Exhibit 10.1
COMPLIANCE WAIVER LETTER
As of December 6, 2005
VIA OVERNIGHT COURIER AND FAX - ▇▇▇-▇▇▇-▇▇▇▇
Grand Summit Resort Properties, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
VIA OVERNIGHT COURIER AND FAX - ▇▇▇-▇▇▇-▇▇▇▇
Grand Summit Resort Properties, Inc.
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Attn: General Counsel
Re: Loan and Security Agreement (as amended to the date hereof, the
"LSA"), dated as of September 1, 1998, among Grand Summit
Properties, Inc., a Maine corporation ("GSRP"), Textron Financial
Corporation, a Delaware corporation, as administrative agent
("Administrative Agent"), and FINOVA Capital Corporation,
Foothill Capital Corporation, Litchfield Financial Corporation
and Textron Financial Corporation, as lenders (collectively, the
"Lenders")
Dear Ladies and Gentlemen:
Reference is made to the LSA. Capitalized terms used but not defined
herein shall have the meanings ascribed to the same in the LSA.
We acknowledge that GSRP has informed us that it will not be able to
comply with Section 2.5(c)(iii) of the LSA by reducing the outstanding principal
balance of the Advances to $8,000,000 as of December 31, 2005. This failure to
comply with Section 2.5(c)(iii) will constitute an Event of Default under
Section 8.1(a) of the LSA from and after December 31, 2005 (the requirement to
so comply with Section 2.5(c)(iii) is referred to herein as the "12/31/05
Compliance Requirement").
The failure to satisfy the 12/31/05 Compliance Requirement would also
constitute an Event of Default from and after December 31, 2005 under that
certain Statement of Intention and Special Additional Financing Agreement (as
amended, the "SOI") dated July 25, 2000 by and between GSRP and Textron
Financial Corporation, as special subordinated lender (the "Special Subordinated
Lender").
GSRP has requested that the Administrative Agent on behalf of itself,
as a Lender and the Special Subordinated Lender, and the other Lenders
prospectively waive GSRP's compliance with the 12/31/05 Compliance Requirement.
In connection with such request, GSRP has represented and warranted to the
Administrative Agent, the Lenders and the Special Subordinated Lender that,
after giving effect to such waiver, no Default or Event of Default will exist as
of the date hereof or will exist as of December 31, 2005.
Pursuant to the request of GSRP and in reliance on the foregoing
representation and warranty, the Administrative Agent on behalf of itself, as a
Lender and the Special Subordinated Lender, and the other Lenders hereby waives
the 12/31/05 Compliance Requirement to be effective from and after December 31,
2005. In consideration of the foregoing, GSRP hereby agrees to pay to the
Administrative Agent on behalf of the Lenders and Special Subordinated Lender a
fee of 2% of the remainder of the outstanding principal balance of all
Obligations under the LSA as of December 30, 2005 minus $8,000,000, payable not
later than January 31, 2006 and sooner to the extent of any weekly advances of
Excess Projects' Cash Proceeds to be received by GSRP prior to January 31, 2006,
and GSRP hereby authorizes the Administrative Agent to withhold the same from
any such Excess Projects' Cash Proceeds. The failure to the pay the full amount
of such fee on or prior to January 31, 2006 shall constitute an Event of Default
under the LSA and the SOI.
Except with respect to the waiver of the 12/31/05 Compliance
Requirement, as set forth above, nothing in this letter is intended to create or
constitute a waiver, modification, relinquishment or forbearance by the
Administrative Agent, the Lenders or the Special Subordinated Lender of any
Default or Event of Default or of any undertaking or covenant of GSRP under the
LSA, the other Security Documents or SOI or of any of the rights and remedies of
the Administrative Agent, the Lenders or the Special Subordinated Lender under
the LSA, the other Security Documents or the SOI, at law or in equity, all of
which rights and remedies are hereby expressly reserved. Nothing in this letter
constitutes, or shall be deemed to constitute, an agreement by the
Administrative Agent, the Lenders or the Special Subordinated Lender to grant
any future waiver, indulgence, deferral, amendment, cure period or consent with
respect to the LSA, the other Security Documents or the SOI, the Loans, the
Subordinated Loan Tranche Obligations under and as defined in the SOI, any other
Obligations or any payments in respect thereof. Except with respect to the
12/31/05 Compliance Requirement, neither this letter nor any course of dealing
by the Administrative Agent, the Lenders and/or the Special Subordinated Lender
shall affect the Administrative Agent's, the Lenders' and/or the Special
Subordinated Lender's rights under the LSA, the other Security Documents or the
SOI. For the avoidance of doubt, no Default or Event of Default is being waived
by this letter. The Administrative Agent, the Lenders and the Special
Subordinated Lender expect that GSRP shall strictly comply with the terms of the
LSA, the other Security Documents and the SOI, including, without limitation,
complying with the requirements of Section 2.5(c)(iii) of the LSA with respect
to each of the dates set forth in said Section occurring after December 31,
2005.
Please execute and return to us a copy of this letter attached hereto
to reflect your confirmation of, and agreement with respect to, the foregoing,
whereupon this waiver shall then become effective. If we shall have not received
an executed copy of this letter from you by December 30, 2005 together with the
payment of the aforesaid fee, this letter and the waiver contained herein shall
be deemed null and void.
TEXTRON FINANCIAL
CORPORATION, as Administrative Agent on
behalf of the Lenders, and on its own
behalf as the Special Subordinated Lender
By: /s/▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President - Structure
CONFIRMED AND AGREED TO:
GRAND SUMMIT RESORT PROPERTIES, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Chief Financial Officer
