FIFTH AMENDMENT AGREEMENT
THIS FIFTH AMENDMENT AGREEMENT (this "Fifth Amendment Agreement"),
dated as of August 20, 2001 among GRAND SUMMIT RESORT PROPERTIES, INC., a Maine
corporation, (herein referred to as "GSRP"), the lenders listed on the signature
pages hereof (each individually referred to herein as a "Lender" and,
collectively, as the "Lenders"), TEXTRON FINANCIAL CORPORATION, a Delaware
corporation, as agent for the Lenders (in such capacity herein referred to as
the "Administrative Agent").
W I T N E S S E T H:
A. WHEREAS, GSRP entered into that certain Loan and Security Agreement with
Textron Financial Corporation, Green Tree Financial Services Corporation and the
Administrative Agent dated as of September 1, 1998 (as amended to but excluding
the date hereof, the "Existing LSA" and, as amended hereunder, the "Amended
LSA"), pursuant to which the Lenders agreed to make loans to GSRP in accordance
with the terms of the Existing LSA;
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing LSA and in Section 1 of this Fifth Amendment Agreement;
and
C. WHEREAS, the parties to the Existing LSA have agreed to certain amendments to
the Existing LSA as described and set forth below;
NOW, THEREFORE, in consideration of the Administrative Agent's, the
Lenders,' and GSRP's agreements hereunder, and in consideration of other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Administrative Agent, the Lenders and GSRP hereby agree as
follows:
1. Amendments to Definitions. Upon this Fifth Amendment Agreement
becoming effective on the Fifth Amendment Effective Date, the parties hereto
agree that Section 1.1 of the Existing LSA is, and shall be deemed to be,
amended and modified as follows:
1.1 The following new definitions are hereby added to Section
1.1 of the Existing LSA:
Colorado First/PCL -- means Colorado First/PCL, A
Joint Venture
Colorado First/PCL Deed of Trust -- means that
certain deed of trust, dated August 20, 2001, from GSRP in
favor of Colorado First/PCL securing the Colorado First/PCL
Obligations, which deed of trust only encumbers the Steamboat
Non-Penthouse Quartershare Interests that are owned by GSRP on
the Fifth Amendment Effective Date.
Colorado First/PCL Obligations -- means that certain
promissory note (the "Colorado First/PCL Promissory Note")
dated August 20, 2001 from GSRP payable to the order of
Colorado First/PCL in the original stated principal amount of
approximately $3,800,000 together with interest thereon and
all other stated obligations therein.
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Colorado First/PCL Promissory Note -- as defined in
the definition of Colorado First/PCL Obligations.
Fleet/ASCRP Loan Documents -- as defined in Section
2.9 of the Fifth Amendment Agreement.
Fifth Amendment Agreement -- means that certain Fifth
Amendment Agreement dated as of August 20, 2001 among the
GSRP, the Administrative Agent and the Lenders.
Fifth Amendment Effective Date -- as defined in the
Fifth Amendment Agreement.
Monthly Adjustment Date -- as defined in the
definition of "Release Price."
Steamboat Cash Pledge Agreement - as defined in
Section 2.11 of the Fifth Amendment Agreement.
Steamboat Collateral Sharing Agreement - as defined
in Section 2.3 of the Fifth Amendment Agreement.
Steamboat Construction Project Advances -- has the
meaning set forth in Section 2.1 hereof and shall include the
Steamboat Penthouse Construction Project Advances.
Steamboat Non-Penthouse Quartershare Interest --
means a Steamboat Quartershare Interest that is not a
Steamboat Penthouse Quartershare Interest.
Steamboat Penthouse Construction Advances -- means a
Steamboat Construction Project Advance made after the
Steamboat Final Construction Cost Advance but during the
Steamboat Commitment Period in respect of, but only in respect
of, construction costs incurred by GSRP after the Fifth
Amendment Effective Date for the completion of the
construction of the Steamboat Residential Units located in the
penthouse of the Steamboat Project.
Steamboat Penthouse Quartershare Interest -- means a
Steamboat Quartershare Interest in respect of a Steamboat
Residential Unit that is located in the penthouse of the
Steamboat Project.
Steamboat Settlement Agreement -- means that certain
Settlement, Release and Security Agreement dated as of August
20, 2001 between Colorado First/PCL and GSRP.
Steamboat Waiver, Extension and Restructuring Fee --
means a $750,000 fee payable to the Steamboat Construction
Project Advance Lenders under Section 6 of the Fifth Amendment
Agreement in consideration of their entering into the Fifth
Amendment Agreement and agreeing therein to waive certain
Events of Default in respect of the Steamboat Project, to
extend the Steamboat Commitment Period, to share Release
Prices in respect of Steamboat Non-Penthouse Quartershare
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Interests at the Steamboat Project with Colorado/First PCL,
and to extend the Steamboat Construction Project Advances
Maturity Date.
1.2 The definition of "Canyons Construction Project Advances
Maturity Date" in Section 1.1 of the Existing LSA is hereby amended and
restated in its entirety as follows:
Canyons Construction Project Advances Maturity Date -
means September 28, 2002.
1.3 The definition of "Default Rate" is hereby amended and
restated in its entirety as follows:
Default Rate -- means (a) at any time, with respect
to any of the Steamboat Obligations, the per annum rate of
interest equal to the Interest Rate for the Steamboat Loan,
then in effect, plus 2% per annum; provided, however, that
such Default Rate shall in no event exceed the Maximum Rate
and (b) at any time, with respect to any of the Canyons
Obligations, the per annum rate of interest equal to the
Interest Rate for the Canyons Loan, then in effect, plus 2%
per annum; provided, however, that such Default Rate shall in
no event exceed the Maximum Rate. To the extent that the
obligation to which the Default Rate is to apply is not
clearly a Steamboat Obligation or a Canyons Obligations, then
the Default Rate provided for in clause (a) above shall apply
thereto.
1.4 The definition of "Interest Rate" is hereby amended and
restated in its entirety as follows:
Interest Rate -- (a) means, with respect to any
calendar month and with respect to the Canyons Loan, a per
annum rate of interest equal to the greater of:
(i) 9.50%, or
(ii) the sum of
(A) 2.50%, plus
(B) the Prime Rate then in effect for
such month.
To the extent that the interest rate for each
calendar month shall be based upon the Prime Rate, such Prime
Rate shall be the Prime Rate in effect at 9:00 a.m. (Eastern
time) on the 1st day of such month. The term "Prime Rate"
shall mean the "prime rate" as announced from time to time by
The Chase Manhattan Bank, New York, New York or any successor
thereto. In the event The Chase Manhattan Bank, New York, New
York or any successor thereto, shall discontinue announcement
of said Prime Rate, a comparable index designated by the
Lenders shall be used in calculating the Interest Rate. It is
expressly agreed that the use of the term "prime rate" or any
other similar designation is not intended to, nor does it,
imply that said rate of interest is a preferred rate of
interest or one which is offered by The Chase Manhattan Bank,
New York, New York or any successor thereto to its most
creditworthy customers, and
(b) means, with respect to any calendar month and
with respect to the Steamboat Loan, a per annum rate of
interest equal to the greater of:
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(i) 9.00%, or
(ii) the sum of
(A) 3.50%, plus
(B) the Prime Rate then in effect for
such month.
To the extent that the interest rate for each
calendar month shall be based upon the Prime Rate, such Prime
Rate shall be the Prime Rate in effect at 9:00 a.m. (Eastern
time) on the 1st day of such month. The term "Prime Rate"
shall mean the "prime rate" as announced from time to time by
The Chase Manhattan Bank, New York, New York or any successor
thereto. In the event The Chase Manhattan Bank, New York, New
York or any successor thereto, shall discontinue announcement
of said Prime Rate, a comparable index designated by the
Lenders shall be used in calculating the Interest Rate. It is
expressly agreed that the use of the term "prime rate" or any
other similar designation is not intended to, nor does it,
imply that said rate of interest is a preferred rate of
interest or one which is offered by The Chase Manhattan Bank,
New York, New York or any successor thereto to its most
creditworthy customers.
1.5 The definition of "Release Price" is hereby amended and
restated in its entirety as follows:
Release Price -- means,
(a) in the case of any Steamboat Quartershare
Interests as follows:
(i) in the case of any Steamboat Non-Penthouse
Quartershare Interest,
(A) for so long as both Steamboat
Obligations and Colorado First/PCL
Obligations shall be outstanding and GSRP is
obligated to pay a "release price" to
Colorado First/PCL of 40% of the gross sales
proceeds in respect of any sale of a
Steamboat Non-Penthouse Quartershare
Interest, the greater of (1) the remainder
of (x) 100% of the minimum release dollar
amount set forth on Schedule 3 hereto that
corresponds to the particular type of
Quartershare Interest listed thereon
(subject to the proviso set forth at the end
of this subclause(a)) minus (y) 40% of the
gross sales proceeds in respect thereof and
(2) 40% of the gross sales proceeds in
respect thereof,
(B) for so long as any Steamboat
Obligations are outstanding but after all of
the Colorado First/PCL Obligations shall
have been paid in full, the greater of (1)
100% of the minimum release dollar amount
set forth on Schedule 3 hereto that
corresponds to the particular type of
Quartershare Interest listed thereon that is
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being sold (subject to the proviso set forth
at the end of this subclause(a)) and (2) 80%
of the gross sales proceeds in respect of
the Steamboat Non-Penthouse Quartershare
Interest that is being sold and
(C) after the Steamboat Obligations
and the Colorado First/PCL Obligations have
been fully and finally paid, the greater of
(1) 100% of the minimum release dollar
amount set forth on Schedule 3 hereto that
corresponds to the particular type of
Quartershare Interest listed thereon that is
being sold (subject to the proviso set forth
at the end of this subclause(a)) and (y) 80%
of the gross sales proceeds in respect the
Steamboat Non-Penthouse Quartershare
Interest that is being sold,
(ii) in the case of any Steamboat Penthouse
Quartershare Interest,
(A) for so long as any Steamboat
Obligation is outstanding, the greater of
(x) 100% of the minimum release dollar
amount set forth on Schedule 3 hereto that
corresponds to the particular type of
Quartershare Interest listed thereon that is
being sold (subject to the proviso set forth
at the end of this subclause(a)) and (y) 80%
of the gross sales proceeds in respect of
the Steamboat Penthouse Quartershare
Interest that is being sold;
(B) after the Steamboat Obligations
have been fully and finally paid, the
greater of (x) 100% of the minimum release
dollar amount set forth on Schedule 3 hereto
that corresponds to the particular type of
Quartershare Interest listed thereon that is
being sold (subject to the proviso set forth
at the end of this subclause(a)) and (y) 80%
of the gross sales proceeds in respect of
the Steamboat Penthouse Quartershare
Interest that is being sold, and
(iii) with respect to any sale of 50% of a Steamboat
Quartershare Interest (a so-called "1/8th Steamboat
Quartershare Interest"), the Release Price otherwise to be
paid to the Administrative Agent shall be whatever the Release
Price would have been for the full Steamboat Quartershare
Interest in respect thereof except that any such "Release
Price" based on Schedule 3 hereto (subject to the proviso set
forth at the end of this subclause(a)) shall be reduced by
50%;
provided that
(I) with respect to the "minimum release
dollar amounts" set forth on Schedule 3 hereto
pertaining to unsold Steamboat Quartershare
Interests, such "minimum release dollar amounts"
shall be subject to adjustment on a monthly basis as
of the date on which interest is scheduled to be paid
on the Steamboat Notes (the "Monthly Adjustment
Date") such that the
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aggregate amount of such "minimum release dollar
amounts," after giving effect to such adjustments on
such Monthly Adjustment Date, shall not be less than
the sum of the principal amount of the Steamboat Loan
outstanding as of such Monthly Adjustment Date, plus
the outstanding principal amount of the Colorado
First/PCL Obligations as of such Monthly Adjustment
Date plus the total amount of unused Steamboat
Construction Project Advance Commitments available to
be borrowed by GSRP as of such Monthly Adjustment
Date; the individual adjustments to each of the
"minimum release dollar amounts" relating to each of
the unsold Steamboat Quartershare Interests shall be
determined by GSRP using a reasonable methodology and
shall be subject to the approval of the
Administrative Agent (which approval shall not be
unreasonably withheld or delayed); the "minimum
release dollar amount" applicable in subclauses (i),
(ii) and (iii) of this clause (a) and as otherwise
referred to in this clause (a) as being set forth on
Schedule 3 hereto shall be the then current "minimum
release dollar amounts" as adjusted under this
subclause (1);
(II) if unsold Steamboat Quartershare
Interests shall be sold by GSRP other than in the
ordinary course of its business (including, without
limitation, any bulk sales of such Steamboat
Quartershare Interests), the "minimum release dollar
amounts" then in effect in respect of such sold
Steamboat Quartershare Interests shall be
supplemented by adding thereto (x) in the case in
which all of the remaining unsold Steamboat
Quartershare Interests shall have been sold, all of
the remaining unpaid Steamboat Obligations and (y) in
any other case, an amount equal to the remainder (if
positive) of (x) the principal amount of the
Steamboat Loan outstanding after applying such
"minimum release dollar amounts" as provided in
Section 2.5(d)(i) hereof less (y) the product of the
remaining unsold Steamboat Quartershare Interests
(after giving effect to such sale) times the then
current "minimum release dollar amounts;" and
(III) nothing in this clause (a) shall apply
to or otherwise affect any other Release Price
determination in this definition,
(b) in the case of any Canyons Quartershare Interest,
(i) for so long as any Canyons Obligations are outstanding,
100% of the dollar amount set forth on Schedule 3 hereto that
corresponds to the particular type of Quartershare Interest
listed thereon and (ii) after the Canyons Obligations have
been fully and finally paid, 50% of the dollar amount set
forth on Schedule 3 hereto that corresponds to the particular
type of Quartershare Interest listed thereon,
(c) in the case of any Jordan Bowl Quartershare
Interest, 50% of the dollar amount set forth on Schedule 3
hereto that corresponds to the particular type of Quartershare
Interest listed thereon,
(d) in the case of any Attitash Quartershare
Interest, 50% of the dollar amount set forth on Schedule 3
hereto that corresponds to the particular type of Quartershare
Interest listed thereon,
(e) in the case of any Killington Quartershare
Interest, 50% of the dollar amount set forth on Schedule 3
hereto that corresponds to the particular type of Quartershare
Interest listed thereon, and
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(f) in the case of any Mt. Snow Quartershare
Interest, 50% of the dollar amount set forth on Schedule 3
hereto that corresponds to the particular type of Quartershare
Interest listed thereon.
If at any time during a Commitment Period, there are no Obligations
outstanding, the Release Price in respect of the sale of any
Quartershare Interest shall be $0. With respect to the sale of any
Commercial Unit, the release price shall be such amount as shall have
been agreed between GSRP and the Administrative Agent and approved by
the appropriate Project Required Lenders, provided that no release
price shall be payable in connection with the release of the
"Northeastern Commercial Core Assets" provided for in, and as defined
in, the Fifth Amendment Agreement.
1.6 The definition of "Steamboat Construction Project Advance
Commitment" is hereby amended and restated in its entirety as follows:
Steamboat Construction Project Advance Commitment--
means, with respect to each Steamboat Construction Project
Advance Lender, the amount set forth underneath its signature
hereto with respect to the making of Steamboat Construction
Project Advances and Steamboat Interest Advances, provided
that the amount of such Commitment shall be adjusted to give
effect to any assumptions of such Commitments permitted under
Section 2.3(a)(i) hereof and any assignments of Commitments
permitted under Section 2.6(b) hereof, provided further that
such Commitment in respect of the Steamboat Final Construction
Cost Advance shall not exceed $2,027,887.30 for Textron
Financial Corporation, $506,971.83 for Litchfield Financial
Corporation and $1,520,915.47 for Foothill Capital
Corporation.
1.7 The definition of "Steamboat Construction Project Advances
Maturity Date" is hereby amended and restated in its entirety as
follows:
Steamboat Construction Project Advances Maturity Date
- means March 31, 2003.
1.7 The definition of "Steamboat Final Construction Cost
Advance" is hereby amended and restated in its entirety as follows:
Steamboat Final Construction Cost Advance -- means
the last Steamboat Construction Project Advance in respect of
Construction Costs under the Steamboat ~Construction Contract
for the Steamboat Project, which shall have as its sole
purpose the payment in full of First Colorado/PCL pursuant to
the Steamboat Settlement Agreement.
1.8 The definition of "Steamboat Obligations" is hereby
amended and restated in its entirety as follows:
Steamboat Obligations -- means all sums now or
hereafter loaned or advanced by any one or more of the
Steamboat Construction Project Advance Lenders, the Steamboat
Inventory Advance Lenders and/or the Administrative Agent to,
or otherwise incurred by, GSRP under this Agreement in respect
of the Steamboat Project, the Steamboat Notes and/or any of
the other Steamboat Security Documents (including, without
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limitation, accrued and unpaid interest in respect of the
Steamboat Notes and the Loan Costs attributable to the
Steamboat Project and/or the Steamboat Security Documents, the
Steamboat Waiver, Extension and Restructuring Fee, all
Steamboat Construction Project Advances, the Steamboat Final
Construction Project Advance, all Steamboat Penthouse
Construction Advances and any indemnification or reimbursement
payments required under Section 1.3 of the Steamboat
Collateral Sharing Agreement), and the full, prompt and
complete performance of all obligations owed by, or
undertakings or indemnities of, GSRP in respect of the
Steamboat Project and/or the Steamboat Security Documents
arising hereunder or thereunder.
1.9 The definition of "Steamboat Security Documents" is hereby
amended and restated in its entirety as follows:
Steamboat Security Documents -- means (a) this
Agreement to the extent that it deals with the Steamboat
Project, the Steamboat Construction Project Advances, the
Steamboat Interest Advances and/or the Steamboat Inventory
Advances, (b) the Steamboat Notes, (c) the Steamboat Blanket
Mortgage, (d) the Steamboat Assignment of Rents, (e) the
Steamboat Assignment of Contracts, (f) the Steamboat
Assignment of Property-Related Contracts, (g) the Steamboat
Assignment of the Construction Contract, (h) the Steamboat
Assignment of the Architect's Contract, (i) the Subordination
Agreement executed by the Steamboat Host Company in respect of
the Steamboat Host Company Lease Agreement, (j) the Steamboat
Assignment of Declarant's Rights, (k) the proxy for the
Steamboat Declaration referred to in Section 3.9(c) hereof and
(l) the Steamboat Cash Pledge Agreement.
1.10 The definition of "Steamboat Termination Date" is hereby
amended and restated in its entirety as follows:
Steamboat Termination Date -- means the earliest of
(a) the date on which the Lenders'
obligations hereunder to make Advances are terminated
pursuant to Section 8.2(a) of this Agreement,
(b) the date on which the Obligations are
accelerated pursuant to Section 8.2(a) of this
Agreement,
(c) the date on which any of the Events of
Default set forth in Section 8.1(e) shall have
occurred, and
(d) December 31, 2001.
1.11 There shall be added to the definition of "Permitted
Exception" in Section 1.1 of the Existing LSA the following: the First
Colorado/PCL Deed of Trust.
2. The Steamboat Final Construction Cost Advance. The Steamboat Lenders
agree to advance to GSRP the Final Steamboat Construction Cost Advance (as
defined in Section 1 above) in the aggregate principal amount of up to
$4,055,774.60 (the maximum amount to be advanced by each Steamboat Lender is set
forth in the definition of Steamboat Project Construction Advance Commitment set
forth above), provided that (a) said amount is advanced into an escrow
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established by the Steamboat Settlement Agreement and the conditions set forth
in Section 2.12 and Section 2.13 below are satisfied at the time of the delivery
of said amount into such escrow; (b) the delivery of said amount into such
escrow shall be further subject to the satisfaction of the conditions set forth
in Sections 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6 below by the delivery of appropriate
documents to the escrowee under the Steamboat Settlement Agreement; shall also
be subject to the satisfaction of the conditions set forth in Sections 2.9,
2.10, 2.11 and 2.14 below by the full performance thereof or the delivery of
documents and/or moneys into escrows to be established to the satisfaction of
the Administrative Agent; and shall also be subject to the satisfaction of the
conditions set forth in Section 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, and 12.7
hereof by the full performance thereof or the delivery of documents and/or
moneys into escrows to be established to the satisfaction of the Administrative
Agent; and (c) the release of said advance from the escrow established under the
Steamboat Settlement Agreement shall be subject to the satisfaction of the
conditions precedent set forth in Sections 2.7 and 2.8 below as well as the
other conditions set forth in the 2001 Escrow Letter. Interest shall commence to
accrue upon the aforesaid amount upon its funding into the aforesaid escrow
notwithstanding that the Fifth Amendment Effective Date shall not have occurred;
such interest shall be at the rate or rates provided for herein if the Fifth
Amendment Effective Date occurs or at the existing rate or rates provided for in
the Existing LSA if the Fifth Amendment Effective Date does not occur. The
following conditions shall be applicable to this Section 2:
2.1 The Steamboat Settlement Agreement shall have been duly
executed by Colorado First/PCL and GSRP, shall be in full force and
effect. The Steamboat Settlement Agreement shall be in form and
substance satisfactory to the Administrative Agent.
2.2 GSRP shall have executed and delivered to First
Colorado/PCL the Colorado First/PCL Promissory Note and the Colorado
First/PCL Deed of Trust, certified copies of which shall have been
delivered to the Administrative Agent and which shall be in form and
substance satisfactory to the Administrative Agent.
2.3 GSRP, the Administrative Agent and Colorado First/PCL
shall have entered into a collateral sharing agreement with respect to
the Steamboat Blanket Mortgage and the Colorado First/PCL Deed of Trust
(the "Steamboat Collateral Sharing Agreement") in form and substance
satisfactory to the Administrative Agent and the same shall be recorded
in the Office of the Clerk and Recorder for Routt County, Colorado.
2.4 A copy of the final change order in respect of the
Steamboat Construction Contract shall have been delivered to the
Administrative Agent, shall have been consented to by the Steamboat
Architect and shall be in form and substance satisfactory to the
Administrative Agent. A fully executed Certificate of Substantial
Completion (AIA Document G-704) shall have been delivered to the
Administrative Agent in respect of the Steamboat Construction Contract
and shall be in form and substance satisfactory to it; said Certificate
of Substantial Completion shall show the only remaining work to be done
to be work set forth on Exhibit 7 to the Steamboat Settlement
Agreement.
2.5 The punchlist work set forth on Exhibit 7 to the Steamboat
Settlement Agreement and the terms of performance and payment in
respect thereof shall be satisfactory to the Administrative Agent.
Colorado First/PCL shall have waived any mechanic's liens that could be
asserted by it with respect to such punchlist work.
2.6 First Colorado/PCL shall have fully and finally released
and/or waived all mechanic's liens that it has recorded or otherwise
holds or has asserted against the Steamboat Project (including, without
limitation, all Residential Units, Steamboat Quartershare Interests,
commercial units and the "Parking Unit"), shall have dismissed with
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prejudice the civil action it commenced in District Court in and for
the County of Routt, Colorado, Case No. 01 CV 48, and shall have
otherwise provided such additional documents to reflect the full
satisfaction of all of its claims under the Steamboat Construction
Contract (except with respect to the aforesaid punchlist work). Copies
of such releases, dismissals and other documents shall have been
delivered to the Administrative Agent and shall be in form and
substance satisfactory to it.
2.7 First Colorado/PCL shall have caused to be fully and
finally released and/or waived (and/or obtained at its sole cost lien
substitution bonds for) all mechanic's, materialmen's and laborer's
liens that have been recorded, are otherwise held or have been asserted
by any subcontractor, materialman or laborer against the Steamboat
Project (including, without limitation, the mechanic's, materialmen's
and laborer's liens set forth on Schedule 1 hereto), shall have caused
to be dismissed with prejudice any lien claims in respect of the civil
actions referred to in Schedule 1 hereto and shall have otherwise
provided such additional documents to reflect the full satisfaction or
bonding over of all of such subcontractors,' materialmen's and
laborers' lien claims under or in respect of the Steamboat Construction
Contract (except with respect to the aforesaid punchlist work) as may
be requested by the Administrative Agent. Copies of such releases,
dismissals, bonds and other documents shall have been delivered to the
Administrative Agent and shall be in form and substance satisfactory to
it.
2.8 GSRP shall have delivered to the Administrative Agent
title insurance endorsements to the Title Insurance Policy {Blanket} in
respect of the Steamboat Project in form and substance reasonably
satisfactory to the Administrative Agent whereby the effective date of
such Title Insurance Policy {Blanket} shall be made the Fifth Amendment
Effective Date, all exclusions and/or exceptions not satisfactory to
the Administrative Agent shall have been removed or appropriate
endorsements in respect thereof shall have been obtained. Such Title
Insurance Policy {Blanket} shall be in an amount not less than the
outstanding principal amount of the Steamboat Loan. All premiums in
respect of such endorsement to such Title Insurance Policy {Blanket}
shall have been paid in full and evidence thereof shall have been
delivered to the Administrative Agent.
2.9 Copies of all lending documents between or among Fleet
National Bank, Oak Hill (as defined below) and the Parent shall have
been delivered to the Administrative Agent and shall be in form and
substance satisfactory to the Administrative Agent (the "Fleet/ASCRP
Loan Documents"). No default or event of default shall exist under the
Fleet/ASCRP Loan Documents.
2.10 Oak Hill Capital Partners, L.P. ("Oak Hill"), a Delaware
limited partnership, shall have made, contemporaneously with the
closing of this Fifth Amendment Agreement, one or more equity and/or
debt investments in American Skiing Corporation ("ASC"), a Delaware
corporation, in an aggregate amount of not less than $12,500,000.
Copies of all such investment documents shall have been delivered to
the Administrative Agent and shall be in form and substance
satisfactory to the Administrative Agent. In connection with such
investment, ASC or a subsidiary of ASC shall have purchased from the
Parent the assets set forth on Schedule 2 attached hereto denoted with
a "+" (the "Sold Commercial Assets") for a net cash purchase price of
not less than $12,500,000. The purchase and sale documentation in
respect of said Sold Commercial Assets shall have been delivered to the
Administrative Agent and shall be in form and substance satisfactory to
the Administrative Agent.
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2.11 The Parent shall have purchased from GSRP those certain
commercial condominiums located in the Mt. Snow Project, the Killington
Project and the Jordan Bowl Project and denoted by an asterisk on said
Schedule 2 (the "Northeastern Commercial Core Assets") for a cash
consideration of $1,000,000 and for an additional consideration in the
form of a $20,776,830.07 in intercompany indebtedness of the Parent and
shall have, as provided above in Section 2.10, included those
Northeastern Commercial Core Assets denoted with a double asterisk on
said Schedule 2 in the Sold Commercial Assets conveyed to ASC and shall
have mortgaged and pledged the remaining Northeastern Commercial Core
Asset retained by the Parent to the agent under the Fleet/ASCRP Loan
Documents as additional collateral. GSRP shall have pledged to the
Administrative Agent, and deposited with Fleet National Bank, N.A., all
of such $1,000,000 pursuant to a deposit and joint pledge and control
agreement in form and substance satisfactory to the Administrative
Agent (the "Steamboat Cash Pledge Agreement"). The Steamboat Cash
Pledge Agreement will secure, on a pari passu basis, the Steamboat
Obligations under the Amended LSA and the obligations of the Parent
under the Fleet/ASCRP Loan Documents. GSRP hereby grants a security
interest to the Administrative Agent in and to the aforesaid
intercompany indebtedness of the Parent owing to GSRP as additional
collateral for the Steamboat Obligations and such intercompany
indebtedness shall be deemed to be part of the Collateral.
2.12 The execution and delivery to the Administrative Agent of
an escrow letter (the "2001 Escrow Letter") among Transnation Title
Insurance Company, GSRP and First Colorado/PCL which shall be in form
and substance satisfactory to the Administrative Agent and which shall
provide, subject to the terms thereof, for the payment of the proceeds
of the Final Steamboat Construction Cost Advance to First Colorado/PCL.
2.13 Textron Financial Corporation, in its individual lending
capacity under that certain Statement of Intention and Special
Additional Financing Agreement dated as of July 25, 2000, as amended,
shall have extended to GSRP up to an additional $3,058,336.15 in
advances.
2.14 The mechanic's lien recorded by IBI Group ($166,431.15)
in respect of the Canyons Project shall have been released or insured
over under the Title Insurance Policy {Blanket} or an endorsement
thereto.
3. Waiver. Upon this Fifth Amendment Agreement becoming effective on
the Fifth Amendment Effective Date, each Default and/or Event of Default
existing at such time and arising from or otherwise in respect of the failure of
GSRP to perform its obligations under the Existing LSA or any of the Steamboat
Security Documents with respect to or in respect of (a) the Steamboat Assignment
of ~Construction Contract (including, without limitation, any improper
notification of change orders thereunder), (b) the disputes under the Steamboat
Construction Contract which are the subject of the Steamboat Settlement
Agreement, (c) the Steamboat Construction Project Borrowing Base and Section
2.5(c)(ii) of the Existing LSA, (d) the Completion Date for the Steamboat
Project, and (e) Sections 3.8 and 7.2(i) of the Existing LSA with respect to the
mechanic's liens recorded by the Steamboat General Contractor and other
subcontractors in respect of the Steamboat Project and with respect to the
mechanic's lien recorded by IBI Group (for $166,431.15) in respect of the
Canyons Project are hereby waived. No other Default or Event of Default (whether
occurring prior to the date hereof or hereafter) shall be deemed waived, and the
Administrative Agent on behalf of itself and the Lenders hereby reserves all of
its and their respective rights and remedies under the Amended LSA, the other
Security Documents, at law and in equity with respect thereto.
11
4. Release of Northeastern Commercial Core Assets. Upon this Fifth
Amendment Agreement becoming effective on the Fifth Amendment Effective Date,
the Administrative Agent shall execute and deliver partial releases of the
Blanket Mortgages and the other Security Documents in respect of the
Northeastern Commercial Core Assets as well as the Beneficial Improvements
Agreements and Host Company Lease Agreements (if any) related thereto (and the
Lenders hereby so instruct the Administrative Agent). The Administrative Agent
agrees to deliver such partial releases in escrow to an escrowee acceptable to
the Administrative Agent and pursuant to an escrow agreement among GSRP, the
Parent, Oak Hill, Fleet National Bank and the Administrative Agent that shall be
in form and substance satisfactory to the Administrative Agent. No other
Collateral shall be released or deemed released by virtue thereof.
5. Maximum Permitted Outstanding Principal Amount. Upon this Fifth
Amendment Agreement becoming effective on the Fifth Amendment Effective Date,
(a) Section 2.5(c)(iii) of the Existing LSA is hereby amended and restated in
its entirety as follows:
(iii) If on each of the following test dates the
aggregate outstanding principal amount of all Advances exceeds
the maximum outstanding principal amount of Advances set forth
below, GSRP shall immediately pay the amount of such excess to
the Administrative Agent together with interest accrued
thereon to (but not including) the date of such payment and
such amounts shall be applied by the Administrative Agent when
received in good, collected funds as set forth in Section
2.5(d) hereof ratably to all Advances:
Test Date Maximum Outstanding Principal Amount of Advances
March 31, 2002 $50,000,000
September 30, 2002 $25,000,000
March 31, 2003 $0
(b) Section 7.2(h) of the Existing LSA is hereby amended to allow for the
incurrence of the indebtedness in respect of the Colorado First/PCL Promissory
Note, (c) Section 7.2(i) of the Existing LSA is hereby amended to allow for the
hypothecation by GSRP of the collateral under the Steamboat Cash Pledge
Agreement in favor of the agent under the Fleet/ASCRP Loan Documents, provided
that GSRP shall not become liable in respect of any of the obligations under the
Fleet/ASCRP Loan Documents and the security interest of the agent under the
Fleet/ASCRP Loan Documents and the Administrative Agent shall be of equal
priority (any provision in the Existing LSA or any of the other Security
Documents requiring that the security interest of the Administrative Agent in
and to the collateral under the Steamboat Cash Pledge Agreement be a first
priority security interest is hereby modified to give effect to the equal
ranking of the security interest of the aforesaid agent in and to such
collateral) and (d) Schedule 3 (Schedule of Minimum Release Prices) to the
Existing LSA is hereby amended by replacing the portion thereof styled "The
Grand Summit Resort Hotel at Steamboat Inventory Report" with the Schedule set
forth hereto as Schedule 4 (said Schedule 4 to have a column showing the unit
number for each unsold Steamboat Quartershare Interest , a column showing the
type of unit for each unsold Steamboat Quartershare Interest, a column showing
the quartershare associated with each such unsold Steamboat Quartershare
12
Interest, a column showing the "minimum release dollar amount" for each such
unsold Steamboat Quartershare Interest immediately prior to the Fifth Amendment
Effective Date and a column showing the "minimum release dollar amount" for each
such unsold Steamboat Quartershare Interest immediately after the Fifth
Amendment Effective Date; except as set forth in this clause (d), Schedule 3 to
the Existing LSA shall not be amended or modified.
6. Steamboat Waiver, Extension and Restructuring Fee. In consideration
of the Steamboat Lenders agreeing to enter into this Fifth Amendment Agreement,
to waive certain Defaults and Events of Default with respect to the Steamboat
Project and the Steamboat Obligations, to extend the Steamboat Construction
Project Advances Maturity Date and the Steamboat Commitment Period, to waive
certain conditions precedent in respect of making the Final Steamboat
Construction Cost Advance, to share Release Prices in respect of the Steamboat
Non-Penthouse Quartershare Interests with First Colorado/PCL, and to release the
Northeastern Commercial Core Assets as part of the Collateral, GSRP agrees to
pay to Administrative Agent on behalf of the Steamboat Lenders the Steamboat
Waiver, Extension and Restructuring Fee (to be shared by, and paid to, the
Steamboat Lenders ratably based upon the principal amount of the Steamboat Loan
held by each of them as of the Fifth Amendment Effective Date; successors and/or
assigns of the Steamboat Lenders that are parties hereto shall be entitled to
their ratable share of the portion of such fee that would have otherwise been
paid to such party or parties). Said fee shall be deemed earned as of the date
hereof, shall be part of the Steamboat Obligations, shall not bear interest,
shall be secured by the Collateral, and shall be payable on and after the date
on which the Steamboat Loan has been paid in full from Release Prices generated
from sales of Steamboat Quartershare Interests and, after the Canyons
Obligations have been paid in full, from Release Prices generated from sales of
Canyons Quartershare Interests and all other Quartershare Interests.
7. Steamboat Settlement Agreement. GSRP hereby confirms to the
Administrative Agent that the Collateral includes the rights (but not the
obligations) of GSRP under the Steamboat Settlement Agreement (and for the
avoidance of doubt, GSRP hereby grants to Administrative Agent a security
interest and lien in and to its rights (but not obligations) under the Steamboat
Settlement Agreement).
8. Sales of Steamboat Quartershare Interests; Colorado First/PCL
Documents and the Steamboat Settlement Agreement. Anything contained in the
Existing LSA to the contrary ~notwithstanding, failure by GSRP to comply with
its undertakings in the Colorado First/PCL Promissory Note and/or in the
Colorado First/PCL Deed of Trust shall constitute an immediate Event of Default,
provided that GSRP's failure to pay in full on the maturity date of the Colorado
First/PCL Promissory Note all amounts then due thereunder shall not constitute
an event of default under the Amended LSA or any of the other Security Documents
(including, without limitation, Section 8.1(h) of the Amended LSA). The
foregoing notwithstanding, it shall be an immediate Event of Default if GSRP
shall have failed to close sufficient sales of Steamboat Quartershare Interests
prior to May 17, 2002 in order to fully pay the Colorado First/PCL Promissory
Note and to obtain the full release of the Colorado First/PCL Deed of Trust by
such date. GSRP shall not amend or modify the Colorado First/PCL Promissory
Note, Colorado First/PCL Deed of Trust or the Steamboat Settlement Agreement
without the prior written consent of the Administrative Agent.
9. Penthouse Construction. GSRP agrees to complete the construction of
all of the Steamboat Residential Units located in the penthouse of the Steamboat
Project on or prior to December 31, 2001 in accordance with the Plans for the
Steamboat Project and to obtain by such date for each of such Units a
certificate of occupancy issued by Routt County, Colorado. GSRP agrees to
promptly provide to the Administrative Agent copies of all construction
contracts in connection with the aforesaid completion of said "penthouse units",
which contracts shall be fixed price contracts and shall, in the aggregate,
13
demonstrate that the completion of construction of said "penthouse units" (in
accordance with the Plans for the Steamboat Project and on or prior to December
31, 2001) can be effected for a fixed price not in excess of $1,600,000 and
shall otherwise be in form and substance satisfactory to the Administrative
Agent. GSRP agrees to effect no change order and initiate or otherwise allow no
construction change directives in respect of such construction contracts without
the prior written consent of the Administrative Agent. All contractors,
subcontractors, suppliers and laborers in respect of the completion of the
construction of the "penthouse units" shall, to the extent requested by
Administrative Agent, subordinate and make junior to the liens of the
Administrative Agent in and to the Steamboat Project all of their respective
mechanic's, materialmen's and laborer's liens, and the subordination
documentation in respect thereof shall be satisfactory in both form and
substance to the Administrative Agent. All construction contracts in respect of
the completion of the "penthouse units" shall be collaterally assigned to the
Administrative Agent pursuant to assignment documents in form and substance
satisfactory to the Administrative Agent and each contractor thereunder shall
have consented to such assignment in a written consent that shall also be in
form and substance satisfactory to the Administrative Agent. GSRP acknowledges
that the Lenders are providing limited financing for the completion of the
construction of the "penthouse units" through the Steamboat Penthouse
Construction Advances, which shall only be available until the end of the
Steamboat Commitment Period, shall be subject to the same conditions precedent
as any other Steamboat Construction Project Advance is subject to under the
Existing LSA (except for such changes in such conditions as shall be required by
there being a new general contractor to complete the construction of the
"penthouse units" and there being a new "Steamboat construction budget" which
shall be satisfactory to the Administrative Agent; but including, in any case,
the submission of all required construction cost certificates, architect's
certificates, and mechanic's lien waivers), shall be subject to the Parent's
making the necessary funds available to GSRP on a timely basis to cover
projected liquidity shortfalls in the Budget, and shall be subject to no Default
or Event of Default existing under the Amended LSA or any default or event of
default under the Fleet/ASCRP Loan Documents. The Lenders and the Administrative
Agent agree that the pledged cash under the Steamboat Cash Pledge Agreement may
be used to pay for, in part, the completion of such construction and such cash
shall be made available to GSRP on the same terms and conditions as any
Steamboat Penthouse Construction Advance is made available above to GSRP
(subject to such additional conditions of release as may be set forth in the
Steamboat Cash Pledge Agreement) and shall be made available to GSRP for such
purposes only when GSRP shall have fully utilized the aforesaid limited
financing under the Amended LSA and under the Statement of Intention and Special
Additional Financing Agreement referred to in Section 12.5 hereof. Disbursements
in respect of the construction of the "penthouse units" may, at the discretion
of the Administrative Agent, be pursuant to a disbursement agent in Colorado and
GSRP agrees to pay the reasonable fees and expenses of such disbursement agent.
For the avoidance of doubt, Section 3.8 of the Existing LSA shall continue to
have full application to the completion of the construction of the aforesaid
"penthouse units." Prior to commencing the work with respect to the aforesaid
"penthouse units," GSRP shall certify and otherwise demonstrate to the
Administrative Agent that it has sufficient cash on hand or other cash
equivalent availability to pay for all costs in respect of such work and that it
or its Parent has taken appropriate measures to assure the continued
availability of such cash or cash equivalents (all of which shall be
satisfactory to the Administrative Agent). Upon the issuance of final
certificates of occupancy for each of the Steamboat Residential Units located in
the penthouse of the Steamboat Project, the Administrative Agent shall release
its lien and security interest in the remaining amount of cash pledged under the
Steamboat Cash Pledge Agreement. Upon the issuance of a certificate of occupancy
for any of the aforesaid "penthouse units," GSRP shall promptly close any
Contracts in respect thereof.
10. Miscellaneous; Events of Defaults. The covenants and undertakings
of GSRP set forth in this Fifth Amendment Agreement shall be incorporated into
and made a part of the Existing LSA. All of the other Security Documents are
hereby automatically amended and modified to give effect to this Fifth Amendment
14
Agreement. Each of the holders of Canyons Construction Project Advance Notes and
Steamboat Construction Project Advance Notes shall attach a copy of this Fifth
Amendment Agreement to each of said Notes. GSRP and the Lenders agree that,
anything contained in the Existing LSA to the contrary notwithstanding, (a)
different Interest Rates shall apply to the Steamboat Obligations and the
Canyons Obligations, as provided above in Section 1 of this Fifth Amendment
Agreement, (b) the Steamboat Waiver, Extension and Restructuring Fee shall be
payable solely to the Steamboat Lenders, (c) different Maturity Dates apply to
the Canyons Loan and the Steamboat Loan, and (d) the Steamboat Cash Pledge
Agreement and the pledged rights of GSRP under the Steamboat Settlement
Agreement, while constituting Collateral, shall inure solely to the benefit of
the Steamboat Lenders and shall solely secure the Steamboat Obligations.
Anything contained in the Existing LSA to the contrary notwithstanding, failure
by GSRP to comply with its undertakings in Sections 8 or 9 of this Fifth
Amendment Agreement shall constitute an immediate Event of Default. Anything
contained in the Existing LSA to the contrary notwithstanding, any failure by
the Parent to make funds available to GSRP to cover projected cash shortfalls
under the Budget as contemplated herein (whether such failure is a result of the
Parent not having access to such funds under the Fleet/ASCRP Loan Documents or
otherwise) shall constitute an immediate Event of Default. The terms and
provisions of the Steamboat Collateral Sharing Agreement shall, with respect to
the Steamboat Non-Penthouse Quartershare Interests, take precedence over the
application of proceeds provisions of Section 8.2(c)(i) of the Existing LSA.
GSRP and the Lenders agree that the Steamboat Loan and Canyons Loan shall
continue to be evidenced by the Steamboat Construction Project Advance Notes and
the Canyons Construction Project Advance Notes, respectively, and any reference
in the Existing LSA or other Security Documents to the "Steamboat Inventory
Advance Notes, "Canyons Inventory Advance Notes" and/or "Inventory Notes" shall
be deemed to be a reference to the Steamboat Construction Project Advance Notes
and the Canyons Construction Project Advance Notes, as the case may be. The
Administrative Agent is hereby instructed to disburse to the Lenders (on a
ratable basis based on their respective holdings of Steamboat Obligations and
the Canyons Obligations) on the Fifth Amendment Effective Date all amounts, if
any, in the Cash Collateral Account for application by such Lenders to the
Obligations and to disburse, on each date on which interest is otherwise
scheduled to be paid on the Notes after the Fifth Amendment Effective Date (or
more frequently as the Administrative Agent may elect) to the Lenders (on a
ratable basis based on their respective holdings of Steamboat Obligations and
the Canyons Obligations) any amounts that are or would have been deposited into
the Cash Collateral Account under the Existing LSA for application by such
Lenders to the Obligations.
Textron Financial Corporation, in its individual capacity as a Canyons
Construction Project Advance Lender, agrees, anything contained herein or in the
Amended LSA to the contrary notwithstanding, that its Canyons Construction
Project Advance Note and the portion of the Canyons Loan evidenced thereby shall
bear, after the Fifth Amendment Effective Date, interest at a rate of interest
as provided herein for the Canyons Loan except that the interest rate "floor"
shall not be 9.50% per ~annum but rather 9.0% per annum. The immediately
preceding sentence shall have no application to any Canyons Construction Project
Advance Lender except Textron Financial Corporation.
11. Representations and Warranties. GSRP hereby represents and warrants
as of the date hereof as follows, which representations and warranties are
hereby incorporated into and made part of the Amended LSA:
11.1 Except as otherwise disclosed on Schedule 3 attached
hereto, each of the representations and warranties contained in Section
3 of the Existing LSA (other than Section 4.4 thereof) is true and
correct as of the date hereof.
11.2 Except with respect to the Permitted Exceptions (as
defined herein), all Liens granted to the Administrative Agent under
15
the Existing LSA and the other Security Documents are duly granted,
valid, perfected and prior in right to all other Liens that now or
hereafter may be granted to or held by any other Person.
11.3 The execution and delivery of this Fifth Amendment
Agreement, the Steamboat Cash Pledge Agreement, the Modification
Documents and the other documents and instruments contemplated herein,
and compliance by GSRP with all of the provisions of this Fifth
Amendment Agreement, the Existing LSA, as amended hereby, and each of
the other documents set forth above are:
(i) within the corporate powers of GSRP; and
(ii) valid and legal acts and will not conflict with,
or result in any breach in any of the provisions of, or
constitute a default under, or result in the creation of any
Lien upon any Property of GSRP under the provisions of, any
agreement, charter instrument, bylaw or other instrument to
which GSRP is a party or by which its Property may be bound.
11.4 Neither the nature of GSRP, nor of any of its businesses
or Properties, nor any relationship between GSRP and any other Person,
nor any circumstance in connection with the execution or delivery of
this Fifth Amendment Agreement and the other documents contemplated in
connection herewith, nor the operation of any Project and the sale, or
offering for sale, of any Quartershare Interest of any of the Projects
by GSRP, is such as to require a consent, approval or authorization of,
or filing, registration or qualification with, any governmental
authority on the part of GSRP, as a condition of the execution,
delivery or performance of this Fifth Amendment Agreement, the
Steamboat Settlement Agreement, the Steamboat Cash Pledge Agreement and
the other documents contemplated in connection herewith.
11.5 GSRP will not be, on or after the date hereof, a party to
any contract or agreement which restricts its right or ability to incur
indebtedness under, or prohibits the execution of, or compliance with,
this Fifth Amendment Agreement by GSRP. GSRP has not agreed or
consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its Property constituting the
Collateral, whether now owned or hereafter acquired, to be subject to a
Lien other than Permitted Exceptions and all Liens in favor of the
Administrative Agent in respect of such Collateral remain in full force
and effect.
11.6 GSRP is not entering into this Fifth Amendment Agreement
and the transactions contemplated hereby, and does not intend to incur
any obligations hereunder or otherwise make any transfers in connection
herewith, with the actual intent to hinder, delay or defraud either
present or future creditors. After giving effect to the consummation of
the transactions contemplated by this Fifth Amendment Agreement and the
making of the Advances contemplated hereunder, (a) the assets of GSRP
at a fair valuation thereof on a going concern basis will not be less
than its debts, (b) GSRP is not currently engaged in or about to engage
in a business or transaction for which its remaining assets are
unreasonably small in relation to such business or transaction, and (c)
GSRP will be able to pay its respective debts as they become due.
"Debt" for purposes of this Section 11.6 means any liability on a
claim, and "claim" means (i) any right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured, or (ii) any right to an equitable remedy for
16
breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured.
11.7 After giving effect to this Fifth Amendment Agreement, no
Default or Event of Default has occurred or is continuing, nor does any
event or condition exist that would constitute a Default or an Event of
Default. No material adverse change has occurred in or in respect of
the Collateral or any one or more of the Projects that has not been
disclosed to the Administrative Agent and Lenders in writing. The
Obligations continue to be Senior Debt under, and as defined in, the
ASC Indenture and no default or event of default exists under such
Indenture and, after giving effect to the purchase of the Sold
Commercial Assets by ASC or a subsidiary thereof, no defaults or events
of default will exist under said Indenture or any other agreement for
indebtedness for borrowed money, any financing lease or any guaranty of
any of the foregoing to which ASC or any subsidiary thereof is a party.
No default by the Parent in the payment of indebtedness for borrowed
money or in respect of any financing lease or any guarantee issued by
the Parent in respect of indebtedness for borrowed money or financing
leases exists. GSRP has not issued and is not otherwise obligated in
respect of any obligation of the Parent, ASC or any subsidiary of ASC
for borrowed-money indebtedness, any financing lease or any guaranty.
11.8 Mount Snow, Ltd., Killington, Ltd., and Sunday River
Skiway Corporation have pledged no Collateral to the Administrative
Agent but have agreed to make payments to the Administrative Agent
under their respective Beneficial Improvement Agreements in respect of
the Northeastern Commercial Core Assets, all of which payments are
being released from the Liens of the Blanket Mortgages and other
Security Documents pursuant to Section 4 hereof.
11.9 The aggregate amount of the Steamboat Quartershare
Interest "minimum release dollar amounts" set forth on Schedule 4
attached hereto, to be in effect immediately after the Fifth Amendment
Effective Date, is equal to the aggregate outstanding principal
balances of the Steamboat Loan and the Colorado First/PCL Promissory
Note as of such date.
12. This Fifth Amendment Agreement shall become effective on the date
(the "Fifth Amendment Effective Date") on which the parties hereto shall have
executed this Fifth Amendment Agreement and each of the following conditions
shall have been satisfied:
12.1 Warranties and Representations True as of Fifth Amendment
Effective Date. The warranties and representations contained or
referred to in this Fifth Amendment Agreement shall be true in all
material respects on the Fifth Amendment Effective Date with the same
effect as though made on and as of that date. The Administrative Agent
shall have received a certificate, in form and substance satisfactory
to the Administrative Agent, dated as of the Fifth Amendment Effective
Date, signed by an Executive Vice-President or Vice President of GSRP
and certifying that the warranties and representations of GSRP
contained in this Fifth Amendment Agreement are true in all material
respects on the Fifth Amendment Effective Date.
12.2 Secretary's Certificates.
The Administrative Agent shall have received a certificate of
the Secretary or any Assistant Secretary of GSRP, in form and substance
reasonably satisfactory to the Administrative Agent, dated as of the
Fifth Amendment Effective Date, certifying
17
(i) the adoption by the Board of Directors of GSRP of
a resolution authorizing GSRP to enter into this Fifth
Amendment Agreement, the Steamboat Settlement Agreement, the
Steamboat Collateral Sharing Agreement and the transactions
and instruments contemplated hereby and thereby and to sell
the Northeastern Commercial Core Assets to ASC or a subsidiary
thereof, and
(ii) the incumbency and authority of, and verifying
the specimen signatures of, the officers of GSRP authorized to
execute and deliver this Fifth Amendment Agreement, the
Modification Agreements (referred to below), the Steamboat
Cash Pledge Agreement, the Steamboat Collateral Sharing
Agreement and the other documents contemplated hereunder.
12.3 Legal Opinion. GSRP shall have delivered to
Administrative Agent and the Lenders a legal opinion from its General
Counsel in form and substance reasonably satisfactory to the Lenders
and Administrative Agent. GSRP shall have delivered to Administrative
Agent and the Lenders a legal opinion from its Colorado counsel in form
and substance reasonably satisfactory to the Lenders and Administrative
Agent.
12.4 Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 11.2 of Existing LSA
pursuant to invoices or other bills submitted to GSRP.
12.5 Consent. Each Lender shall have consented to this Fifth
Amendment Agreement. Textron Financial Corporation, in its individual
lending capacity, shall have executed and delivered to GSRP an
amendment to the Statement of Intention and Special Additional
Financing Agreement dated as of July 25, 2000 that, among other things,
provides for Textron Financial Corporation, in its individual lending
capacity, to extend an additional $3,058,336.15 in advances to GSRP in
connection with the closing of the Steamboat Settlement Agreement.
12.6 Other Documents.
(a) GSRP shall have executed a modification agreement
(individually, a "Modification Agreement" and, collectively,
the "Modification Agreements") to each of the Blanket
Mortgages, each in form and substance satisfactory to the
Administrative Agent, and shall have delivered the same to the
Administrative Agent and shall have delivered to the
Administrative Agent title insurance endorsements to the Title
Insurance Policy {Blanket} in respect of the Canyons, Mt.
Snow, Killington, Attitash and Jordan Bowl Projects in form
and substance satisfactory to the Administrative Agent whereby
the effective date of such Title Insurance Policy {Blanket}
shall be made the Fifth Amendment Effective Date, all
exclusions and/or exceptions not satisfactory to the
Administrative Agent shall have been removed or appropriate
endorsements in respect thereof shall have been obtained. All
premiums in respect of such endorsement to such Title
Insurance Policy {Blanket} shall have been paid in full and
evidence thereof shall have been delivered to the
Administrative Agent.
(b) Each of the other Persons that shall have
delivered subordination agreements to the Administrative Agent
in connection with the original closing of the Existing LSA
shall have executed this Fifth Amendment Agreement to show its
consent to the same.
18
12.7 Proceedings. All actions taken in connection with the
execution of this Fifth Amendment Agreement and all documents and
papers relating thereto shall be satisfactory to the Administrative
Agent and its counsel. The Administrative Agent and its counsel shall
have received copies of such documents and papers as it or such counsel
may reasonably request in connection therewith, all in form and
substance satisfactory to the Administrative Agent and its counsel.
12.8 Release of Escrow. The proceeds of the Final Steamboat
Construction Cost Advance shall have been released from the escrow
established pursuant to the Steamboat Settlement Agreement and the 2001
Escrow Letter in accordance with their respective terms and paid by the
escrowee thereunder to CFC/PCL or as otherwise provided for in said
Agreement or Letter.
13. Miscellaneous.
13.1 This Fifth Amendment Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
13.2 This Fifth Amendment Agreement shall be governed by the
internal laws of the State of Maine. To the extent any provision of
this Fifth Amendment Agreement is not enforceable under applicable law,
such provision shall be deemed null and void and shall have no effect
on the remaining portions of this Agreement.
13.3 The titles of the Sections appear as a matter of
convenience only, do not constitute a part hereof and shall not affect
the construction hereof. The words "herein," "hereof," "hereunder" and
"hereto" refer to this Fifth Amendment Agreement as a whole and not to
any particular Section or other subdivision.
13.4 All warranties, representations and covenants made by
GSRP herein or in the Existing LSA or in any certificate or other
instrument delivered by it or on its behalf under this Agreement or in
the Existing LSA shall be considered to have been relied upon by the
Lenders and shall survive the execution and delivery of this Fifth
Amendment Agreement.
13.5 Except as explicitly amended by, or otherwise provided
for in, this Fifth Amendment Agreement , the Existing LSA, the Notes
and the other Security Documents remain in full force and effect under
their respective terms as in effect immediately prior to the
effectiveness of this Agreement, and GSRP hereby affirms all of its
obligations thereunder.
13.6 This Fifth Amendment Agreement may be executed in any
number of counterparts, each of which shall be an original but all of
which together shall constitute one instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but
together signed by all, of the parties hereto.
[Remainder of page intentionally left blank. Next page is signature page.]
19
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment
Agreement as of the day and year first above written.
GSRP: Lender:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President and Title: Division President
General Counsel
Lender:
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Lender:
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-----------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Lender:
LITCHFIELD FINANCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
20
Administrative Agent:
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Division President
AGREED AND CONSENTED TO:
L.B.O. HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
21
MOUNT SNOW, LTD.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
KILLINGTON, LTD.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
ASC UTAH, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
STEAMBOAT SKI & RESORT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
22
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.*
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
*American Skiing Company Resort Properties, Inc. (the "Parent") refers to
Section 4.2 of that certain Second Amended and Restated Credit Agreement dated
as of July 31, 2000 among the Parent, Fleet National Bank, as agent (the
"Agent"), and the lenders signatories thereto, as amended by that certain First
Amendment to Second Amended and Restated Credit Agreement dated as of August 20,
2001 (the "Fleet Loan Agreement") and hereby makes the following statements and
undertakings in favor of GSRP, the Administrative Agent and the Lenders: (1) as
of the Fifth Amendment Effective Date, there shall be not less than $5,500,000
of cash on-hand in the General Cash Collateral Account (prior to giving effect
to the transfer of the $1,000,000 referred to in the following clause (2)), (2)
as of the Fifth Amendment Effective Date, $1,000,000 of that $5,500,000 will
have been infused into GSRP in connection with the acquisition by the Parent of
the Northeastern Commercial Core Assets, (3) upon receipt by the Parent from
time to time after the Fifth Amendment Effective Date of a written request from
GSRP for a cash infusion, the Parent agrees to promptly submit a disbursement
request to the Agent under Section 4.2 of the Fleet Loan Agreement to withdraw
from the General Cash Collateral Account (as defined in the Fleet Loan
Agreement) cash in the amount so requested by GSRP, and the Parent further
agrees, upon receipt of such cash from the Agent, to promptly loan the same to
GSRP, provided that (a) the terms and conditions in respect of such request set
forth in Section 4.2 of the Fleet Loan Agreement are satisfied and (b) the cash
proceeds from such request are used to cover cash shortfalls of GSRP under the
Budget (as such term is defined in the Fleet Loan Agreement), a copy of which
has been delivered to the Administrative Agent, (4) absent a Default under, and
as defined in, the Fleet Loan Agreement, the Parent agrees to maintain a balance
at all times in the General Cash Collateral Account such that GSRP shall have
access to, and the use of, the aforesaid $5,500,000 less the amounts that the
Parent shall have withdrawn therefrom at GSRP's instruction (including the
aforesaid $1,000,000 withdrawal), (5) the Parent agrees not to amend or modify
Section 4.2 of the Fleet Loan Agreement without the prior written consent of the
Administrative Agent, (6) as of the Fifth Amendment Effective Date, no Default
or Event of Default (as such terms are defined in the Fleet Loan Agreement)
exists, and (7) the Parent hereby confirms all of its obligations under the
Subordination Agreement in favor of the Administrative Agent and the Lenders to
which it is a party and acknowledges that the same shall be applicable, among
other things, to any and all indebtedness incurred by GSRP in favor of the
Parent pursuant to clause (3) above.
23
Schedule 1
List of Mechanic's, Materialmen's and Laborer's Liens To Be Released/List of
Civil Actions to Foreclose Such Liens
1. Comelco Electric, Inc.
Mechanics Lien, evidenced by statement of lien in amount of $1,525,075.00
recorded October 9, 2000 at Reception No. 534345.
Mechanics Lien, evidence by statement of lien in the amount of $1,915,500.00
recorded March 27, 2001 at Reception No. 542828.
Notice of Lis Pendens (third-party plaintiff) recorded June 28, 2001 at
Reception No. 547589/Civil Action Xx. 00 XX 00 xx xxx Xxxxxxxx Xxxxx of the
County of Routt
2. Ace Tile & Terrazzo, Inc.
Mechanics Lien, evidenced by statement of lien in the amount of $346,290.83
recorded December 22, 2000 at Reception No. 538408.
Mechanics Lien, evidenced by statement of lien in the amount of $325,594.42
recorded March 1, 2001 at Reception No. 541251.
3. Colorado First/PCL, a Joint Venture
Mechanics Lien, evidenced by statement of lien in the amount of $5,456,777.00
recorded January 8, 2001 at Reception No. 538942.
Mechanics Lien, evidenced by statement of lien in the amount of $6,633,072.00
recorded May 29, 2001 at Reception No. 545760.
Notice of Lis Pendens rcorded May 4, 2001 at Reception Xx. 000000/ Xxxxx Xxxxxx
Xx. 00 CV 48 in the District Court of the County of Routt
4. Duckels Construction, Inc.
Mechanics Lien, evidenced by statement of lien in the amount of $238,314.01
recorded March 26, 2001 at Reception no. 542806.
Notice of Lis Pendens (third-party plaintiff) recorded July 11, 2001 at
Reception No. 548155/Civil Action Xx. 00 XX 00 xx xxx Xxxxxxxx Xxxxx of the
County of Routt
24
5. Diversified Builders, Inc.
Mechanics Lien, evidenced by statement of lien in the amount of $986,600.00
recorded April 4, 2001 at Reception No. 543260.
6. Western States Fire Protection Company
Mechanics Lien, evidenced by statement of lien in the amount of $195,063.50
recorded April 27, 2001 at Reception No. 544280.
7. Edge Construction Specialists, Inc.
Mechanics Lien, evidenced by statement of lien in the amount of $349,002.35
recorded April 27, 2001 at Reception No. 544281.
8. Xxxx Xxxxx dba Xxxxx Contracting Services, Inc.
Mechanics Lien, evidenced by statement of lien in the amount of $12,791.96
recorded May 29, 2001 at Reception No. 545767.
9. RK Mechanical Inc.
Mechanics Lien, evidenced by statement of lien in the amount of $3,856,520.91
recorded June 11, 2001 at Reception No. 546649.
10. Champagne Industries, Inc. D/B/A Atrium Window and Door Company of
the Rockies
Mechanics Lien, evidenced by statement of lien in the amount of $120,252.82
recorded July 20, 2001 at Reception No. 548616.
25
~
Schedule 2
Sold Commercial Assets
Killington Grand Summit Hotel, Killington, Vermont - the Commercial Unit.* +
Jordan Grand Summit Hotel, Newry, Maine - Commercial Unit 1.* +
Mount Snow Grand Summit Hotel, Dover, Vermont - the Commercial Unit. * **
Stagecoach parking xxx xx Xxxxxxxx xxx xxxxxx, Xxxxxxxxx, Xxxxxx +
Jordan Bowl developmental property consisting of approximately 272 acres in
Newry and Xxxxx Townships, Maine. +
*Denotes Northeastern Commercial Core Assets that will be sold to the Parent by
GSRP.
** Denotes Northeastern Commercial Core Assets that will be pledged as
collateral under the Fleet/ASCRP Loan Documents.
+ Denotes an asset that will be sold by the Parent to ASC.
26
Schedule 3
Exceptions to Representation and Warranties
None.
27
Schedule 4
Steamboat Minimum Release Prices as of Fifth Amendment Effective Date
28
