents, without affecting the
Guarantor's liability to the Lender hereunder, that the Lender may, without
notice to or consent of the Guarantor, upon such terms as it may deem advisable:
(a) Extend, in whole or in part, by renewal or otherwise, the time of
payment of any indebtedness owing by the Borrowers to the Lender or held by
the Lender as security for any such obligation;
(b) Release, surrender, exchange, modify, impair or extend the period of
duration or the time for performance or payment of any collateral securing
any obligation of the Borrowers to the Lender;
(c) Settle or compromise any claim of the Lender against the Borrowers
or against any other person, firm or corporation whose obligation is held
by the Lender as collateral security for any obligation of the Borrowers to
the Lender.
The Guarantor hereby ratifies and affirms any such extension, renewal,
release, surrender, exchange, modification, impairment, settlement or
compromise; and all such actions shall be binding upon the Guarantor who hereby
waives all defenses, counterclaims or offsets which the Guarantor might have by
reason thereof.
4. Waiver. The Guarantor waives:
(a) Notice of presentment, demand for payment or protest of any of the
Borrowers' obligations or the obligation of any person, firm or corporation
held by the Lender as collateral security for the Borrowers' obligation,
-2-
acceptance and Notice of Acceptance of this Guaranty by the Lender, and the
Guarantor acknowledges that by the making of the loan to Borrowers the
Lender has accepted this Guaranty and given Notice of Acceptance to the
undersigned;
(b) Notice of the failure of any person, firm or corporation to pay to
the Lender any indebtedness held by the Lender as collateral security for
any obligation of the Borrowers; and
(c) All defenses, offsets and counterclaims which the Guarantor may at
any time have against the Borrowers are waived only to the extent that
they shall not be available to the Guarantor against the Lender.
5. Representations by Guarantor. The Guarantor represents that at the time
of the execution and delivery of this Guaranty nothing exists to impair the
effectiveness of the liability of the Guarantor to the Lender hereunder or the
immediate taking effect of this Guaranty as the sole agreement between the
Guarantor and the Lender with respect to the guaranty of the Borrowers'
obligation to the Lender.
6. Remedies. The Lender may at its option proceed in the first instance
against the Guarantor to collect any obligation covered by this Guaranty,
without first proceeding against the Borrowers or any other person, firm or
corporation and without first resorting to any property at any time held by the
Lender as collateral security.
7. Modifications. The whole of this Guaranty is herein set forth and there
is no verbal or other written agreement and no understanding or custom affecting
the terms hereof. This
-3-
Guaranty can be modified only by a written instrument signed by the party to be
charged therewith.
8. Benefit. This Guaranty is delivered and made in and shall be construed
pursuant to the laws of the State of Vermont and is binding upon the Guarantor
and its successors and legal representatives, and shall inure to the benefit of
Lender, its successors and assigns.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by its Duly Authorized Agent and delivered this _____ day of May, 1994.
SNOWDANCE HOTEL COMPANY
_______________________________ By: _____________________________
Witness Xxxxx X. Xxxxxxxxxxx
President and Duly
Authorized Agent
_______________________________
Witness
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SUBORDINATION AGREEMENT
This Agreement of Subordination made this 6th day of May, 1994, between
Vermont Economic Development Authority, a body corporate and politic and a
public instrumentality of the State of Vermont, with its principal place of
business at Montpelier, Vermont ("Lender"), and the Limited and General Partners
("Partners") of Ascutney Mountain Resort, L.P. and Ascutney Mountain Resort
Hotel, L.P. (collectively the "Borrowers").
WHEREAS, the Limited and General Partners of each of the Borrowers are as
follows:
ASCUTNEY MOUNTAIN RESORT, L.P.
Limited Partners:
----------------
Xxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
General Partner:
---------------
Snowdance Ski Company
ASCUTNEY MOUNTAIN RESORT HOTEL, L.P.
Limited Partners:
----------------
Xxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
General Partner:
---------------
Snowdance Hotel Company
and;
WHEREAS, the Borrowers have applied to Lender for a loan in the principal
amount of Four Hundred Thousand Dollars ($400,000.00) for a term of ten (10)
years, together with interest at 5.5% per annum (the "Loan"); and
WHEREAS, Lender will only make that loan to the Borrowers if the Partners
will enter into this Subordination Agreement;
NOW, THEREFORE, for and in consideration of One Dollar and other good and
valuable consideration paid to the Partners by the Lender, and in order to
induce Lender to loan the sum of Four Hundred Thousand Dollars ($400,000.00) to
Borrowers, the Partners and Lender hereby agree as follows:
1. Subordination
All principal Loan indebtedness and accrued interest thereon owed by the
Borrowers to the Partners, individually or collectively, whether owed now or in
the future, is hereby subordinated to the Loan made by Lender to Borrowers
evidenced by Borrowers' Note dated May 6, 1994 in the principal amount of
$400,000.00 (the "Note").
2. Representation
The Partners represent that they have made Loans to the Borrowers in the
aggregate principal amounts set forth below as of the date of this Agreement:
ASCUTNEY MOUNTAIN RESORT, L.P.*
Limited Partners:
----------------
Xxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
General Partner:
---------------
Snowdance Ski Company
ASCUTNEY MOUNTAIN RESORT HOTEL, L.P.*
Limited Partners:
----------------
Xxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
General Partner:
---------------
Snowdance Hotel Company
* In the aggregate, $300,000
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3. Term
The subordination shall continue in force until all principal and interest
on the Note is paid in full.
4. Construction; Benefit
This Agreement shall be binding upon and inure to the benefit of each of
the parties hereto and their legal representatives, successors and assigns, and
shall be governed by and construed in accordance with the laws of the State of
Vermont.
VERMONT ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ XXXX X. XXXXXX
______________________________________
Xxxx X. Xxxxxx, Manager
SNOWDANCE SKI COMPANY
By: /s/ XXXXX X. XXXXXXXXXXX
______________________________________
Its President and Duly
Authorized Agent
SNOWDANCE HOTEL COMPANY
By: /s/ XXXXX X. XXXXXXXXXXX
______________________________________
Its President and Duly
Authorized Agent
/s/ XXXXX X. XXXXXXXXXXX
_________________________________________
Xxxxx X. Xxxxxxxxxxx, individually
and as a Limited Partner of
Ascutney Mountain Resort Hotel,
L.P. and Ascutney Mountain Resort,
L.P.
/s/ XXXXXX X. XXXXXXXXXXX
_________________________________________
Xxxxxx X. Xxxxxxxxxxx, individually
and as a Limited Partner of
Ascutney Mountain Resort Hotel,
L.P. and Ascutney Mountain Resort,
L.P.
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