American Skiing Company and Subsidiaries
United States
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED OCTOBER 25, 1998
--------------------------------
Commission File Number 333-33483
--------------------------------
American Skiing Company
(Exact name of registrant as specified in its charter)
Maine 04-3373730
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 450
Bethel, Maine 04217
(Address of principal executive office) (Zip Code)
(207) 824-5196
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year, if changed since last
report.)
Indicated by checkmark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
The number of shares outstanding of each of the issuer's classes of
common stock were 14,760,530 of Class A common stock $.01 par value and
15,525,022 shares of common stock $.01 par value outstanding as of December 9,
1998.
<PAGE>
American Skiing Company and Subsidiaries
Table of Contents
Part I - Financial Information
Item 1. Financial Statements
Condensed Consolidated Statement of Operations (Unaudited)
for the three months ended October 25, 1998
and October 26, 1997..................................................3
Condensed Consolidated Balance Sheet
as of October 25, 1998 (Unaudited) and July 26, 1998..................4
Condensed Consolidated Statement of Cash Flows (Unaudited) for the
three months ended October 25, 1998
and October 26, 1997..................................................5
Notes to (Unaudited) Condensed Consolidated Financial Statements......6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
General..............................................................16
Liquidity and Capital Resources......................................16
Changes in Results of Operations.....................................21
Changes in Financial Condition.......................................23
Year 2000 Disclosure ............................................... 24
Forward-Looking Statements...........................................26
Item 3. Quantitative and Qualitative Disclosures
About Market Risk..............................................27
Part II - Other Information
Item 6. Exhibits and Reports on Form 8-K.............................28
<PAGE>
<TABLE>
American Skiing Company and Subsidiaries
Part I - Financial Information
Item 1 Financial Statements
Condensed Consolidated Statement of Operations
(In thousands, except share and per share amounts)
<CAPTION>
For the three months ended
October 25, October 26,
1998 1997
(unaudited) (unaudited)
<S> <C> <C>
Net revenues:
Resort $ 20,435 $ 13,811
Real estate 4,485 810
------------------ -----------------
Total net revenues 24,920 14,621
Operating expenses:
Resort 28,088 17,808
Real estate 3,963 925
Marketing, general and administrative 11,012 6,845
Stock compensation charge (note 9) - 14,254
Depreciation and amortization 2,709 1,506
------------------ -----------------
Total operating expenses 45,772 41,338
------------------ -----------------
Loss from operations (20,852) (26,717)
Interest expense 8,930 8,448
------------------ -----------------
Loss before benefit for income taxes and
minority interest in loss of subsidiary (29,782) (35,165)
Benefit for income taxes (10,573) (13,714)
Minority interest in loss of subsidiary - (456)
------------------ -----------------
Loss from continuing operations (19,209) (20,995)
Accretion of discount and dividends accrued on
Mandatorily Redeemable Preferred Stock 1,059 2,431
------------------ -----------------
Net loss available to common shareholders $(20,268) $(23,426)
================== =================
Retained earnings, beginning of period $ 11 $ 12,305
Net loss available to common shareholders (20,268) (23,426)
----------------- -----------------
Accumulated deficit, end of period $ (20,257) $(11,121)
================== =================
Basic and diluted loss per share (note 6)
Continuing operations $ (0.63) $ (1.42)
Net loss available to common shareholders $ (0.67) $ (1.59)
Weighted average common shares outstanding 30,285,552 14,760,530
================== =================
See accompanying notes to (Unaudited) Condensed Consolidated Financial
Statements.
3
</TABLE>
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Condensed Consolidated Balance Sheet
(In thousands, except share and per share amounts)
<CAPTION>
October 25, 1998 July 26, 1998
(unaudited)
<S> <C> <C>
Assets
Current assets
Cash and cash equivalents $ 9,013 $ 15,370
Restricted cash 6,378 6,260
Accounts receivable 6,327 7,538
Inventory 13,296 13,353
Prepaid expenses 4,107 3,709
Deferred income taxes 1,413 1,413
------------------ -----------------
Total current assets 40,534 47,643
Property and equipment, net 537,722 521,139
Real estate developed for sale 93,235 78,636
Goodwill 78,185 78,687
Intangible assets 23,499 23,706
Deferred financing costs 9,106 9,212
Long-term investments 7,408 7,397
Other assets 18,037 14,479
------------------ -----------------
Total assets $ 807,726 $ 780,899
================== =================
Liabilities, Mandatorily redeemable Preferred Stock and Shareholders' Equity
Current liabilities
Current portion of long-term debt 78,625 44,153
Accounts payable and other current liabilities 50,823 44,372
Deposits and deferred revenue 27,104 10,215
Demand note, Principal Shareholder 1,846 1,846
------------------ -----------------
Total current liabilities 158,398 100,586
Long-term debt, excluding current portion 209,859 211,570
Subordinated notes and debentures, excluding current portion 127,539 127,497
Other long-term liabilities 10,947 10,484
Deferred income taxes 12,146 22,719
Minority interest in subsidiary 378 375
------------------ -----------------
Total liabilities 519,267 473,231
Mandatorily Redeemable 10 1/2% Repriced Convertible Preferred Stock, par value
$1,000 per share; 40,000 shares authorized; 36,626 issued and outstanding;
including cumulative dividends in arrears (redemption value of $39,464 at
July 26, 1998 and $40,523 at October 25, 1998) 40,523 39,464
Shareholders' Equity
Common stock, Class A, par value $.01 per share; 15,000,000 shares authorized;
14,760,530 issued and outstanding; 148 148
Common stock, par value of $.01 per share; 100,000,000 shares authorized;
15,525,022 issued and outstanding 155 155
Additional paid-in capital 267,890 267,890
Retained earnings (deficit) (20,257) 11
------------------ -----------------
Total shareholders' equity 247,936 268,204
================== =================
Total liabilities, Mandatorily redeemable Preferred Stock and shareholders' equity $807,726 $ 780,899
================== =================
See accompanying notes to (Unaudited) Condensed Consolidated Financial Statements.
</TABLE>
4
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Condensed Consolidated Statement of Cash Flows
(In thousands)
<CAPTION>
For the three months ended
October 25, 1998 October 26, 1997
(unaudited) (unaudited)
<S> <C> <C>
Cash flows from operating activities
Net loss $ (19,209) $ (20,995)
Adjustments to reconcile net loss to net cash used in operating activities:
Minority interest in loss of subsidiary - (456)
Depreciation and amortization 2,709 3,001
Discount on convertible debt 67 927
Deferred income taxes (10,573) (13,854)
Stock compensation charge - 14,254
Decrease (increase) in assets:
Restricted cash and investments held in escrow (118) (14,960)
Accounts receivable 1,211 (557)
Inventory 57 (3,520)
Prepaid expenses (398) (957)
Real estate developed for sale (12,820) (21,938)
Other assets (3,558) (2,698)
Increase (decrease) in liabilities:
Accounts payable and other current liabilities 6,451 9,381
Deposits and deferred revenue 16,889 10,278
Other long-term liabilities 463 302
------------------ ------------------
Net cash used in operating activities (18,829) (41,792)
------------------ ------------------
Cash flows from investing activities
Capital expenditures (20,017) (19,249)
Long-term investments (11) 127
Other, net 37 95
------------------ ------------------
Net cash used in investing activities (19,991) (19,027)
------------------ ------------------
Cash flows from financing activities
Net proceeds from Old Credit Facility - 1,189
Net borrowings under Senior Credit Facility 13,322 -
Net proceeds from long-term debt 19,351 50,336
Deferred financing costs (210) (50)
------------------ ------------------
Net cash provided by financing activities 32,463 51,475
------------------ ------------------
Net decrease in cash and cash equivalents (6,357) (9,344)
Cash and cash equivalents, beginning of period 15,370 15,558
------------------ ------------------
Cash and cash equivalents, end of period $ 9,013 $ 6,214
================== ==================
See accompanying notes to (Unaudited) Condensed Consolidated Financial
Statements.
</TABLE>
5
<PAGE>
American Skiing Company and Subsidiaries
Notes to (Unaudited) Condensed Consolidated Financial Statements
1. Change in Accounting Estimate. Effective July 27, 1998, the Company
made changes in the estimated useful lives of certain of its operating fixed
assets. This change had no effect on the net loss or loss per share for the
quarter ended October 25, 1998 as the Company records a full year of
depreciation relating to its operating assets over the second and third quarters
of its fiscal year.
2. General. In the opinion of the Company, the accompanying unaudited
condensed consolidated financial statements contain all adjustments necessary to
present fairly the financial position of the Company as of October 25, 1998 and
July 26, 1998, the results of operations for the three months ended October 25,
1998 and October 26, 1997, and the statement of cash flows for the three months
ended October 25, 1998 and October 26, 1997. All adjustments are of a normal
recurring nature. The unaudited condensed consolidated financial statements
should be read in conjunction with the following notes and the Company's
consolidated financial statements in the Form 10-K, filed with the Securities
and Exchange Commission on October 27, 1998.
3. Inventories. Inventories are stated at the lower of cost (first-in,
first-out) or market, and consist primarily of retail goods, food and beverage
products and maintenance operating supplies.
4. Income Taxes. The expense (benefit) for taxes on income (loss) is
based on a projected annual effective tax rate of 35.5%. The net deferred income
tax liability includes the cumulative reduction in current income taxes payable
resulting principally from the excess of depreciation reported for income tax
purposes over that reported for financial reporting purposes.
5. Seasonal Business. Results for interim periods are not indicative of
the results expected for the year due to the seasonal nature of the Company's
business which is the development and operation of ski resorts.
6. Earnings (loss) per Common Share. Loss per common share figures are
based on the weighted average number of shares outstanding during the first
quarter of fiscal 1999 and 1998 of 30,285,552 and 14,760,530, respectively. The
shares outstanding are the actual shares outstanding for both common stock and
Class A common stock. On a pro forma basis, loss per share for the quarter ended
October 26, 1997 including Class A common and common stock would have been
$(1.00) per share. This pro forma loss per share includes the increase in shares
outstanding from the Company's initial public offering that closed on November
12, 1997.
7. Adjustments and Reclassifications. Certain amounts in the prior
year's unaudited condensed consolidated financial statements and the audited
financial statements as filed with the Securities and Exchange Commission on
October 27, 1998 have been reclassified to conform to the current presentation.
8 Pro forma disclosure. The following unaudited pro forma statement of
operations for the three months ended October 25, 1998 and October 26, 1997 are
presented for comparative purposes. The following pro forma adjustments have
been made for the following periods:
The three months ended October 25, 1998 - There are no pro forma
adjustments.
6
<PAGE>
American Skiing Company and Subsidiaries
The three months ended October 26, 1997 - The results of operations for
Steamboat and Heavenly have been added based on their historical results for the
period from August 1, 1997 through October 31, 1997. The pro forma adjustments
have been made to depreciation and amortization to reflect the purchase
accounting for the assets of Steamboat and Heavenly and the changes in the
Company's capital structure. The pro forma adjustments have been posted to
interest expense to reflect the change in the capital structure of the Company
related to the acquisition of Steamboat and Heavenly and the initial public
offering of the Company on November 6, 1997.
<TABLE>
Consolidated Statement of Operations
(In thousands, except per share data)
Pro Forma
<CAPTION>
Three Months Ended
Net revenues: October 25, October 26,
1998 1997
(unaudited) (unaudited)
<S> <C> <C>
Resort $ 24,920 $ 18,008
Loss from continuing operations (19,209) (27,055)
----------------- ------------------
Net loss available to common shareholders $ (20,268) $(29,486)
================= ==================
Basic and diluted loss per share
Continuing operations $ (0.63) $ (0.92)
Net loss available to common shareholders $ (0.67) $ (1.00)
================= ==================
</TABLE>
7
<PAGE>
American Skiing Company and Subsidiaries
9. Stock option plan. The Company recorded a compensation expense
charge of $14.3 million in the quarter ended October 26, 1997 to recognize
compensation expense for stock options granted to certain key members of
management. This charge is based on the difference between the exercise price of
$2.00 and the fair market value as of the date of grant of $18.00. Certain
members of senior management are also being granted a cash payment on the date
the options are exercised to cover individual Federal and State income tax
liability generated by exercising the options. The estimated amount of the tax
liability payment of $5.7 million has been fully accrued along with the stock
option compensation charge of $8.6 million.
10. Guarantors of Debt. One of the main subsidiaries of the Company is ASC
East, Inc. ASC East, Inc. files its own Form 10-Q because of notes that were
registered with the Securities and Exchange Commission on Form S-4 with the
Securities and Exchange Commission on November 22, 1996. These notes are fully
and unconditionally guaranteed by ASC East, Inc. and all of its subsidiaries
with the exception of Ski Insurance Company, Killington West, Ltd., Mountain
Water Company, Uplands Water Company, and Club Sugarbush. The guarantor
information for the quarters ended October 25, 1998 and October 26, 1997 is as
follows:
8
<PAGE>
American Skiing Company and Subsidiarieis
<TABLE>
Balance Sheet as of October 25, 1998
(in thousands) (unaudited)
<CAPTION>
ASC Guarantor Non- Guarantor Elimination ASC
Subsidiaries Subsidiaries Entries Consolidated
<S> <C> <C> <C> <C> <C>
Assets
Current assets
Cash and cash equivalents $ 514 $ 4,605 $ 3,894 $ - $ 9,013
Restricted cash - 6,346 32 - 6,378
Accounts receivable 971 8,620 2,790 (6,054) 6,327
Inventory 311 9,096 3,889 - 13,296
Prepaid expenses 273 2,959 875 - 4,107
Deferred income taxes - 1,289 124 - 1,413
Investment in subsidiaries 395,718 314,118 306,526 (1,016,362) -
-------------- ------------- ----------- --------------- ----------
Total current assets 397,787 347,033 318,130 (1,022,416) 40,534
Property and equipment, net 7,013 302,674 228,035 - 537,722
Real estate developed for sale - 91,242 1,993 - 93,235
Goodwill - 19,563 58,622 - 78,185
Intangible assets - 2,032 21,467 - 23,499
Deferred financing costs - 6,462 2,644 - 9,106
Long-term investments - - 7,408 - 7,408
Other assets - 8,158 9,879 - 18,037
--------------- ------------ ------------ ---------------- --------
Total assets $404,800 $777,164 $648,178 $(1,022,416) $807,726
--------------- ------------ ------------ ---------------- --------
Liabilities, Mandatorily redeemable Preferred Stock
and Shareholders' Equity
Current liabilities
Current portion of long-term debt $ - $ 47,285 $ 31,340 $ - $ 78,625
Accounts payable and other current liabilities 7,339 28,988 16,516 (2,020) 50,823
Deposits and deferred revenue 349 20,216 6,539 - 27,104
Demand note, Principal Shareholder - 1,846 - - 1,846
Due to affiliates 96,274 54,049 (150,323) - -
--------------- ------------ ----------- ----------------- --------
Total current liabilities 103,962 152,384 (95,928) (2,020) 158,398
Long-term debt, excluding current portion - 87,888 126,005 (4,034) 209,859
Subordinated notes and debentures, excluding
current portion - 127,539 - - 127,539
Other long-term liabilities 3,000 4,468 3,479 - 10,947
Deferred income taxes (6,729) 20,654 (1,779) - 12,146
Minority interest in subsidiary - - 378 - 378
--------------- ------------ ------------ --------------- ---------
Total liabilities 100,233 392,933 32,155 (6,054) 519,267
Mandatorily redeemable 10 1/2% Repriced Convertible
Preferred Stock par value $1,000 per share; 40,523 - - - 40,523
40,000 shares authorized; 36,626 issued and outstanding;
including cumulative dividends in arrears (redemption
value of $40,523 at October 25, 1998)
Shareholders' Equity
Common Stock, Class A, par value $.01 per share; 15,000
shares authorized;
14,760,530 issued and ourstanding 148 - - - 148
Common stock, par value of $.01 per share;
100,000,000 shares authorized; 15,525,022 issued and
outstanding 155 191 12 (203) 155
Additional paid-in capital 267,890 326,257 587,428 (913,685) 267,890
Retained earnings (4,149) 57,783 28,583 (102,474) (20,257)
------------ ----------- -------------- ------------- ------------
Total shareholders' equity 264,044 384,231 616,023 (1,016,362) 247,936
------------ ----------- -------------- ------------- ------------
Total liabilities, Mandatorily redeemable Preferred
Stock and shareholders' equity $404,800 $777,164 $ 648,178 $ (1,022,416) $ 807,726
------------ ----------- -------------- ------------- ------------
</TABLE>
9
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Statement of Operations for the three months ended October 25, 1998
(in thousands) (unaudited)
<CAPTION>
ASC Guarantor Non- Guarantor Elimination ASC
Subsidiaries Subsidiaries Entries Consolidated
<S> <C> <C> <C> <C> <C>
Net revenues:
Resort $ 808 $ 15,762 $ 4,096 $ (231) $ 20,435
Real estate - 4,323 162 - 4,485
------------- ----------------- ----------------- -------------- -------------
Total net revenues 808 20,085 4,258 (231) 24,920
------------- ----------------- ----------------- -------------- -------------
Operating expenses:
Resort 631 19,648 8,040 (231) 28,088
Real estate - 3,937 26 - 3,963
Marketing, general and administrative 2,304 5,092 3,616 - 11,012
Depreciation and amortization 9 1,813 887 - 2,709
------------- ----------------- ----------------- -------------- -------------
Total operating expenses 2,944 30,490 12,569 (231) 45,772
------------- ----------------- ----------------- -------------- -------------
Loss from operations (2,136) (10,405) (8,311) - (20,852)
Interest expense 1,918 6,929 83 - 8,930
------------- ----------------- ----------------- -------------- -------------
Loss before benefit for income taxes (4,054) (17,334) (8,394) - (29,782)
Benefit for income taxes (783) (6,749) (3,041) - (10,573)
------------- ----------------- ----------------- -------------- -------------
Loss from continuing operations (3,271) (10,585) (5,353) - (19,209)
Dividends accrued on Mandatorily
Redeemable Preferred Stock 1,059 - - - 1,059
------------- ----------------- ----------------- -------------- -------------
Net loss available to common shareholders $ (4,330) $ (10,585) $ (5,353) $ - $ (20,268)
============= ================= ================= ============== =============
</TABLE>
10
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Statement of Cash Flows for the three months ended October 25, 1998
(in thousands) (unaudited)
<CAPTION>
ASC Guarantor Non- Guarantor Elimination ASC
Subsidiaries Subsidiaries Entries Consolidated
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities
Net loss $ (3,271) $(10,585) $ (5,353) $ - $ (19,209)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization 9 1,813 887 - 2,709
Amortization of discount on subordinated notes and
debentures and other liabilities - 67 - - 67
Deferred income taxes (783) (6,750) (3,040) - (10,573)
Decrease (increase) in assets:
Restricted cash and investments held in escrow - (110) (8) - (118)
Accounts receivable (971) 2,596 59 (473) 1,211
Inventory (85) 1,130 (988) - 57
Prepaid expenses 332 (170) (560) - (398)
Real estate developed for sale - (12,820) - - (12,820)
Other assets - (3,467) (91) - (3,558)
Due to/from affiliate 984 9,678 (10,662) - -
Increase (decrease) in liabilities:
Accounts payable and other current liabilities 837 1,688 3,926 - 6,451
Deposits and deferred revenue 349 10,560 5,980 - 16,889
Other long-term liabilities - 387 76 - 463
-------------- --------------- --------------- ------------ ----------
Net cash provided by operating activities (2,599) (5,983) (9,774) (473) (18,829)
-------------- --------------- --------------- ------------ ----------
Cash flows from investing activites
Capital expenditures (2,488) (8,602) (8,927) - (20,017)
Long-term investments - - (11) - (11)
Cash contribution from parent - 1,600 (1,600) - -
Other, net - (5) 42 - 37
-------------- ------------- --------------- ------------- ----------
Net cash used in investing activities (2,488) (7,007) (10,496) - (19,991)
-------------- ------------- --------------- ------------- ----------
Cash flows from financing activities
Net borrowings under New Credit Facility - (3,727) 17,049 - 13,322
Proceeds from (repayment of) long-term debt - 18,189 689 473 19,351
Deferred financing costs - (39) (171) - (210)
-------------- --------------- --------------- ------------ ---------
Net cash provided by financing activities - 14,423 17,567 473 32,463
-------------- -------------- --------------- ------------- ---------
Net increase (decrease) in cash and cash equivalents (5,087) 1,433 (2,703) - (6,357)
Cash and cash equivalents, beginning of period 5,600 3,172 6,598 - 15,370
-------------- --------------- --------------- ------------ ---------
Cash and cash equivalents, end of period $ 513 $ 4,605 $ 3,895 $ - $ 9,013
-------------- --------------- --------------- ------------ ---------
</TABLE>
11
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Balance Sheet as of July 26, 1998
(in thousands) (unaudited)
<CAPTION>
ASC Guarantor Non- Guarantor Elimination ASC
Subsidiaries Subsidiaries Entries Consolidated
<S> <C> <C> <C> <C> <C>
Assets
Current assets
Cash and cash equivalents $ 5,600 $ 3,173 $ 6,597 $ - $ 15,370
Restricted cash - 1,745 4,515 - 6,260
Accounts receivable - 11,215 2,090 (5,767) 7,538
Inventory 226 10,226 2,901 - 13,353
Prepaid expenses 604 1,705 1,400 - 3,709
Deferred income taxes - 1,289 124 - 1,413
Investment in subsidiaries 385,788 263,950 298,844 (948,582) -
--------------- --------------- -------------- -------------- ---------------
Total current assets 392,218 293,303 316,471 (954,349) 47,643
Property and equipment, net 4,534 296,044 220,561 521,139
Real estate developed for sale - 38,023 40,613 78,636
Goodwill - 19,702 58,985 78,687
Intangible assets - 2,050 21,656 23,706
Deferred financing costs - 6,643 2,569 9,212
Long-term investments - - 7,397 7,397
Other assets - 4,691 9,788 14,479
--------------- --------------- -------------- -------------- ---------------
Total assets $ 396,752 $ 660,456 $ 678,040 $(954,349) $ 780,899
--------------- --------------- -------------- -------------- ---------------
Liabilities and Shareholders' Equity
Current liabilities
Current portion of long-term debt $ - $ 30,063 $ 16,053 $ (1,963) $ 44,153
Accounts payable and other current
liabilities 6,500 27,302 11,828 (1,258) 44,372
Deposits and deferred revenue - 3,560 6,655 - 10,215
Demand note, Principal Shareholder - 1,846 - - 1,846
Due to affiliates 95,290 17,239 (112,529) - -
--------------- --------------- -------------- -------------- ---------------
Total current liabilities 101,790 80,010 (77,993) (3,221) 100,586
Long-term debt, excluding current portion - 87,541 126,573 (2,544) 211,570
Subordinated notes and debentures,
excluding current portion - 127,497 - - 127,497
Other long-term liabilities 3,000 4,081 3,403 - 10,484
Deferred income taxes (5,946) 27,428 1,237 - 22,719
Minority interest in subsidiary - - 375 - 375
--------------- --------------- -------------- -------------- ---------------
Total liabilities 98,844 326,557 53,595 (5,765) 473,231
Mandatorily redeemable 10 1/2%
Repriced Convertable Preferred
Stock par value $1,000 per share; 39,464 - - 39,464
40,000 shares authorized; 36,626
issued and outstanding; including
cumulative dividends in arrears
(redemption value of $39,464 at
July 26, 1998)
Shareholders' Equity
Common Stock, Class A, par value $.01
per share; 15,000 shares authorized;
14,760,530 issued and ourstanding 148 - - 148
Common stock, par value of $.01 per share;
1,000,000 shares authorized; 978,300
issued and outstanding 155 191 12 (203) 155
Additional paid-in capital 268,346 291,294 610,727 (902,477) 267,890
Retained earnings (10,205) 42,414 13,705 (45,904) 11
--------------- --------------- -------------- -------------- ---------------
Total shareholders' equity 258,444 333,899 624,445 (948,584) 268,204
--------------- --------------- -------------- -------------- ---------------
Total liabilities and shareholders'
equity $ 396,752 $ 660,456 $ 678,040 $(954,349) $ 780,899
--------------- --------------- -------------- -------------- ---------------
</TABLE>
12
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Statement of Operations for the three months ended October 26, 1997
(in thousands) (unaudited)
<CAPTION>
ASC Guarantor Non-Guarantor Elimination ASC
Subsidiaries Subsidiaries Entries Consolidated
<S> <C> <C> <C> <C> <C>
Net revenues:
Resort $ 120 $ 13,566 $ 458 $ (333) $ 13,811
Real estate - 810 - - 810
------------- --------------- --------------- -------------- ----------------
Total net revenues 120 14,376 458 (333) 14,621
------------- --------------- --------------- -------------- ----------------
Operating expenses:
Resort - 17,476 665 (333) 17,808
Real estate - 925 - - 925
Marketing, general and administrative - 6,538 307 - 6,845
Stock compensation charge 10,983 3,271 - - 14,254
Depreciation and amortization 56 1,448 2 - 1,506
------------- --------------- --------------- -------------- ----------------
Total operating expenses 11,039 29,658 974 (333) 41,338
------------- --------------- --------------- -------------- ----------------
Income (loss) from operations (10,919) (15,282) (516) - (26,717)
Interest expense 1,547 6,705 196 - 8,448
------------- --------------- --------------- -------------- ----------------
Loss before benefit for income taxes (12,466) (21,987) (712) - (35,165)
Benefit for income taxes (4,993) (8,443) (278) - (13,714)
Minority interest in loss of subsidiary (456) - - - (456)
------------- --------------- --------------- -------------- ----------------
Loss from continuing operations (7,017) (13,544) (434) - (20,995)
Dividends accrued on Mandatorily
Redeemable Preferred Stock 2,431 - - - 2,431
------------- --------------- --------------- -------------- ----------------
Net loss available to common shareholders $ (9,448) $ (13,544) $ (434) $ - $ (23,426)
============= =============== =============== ============== ================
</TABLE>
13
<PAGE>
American Skiing Company and Subsidiaries
<TABLE>
Statement of Cash Flows for the three months ended October 26, 1997
(in thousands) (unaudited)
ASC Guarantor Non-Guarantor Elimination ASC
Subsidiaries Subsidiaries Entries Consolidated
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities
Net loss $ (7,017) $ (13,544) $ (434) $ - $ (20,995)
Adjustments to reconcile net loss to net cash used
in operating activities:
Minority interest in loss of subsidiary (456) - - - (456)
Depreciation and amortization 651 2,348 2 - 3,001
Stock compensation charge 10,983 3,271 - - 14,254
Discount on convertable debt 927 - - - 927
Deferred income taxes (4,993) (8,443) (418) - (13,854)
Decrease (increase) in assets:
Restricted cash (11,010) (273) (3,677) - (14,960)
Accounts receivable (1) (294) (593) 331 (557)
Inventory - (3,520) - - (3,520)
Prepaid expenses 1 (826) (132) - (957)
Real estate developed for sale - (21,938) - - (21,938)
Other assets - 155 (2,853) - (2,698)
Due to/from affiliate (17,792) 5,230 12,562 - -
Increase (decrease) in liabilities:
Accounts payable and other current liabilities (730) 7,046 3,396 (331) 9,381
Deposits and deferred revenue - 9,965 313 - 10,278
Other long-term liabilities 115 219 (32) - 302
------------- ------------ --------------- -------------- ---------------
Net cash provided by (used in) operating activities (29,322) (20,604) 8,134 - (41,792)
------------- ------------ --------------- -------------- ---------------
Cash flows from investing activities
Capital expenditures (1) (11,175) (8,073) - (19,249)
Long-term investments - - 127 - 127
Other, net 95 - - - 95
-------------- ----------- --------------- -------------- ---------------
Net cash used in investing activities 94 (11,175) (7,946) - (19,027)
-------------- ------------ --------------- -------------- --------------
Cash flows from financing activities
Net proceeds from Senior Credit Facility - 1,189 - - 1,189
Proceeds from (payment of) long-term debt 17,500 32,840 (4) - 50,336
Deferred financing costs - (50) - - (50)
-------------- ------------ --------------- -------------- --------------
Net cash provided by financing activities 17,500 33,979 (4) - 51,475
-------------- ------------ --------------- -------------- --------------
Net increase (decrease) in cash and cash equivalents (11,728) 2,200 184 - (9,344)
Cash and cash equivalents, beginning of period 12,874 2,159 525 - 15,558
-------------- ------------ --------------- -------------- --------------
Cash and cash equivalents, end of period $ 1,146 $ 4,359 $ 709 $ - $ 6,214
-------------- ------------ --------------- -------------- --------------
</TABLE>
14
<PAGE>
American Skiing Company and Subsidiaries
11. Subsequent Events. On September 4, 1998, the Company entered into a $30
million credit arrangement with BankBoston Morgan Stanley Capital Funding (the
"Bridge Financing"). The Bridge Financing bears interest at a rate of 14% per
annum, payable monthly in arrears, and matured on December 4, 1998. The maturity
date for the loan was extended to December 30, 1998. The Company is currently in
the process of obtaining permanent financing to repay the Bridge Financing and
provide additional capital for real estate development.
12. Recently Issued Accounting Standards. In June 1997, the Financial
Accounting Standards Board (FASB) issued Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income" ("SFAS 130"). SFAS 130 was
effective for all fiscal quarters of all fiscal years beginning after December
15, 1997, (the fiscal year ended July 25, 1999 for the Company). This
pronouncement requires disclosure of comprehensive income and its components in
interim and annual reports. Total comprehensive income components included in
stockholders' equity include any changes in equity during a period that are not
the result of transactions with owners, including cumulative translation
adjustments, unrealized gains and losses on available-for-sale securities and
minimum pension liabilities. As of October 25, 1998, the Company has no such
items of comprehensive income. As such, the adoption of SFAS 130 had no effect
on the Company's financial statements.
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 131, "Disclosures about Segment of an Enterprise and Related Information"
("SFAS 131"). This statement established standards for reporting information on
operating segments in interim and annual financial statements. SFAS 131 is
effect of fiscal years beginning after December 15, 1997 (the fiscal year ended
July 25, 1999 for the Company) and does not require application to interim
financial statements in the initial year of application. As the company already
discloses segment information under SFAS 14, "Financial Reporting for Segments
of a Business Enterprise", management does not believe the adoption of SFAS 131
will result in a change in the composition of the Company's operating segments,
or in the previously reported net income for each segment. Additional disclosure
to comply with SFAS 131 will be required.
In June 1998, the FASB issued Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instrument and Hedging Activities" ("SFAS
133"). SFAS 133 is effective for fiscal quarters of all fiscal years beginning
after June 15, 1999 (the fiscal year ended July 30, 2000 for the Company). This
pronouncement required that all derivative instruments be recorded on the
balance sheet at their fair value. Changes in the fair value of derivatives are
recorded each period in current earnings or other comprehensive income,
depending of whether a derivative is designated as part of a hedge transaction
and, if it is, the type of hedge transaction. Management of the Company is
currently reviewing the impact of SFAS 133 on its consolidated financial
statements.
15
<PAGE>
American Skiing Company and Subsidiaries
Item 2
Management's Discussion and Analysis of Financial
Condition and Results of Operations
General
We are pleased to present to you management's discussion and analysis
of financial condition and results of operations for the first quarter of fiscal
1999. As you read the material below, we urge you to carefully consider our
condensed, consolidated financial statements and related notes contained
elsewhere in this report and the audited financial statements and related notes
contained in our Form 10-K filed on October 27, 1998.
Liquidity and Capital Resources
Short-Term. The Company's primary short-term liquidity needs are
funding seasonal working capital requirements, continuing the real estate
development, completing projects initiated in the Company's summer 1998 capital
improvement program, and servicing indebtedness. Cash requirements for
ski-related and real estate development activities are provided by separate
sources. The Company's primary sources of liquidity for working capital and
ski-related capital improvements are cash flow from operations of its
subsidiaries and borrowings under the Senior Credit Facility (as hereinafter
defined). Real estate development is funded primarily through construction
financing facilities established for major real estate development projects and
through the mezzanine facilities established or expected to be established
through the Company's real estate development holding company, American Skiing
Company Resort Properties, Inc. ("Resort Properties"). The construction
financing facilities and Resort Properties mezzanine facilities are without
recourse to American Skiing Company and its resort operating subsidiaries.
The Company established a senior credit facility on November 12, 1997
(as amended to date, the "Senior Credit Facility"). The Senior Credit Facility
is divided into two sub-facilities, $65 million of which ($7.2 million of which
was available at October 25, 1998) is available for borrowings by ASC East, Inc.
and its subsidiaries (the "East Facility") and $150 million of which (less than
$0.1 million of which was available at October 25, 1998) is available for
borrowings by the Company excluding ASC East, Inc. and its subsidiaries (the
"West Facility"). The East Facility consists of a six-year revolving credit
facility in the amount of $35 million and an eight-year term facility in the
amount of $30 million. The West Facility consists of a six-year revolving
facility in the amount of $75 million and an eight-year term facility in the
amount of $75 million.
16
<PAGE>
American Skiing Company and Subsidiaries
The revolving facilities are subject to annual 30-day clean down
requirements to an outstanding balance of not more than $10 million for the East
Facility and not more than $45 million for the West Facility. The maximum
availability under the revolving facilities will reduce over the term of the
Senior Credit Facility by certain prescribed amounts. The term facilities
amortize at a rate of approximately 1.0% of the principal amount for the first
six years with the remaining portion of the principal due in two substantially
equal installments in years seven and eight. Beginning in July 1999, the Senior
Credit Facility requires mandatory prepayment of 50% of the Company's excess
cash flows during any period in which the ratio of the Company's total senior
debt to EBITDA exceeds 3.50 to 1. In no event, however, will such mandatory
prepayments reduce either revolving facility commitment below $35 million. The
Senior Credit Facility contains affirmative, negative and financial covenants
customary for this type of credit facility, including maintenance of customary
financial ratios. Except for a leverage test, compliance with financial
covenants is determined on a consolidated basis notwithstanding the bifurcation
of the Senior Credit Facility into sub-facilities. The East Facility is secured
by substantially all the assets of ASC East, Inc. and its subsidiaries, except
its real estate development subsidiaries, which are not borrowers under the
Senior Credit Facility. The West Facility is secured by substantially all the
assets of the Company and its subsidiaries, except ASC East, Inc. and its
subsidiaries.
Summer 1998 capital improvements were funded through the Senior Credit
Facility and a $31 million leasing facility arranged by BancBoston Leasing, Inc.
Interim funding of working capital for Resort Properties and its planned 1998
real estate development program was obtained through a loan from BankBoston,
N.A. and Morgan Stanley Capital Funding in the maximum amount of $30 million
(approximately $28.5 of which was outstanding on December 4, 1998), which closed
on September 4, 1998 (the "Bridge Loan"). The Bridge Loan bears interest at a
rate of 14% per annum (payable monthly in arrears) and initially carried a
maturity date of December 4, 1998. The maturity date for the Bridge Loan has
since been extended to December 30, 1998. The Bridge Loan is secured by security
interests in, and mortgages on, substantially all of Resort Properties' assets.
Resort Properties expects to repay the Bridge Loan with the proceeds of either
(1) a subordinated debt financing ("Mezzanine Facility"), which it is currently
in the process of privately negotiating or (2) a Rule 144A placement of a new
senior secured credit facility with sufficient additional availability to allow
repayment of the Bridge Loan ("Senior Secured Facility"). No assurance can be
given that either the Mezzanine Facility or the Senior Secured Facility will be
successfully placed or that the terms of the Mezzanine Facility or the Senior
Secured Facility will not be costly, restrictive to Resort Properties'
operations or dilutive of the Company's existing shareholders. Failure to place
the Mezzanine Facility or the Senior Secured Facility would require curtailing a
major portion of future real estate development and refinancing the Bridge Loan
to provide longer term funding for Resort Properties' existing seven development
projects. The Bridge Loan is non-recourse to American Skiing Company and its
resort operating subsidiaries. Any Mezzanine Facility would be expected to be
non-recourse to American Skiing Company and its resort operating subsidiaries.
17
<PAGE>
American Skiing Company and Subsidiaries
The Company runs its real estate development through single purpose
subsidiaries, each of which is a wholly-owned subsidiary of Resort Properties.
In its fourth fiscal quarter of 1998, the Company commenced construction on
three new hotel projects (two at The Canyons in Utah and one at Steamboat in
Colorado). Two of these new hotel projects are Grand Summit Hotels which are
being financed through a $145 million construction loan facility between Grand
Summit Resort Properties, Inc., ("GSRP", the Company's Grand Summit development
subsidiary) and TFC Textron Financial, which closed on September 25, 1998 (the
"Textron Facility"). A portion of the proceeds of the Textron Facility were also
used to refinance an existing facility with TFC Textron which was used to
finance construction of Grand Summit Hotels at Killington, Mt. Snow, Sunday
River and Attitash Bear Peak.. The Textron Facility bears interest at the rate
of prime plus 1.5% per annum (payable monthly in arrears), subject to a 9.25%
floor, matures on September 24, 2002 and had a $29.3 million outstanding balance
as of October 25, 1998. The principal is payable incrementally as quartershare
sales are closed at the rate of 80% of the net proceeds of each closing. The
Textron Facility is secured by mortgages against the project sites, is subject
to customary covenants, representations and warranties for this type of
construction facility, and is non-recourse to American Skiing Company and its
operating subsidiaries. The Textron Facility, together with funds invested by
the Company, is sufficient to fund all of the Company's Grand Summit Hotel
projects for which the Company is currently in pre-sales.
The remaining hotel project commenced by the Company in 1998, the
Sundial Lodge project at The Canyons, is expected to be financed through a
construction loan facility with KeyBank, N.A. in a principal amount equal to 90%
of the total project cost (the "Key Facility"). The remaining project costs will
be financed through the Bridge Loan. Although the Company anticipates that the
Key Facility will close in the Company's second fiscal quarter of 1999, no
assurance can be given that this facility will close as currently contemplated.
The Company retained approximately $15 million of unexpended proceeds
from its initial public offering. During the fourth quarter of the Company's
fiscal 1998, these proceeds were treated as a capital contribution to real
estate and are currently invested in Resort Properties. In the first quarter of
fiscal 1999, the Company made a capital contribution of all of the capital stock
of Resort Properties to the Company's wholly-owned subsidiary, ASC East, Inc.
This contribution was made to consolidate the operations of Resort Properties
with those of GSRP, which became a wholly-owned subsidiary of Resort Properties
subsequent to the merger.
ASC East, Inc. is prohibited under the indenture governing its $120
million 12% Senior Subordinated Notes due 2006 from paying dividends or making
other distributions to the Company, except under certain circumstances.
Therefore, ASC East, Inc.'s ability to distribute excess cash to the Company for
use by the Company or its other subsidiaries is limited.
The Company issued $17.5 million of convertible, preferred stock and
$17.5 million of convertible notes in July, 1997 to fund development at The
Canyons. These securities were converted on November 12, 1997 into Mandatorily
Redeemable 10 1/2% Repriced Convertible Preferred Stock of the Company.
18
<PAGE>
American Skiing Company and Subsidiaries
Due to the seasonality of the Company's business, the Company's maximum
annual leverage occurs during the months of November and December. During fiscal
1999, the Company expects to reach its maximum leverage point in December, 1998
at which time borrowings (exclusive of real estate borrowings with recourse only
to Resort Properties and/or its subsidiaries) are expected to approximate $380
million. During this period, the Company expects to have little, if any,
borrowing availability under the Senior Credit Facility and will have limited
ability to fund extraordinary expenses.
Long-Term. The Company's primary long-term liquidity needs are to fund
skiing related capital improvements at certain of its resorts, extensive
development of its slopeside real estate, and any future acquisitions of resort
properties. The Company has invested over $130 million in skiing related
facilities in fiscal years 1997 and 1998 combined. As a result, the Company
expects its resort capital programs for the next several fiscal years to be more
limited in size. The fiscal 1999 resort capital program is expected to total
approximately $55 million, with the summer 1999 resort capital program estimated
at between $25 million and $35 million. The Company anticipates its annual
maintenance capital needs to be approximately $12 million.
The Company's largest long-term capital needs relate to The Canyons
resort in Utah and the Company's real estate development program. The Canyons
resort will require an estimated $30 million over the next three years to fully
develop on-mountain facilities in time for the 2002 Winter Olympic Games. Other
major capital expenditures anticipated during the next several fiscal years
include the interconnection of its Killington and Pico resorts, at an estimated
cost of $7.0 million, and water projects at its Killington and Mount Snow
resorts, at an estimated cost of $4.0 million each, and at The Canyons at an
estimated cost of $12.3 million.
There is a considerable degree of flexibility in the timing and, to a
lesser degree, scope of these capital improvements. Although specific capital
expenditures can be deferred for extended periods, continued growth of skier
visits, revenues and profitability will require continued capital investment in
on-mountain improvements. The Company's practice is to finance on-mountain
capital improvements through resort cash flow and its Senior Credit Facility.
The size and scope of the capital improvement program will generally be
determined annually depending upon future availability of cash flow from each
season's resort operations and future borrowing availability under the Senior
Credit Facility.
The Company's business plan anticipates the development of both Grand
Summit hotels and condominium hotels at several resorts, and resort villages at
Sunday River, Killington, The Canyons, Steamboat and Heavenly. All real estate
development is undertaken through the Company's real estate development
subsidiary, Resort Properties. Recourse on indebtedness incurred to finance real
estate development is limited to Resort Properties and/or its subsidiaries.
Resort Properties' seven existing development projects are currently funded by
the Bridge Loan, the Textron Facility and the anticipated Key Facility. The
Bridge Loan matures on December 30, 1998 and is anticipated to be refinanced
with the Mezzanine Facility or the Senior Secured Facility. No assurance can be
provided that the Mezzanine Facility or the Senior Secured Facility will close
prior to the maturity of the Bridge Loan.
19
<PAGE>
American Skiing Company and Subsidiaries
The Company expects to undertake future real estate development
projects through special purpose subsidiaries with financing provided
principally on a limited recourse basis. Required equity contributions for
approximately the next five of these projects are expected to be made using the
remaining proceeds of the Mezzanine Facility and sales proceeds from the
Company's four existing Grand Summit Hotel projects. Financing commitments for
future real estate development do not currently exist, and no assurance can be
given that they will be available or established. The Company will be required
to establish construction facilities or other financing arrangements for these
projects before undertaking each development.
The Company from time to time considers potential acquisitions which
would be accretive to earnings. There are not currently any funding sources
immediately available to the Company for such acquisitions, however, and the
Company would need to establish such sources prior to consummating any such
acquisition.
20
<PAGE>
American Skiing Company and Subsidiaries
Changes in Results of Operations
First Quarter of Fiscal 1999 compared to First Quarter of Fiscal 1998.
1. Resort Revenues. Resort revenues increased $6.6 million, or 47.8%,
from $13.8 million for the three months ended October 26, 1997 to $20.4
million for the three months ended October 25, 1998. The inclusion of the
Steamboat and Heavenly resorts for the period ended October 25, 1998
accounts for $3.7 million of the increase. The remaining increase is
primarily attributable to the operation of Grand Summit Resort Hotels at
the Company's Killington, Mount Snow and Sunday River resorts which opened
during the 1997/1998 ski season.
2. Real estate revenues. Real estate revenues increased $3.7 million,
or 462.5%, from $.8 million for the three months ended October 26, 1997 to
$4.5 million for the three months ended October 25, 1998. The increase is
primarily attributable to the sale of quartershare units at Grand Summit
Resort Hotel projects at the Company's Killington, Mount Snow and Sunday
River resorts and the sale of Locke Mountain townhouses at the Company's
Sunday River resort.
3. Cost of resort operations. Cost of resort operations increased
$10.3 million, or 57.9%, from $17.8 million for the three months ended
October 26, 1997 to $28.1 million for the three months ended October 25,
1998. The inclusion of the Steamboat and Heavenly resorts for the period
ended October 25, 1998 accounts for $7.1 million of the increase. The
remaining increase is primarily attributable to the operation of Grand
Summit Resort Hotels at the Company's Killington, Mount Snow and Sunday
River resorts which opened during the 1997/1998 ski season.
4. Cost of real estate operations. Cost of real estate operations
increased $3.1 million, or 344.4%, from $.9 million for the three months
ended October 26, 1997 to $4.0 million for the three months ended October
25, 1998. The increase is primarily attributable to an increase in cost of
goods sold relating to the sale of quartershare units at Grand Summit
Resort Hotel projects at the Company's Killington, Mount Snow and Sunday
River resorts and the sale of Locke Mountain townhouses at the Company's
Sunday River resort.
5. Marketing, general and administrative. Marketing, general and
administrative expense increased $4.2 million, or 61.8%, from $6.8 million
for the three months ended October 26, 1997 to $11.0 million for the three
months ended October 25, 1998. The inclusion of the Steamboat and Heavenly
resorts for the period ended October 25, 1998 accounts for $2.9 million of
the increase. The remaining increase is primarily attributable to increased
costs associated with the establishment of public holding company corporate
functions, including legal, accounting, shareholder relations, financial
analysis, management information systems support functions and corporate
marketing initiatives.
6. Stock compensation charge. Stock compensation charge decreased
$14.3 million, or 100%. This charge was recognized during the three months
ended October 26, 1997 to reflect stock options granted to certain members
of senior management in relation to the Company's initial public offering.
7. Depreciation and amortization. Depreciation and amortization
increased $1.2 million, or 80.0%, from $1.5 million for the three months
ended October 26, 1997 to $2.7 million for the three months ended October
25, 1998. $.8 million of the increase is attributable to the inclusion of
the Steamboat and Heavenly resorts for the period ended October 25, 1998.
The remaining increase is primarily attributable to increased depreciation
expense related to the Company's capital improvement programs.
21
<PAGE>
American Skiing Company and Subsidiaries
8. Benefit for income taxes. Benefit for income taxes decreased $3.1
million, or 22.6%, from a benefit of $13.7 million for the three months
ended October 26, 1997 to a benefit of $10.6 million for the three months
ended October 25, 1998. The decrease is attributable to the decrease in the
Company's net loss for the three months ended October 25, 1998 as compared
to the three months ended October 26, 1997.
9. Accretion of discount and dividends accrued on mandatorily
redeemable preferred stock. Accretion of discount and dividends accrued on
mandatorily redeemable preferred stock decreased $1.4 million, or 58.3%,
from $2.4 million for the three months ended October 26, 1997 to $1.0
million for the three months ended October 25, 1998. The decrease is
attributable to additional accretion recognized during the three months
ended October 26, 1997 relating to a conversion feature on the Company's
Series A 14% Exchangeable Preferred Stock allowing holders of these
securities to convert to shares of the Company's Common Stock at a 5%
discount to the Company's initial public offering price.
22
<PAGE>
American Skiing Company and Subsidiaries
Changes in Financial Condition
First Quarter of Fiscal 1999 Compared to Fiscal Year End 1998
1. Cash and cash equivalents. Cash and cash equivalents decreased $6.4
million, or 41.6%, from $15.4 million at July 26, 1998 to $9.0 million at
October 25, 1998 . The decrease is primarily attributable to the Company's
seasonal working capital needs.
2. Accounts receivable. Accounts receivable decreased $1.2 million, or
16.0%, from $7.5 million at July 26, 1998 to $6.3 million at October 25,
1998. The decrease is primarily attributable to the seasonal nature of the
Company's operating cycle.
3. Property and equipment, net. Property and equipment, net increased
$16.6 million, or 3.2%, from $521.1 million at July 26, 1998 to $537.7
million at October 25, 1998. The increase is attributable to the Company's
summer capital improvement program.
4. Real estate developed for sale. Real estate developed for sale
increased $14.6 million, or 18.6%, from $78.6 million at July 26, 1998 to
$93.2 million at October 25, 1998. The increase is primarily attributable
to construction of Locke Mountain townhouse units at the Company's Sunday
River resort, construction of Grand Summit Hotels at the Company's resorts
at The Canyons and Steamboat, construction of the Sundial Lodge at the
Canyons and other discrete projects at various Resorts.
5. Other assets. Other assets increased by $3.5 million, or 24.1%,
from $14.5 million at July 26, 1998 to $18.0 million at October 25, 1998.
This increase is primarily attributable to the payment of a $3.6 million
cash bond related to infrastructure improvements at the Canyons.
6. Current portion of long-term debt. Current portion of long-term
debt increased $34.5 million, or 78.2%, from $44.1 million at July 26, 1997
to $78.6 million at October 25, 1998. Interim funding from the Bridge Loan
accounts for $20.5 million of the increase. The remaining increase is
attributable to increased debt levels to finance the Company's capital
improvement program and seasonal working capital needs.
7. Accounts payable and other current liabilities. Accounts payable
and other current liabilities increased $6.4 million, or 14.4%, from $44.4
million at July 26, 1998 to $50.8 million at October 25, 1998. The increase
is attributable to the Company's seasonal operating cycle.
8. Deposits and deferred revenue. Deposits and deferred revenue
increased $16.9 million, or 165.7%, from $10.2 million at July 26, 1998 to
$27.1 million at October 25, 1998. The increase is primarily attributable
to deferred revenue for season passes and ski and lodging deposits for the
1998/1999 ski season.
9. Deferred income taxes. Deferred income taxes decreased $10.6
million, or 46.7%, from $22.7 million at July 27, 1998 to $12.1 million at
October 25, 1998. The decrease is attributable to the Company's net loss
during the first quarter of fiscal 1999.
10. Mandatorily redeemable preferred stock. Mandatorily redeemable
preferred stock increased $1.0 million, or 2.5%, from $39.5 million at July
26, 1998 to $40.5 million at October 25, 1998. The increased is
attributable to dividends accrued during the three months ended October 25,
1998.
11. Retained earnings. Retained earnings decreased $20.2 million due
to the Company's net loss during the three months ended October 25, 1998.
23
<PAGE>
American Skiing Company and Subsidiaries
Year 2000 disclosure
Background The "Year 2000 Problem" is the result of many existing computer
programs and embedded chip technology containing programming code in which
calendar year data is abbreviated by using only two digits rather than four to
refer to a year. As a result of this, some of these programs fail to operate or
may not properly recognize a year that begins with "20" instead of "19". This
may cause such software to recognize a date using "00" as the year 1900 rather
than the year 2000. Even systems and equipment that are not typically thought of
as computer-related often contain embedded hardware or software that may
improperly understand dates beginning with the year 2000.
The Company has developed a task force with representation throughout the
organization. The task force has developed a comprehensive strategy to
systematically evaluate and update systems as appropriate. In some cases, no
system changes are necessary or the changes have already been made. In all other
cases, modifications are planned to prepare the Company's systems to be Year
2000 compliant by September 1999. The disclosure below addresses the Company's
Year 2000 Project.
Company's state of readiness
The Year 2000 Project is divided into three initiatives--Information Technology
("IT") Systems, Non-IT Systems and Related Third Party Providers. The Company
has identified the following phases with actual or estimated dates of
completion: 1) identify an inventory of systems; expected to be complete by
January 31, 1999; 2) gather certificates and warranties from providers; expected
to be complete by January 31, 1999, 3) determine required actions and budgets;
estimated to be completed by January 31, 1999, 4) perform remediation and tests:
estimated to be completed by September 1, 1999 and 5) designing contingency and
business continuation plans for each Company location: estimated to be completed
by May 31, 1999.
The following is a summary of the different phases and progress to date for each
initiative identified above:
IT Systems: The Company has continuously updated or replaced older
technology with more current technology. As the Company was acquiring ski
resorts, the technology was being updated. The Company's main IT systems include
an enterprise wide client server financial system, a mid-range enterprise wide
payroll system, various point of sale and property management systems, upgraded
personal computers, wide area networking and local area networking. Phases 1 and
2, as noted above, are complete and the remaining phases are currently on
schedule. During phase 1 and 2, the Company noted that Sugarloaf and Sugarbush
have not yet converted to the Springer Miller lodging system and the central
reservation system, both of which the company belives are compliant. Also, the
Company estimates that approximately 20% of personal computers for employees are
not Year 2000 compliant. The Company has estimated that these deficiencies will
be remedied by September 1, 1999, which is in accordance with the original
timetable.
Non-IT Systems: Internal non-IT systems are comprised of faxes, copiers,
printers, postal systems, security systems, elevators and telecommunication
systems. Phases 1, 2 and 3 are scheduled for completion by January 31, 1999
which is 45 days behind schedule. The Company has estimated that remediation is
scheduled for completion by September 1, 1999, which is in accordance with the
original timetable.
Related third party providers: The company has identified its major related
third party providers as certain utility providers, employee benefit
administrators and supply vendors. Phases 1, 2 and 3, are scheduled for
completion by January 31, 1999, which is 45 days behind schedule. The Company
has estimated that remediation is scheduled for completion by September 1, 1999,
which is in accordance with the original timetable.
24
<PAGE>
American Skiing Company and Subsidiaries
Actual and anticipated costs
The total cost associated with required modifications to become Year 2000
compliant is not expected to be material to the Company's financial position.
The estimated total cost of the Year 2000 Project is approximately $150,000.
This estimate does not include Information System conversions at Sugarloaf and
Sugarbush for the Springer Miller lodging system or the central reservations
system since those replacement costs were not due to, or accelerated by, the
Year 2000 Project. The Company is updating those systems to standardize systems
within American Skiing Company resorts. The total amount expended on the Year
2000 Project through October 25, 1998 was $0, of which approximately (1) $0
related to costs to modify software, hire internal personnel and hire outsourced
Year 2000 solution providers and (2) $0 and $0 related to replacement costs of
non-compliant IT systems and non-IT systems, respectively. The estimated future
costs of the Year 2000 Project through October 25, 1998 was $150,000, of which
approximately (1) $0 related to cost to modify software, hire internal personnel
and hire outsourced Year 2000 solution providers and (2) $150,000 and $0 related
to replacement costs of non-compliant IT systems and non-IT systems
respectively.
Risks
The failure to correct a material Year 2000 problem could result in an
interruption in, or a failure of, certain normal business activities or
operations. Such failures could materially and adversely affect the Company's
results of operations, liquidity and financial condition. Due to the general
uncertainty inherent in the Year 2000 problem, resulting in part from the
uncertainty of the Year 2000 readiness of third-party suppliers and customers,
the Company is unable to determine at this time whether the consequences of Year
2000 failures will have a material impact on the Company's results of
operations, liquidity or financial condition. The Year 2000 Project is expected
to significantly reduce the Company's level of uncertainty about the Year 2000
problem. The company believes that, with the implementation of new business
systems and completion of the Year 2000 Project as scheduled, the possibility of
significant interruptions of normal operations should be reduced. Readers are
cautioned that forward-looking statements contained in the Year 2000 Update
should be read in conjunction with the Company's disclosures under the heading:
"Forward Looking Statements" beginning on page 25.
Contingency plans
As of October 25, 1998, the Company has not developed a contingency plan related
to Year 2000. The Company is planning on developing a contingency plan by
May 31, 1999.
25
<PAGE>
American Skiing Company and Subsidiaries
Forward-Looking Statements
The above information includes forward-looking statements, the realization
of which may be impacted by the factors discussed below. The forward-looking
statements are made pursuant to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995 (the "Act"). This report contains
forward looking statements that are subject to risks and uncertainties,
including, but not limited to, uncertainty as to future financial results, the
substantial leverage of the Company, the capital intensive nature of development
of the Company's ski resorts; rapid and substantial growth that could place a
significant strain on the Company's management, employees and operations;
uncertainties associated with obtaining financing with which to repay the Bridge
Loan and undertake future capital improvements; demand for and costs associated
with real estate development; change in market conditions affecting the interval
ownership industry; regulation of marketing and sales of the Company's
quartershare interests; seasonality of resort revenues; fluctuations in
operating results; dependence on favorable weather conditions; the discretionary
nature of consumers' spending for skiing and resort real estate; competition;
regional and national economic conditions; laws and regulations relating to the
Company's land use, development, environmental compliance and permitting
obligations; renewal or extension terms of the Company's leases and permits; the
adequacy of water supply; and other risks detailed from time to time in the
Company's filings with the Securities and Exchange Commission. These risks could
cause the Company's actual results for fiscal year 1999 and beyond to differ
materially from those expressed in any forward looking statements made by, or on
behalf of, the Company. The foregoing list of factors should not be construed as
exhaustive or as any admission regarding the adequacy of disclosures made by the
Company prior to the date hereof or the effectiveness of said Act.
26
<PAGE>
Item 3
Quantitative and Qualitative Disclosures About Market Risk
There have been no material changes in information relating to
market risk since the Company's disclosure included in Item 7A of Form 10-K as
filed with the Securities and Exchange Commission on October 27, 1998.
27
<PAGE>
American Skiing Company and Subsidiaries
Part II - Other Information
Item 6
Exhibits and Reports on Form 8-K
a) Exhibits
Included herewith is the Financial Data Schedule submitted as Exhibit
27 in accordance with Item 601(c) of Regulation S-K. Also included are the
following material agreements entered into in the Company's first fiscal quarter
of 1999.
Exhibit No. Description
- ----------- -----------
s
1) Loan and Security Agreement among Grand Summit Resort Properties,
Inc., Textron Financial Corporation and certain lenders dated as
of September 1, 1998.
2) Credit Agreement among American Skiing Company Resort Properties,
Inc., certain lenders and BankBoston, N.A. as agent dated as of
September 4, 1998.
3) Supplemental Indenture dated as of September 4, 1998 among
American Skiing Company Resort Properties, Inc., its subsidiaries
party thereto, and United States Trust Company of New York as
Trustee.
b) Reports on Form 8-K
The Company filed a Form 8-K during the first quarter of 1999 on
September 29, 1998, reporting the closing of the Bridge Loan and the Textron
Facility.
27
<PAGE>
American Skiing Company and Subsidiaries
SIGNATURES
Pursuant to the requirements of the Securities Exchange act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: December 8, 1998 /s/ Christopher E. Howard
- ---------------------------- --------------------------------
Christopher E. Howard
Senior Vice President
Chief Administrative Officer and
General Counsel
(Duly Authorized Officer)
Date: December 8, 1998 /s/ Christopher D. Livak
- -------------------------------- -------------------------------
(Principal Financial and Accounting
Officer)
28
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUL-26-1998
<PERIOD-END> OCT-25-1998
<CASH> 9,013,000
<SECURITIES> 0
<RECEIVABLES> 6,327,000
<ALLOWANCES> 0
<INVENTORY> 13,296,000
<CURRENT-ASSETS> 40,534,000
<PP&E> 537,722,000
<DEPRECIATION> 0
<TOTAL-ASSETS> 807,726,000
<CURRENT-LIABILITIES> 158,398,000
<BONDS> 127,539,000
40,523,000
0
<COMMON> 303,000
<OTHER-SE> 247,633,000
<TOTAL-LIABILITY-AND-EQUITY> 807,726,000
<SALES> 4,485,000
<TOTAL-REVENUES> 20,435,000
<CGS> 3,963,000
<TOTAL-COSTS> 39,100,000
<OTHER-EXPENSES> 2,709,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8,930,000
<INCOME-PRETAX> (29,782,000)
<INCOME-TAX> (10,573,000)
<INCOME-CONTINUING> (19,209,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (20,268,000)
<EPS-PRIMARY> (0.63)
<EPS-DILUTED> (0.63)
</TABLE>
LOAN AND SECURITY AGREEMENT
among
GRAND SUMMIT RESORT PROPERTIES, INC., as Borrower
and
TEXTRON FINANCIAL CORPORATION, as Administrative Agent
and
THE LENDERS LISTED HEREIN, as Lenders
Dated as of September 1, 1998
<PAGE>
TABLE OF CONTENTS
Page
1.A CERTAIN ASTERISKED TERMS............................................ 1
1. INTERPRETATION OF THIS AGREEMENT.................................... 2
1.1 Terms Defined.............................................. 2
1.2 Directly or Indirectly..................................... 69
1.3 Headings................................................... 69
1.4 Accounting Principles...................................... 69
2. ADVANCES AND NOTE................................................... 70
2.1 Construction Project Advances.............................. 70
2.2 Inventory Advances......................................... 78
2.3 Borrowing Mechanics; Advances Generally.................... 83
2.4 Issuance of Note; Interest Payments........................ 94
2.5 Collections; Sales Proceeds; Required Payments; Voluntary
Prepayments of the Loan ..................................108
2.6 Participating Lender.......................................133
2.7 Commitment Fee.............................................136
2.8 Right of First Refusal.....................................137
3. COLLATERAL..........................................................138
3.1 Security...................................................138
3.2 Undertakings Regarding Collateral..........................140
3.3 Financing Statements.......................................142
3.4 Location of Collateral; Books and Records..................142
3.5 Insurance of Collateral....................................142
3.6 Condemnation...............................................147
3.7 Taxes Affecting Collateral.................................151
3.8 Discharge of Liens Affecting Collateral....................152
3.9 Use of the Projects; Voting Rights of GSRP.................154
3.10 Other Quartershare Covenants...............................156
3.11 Protection of Collateral; Assessments; Reimbursement.......159
3.12 Interest on Lender Paid Expenses...........................159
3.13 Lender Responsibility......................................160
3.14 Verification of Contracts..................................160
3.15 Release of Lien on Quartershare Interests and Commercial
Units ....................................................160
3.16 Nondisturbance Agreements..................................161
3.17 Filing of Declarations; Incorporation of Associations......163
3.18 Note Purchase Agreement....................................163
3.19 LSA I Retainages...........................................164
4. REPRESENTATIONS AND WARRANTIES AND COVENANTS........................164
4.1 Subsidiaries and Capital Structure.........................164
4.2 Corporate Matters..........................................164
4.3 Business and Property......................................164
4.4 Financial Statements.......................................165
4.5 Full Disclosure............................................165
4.6 Pending Litigation.........................................165
4.7 Title to Properties; Environmental Status..................165
4.8 Trademarks; Licenses and Permits...........................166
4.9 Transaction Is Legal and Authorized........................166
4.10 No Defaults................................................166
4.11 Governmental Consent.......................................166
4.12 Taxes......................................................167
4.13 Use of Proceeds............................................167
4.14 Compliance with Law........................................167
4.15 Restrictions of GSRP.......................................168
4.16 Brokers' Fees..............................................168
4.17 Deferred Compensation Plans................................168
4.18 Labor Relations............................................169
4.19 Validity of Contracts......................................169
4.20 Validity of Liens Granted to Lender........................169
4.21 Quartershare Regimen Reports...............................169
4.22 Sale of Quartershare Interests.............................169
4.23 Solvency...................................................170
5. CONDITIONS PRECEDENT TO CLOSING OF THIS AGREEMENT...................170
5.1 Opinions of Counsel........................................170
5.2 Warranties and Representations True as of Closing Date.....170
5.3 Compliance with this Agreement.............................171
5.4 Officer's Certificates; Secretary's Certificates;
Good-Standing Certificates ..............................171
5.5 Uniform Commercial Code Financing Statements...............172
5.6 Subordination of Indebtedness..............................172
5.7 Expenses...................................................172
5.8 Notes; TFC Architect.......................................172
5.9 Inspection.................................................172
5.10 Loan Disbursement Agreements...............................172
5.11 Proceedings Satisfactory...................................172
6. CONSTRUCTION PROJECT ADVANCES CLOSING CONDITIONS....................173
6.1 First Project Advance......................................173
6.2 Special Submissions........................................179
6.3 Requests for Construction Project Advance..................180
6.4 Final Construction Advance Conditions......................181
6.5 Defaults; Expenses; Miscellaneous..........................182
6.6 Disbursements; Disbursement Agent Reports..................183
6.7 Proceedings Satisfactory...................................183
6.8 Subcontracts...............................................183
6.9 Costs and Expenses.........................................183
6A. REQUESTS FOR INVENTORY ADVANCE FOR CONSTRUCTION PROJECTS............184
6B. REQUESTS FOR INVENTORY ADVANCE FOR 1997 PROJECTS....................185
7. COVENANTS...........................................................186
7.1 Payment of Taxes and Claims................................186
7.2 Maintenance of Properties; Company Existence; Indebtedness;
Liens; Business ..........................................187
7.3 Payment of Notes and Maintenance of Office.................189
7.4 Sale of Properties.........................................189
7.5 Consolidation and Merger...................................190
7.6 Guaranties.................................................190
7.7 Distributions..............................................190
7.8 Compliance with Environmental Laws.........................190
7.9 Transactions with Affiliates; Principal Properties.........192
7.10 Use of the Lender Name.....................................192
7.11 Subordinated Obligations...................................192
7.12 Notice of Legal Proceedings................................192
7.13 Further Assurances.........................................193
7.14 Financial Statements.......................................193
7.15 Officers' Certificate......................................195
7.16 Inspection.................................................196
8. EVENTS OF DEFAULT...................................................196
8.1 Default....................................................196
8.2 Default Remedies...........................................198
9. REVIVAL OF OBLIGATIONS AND LIENS....................................215
10. THE ADMINISTRATIVE AGENT............................................215
10.1 Appointment................................................215
10.2 Powers; General Immunity...................................215
10.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness ...........................217
10.4 Right to Indemnity.........................................218
10.5 Successor the Administrative Agent.........................218
10.6 Collateral Documents.......................................219
10.7 Designation of Additional Administrative Agent.............219
10.8 Payments...................................................219
10.9 Agent's Fee................................................220
10.10 Project Required Lenders...................................220
10.11 Cash Collateral Account....................................221
11. MISCELLANEOUS.......................................................221
11.1 Governing Law..............................................221
11.2 Expenses and Closing Fees..................................222
11.3 Parties, Successors and Assigns............................223
11.4 Notices....................................................223
11.5 Total Agreement............................................224
11.6 Survival...................................................224
11.7 Set-Off....................................................225
11.8 Ratable Sharing............................................225
11.9 Litigation.................................................226
11.10 Power of Attorney..........................................227
11.11 Survival of Indemnities....................................227
11.12 Conflicting Obligations; Rights and Remedies...............227
11.13 Independent Nature of Lenders' Rights......................228
11.14 Severability...............................................228
11.15 Duplicate Originals, Execution in Counterpart..............228
11.16 Consent....................................................228
11.17 Subordination of Note Purchase Agreement...................228
Schedule 1 List of certain Costs and Expenses for Approval of Lenders
Schedule 2-A Description of Canyons Project
Schedule 2-B Description of Steamboat Project
Schedule 2-C Description of *Sugarbush Project
Schedule 2-D Description of *Sugarloaf Project
Schedule 2-E Description of Jordan Bowl Project
Schedule 2-F Description of Attitash Project
Schedule 2-G Description of Killington Project
Schedule 2-H Description of Mt. Snow Project
Schedule 3 Schedule of Minimum Release Prices/Pay-Out Release Prices
Schedule 4 Permitted Exceptions
Schedule 5 Intentionally Omitted
Schedule 6 Textron Financial Corporation Purchase Facility
Schedule 7 Payment Instructions
Schedule 8 Property-Related Contracts
Schedule 9 Names of Affiliates and Nature of Affiliation
Schedule 10 General Business Description
Schedule 11 Financial Statements of GSRP and Host Companies
Schedule 12 Litigation
Schedule 13 Permitted Leases
Schedule 14 Hazardous Substances
Schedule 15 Licenses, Permits etc not obtained
Schedule 16 Intentionally Omitted
Schedule 17 Deferred Compensation Plans
Schedule 18 List of Fees
Schedule 19 Addresses for Notices and Demands
Exhibit A Escrow Account Acknowledgement
Exhibit B-1 Form of Steamboat Blanket Mortgage
Exhibit B-2 Form of Canyons Blanket Mortgage
Exhibit B-3 Form of *Sugarbush Blanket Mortgage
Exhibit B-4 Form of *Sugarloaf Blanket Mortgage
Exhibit B-5 Form of Jordan Bowl Blanket Mortgage
Exhibit B-6 Form of Attitash Blanket Mortgage Amendment
Exhibit B-7 Form of Killington Blanket Mortgage Amendment
Exhibit B-8 Form of Mt. Snow Blanket Mortgage Amendment
Exhibit C Form of Loan Disbursement Agreement
Exhibit D-1 Form of Validation Certificate for Validated Contracts
Exhibit D-2 Form of Validation Certificate for Validated Reservation
Contracts
Exhibit E-1 Form of Steamboat Project Advance Note
Exhibit E-2 Form of Canyons Project Advance Note
Exhibit E-3 Form of *Sugarbush Project Advance Note
Exhibit E-4 Form of *Sugarloaf Project Advance Note
Exhibit E-5 Form of Steamboat Inventory Advance Note
Exhibit E-6 Form of Canyons Inventory Advance Note
Exhibit E-7 Form of *Sugarbush Inventory Advance Note
Exhibit E-8 Form of *Sugarloaf Inventory Advance Note
Exhibit E-9 Form of Jordan Bowl Inventory Advance Note
Exhibit E-10 Form of Attitash Inventory Advance Note
Exhibit E-11 Form of Killington Inventory Advance Note
Exhibit E-12 Form of Mt. Snow Inventory Advance Note
Exhibit F Form of Proxy
Exhibit G Form of Request of Release
Exhibit H Form of Partial Release of Mortgage
(Colorado, Utah, Vermont, New Hampshire and Maine)
Exhibit I Form of Partial Release of Security Interest
(Colorado, Utah, Vermont, New Hampshire and Maine)
Exhibit J Form of Instrument of Subordination
Exhibit K-1 Form of Steamboat Assignment of Declarant's Rights
Exhibit K-2 Form of Canyons Assignment of Declarant's Rights
Exhibit K-3 Form of *Sugarbush Assignment of Declarant's Rights
Exhibit K-4 Form of *Sugarloaf Assignment of Declarant's Rights
Exhibit K-5 Form of Jordan Bowl Assignment of Declarant's Rights
Exhibit K-6 Form of Killington Assignment of Declarant's Rights
Exhibit K-7 Form of Mt. Snow Assignment of Declarant's Rights
Exhibit L-1 Form of Opinion of GSRP's Counsel
Exhibit L-2 Form of Opinion of GSRP's Counsel
Exhibit L-3 Form of Opinion of GSRP's Maine Counsel
Exhibit L-4 Form of Opinion of GSRP's Vermont Counsel
Exhibit L-5 Form of Opinion of GSRP's Colorado Counsel
Exhibit L-6 Form of Opinion of GSRP's Utah Counsel
Exhibit M Form of Officer's Certificate
Exhibit N Form of Secretary's Certificate of GSRP
Exhibit O Form of Secretary's Certificate of Parent/Host Company
Exhibit P Form of Subordination Agreement
Exhibit Q-1 Form of Steamboat Assignment of Property-Related Contracts
Exhibit Q-2 Form of Canyons Assignment of Property-Related Contracts
Exhibit Q-3 Form of *Sugarbush Assignment of Property-Related Contracts
Exhibit Q-4 Form of *Sugarloaf Assignment of Property-Related Contracts
Exhibit Q-5 Form of Jordan Bowl Assignment of Property-Related Contracts
Exhibit Q-6 Form of Attitash Assignment of Property-Related Contracts
Exhibit Q-7 Form of Killington Assignment of Property-Related Contracts
Exhibit Q-8 Form of Mt. Snow Assignment of Property-Related Contracts
Exhibit R-1 Form of Steamboat Assignment of Rents
Exhibit R-2 Form of Canyons Assignment of Rents
Exhibit R-3 Form of *Sugarbush Assignment of Rents
Exhibit R-4 Form of *Sugarloaf Assignment of Rents
Exhibit S Form of Assignment of Architect's Contract
Exhibit T Form of Assignment of Construction Contract
Exhibit U-1 Form of Request for Construction Project Advance
Exhibit U-2 Form of Request for Inventory Advance
Exhibit V Form of Assignment of Contracts
<PAGE>
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (as amended from time to time, this
"Agreement"), made and executed as of the 1st day of September, 1998, by and
among GRAND SUMMIT RESORT PROPERTIES, INC., a Maine corporation, as debtor
(herein referred to as "GSRP"), the lenders listed on the signature pages hereof
(each individually referred to herein as a "Lender" and, collectively, the
"Lenders") and TEXTRON FINANCIAL CORPORATION, a Delaware corporation, as agent
for the Lenders (in such capacity herein referred to as the "Administrative
Agent").
RECITALS
A. GSRP desires that the Lenders extend certain credit facilities to
GSRP in respect of one or more of the Projects (as such term is hereinafter
defined) for the purposes hereinafter stated;
B. The Lenders are agreeable, on the terms and conditions hereinafter
stated, to extend such facilities in respect of such Project or Projects;
C. GSRP is agreeable to
(i) granting a lien and security interest to the
Administrative Agent on behalf of the Lenders in, or
(ii) otherwise conveying, encumbering and/or mortgaging to
the Administrative Agent on behalf of the Lenders all of,
the Collateral (as such term is hereinafter defined) in order to secure
its obligations hereunder and under the other Security Documents (as
such term is hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, GSRP, the Lenders and the
Administrative Agent agree as follows:
<PAGE>
1.1. TERMS DEFINED
1.A CERTAIN ASTERISKED TERMS.
GSRP and the Lenders agree that any term in this Agreement or in any of
the other Security Documents (as defined below) that is marked with an asterisk
(*) shall be deemed for all purposes of this Agreement and the other Security
Documents not to be included herein or therein and, in connection with any
construction of this Agreement or the other Security Documents, such asterisked
terms shall be fully disregarded. If any such asterisked terms form components
of other defined terms or are, directly or indirectly, included or referred to
in any provision of this Agreement or any other Security Document, such
asterisked terms shall be fully excluded, as such components, from such defined
terms and their inclusion or reference in any such provision shall be fully
disregarded, including, without limitation, disregarding any condition herein
that requires the delivery of a document or opinion or the taking of any action
in respect of an asterisked term. To the extent that any defined term or
provision in this Agreement or the other Security Documents requires grammatical
correction in order to conform to the proper rules of English grammar by virtue
of the disregarding of any asterisked term, such correction or corrections shall
be deemed to have been effected without further action being required on the
part of GSRP or any Lender (such actions being considered by GSRP and the Lender
as being ministerial in nature). The Lenders and GSRP have agreed to allow the
asterisked terms to remain in this Agreement and the other Security Documents
solely as a convenience to them in case the Lenders (or other lenders) and GSRP
may, in writing, agree in the future to provide and accept, as the case may be,
additional financing with respect to such asterisked terms. Unless and until
such event occurs and a separate writing is entered into among GSRP, the
Administrative Agent and the Lenders in accordance with the terms hereof
deleting the effectiveness of this Section 1.A, this Section 1.A shall remain in
full force and effect. For the avoidance of doubt, certain determinations as to
dates, amounts or other numerical determinations herein in respect of the
asterisked terms have been bracketed to indicate that such determinations must
be finalized in connection with any amendment hereto pursuant to which such
asterisked terms are brought into and made a part of this Agreement.
1. INTERPRETATION OF THIS AGREEMENT
1.1 Terms Defined.
As used in this Agreement, the following terms shall have the following
respective meanings set forth below or set forth in the Section referred to
following such term:
Administrative Agent -- has the meaning set forth in the first
paragraph of this Agreement. To the extent that Textron Financial
Corporation shall act as a collateral trustee under a collateral trust
indenture for purposes of certain Security Documents in respect of the
Jordan Bowl Project, Textron Financial Corporation's status as
collateral trustee thereunder shall be construed as being a part of its
role as "Administrative Agent" hereunder.
Advance -- means any one or more of the Interest Advances,
Inventory Advances or Construction Project Advances, as the case may
be.
Advance Date -- means, with respect to any Inventory Advance,
the Inventory Advance Date related to such Inventory Advance and, with
respect to any Construction Project Advance, the Construction Project
Advance Date related to such Construction Project Advance.
Affiliate -- means any Person
(a) which directly or indirectly through one or
more intermediaries controls, or is controlled by, or is
under common control with, GSRP;
(b) which beneficially owns or holds 5% or more of
any class of the Voting Equity of GSRP; or
(c) 5% or more of the Voting Equity of which is
beneficially owned or held by GSRP.
The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of Voting Equity, other
voting Securities, by contract or otherwise.
Aggregate Construction Project Borrowing Base -- means, on any
date, the result of (a) $145,000,000, minus (b) the sum of (i) the
aggregate outstanding principal balance of all Inventory Advances as of
such date and (ii) the aggregate outstanding principal balance of all
Interest Advances as of such date.
Agreement or this Agreement -- as defined in the preamble
hereto.
Applicable States -- means (i) Colorado, Maine, Utah, New
Hampshire and Vermont, and (ii) any other state in which GSRP is or
becomes qualified to sell Quartershare Interests, provided that
acceptable proof of such qualification has been delivered to the
Administrative Agent.
Approved Escrow Account -- means,
(a) in the case of the Steamboat Project and any
Contract or Reservation Contract related thereto, the account
maintained by the Steamboat Escrow Agent,
(b) in the case of the *Sugarloaf Project and any
Contract related thereto, the account maintained by the
Sugarloaf Escrow Agent,
(c) in the case of the Canyons Project and any
Contract related thereto, the account maintained by the
Canyons Escrow Agent,
(d) in the case of the *Sugarbush Project and any
Contract related thereto, the account maintained by the
*Sugarbush Escrow Agent,
(e) in the case of the Jordan Bowl Project and any
Contract related thereto, the account maintained by the Jordan
Bowl Escrow Agent,
(f) in the case of the Attitash Project and any
Contract related thereto, the account maintained by the
Attitash Escrow Agent,
(g) in the case of the Killington Project and any
Contract related thereto, the account maintained by the
Killington Escrow Agent, and
(d) in the case of the Mt. Snow Project and any
Contract related thereto, the account maintained by the Mt.
Snow Escrow Agent, Vermont,
provided that, in each case, GSRP and the applicable escrowee shall
have acknowledged and agreed in writing (which writing shall be
substantially in the form of Exhibit A hereto) that, upon the
consummation of the sale of any Quartershare Interest subject to any
such Contract (in accordance with the terms of such Contract), all cash
on deposit in such escrow account will be paid directly to the
Administrative Agent (less any customary and normal costs of closing of
such Contract not previously deducted from other cash proceeds in
respect of such sale).
Architect -- means, as the context may require, any one or
more of the following: the *Sugarloaf Architect, the Canyons Architect,
the Steamboat Architect and/or the *Sugarbush Architect.
Architect's Construction Cost Certificate -- means, with
respect to the construction at any Construction Project and any
Construction Cost Certificate issued hereunder, a certificate,
addressed to the Administrative Agent and in form and substance
satisfactory to the Administrative Agent, from the Architect for such
Construction Project and the TFC Architect which
(a) confirms that such Architect and such TFC
Architect have inspected the construction at such Construction
Project and reviewed such Construction Cost Certificate and
the attachments thereto,
(b) confirms that such Construction Cost Certificate
and the attachments thereto are satisfactory to them,
(c) certifies that the construction of the building
and the other improvements at such Construction Project have
been made in accordance with the Plans for such Construction
Project and in compliance with all applicable laws,
(d) confirms that the unexpended construction portion
of the Budget for such Construction Project is adequate to
complete the construction at such Construction Project,
(e) confirms that the aggregate principal amount of
the Construction Project Advances then outstanding used to
finance Construction Costs for such Construction Project is
not more than 100% of aggregate cost of the construction work
then in place for such Construction Project plus the
pre-development expenses and land values (net of mortgage
debt) of such Construction Project set forth on Schedule 1
hereto minus the cash portion of the Funding Date Equity
Contribution applicable thereto,
(f) confirms that the completion of the construction
of the building and the other improvements at such
Construction Project in connection therewith can reasonably be
expected to occur on or before the Completion Date for such
Construction Project, and
(g) states in detail any modifications or changes to
the Budget for such Construction Project or such Plans not
previously disclosed in a prior Architect's Construction Cost
Certificate for such Construction Project.
Architect's Final Construction Cost Certificate -- means, with
respect to the completion of the construction at any Construction
Project and the Final Construction Cost Certificate issued hereunder in
respect thereof, a certificate, addressed to the Administrative Agent
and in form and substance satisfactory to the Administrative Agent,
from the Architect for such Construction Project and the TFC Architect
which
(a) confirms that such Architect and such TFC
Architect have inspected the construction at such Construction
Project and reviewed such Final Construction Cost Certificate
and the attachments thereto,
(b) confirms that such Final Construction Cost
Certificate and the attachments thereto are satisfactory to
them,
(c) certifies that the construction of the building
and the other improvements at such Construction Project in
connection therewith has been in accordance with Plans for
such Construction Project, is in compliance with all
applicable laws and is complete as provided for in the Plans
for such Construction Project, and
(d) has as an attachment a Certificate of Substantial
Completion (AIA Document G704) executed by such Architect and
the General Contractor with respect to such Construction
Project; the Final Architect's Construction Cost Certificate
shall certify that the list of items to be completed set forth
on such Certificate of Substantial Completion by such General
Contractor shall have been completed in accordance with the
Plans for such Construction Project.
ASC Indenture -- means that certain Indenture, dated as of
June 28, 1996, with ASC East, Inc., as issuer, and United States Trust
Company of New York, as trustee, in respect of the Series A and Series
B 12% Senior Subordinated Notes due 2006.
Assignment of Architect's Contract -- means, as the context
may require, any one or more of the following: the Steamboat Assignment
of Architect's Contract, the Canyon Assignment of Architect's Contract,
the *Sugarbush Assignment of Architect's Contract and/or the *Sugarloaf
Assignment of Architect's Contract.
Assignment of Construction Contract -- means, as the context
may require, any one or more of the following: the Steamboat Assignment
of Construction Contract, the Canyon Assignment of Construction
Contract, the *Sugarbush Assignment of Construction Contract and/or the
*Sugarloaf Assignment of Construction Contract.
Assignment of Declarant's Rights -- means, as the context may
require, any one or more of the following: the Steamboat Assignment of
Declarant's Rights, the Canyon Assignment of Declarant's Rights, the
*Sugarbush Assignment of Declarant's Rights, the *Sugarloaf Assignment
of Declarant's Rights, the Jordan Bowl Assignment of Declarant's
Rights, the Attitash Assignment of Declarant's Rights, the Killington
Assignment of Declarant's Rights and/or the Mt. Snow Assignment of
Declarant's Rights.
Assignment of Property-Related Contracts -- means, as the
context may require, any one or more of the following: the Steamboat
Assignment of Property-Related Contracts, the Canyon Assignment of
Property-Related Contracts, the *Sugarbush Assignment of
Property-Related Contracts, the *Sugarloaf Assignment of
Property-Related Contracts, the Jordan Bowl Assignment of
Property-Related Contracts, the Attitash Assignment of Property-Related
Contracts, the Killington Assignment of Property-Related Contracts
and/or the Mt. Snow Assignment of Property-Related Contracts.
Assignment of Rents -- means, as the context may require, any
one or more of the following: the Steamboat Assignment of Rents, the
Canyons Assignment of Rents, the *Sugarbush Assignment of Rents, the
*Sugarloaf Assignment of Rents, the Jordan Bowl Assignment of Rents,
the Attitash Assignment of Rents, the Killington Assignment of Rents
and/or the Mt. Snow Assignment of Rents.
Association(s) -- means, as the context may require, any one
or more of the following: the Steamboat Association, the *Sugarloaf
Association, the Canyons Association, the *Sugarbush Association, the
Jordan Bowl Association, the Attitash Association, the Killington
Association and/or the Mt. Snow Association.
Attitash Assignment of Contracts -- means an assignment of the
Contracts arising in respect of the sale of Attitash Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
Attitash Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the Attitash
Declaration dated as of August 21, 1997, as amended from time to time.
Attitash Assignment of Property-Related Contracts -- means the
assignment in respect of Property-Related Contracts connected with the
Attitash Project substantially in the form of Exhibit Q-6 to this
Agreement, as amended from time to time.
Attitash Assignment of Rents -- means the Assignment of Lease
and Rents in respect of the Attitash Project dated as of August 21,
1997, as amended from time to time.
Attitash Association -- means the Grand Summit Hotel
Condominium Unit Owners' Association, Inc., a voluntary corporation
established under the laws of New Hampshire, or any successor
association thereto as provided in the Attitash Declaration.
Attitash Blanket Mortgage -- means the Mortgage, Assignment of
Rents, Security Agreement and Financing Statement encumbering the
Attitash Project dated as of August 21, 1997, as amended from time to
time.
Attitash By-Laws -- means those certain By-Laws of Grand
Summit Hotel and Crown Club at Attitash Bear Peak, a Condominium, which
is recorded in Book 1692 at Page 1008 of the Register of Carroll
County, New Hampshire, as amended from time to time in accordance with
the provisions hereof.
Attitash Commitment Period -- means, with respect to the
Attitash Project and the Attitash Inventory Advance to be made in
respect thereof, the period commencing on the Closing Date and ending
on the Attitash Termination Date.
Attitash Common Areas -- means those areas at the Attitash
Project that have been designated in accordance with the Attitash
Declaration, on the Attitash Resort Map or by the Attitash Association
as "Common Areas," as used and defined in the Attitash Declaration, for
the primary or exclusive use of the owners of Attitash Residential
Units, Attitash Quartershare Interests and Attitash Commercial Units.
Attitash Commercial Unit -- means a commercial condominium
unit at the Attitash Project.
Attitash Declaration -- means that certain Grand Summit Hotel
and Crown Club at Attitash Declaration of Condominium and Interval
Ownership Interests by GSRP, as declarant, which is recorded in Book
1692 at Page 989 of the Register of Carroll County, New Hampshire, as
amended from time to time in accordance with the provisions hereof.
Attitash Easements -- means that certain Amended and Restated
Declaration of Easements by and between L.B.O. Holding, Inc., a Maine
corporation, and GSRP, which is recorded in Book 1674 at Page 471 of
the Register of Carroll County, New Hampshire, as amended from time to
time in accordance with the provisions hereof.
Attitash Escrow Agent -- means Berlin City Bank of Berlin, New
Hampshire, or such escrowee duly authorized to act as such under
applicable New Hampshire law.
Attitash Inventory Advance -- as defined in Section 2.2
hereof.
Attitash Inventory Advance Commitment-- means, with respect to
each Attitash Inventory Advance Lender, the amount set forth underneath
its signature hereto with respect to the Attitash Inventory 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.
Attitash Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made an Attitash
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the Attitash Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
Attitash Inventory Advance Maturity Date -- means the
January 2, 2001.
Attitash Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
Attitash Inventory Required Lenders -- means any one or more
of the Attitash Inventory Advance Lenders having or holding 51% or more
of the Attitash Loan Exposure.
Attitash Limited Common Areas -- means those areas at the
Attitash Project that have been designated in accordance with the
Attitash Declaration, on the Attitash Resort Map or by the Attitash
Association as "Limited Common Areas," as used and defined in the
Attitash Declaration, for the primary or exclusive use of certain of
the owners of Attitash Residential Units, Attitash Quartershare
Interests and Attitash Commercial Units, as the case may be.
Attitash Loan -- means, at any time, the aggregate principal
balance of the Attitash Inventory Advance outstanding at such time.
Attitash Loan Exposure -- means, with respect to any Attitash
Inventory Advance Lender, as of any date of determination, (a) prior to
the termination of the Attitash Commitment Period, the total of the
Attitash Inventory Advance Commitments of the Attitash Inventory
Advance Lenders and (b) after the termination of the Attitash
Commitment Period, the aggregate principal amount of the Attitash
Inventory Advance outstanding on such date.
Attitash Notes -- means the Attitash Inventory Advance Notes.
Attitash Obligations -- means all sums now or hereafter loaned
or advanced by any one or more the Attitash Inventory Advance Lenders
and/or the Administrative Agent to, or otherwise incurred by, GSRP
under this Agreement in respect of the Attitash Project, the Attitash
Notes and/or any of the other Attitash Security Documents (including,
without limitation, accrued and unpaid interest in respect of the
Attitash Notes and Loan Costs attributable to the Attitash Project
and/or the Attitash Security Documents), and the full, prompt and
complete performance of all obligations owed by, or undertakings or
indemnities of, GSRP in respect of the Attitash Project and/or the
Attitash Security Documents arising hereunder or thereunder.
Attitash Required Lenders -- means the Attitash Inventory
Required Lenders.
Attitash 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) the day on which the Attitash Inventory
Advance is made hereunder.
If the first Construction Project Advance in respect of the Attitash
Project shall not have been made prior to December 15, 1998, then the
Attitash Termination Date shall be deemed to be December 15, 1998.
Attitash Project -- means that certain resort property
commonly known as The Grand Summit Hotel and Crown Club at Attitash,
situated on certain land located in Bartlett, New Hampshire, and
particularly described on Schedule 2-F attached hereto and made a part
hereof, and including all improvements now or hereafter located on said
land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto belonging.
Attitash Project shall include the Attitash Residential Units, the
Attitash Quartershare Interests, the Attitash Common Area and the
Attitash Limited Common Areas in respect of said land.
Attitash Project Documents -- means the Attitash Declaration,
the Articles of Incorporation and the By-Laws of the Attitash
Association, and the rules and regulations of the Attitash Association.
Attitash Quartershare Interest -- means the
"Quarter-Interest," as described and defined in the Attitash
Declaration and the Attitash By-Laws, with the owner of such interest
being entitled to the exclusive right to the possession, use and
occupancy of an Attitash Residential Unit during thirteen (13) calendar
weeks of each calendar year, as more particularly provided in the
Attitash Declaration.
Attitash Residential Unit -- means a residential condominium
unit at the Attitash Project.
Attitash Resort Map -- means that (a) certain Condominium Plan
Grand Summit Hotel at Attitash prepared by Thaddeus-Thorne Surveys,
Inc., dated September 18, 1996, parts I and II recorded in the Carroll
County Registry of Deeds at Plan Book 157, Pages 56 and 57, as revised
by revisions dated January 21, 1997 and March 25, 1997 and recorded on
April 10, 1997 at Plan Book 159 Pages 77 and 78 and (b) that certain As
Built Site Plan prepared by Thaddeus-Thorne Surveys, Inc. and As Built
Floor Plans prepared by JSA, Inc., all dated March 27, 1997, recorded
March 28, 1997 at Plan Book 159, Pages 53 through 65.
Beneficial Improvements Agreements -- means each of the
following:
(a) with respect to the Jordan Bowl Project, that
certain Beneficial Improvements Agreement dated September 24,
1997, between GSRP and Sunday River Skiway Corporation, a
Maine corporation (the "Jordan Bowl Host Company"), relating
to certain infrastructure items located at the Jordan Bowl
Project;
(b) with respect to the Killington Project, that
certain Beneficial Improvements Agreement dated September 24,
1997, between GSRP and Killington, Ltd., a Vermont corporation
(the "Killington Host Company"), relating to certain
infrastructure items located at the Killington Project; and
(c) with respect to the Mt. Snow Project, that
certain Beneficial Improvements Agreement dated September 24,
1997, between GSRP and Mount Snow, Ltd., a Vermont corporation
(the "Mt. Snow Host Company"), relating to certain
infrastructure items located at the Mt. Snow Project.
There is no Host Company Lease Agreement or a Beneficial Improvements
Agreements for the Attitash Project.
Blanket Mortgage(s) -- means, as the context may require, any
one or more of the following: the Steamboat Blanket Mortgage, the
Canyons Blanket Mortgage, the *Sugarbush Blanket Mortgage, the
*Sugarloaf Blanket Mortgage, the Jordan Bowl Blanket Mortgage, the
Attitash Blanket Mortgage, the Killington Blanket Mortgage and/or the
Mt. Snow Blanket Mortgage.
Books and Records -- means all books, records, computer tapes,
disks, software and micro-fiche records of GSRP.
Budget -- means, with respect to any Construction Project, the
budget submitted to the Administrative Agent by GSRP for the
acquisition costs or value, development, construction and furnishing of
such Construction Project in accordance with the Plans for such
Construction Project and the marketing and selling of the Quartershare
Interests for such Construction Project, which budget shall have been
accepted by the Administrative Agent, as amended from time to time
(each such amendment to have been accepted by the Administrative Agent
in writing). Such budget shall include, among other things, all costs
of materials, fixtures, furnishings, personal Property and labor to be
incurred in the construction and furnishing of the Residential Units,
the Common Elements and any limited common elements, in each case for
such Construction Project, and the provision of all utilities to such
Construction Project. The Budget for such Construction Project (and any
amendment thereto) shall, among other things, consist of
(a) a description of work, such work being classified
and shown on a line item basis reasonably satisfactory to the
Administrative Agent for the building and other improvements
to be built at such Construction Project, such classification
to include: "construction line items" for sitework, concrete
work, masonry work, rough carpentry work, finish carpentry and
cabinet work, architectural carpentry work, waterproofing,
insulation, fireproofing, drywall, ceiling work, flooring and
base work, painting and finishing work, wall covering work,
windows, ceramic tile work, bathroom fixtures and hardware,
kitchen fixtures and hardware, HVAC, plumbing work, sprinkler
work and electrical work; "furniture, fixtures and equipment
line items"; "marketing costs line items;" "sale cost line
items;" "commissions payable line items"; and "professional
fee line items" (including architectural, engineering,
accounting and legal services),
(b) an allocation to each construction line item of a
scheduled portion of the fixed construction price in the
Construction Contract for such Construction Project, and
(c) a completion timeline for each construction line
item indicating when such item is anticipated to be 25%, 50%,
75% and 100% completed.
Business Day -- means a day other than a Saturday or Sunday or
a day on which banks in the State of Maine, the State of Rhode Island
or the State of Connecticut are required or authorized by law to be
closed (other than for a general banking moratorium or holiday for a
period exceeding 4 consecutive days).
By-Laws -- means individually or collectively (as the context
may require), the by-laws of the Associations, as amended from time to
time.
Canyons Architect -- means a duly licensed architect under
Utah law approved by the Administrative Agent.
Canyons Assignment of Architect's Contract -- means the
assignment of GSRP's rights under that certain architect's contract
with the Canyons Architect in respect of the Canyons Project
substantially in the form of Exhibit S to this Agreement, as amended
from time to time.
Canyons Assignment of Contracts -- means an assignment of the
Contracts arising in respect of the sale of Canyons Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
Canyons Assignment of Construction Contract -- means the
assignment of GSRP's rights under the Canyons Construction Contract
substantially in the form of Exhibit T to this Agreement, as amended
from time to time.
Canyons Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the Canyons
Declaration substantially in the form of Exhibit K-2 to this Agreement,
as amended from time to time.
Canyons Assignment of Property-Related Contracts -- means the
assignment in respect of Property-Related Contracts connected with the
Canyons Project substantially in the form of Exhibit Q-2 to this
Agreement, as amended from time to time.
Canyons Assignment of Rents -- means the Assignment of Lease
and Rents in respect of the Canyons Project substantially in the Form
of Exhibit R-2 to the Agreement, as amended from time to time.
Canyons Association -- means Grand Summit Resort Hotel Owners
Association, The Canyons, Utah, a Utah non-profit corporation, or any
successor association thereto as provided in the Canyons Declaration.
Canyons Blanket Mortgage -- means the Deed of Trust,
Assignment of Rents, Security Agreement and Financing Statement
encumbering the Canyons Project substantially in the form of Exhibit
B-2 to this Agreement, as amended from time to time.
Canyons CCR's -- means (a) that certain Declaration of
Protective Covenants by GSRP, as declarant, which is to be recorded in
Summit County, Utah, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof and (b) that certain Declaration
of Easements by and among GSRP, ASC Utah, Inc., a Maine corporation and
Wolf Mountain Resorts, L.L.C., which is to be recorded in the
applicable land records of Summit County, Utah, and which shall be
satisfactory in form and substance to the Administrative Agent in its
discretion, as amended from time to time in accordance with the
provisions hereof.
Canyons Commercial Common Areas and Facilities -- means those
areas at the Canyons Project that have been designated in accordance
with the Canyons Declaration, on the Canyons Resort Map or by the
Canyons Association as "Commercial Common Areas and Facilities," as
defined in the Canyons Declaration, for the primary or exclusive use of
the owners of Canyons Commercial Units.
Canyons Commercial Unit -- means a commercial condominium
unit at the Canyons Project.
Canyons Commitment Period -- means, with respect to the
Canyons Project and the Canyons Project Advances, Canyons Interest
Advances and the Canyons Inventory Advance to be made in respect
thereof, the period commencing on the Closing Date and ending on the
Canyons Termination Date.
Canyons Common Elements -- means the real estate and
improvements located at the Canyons Project other than those areas
designated as Canyons Residential Units or Canyons Commercial Units
and, with respect to the Canyons Residential Units and Canyons
Quartershare Interests, shall mean the Canyons Residential Common Areas
and Facilities and the Canyons Common Furnishings and the Canyons
General Common Areas and Facilities applicable thereto, and with
respect to the Canyons Commercial Units, means the Canyons Commercial
Common Areas and Facilities and the Canyons Common Furnishings and the
Canyons General Common Areas and Facilities applicable thereto, in each
case as more particularly provided for in the Canyons Declaration.
Canyons Common Furnishings -- means all furniture,
furnishings, appliances, fixtures and equipment, and all other personal
property from time to time owned or leased by the Canyons Association
at the Canyons Project for the use by the owners of Canyons Residential
Units, the Canyons Quartershare Interests or the Canyons Commercial
Units.
Canyons Construction Contract -- means that certain Standard
Form of Agreement between GSRP and the Canyons General Contractor, as
amended from time to time, which shall be acceptable to the
Administrative Agent.
Canyons Construction Project Advances -- as defined in Section
2.1 hereof.
Canyons Construction Project Advance Commitment-- means, with
respect to each Canyons Construction Project Advance Lender, the amount
set forth underneath its signature hereto with respect to the making of
Canyons Construction Project Advances and Canyons 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.
Canyons Construction Project Advance Lenders -- means the
Lenders identified on the signature pages hereto that have made a
Canyons Construction Project Advance Commitment (subject to the terms
and conditions hereof) to lend the amounts set forth under their
respective signature blocks in respect of Canyons Construction Project
Advances and Canyons Interest Advances, together with their successors
and permitted assigns pursuant to Section 2.6(b) of this Agreement.
Canyons Construction Project Advances Maturity Date -- means
the earlier of (a) the first Business Day of the 24th month following
the date on which the first Canyons Construction Project Advance is
made (not counting the month in which such Advance was made) and (b)
the first Business Day of the 24th month following the Closing Date
(not counting the month in which the Closing Date fell).
Canyons Construction Project Advance Note -- as defined in
Section 2.4(a) of this Agreement.
Canyons Construction Project Borrowing Base -- means, on any
date and with respect to the Canyons Project, 80% of the aggregate
amount of
(a) Construction Costs for the Canyons Project, FF&E
Costs for the Canyons Project and Sales, Marketing & Other
Costs for the Canyons Project incurred and paid for by GSRP on
or prior to such date in respect of the Canyons Project under
and in accordance with the Budget for the Canyons Project plus
(b) pre-development expenses and land values (net of
mortgage debt) for such Project set forth on Schedule 1
hereto,
provided that the "Canyons Project Borrowing Base" shall, in no case,
exceed the lesser of:
(i) $82,400,000; and
(ii) the remainder of (A) $145,000,000, minus (B) the
sum of (1) the aggregate outstanding principal balance of all
Construction Project Advances other than Canyons Construction
Project Advances as of such date, (2) the aggregate
outstanding principal balance of all Inventory Advances as of
such date and (3) the aggregate outstanding principal balance
of Interest Advances other than Canyons Interest Advances as
of such date.
Canyons Construction Project Required Lenders -- means any one
or more of the Canyons Construction Project Advance Lenders having or
holding 51% or more of the Canyons Loan Exposure.
Canyons Declaration -- means that certain Declaration of
Condominium and Interval Ownership, Canyons Grand Hotel and Crown Club
at Canyons, by GSRP, as declarant, which is to be recorded in the
applicable land records, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof.
Canyons Escrow Agent -- means such escrowee as GSRP shall have
duly authorized to act as such under applicable Utah law and which
shall be reasonably acceptable to the Administrative Agent.
Canyons Final Construction Cost Advance -- means the last
Canyons Project Advance in respect of Construction Costs for the
Canyons Project, which shall have as its sole purpose the financing of
the payment of any unutilized Canyons Retainage Amount under the
Canyons Construction Contract.
Canyons General Common Areas and Facilities -- means all
Common Areas and Facilities (as defined in the Canyons Declaration)
other than the Canyons Residential Common Areas and Facilities and the
Canyons Commercial Common Areas and Facilities.
Canyons General Contractor -- means such general contractor as
shall be acceptable to the Administrative Agent.
Canyons Host Company -- means, with respect to the Canyons
Project, ASC Utah, Inc., a Maine corporation.
Canyons Host Company Lease Agreement -- means, with respect to
the Canyons Project, that certain Lease Agreement dated September 1,
1998 between GSRP and the Canyons Host Company with respect to the
Canyons Commercial Unit.
Canyons Interest Advance -- as defined in Section 2.4(c) of
this Agreement.
Canyons Inventory Advance -- as defined in Section 2.2 hereof.
Canyons Inventory Advance Commitment-- means, with respect to
each Canyons Inventory Advance Lender, the amount set forth underneath
its signature hereto with respect to the Canyons Inventory Advances,
provided that 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.
Canyons Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made a Canyons
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the Canyons Inventory Advance, together with their
successors and permitted assigns pursuant to Section 2.6(b) of this
Agreement.
Canyons Inventory Advance Maturity Date -- means the earlier
of (a) the first Business Day of the 24th month following the date on
which the Canyons Inventory Advance is made (not counting the month in
which such Advance was made) and (b) the first Business Day of the 48th
month following the Closing Date (not counting the month in which the
Closing Date fell).
Canyons Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
Canyons Inventory Required Lenders -- means any one or more of
the Canyons Inventory Advance Lenders having or holding 51% or more of
the Canyons Loan Exposure.
Canyons Loan -- means, at any time, the aggregate principal
balance of all Canyons Construction Project Advances and Canyons
Interest Advances outstanding at such time and, after the making of the
Canyons Inventory Advance, the principal balance of the Canyons
Inventory Advance outstanding at such time.
Canyons Loan Exposure -- means
(a) with respect to any Canyons Construction Project Advance
Lender, as of any date of determination, (i) prior to the termination
of the Canyons Commitment Period, the total of the Canyons Construction
Project Advance Commitments of the Canyons Construction Project Advance
Lenders and (ii) after the termination of the Canyons Construction
Commitment Period, the aggregate principal amount of the Canyons
Construction Project Advances outstanding on such date and
(b) with respect to any Canyons Inventory Advance Lender, as
of any date of determination, (i) prior to the termination of the
Canyons Commitment Period, the total of the Canyons Inventory Advance
Commitments of the Canyons Inventory Advance Lenders and (ii) after the
termination of the Canyons Commitment Period, the aggregate principal
amount of the Canyons Inventory Advance outstanding on such date.
Canyons Notes -- means the Canyons Construction Project
Advance Notes and the Canyons Inventory Advance Notes, as the case may
be.
Canyons Obligations -- means all sums now or hereafter loaned
or advanced by any one or more of the Canyons Construction Project
Advance Lenders, the Canyons Inventory Advance Lenders and/or the
Administrative Agent to, or otherwise incurred by, GSRP under this
Agreement in respect of the Canyons Project, the Canyons Notes and/or
any of the other Canyons Security Documents (including, without
limitation, accrued and unpaid interest in respect of the Canyons Notes
and Loan Costs attributable to the Canyons Project and/or the Canyons
Security Documents), and the full, prompt and complete performance of
all obligations owed by, or undertakings or indemnities of, GSRP in
respect of the Canyons Project and/or the Canyons Security Documents
arising hereunder or thereunder.
Canyons Project -- means that certain resort property commonly
known as the Canyons Grand Hotel and Crown Club at Canyons, situated on
certain land located in Summit County, Utah, and particularly described
on Schedule 2-A attached hereto and made a part hereof, and including
all improvements now or hereafter located on said land, and all
facilities, roadways, common furnishings, club furnishings, equipment
and all other appurtenances thereunto belonging. The Canyons Project
shall include, when the Canyons Declaration is recorded, the Canyons
Residential Units (if any), the Canyons Quartershare Interests, the
Canyons Commercial Units and the Canyons Common Elements.
Canyons Project Documents -- means the Canyons Declaration,
the Articles of Incorporation and the By-Laws of the Canyons
Association, and the rules and regulations of the Canyons Association.
Canyons Quartershare Interest -- means the "Quartershare
Estates" as defined and described in the Canyons Declaration, with the
owner of such estate being entitled to the exclusive right to the
possession, use and occupancy of a Canyons Residential Unit during
thirteen (13) calendar weeks of each calendar year, as more
particularly provided in the Canyons Declaration.
Canyons Required Amortization Amount -- means, at any time,
the quotient equal to the outstanding principal amount of the Canyons
Construction Project Advances or, after the payment in full of the
Canyons Construction Project Advances, the Canyons Inventory Advance,
determined at such time, divided by 80% of the number of unsold Canyons
Quartershare Interests, determined at such time.
Canyons Residential Common Areas and Facilities -- means those
areas at the Canyons Project that have been designated in accordance
with the Canyons Declaration, on the Canyons Resort Map or by the
Canyons Association as "Residential Common Areas and Facilities," as
defined in the Canyons Declaration, for the primary or exclusive use of
the owners of Canyons Residential Units or Canyons Quartershare
Interests.
Canyons Residential Unit -- means a residential condominium
unit at the Canyons Project.
Canyons Resort Map -- means the plat and floor plans for the
Canyons Project to be recorded in the real property records of Summit
County, Utah and which shall be satisfactory to the Administrative
Agent.
Canyons Required Lenders -- means, as the context may require,
the Canyons Construction Project Required Lenders or the Canyons
Inventory Required Lenders.
Canyons Retainage Amount -- as defined in Section 2.1(b) of
this Agreement.
Canyons Security Documents -- means (a) this Agreement to the
extent that it deals with the Canyons Project, the Canyons Construction
Project Advances, the Canyons Interest Advances and/or the Canyons
Inventory Advances, (b) the Canyons Notes, (c) the Canyons Blanket
Mortgage, (d) the Canyons Assignment of Rents, (e) the Canyons
Assignment of Contracts, (f) the Canyons Assignment of Property-Related
Contracts, (g) the Canyons Assignment of the Construction Contract, (h)
the Canyons Assignment of the Architect's Contract, (i) the
Subordination Agreement executed by the Canyons Host Company in respect
of the Canyons Host Company Lease, (j) the Canyons Assignment of
Declarant's Rights and (k) the proxy for the Canyons Declaration
referred to in Section 3.9(c) hereof.
Canyons 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) the day immediately preceding the Canyons
Construction Project Advances Maturity Date.
If the first Construction Project Advance in respect of the Canyons
Project shall not have been made prior to December 15, 1998, then the
Canyons Termination Date shall be deemed to be December 15, 1998.
Cash Collateral Account -- means an account maintained by the
Administrative Agent pursuant to Section 10.11 hereof, which account
holds certain payments made in respect of the Collateral or any Project
and earnings on such excess payments from Eligible Investments.
CCR's --means, as the context may require, any one or more of
the following: the Steamboat Declaration, the *Sugarloaf CCR's, the
Canyons CCR's, the *Sugarbush CCR's, the Attitash Declaration, the
Jordan Bowl Declaration, the Killington CCR's and/or the Mt. Snow
CCR's.
Change in Management -- means the Parent shall cease to own,
directly or indirectly, 100% of the voting power of all classes of
Voting Stock or other equity interests of GSRP, any Host Company or any
Person which shall have managerial and/or supervisory operational
responsibilities in respect of the Projects except as may be consented
to in writing by the Required Parties. For the avoidance of doubt, a
public offering of common stock of the Parent shall not be deemed a
Change in Management.
Closing Date -- means September 28, 1998.
Collateral -- as defined Section 3.1 of this Agreement.
Commercial Unit -- means, as the context may require, any one
or more of the following: the Steamboat Commercial Units, the Canyons
Commercial Units, the *Sugarbush Commercial Units, *Sugarloaf
Commercial Units, the Jordan Bowl Commercial Units, the Attitash
Commercial Unit, the Killington Commercial Unit and/or the Mt. Snow
Commercial Unit.
Commitment-- means, as the context may require, any one or
more of the following: the Steamboat Construction Project Advance
Commitment, the Canyons Construction Project Advance Commitment, the
*Sugarbush Construction Project Advance Commitment, the *Sugarloaf
Construction Project Advance Commitment, the Steamboat Inventory
Advance Commitment, the Canyons Inventory Advance Commitment, the
*Sugarbush Inventory Advance Commitment, the *Sugarloaf Inventory
Advance Commitment, the Jordan Bowl Inventory Advance Commitment, the
Attitash Inventory Advance Commitment, the Killington Inventory Advance
Commitment and/or the Mt. Snow Inventory Advance Commitment, as the
case may be.
Commitment Letter -- means those certain letters dated on or
about September 25, 1998 from Textron Financial Corporation and Green
Tree Financial Servicing Corporation to GSRP, which letters were
accepted by GSRP on or about September 25, 1998.
Commitment Period -- means, as the context may require, any
one or more of the following: the Steamboat Commitment Period, the
Canyons Commitment Period, the *Sugarbush Commitment Period, the
*Sugarloaf Commitment Period, the Jordan Bowl Commitment Period, the
Attitash Commitment Period, the Killington Commitment Period and/or the
Mt. Snow Commitment Period.
Common Elements -- means, as the context may require, any one
or more of the following: the Steamboat Common Areas, the *Sugarloaf
Common Elements, the Canyons Common Elements, the *Sugarbush Common
Elements, the Jordan Bowl Common Elements, the Attitash Common Areas,
the Killington Common Elements and/or Mt. Snow Common Elements.
Compensation -- as defined in Section 3.1(g) of this
Agreement.
Completion Date -- means
(a) with respect to the Steamboat Project, September
1, 2000,
(b) with respect to the Canyons Project, September 1,
2000,
(c) with respect to the *Sugarbush Project, [date to
be determined] and
(d) with respect to the *Sugarloaf Project, [to be
determined].
The construction of the Jordan Bowl Project, the Attitash Project, the
Killington Project and the Mt. Snow Project is complete.
Condemnation Compensation -- as defined in Section 3.6(a)(i)
of this Agreement.
Construction Project(s) -- means, as the context may require,
any one or more of the following: the Steamboat Project, the *Sugarloaf
Project, the Canyons Project and/or the *Sugarbush Project.
Consummation Date -- means the date on which the purchase and
sale of a Quartershare Interest or Commercial Unit for any Project is
consummated.
Construction Contract -- means, as the context may require,
any one or more of the following: the Steamboat Construction Contract,
*Sugarloaf Construction Contract, the Canyons Construction Contract,
and/or the *Sugarbush Construction Contract.
Construction Cost Certificate -- means, as of any date and
with respect to any Construction Project, a certificate which is signed
by GSRP, is addressed, and is in form and substance satisfactory, to
the Administrative Agent, and
(a) includes as an attachment thereto an Application
and Certificate for Payment from the General Contractor for
such Construction Project (AIA Document G702) (and a fully
completed Continuation Sheet thereto (AIA Document G703))
executed by such General Contractor and duly notarized and
certified and executed by the Architect for such Construction
Project; the Continuation Sheet shall show under the
"Description of Work" each construction line item
classification of the Budget for such Construction Project and
with respect thereto the scheduled value thereof (as listed in
such Budget),
(b) includes as an attachment thereto the Architect's
Construction Cost Certificate for such Construction Project,
(c) includes as an attachment thereto a certificate
from such General Contractor to GSRP and the Administrative
Agent that
(i) certifies that the construction of the
building and the other improvements at such
Construction Project in connection therewith has been
in accordance with the Construction Documents (as
such term is defined in the Construction Contract for
such Construction Project),
(ii) certifies that such General Contractor
has fully paid for (except in respect of
contractually permitted retainages) all progress
payments or other costs in respect of the work,
labor, fuel, materials and/or equipment incurred by
it or by its subcontractors, materialmen and/or
suppliers in respect of the construction at such
Construction Project through the date or dates of all
prior applications and certificates in respect of
which such General Contractor has been paid hereunder
and/or has been paid by GSRP (with Equity Moneys or
otherwise),
(iii) includes as an attachment copies of
cancelled checks, paid-in-full invoices or other
proof of payment (acceptable to the Lender) in
respect of the payment of the aforesaid
subcontractors, materialmen and/or suppliers together
with unconditional lien waivers in respect thereof,
(iv) includes as an attachment copies of (1)
all invoices and bills of its costs or progress
payments then due and (2) all invoices and bills of
the costs of its subcontractors, materialmen and/or
suppliers and/or applications for payment submitted
to it by its subcontractors for progress payments to
be satisfied (less any retained amount thereof), in
whole or part, with any Construction Project Advance
to be made hereunder in connection with such Cost
Construction Certificate, and
(v) includes as an attachment appropriate
mechanic's, materialman's and laborer's progress
payment lien waivers or releases in respect of such
aforesaid progress payments or costs to the extent
that the same are so paid (and such condition of
payment shall be the only condition to which such
waivers or releases shall be subject);
(d) certifies the accuracy and correctness of the
application and certificates referred to in clauses (a), (b)
and (c) above,
(e) certifies (i) the aggregate costs incurred by
GSRP in respect of Construction Costs, FF&E Costs and Sales,
Marketing & Other Costs in each case for such Construction
Project up to and including such date, (ii) the aggregate
amount of Equity Moneys and Construction Project Advances in
each case for such Construction Project utilized prior to such
date to satisfy, in whole or part, such Costs and (iii) that
the unutilized principal amount of this Agreement available
for such Construction Project, the Construction Project
Advances likely to be repaid and to be reborrowable in respect
of such Construction Project and the remaining Equity Moneys,
if any, are sufficient to satisfy the remaining Construction
Costs, FF&E Costs and Sales, Marketing & Other Costs for such
Construction Project,
(f) certifies with respect to each construction line
item in the Budget for such Construction Project the total
amount of the scheduled value thereof completed as of such
date and the portion of such completed scheduled value
(i) paid for by Equity Moneys,
(ii) paid for by prior Construction Project
Advances hereunder,
(iii) deferred as retainage, and
(iv) to be paid for by a currently requested
Construction Project Advance hereunder,
(g) includes as an attachment evidence of the
application of the proceeds of any prior Construction Project
Advances and Equity Moneys in each case for such Construction
Project not previously accounted for in a prior Construction
Cost Certificate, Nonconstruction Cost Certificate or under
subclause (c) above, in each case for such Construction
Project,
(h) compares the actual costs incurred in respect of
each line item in the Budget for such Construction Project
with the projected amount thereof as of such date and explains
any material variance in respect thereof, and
(i) includes as an attachment a current title report
in respect of such Construction Project issued by the title
insurance company that shall have issued the Title Insurance
Policy {Blanket} (or a current update of a title report in
respect of such Construction Project previously delivered to
the Administrative Agent by such title insurance company)
showing no Lien or exception to title other than the Permitted
Exceptions and showing, in particular, no mechanic's,
materialmen's, labor's or other similar Lien of record.
Construction Costs -- means, with respect to any Construction
Project, any costs and expenses required to be paid by GSRP under the
Construction Contract for such Construction Project to the General
Contractor for such Construction Project or otherwise identified as
construction costs in the Budget for such Construction Project and
approved by the Administrative Agent (including, without limitation,
site work and landscaping), provided that "Construction Costs" shall
not include overhead costs of GSRP or the General Contractor for such
Construction Project, FF&E Costs (other than costs of equipment that is
to be incorporated into, and made a part of, the building to be built
at such Construction Project), insurance and bonding costs (except to
the extent incorporated into the Construction Contract) or Sales,
Marketing & Other Costs.
Construction Project Advance -- means, as the context may
require, any one or more of the following: the Steamboat Construction
Project Advances, the Canyons Construction Project Advances, the
*Sugarbush Construction Project Advances and/or the *Sugarloaf
Construction Project Advances.
Construction Project Advance Lender -- means, as the context
may require, any one or more of the following: the Steamboat
Construction Project Advance Lenders, the Canyons Construction Project
Advance Lenders, the *Sugarbush Construction Project Advance Lenders
and/or the *Sugarloaf Construction Project Advance Lenders.
Construction Project Advance Date -- as defined in Section 6
of this Agreement.
Construction Project Advance Request -- as defined in
Section 6.3 of this Agreement.
Construction Project Borrowing Base -- means, as the context
may require, any one or more of the following: the Steamboat
Construction Project Borrowing Base, the Canyons Construction Project
Borrowing Base, the *Sugarbush Construction Project Borrowing Base
and/or the *Sugarloaf Construction Project Borrowing Base.
Construction Project(s) -- means, as the context may require,
any one or more of the following: the Steamboat Project, the *Sugarloaf
Project, the Canyons Project and/or the *Sugarbush Project.
Contract -- means any purchase contract between one or more
Persons, as purchaser (the "Purchaser"), and GSRP, as seller, which
agreement provides for the sale by GSRP to such Purchaser of one or
more Quartershare Interests in any Project.
Declaration(s) -- means, as the context may require, any one
or more of the following: the Steamboat Declaration, the *Sugarloaf
Declaration, the Canyons Declaration, the *Sugarbush Declaration, the
Jordan Bowl Declaration, the Attitash Declaration, the Killington
Declaration and/or Mt. Snow Declaration.
Declarant(s) -- means individually or collectively (as the
context may require), the status of GSRP as the declarant under
applicable law and under the Declarations and the Articles of
Incorporation and By-Laws of the Associations, as amended.
Default -- means an event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both, become
an Event of Default.
Default Rate -- means, at any time, the per annum rate of
interest equal to the Interest Rate, then in effect, plus 2% per annum;
provided, however, that the Default Rate shall in no event exceed the
Maximum Rate.
Disbursement Agent -- means the Administrative Agent or such
other Person as the Administrative Agent may designate. The
"Disbursement Agent" shall be the exclusive agent of the Administrative
Agent and the Lenders.
Eligible Assignee -- means
(a) any Lender that is a signatory hereto or any
parent, affiliate or subsidiary of any such Lender,
(b) any commercial bank organized under the laws of
the United States of America or any state thereof that has
combined capital and surplus of at least $100,000,000,
(c) any savings and loan association or savings bank
organized under the laws of the United States of America or
any state thereof that has combined capital and surplus of at
least $100,000,000, and
(d) any other trust or entity organized under the
laws of the United States of America or any state thereof that
(i) is an "accredited investor" (as defined in Regulation D
under the Securities Act of 1933, as amended), (ii) is a
commercial finance company, insurance company or other
financial institution that regularly makes commercial loans in
the ordinary course of its business or (iii) has combined
capital and equity of at least $100,000,000.
Eligible Investments -- means any one or more of the
following obligations or securities:
(a) direct non-callable obligations of, and
noncallable obligations fully guaranteed by, the United States
of America, or any agency or instrumentality of the United
States of America the obligations of which are backed by the
full faith and credit of the United States of America and have
a maturity of not more than 30 days;
(b) demand and time deposits in, certificates of
deposits of, and bankers' acceptances issued by, any
depository institution or trust company incorporated under the
laws of the United States of America or any state thereof that
permit the withdrawal of the moneys placed on deposit therein
upon not less than 30 days prior written notice or provide for
the maturing of the investment represented thereby in not less
than 30 days after making of such investment, provided that
such depository institution or trust company shall have a
combined capital and surplus of at least $500,000,000 and be
subject to supervision and examination by federal and/or state
banking authorities and, at the time of such investment, the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution that is the principal subsidiary of a
holding company, the commercial paper or other short-term debt
obligations of such holding company) shall have the highest
short-term credit rating available from a nationally
recognized credit rating agency; and
(iii) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations) payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof having the
highest short-term credit rating from any nationally
recognized credit rating agency at the time of such
investment.
Environmental Protection Law -- means each federal, state,
county, regional or local law, statute, or regulation enacted in
connection with or relating to the protection or regulation of the
environment, including, without limitation, those laws, statutes, and
regulations regulating the disposal, removal, production, storing,
refining, handling, transferring, processing, or transporting of
Hazardous Substances, and any regulations issued or promulgated in
connection with such statutes by any governmental authority and any
orders, decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.
Equity Moneys -- means, at any time, cash equity contributions
made to GSRP by its Parent.
Escrow Agent -- means, as the context may require, any one
or more of: the Steamboat Escrow Agent, the *Sugarloaf Escrow Agent,
the Canyons Escrow Agent, the *Sugarbush Escrow Agent, the Jordan Bowl
Escrow Agent, the Attitash Escrow Agent, the Killington Escrow Agent
and/or the Mt. Snow Escrow Agent.
Event of Default -- as defined in Section 8.1 of this
Agreement.
FF&E Costs -- means, with respect to any Construction Project,
the costs of acquisition and delivery of furniture, fixtures and
equipment to be installed and/or used in the building and the other
improvements being constructed at such Construction Project. "FF&E
Costs" shall not include any Construction Costs.
Fair Market Value -- at any time with respect to any Property
means the sale value of such Property that would be realized in an
arm's-length sale at such time between an informed and willing buyer,
and an informed and willing seller, under no compulsion to buy or sell,
respectively.
Final Construction Cost Advance -- means, as the context may
require, any one or more of the following: the Steamboat Final
Construction Cost Advance, the Canyons Final Construction Cost Advance,
the *Sugarbush Final Construction Cost Advance and/or the *Sugarloaf
Final Construction Cost Advance.
Final Construction Cost Certificate -- means, with respect to
any Construction Project, a certificate, addressed to the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent, signed by GSRP, which
(a) includes as an attachment thereto a Certificate
of Substantial Completion (AIA Document G704) executed by the
Architect for such Construction Project, the General
Contractor for such Construction Project and GSRP; the list of
items to be completed set forth on such Certificate shall have
been completed to the satisfaction of the Architect for such
Construction Project and the TFC Architect and both of such
Persons shall have so certified in the Architect's Final
Construction Cost Certificate for such Construction Project
(which shall also be an attachment to such Final Construction
Cost Certificate)
(b) includes as an attachment thereto a certificate
from such General Contractor to GSRP and the Administrative
Agent that
(i) the construction of the building and the
other improvements at such Construction Project in
connection therewith has been completed in accordance
with the Plans for such Construction Project and in
compliance with the Construction Documents (as such
term is defined in the Construction Agreement of such
General Contractor),
(ii) such General Contractor has fully paid
for all of the work, labor, fuel, materials and/or
equipment furnished by it or by its subcontractors,
materialmen and/or suppliers in respect of the
construction at such Construction Project, and
(iii) attached thereto are mechanic's,
materialman's and laborer's final lien waivers or
releases in respect of such General Contractor and
all subcontractors, materialmen and/or suppliers;
(c) certifies the accuracy and correctness of the
application and certificates referred to in clauses (a) and
(b) above;
(d) includes as an attachment appropriate insurance
certificates evidencing the necessary insurance required by
Section 3.5 and any necessary consents of any surety that
shall have issued any performance or payment bond provided by
the General Contractor for such Construction Project, and
(e) includes as an attachment a current title report
in respect of such Construction Project issued by the title
insurance company that shall have issued the Title Insurance
Policy {Blanket} (or a current update of a title report in
respect of such Construction Project previously delivered to
the Administrative Agent by such title insurance company)
showing no Lien or exception to title other than the Permitted
Exceptions and showing, in particular, no mechanic's,
materialmen's, labor's or other similar Lien of record.
Funding Date Equity Contribution -- as such term is defined
in Section 6.1(t) hereof.
General Contractor(s) -- means, as the context may require,
any one or more of the following: the Steamboat General Contractor,
the *Sugarloaf General Contractor, the Canyons General Contractor,
and/or the *Sugarbush General Contractor.
GSRP -- as defined in the preamble to this Agreement.
Hazardous Substances -- means any and all pollutants,
contaminants, toxic or hazardous wastes or any other substances that
might pose a hazard to health or safety, the removal of which may be
required or the generation, manufacture, refining, production,
processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage or filtration of
which is or shall be restricted, prohibited or penalized by any
Environmental Protection Law (including, without limitation, asbestos,
urea formaldehyde foam insulation and polychlorinated biphenyls);
provided, however, that "Hazardous Substances" shall not include any
substance used by GSRP or its agents in the ordinary course of business
and in compliance with applicable Environmental Protection Laws.
Host Company -- means, as the context may require, any one
or more of the following: the Steamboat Host Company, the Canyons Host
Company, the *Sugarbush Host Company, the *Sugarloaf Host Company, the
Jordan Bowl Host Company, the Killington Host Company and/or the Mt.
Snow Host Company.
Host Company Lease Agreement -- means, as the context may
require, any one or more of the following: the Steamboat Host Company
Lease Agreement, the Canyons Host Company Lease Agreement, the
*Sugarbush Host Company Lease Agreement and/or the *Sugarloaf Host
Company Lease Agreement.
Impositions -- as defined in Section 3.7 of this Agreement.
Insurance Premiums -- as defined in Section 3.5(a)(iv) of
this Agreement.
Interest Advances -- means, as the context may require, any
one or more of the following: Steamboat Interest Advances, Canyons
Interest Advances, *Sugarbush Interest Advances and/or *Sugarloaf
Interest Advances.
Interest Rate -- means, with respect to any calendar month,
a per annum rate of interest equal to the greater of:
(a) 9.25%, or
(b) the sum of
(i) 1.50%, plus
(ii) 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 Chase Manhattan Bank, New York, New York or any successor
thereto. In the event Chase Manhattan Bank, New York, New York or any
successor thereto, shall discontinue announcement of said Prime Rate, a
comparable index designated by the Lender 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 Chase Manhattan Bank, New York, New
York or any successor thereto to its most creditworthy customers.
Inventory Advance -- means, as the context may require, any
one or more of the following: Steamboat Inventory Advance, Canyons
Inventory Advance, *Sugarbush Inventory Advance, *Sugarloaf Inventory
Advance, the Jordan Bowl Inventory Advance, the Attitash Inventory
Advance, the Killington Inventory Advance and/or the Mt. Snow Inventory
Advance.
Inventory Advance Date -- as defined in Section 6A of this
Agreement.
Inventory Advance Lenders -- means, as the context may
require, any one or more of the following: the Steamboat Inventory
Advance Lenders, the Canyons Inventory Advance Lenders, the *Sugarbush
Inventory Advance Lenders, the *Sugarloaf Inventory Advance Lenders,
the Jordan Bowl Inventory Advance Lenders, the Attitash Jordan Bowl
Advance Lenders, the Killington Inventory Advance Lenders and/or the
Mt. Snow Inventory Advance Lenders.
Inventory Advance Request -- as defined in Section 6A of
this Agreement.
Jordan Bowl Architect -- means a duly licensed architect under
Maine law approved by the Administrative Agent.
Jordon Bowl Assignment of Contracts -- means an assignment of
the Contracts arising in respect of the sale of Jordan Bowl
Quartershare Interests substantially in the form of Exhibit V attached
to this Agreement.
Jordan Bowl Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the Jordan
Bowl Declaration substantially in the form of Exhibit K-5 to this
Agreement, as amended from time to time.
Jordan Bowl Assignment of Property-Related Contracts -- means
the assignment in respect of Property-Related Contracts connected with
the Jordan Bowl Project substantially in the form of Exhibit Q-5 to
this Agreement, as amended from time to time.
Jordan Bowl Assignment of Rents -- means the Assignment of
Lease and Rents in respect of the Jordan Bowl Project dated as of
September 1, 1998, as amended from time to time.
Jordan Bowl Association -- means The Jordan Grand Condominium
Owners Association, a Maine non-profit corporation, or any successor
association thereto as provided in the Jordan Bowl Declaration.
Jordan Bowl Blanket Mortgage -- means the Mortgage, Assignment
of Rents, Security Agreement and Financing Statement encumbering the
Jordan Bowl Project and substantially in the form of Exhibit B-5 to
this Agreement, as amended from time to time.
Jordan Bowl Commitment Period -- means, with respect to the
Jordan Bowl Project and the Jordan Bowl Inventory Advance to be made in
respect thereof, the period commencing on the Closing Date and ending
on the Jordan Bowl Termination Date.
Jordan Bowl Easements -- means that certain Declaration of
Easements by and between GSRP and Sunday River Skiway Corporation, a
Maine corporation, which is to be recorded in the applicable land
records of Oxford County, Maine, and which shall be satisfactory in
form and substance to the Administrative Agent in its discretion, as
amended from time to time in accordance with the provisions hereof.
Jordan Bowl Common Elements -- means those areas at the Jordan
Bowl Project that have been designated in accordance with the Jordan
Bowl Declaration, on the Jordan Bowl Resort Map or by the Jordan Bowl
Association as "Common Elements," as used and described in the Jordan
Bowl Declaration, for the primary benefit of the owners of Jordan Bowl
Residential Units and Jordan Bowl Commercial Units.
Jordan Bowl Commercial Unit -- means any condominium unit at
the Jordan Bowl Project that has been designated for commercial use.
Jordan Bowl Declaration -- means that certain Declaration of
Condominium, The Jordan Grand at Sunday River, A Condominium by GSRP,
as declarant, which is to be recorded in the land records of Oxford
County, Maine, and which shall be satisfactory to the Administrative
Agent in form and substance in its discretion, as amended from time to
time in accordance with the provisions hereof.
Jordan Bowl Escrow Agent -- means Key Bank of Maine, or such
escrowee duly authorized to act as such under applicable Maine law.
Jordan Bowl Host Company -- as defined in the definition of
"Beneficial Improvements Agreements" in this Section 1.1.
Jordan Bowl Inventory Advance -- as defined in Section 2.2
hereof.
Jordan Bowl Inventory Advance Commitment-- means, with respect
to each Jordan Bowl Inventory Advance Lender, the amount set forth
underneath its signature hereto with respect to the Jordan Bowl
Inventory 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.
Jordan Bowl Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made an Jordan Bowl
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the Jordan Bowl Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
Jordan Bowl Inventory Advance Maturity Date -- means the
January 2, 2001.
Jordan Bowl Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
Jordan Bowl Inventory Required Lenders -- means any one or
more of the Jordan Bowl Inventory Advance Lenders having or holding 51%
or more of the Jordan Bowl Loan Exposure.
Jordan Bowl Limited Common Elements -- means those areas at
the Jordan Bowl Project that have been designated in accordance with
the Jordan Bowl Declaration, on the Jordan Bowl Resort Map or by the
Jordan Bowl Association as "Limited Common Elements," as defined in the
Jordan Bowl Declaration, for the primary or exclusive use of only
certain owners of Jordan Bowl Residential Units, the Jordan Bowl
Quartershare Interests and the Jordan Bowl Commercial Units.
Jordan Bowl Loan -- means, at any time, the aggregate
principal balance of the Jordan Bowl Inventory Advance outstanding at
such time.
Jordan Bowl Loan Exposure -- means, with respect to any Jordan
Bowl Inventory Advance Lender, as of any date of determination, (a)
prior to the termination of the Jordan Bowl Commitment Period, the
total of the Jordan Bowl Inventory Advance Commitments of the Jordan
Bowl Inventory Advance Lenders and (b) after the termination of the
Jordan Bowl Commitment Period, the aggregate principal amount of the
Jordan Bowl Inventory Advance outstanding on such date.
Jordan Bowl Notes -- means the Jordan Bowl Inventory Advance
Notes.
Jordan Bowl Obligations -- means all sums now or hereafter
loaned or advanced by any one or more the Jordan Inventory Advance
Lenders and/or the Administrative Agent to, or otherwise incurred by,
GSRP under this Agreement in respect of the Jordan Bowl Project, the
Jordan Bowl Notes and/or any of the other Jordan Bowl Security
Documents (including, without limitation, accrued and unpaid interest
in respect of the Jordan Bowl Notes and Loan Costs attributable to the
Jordan Bowl Project and/or the Jordan Bowl Security Documents), and the
full, prompt and complete performance of all obligations owed by, or
undertakings or indemnities of, GSRP in respect of the Jordan Bowl
Project and/or the Jordan Bowl Security Documents arising hereunder or
thereunder.
Jordan Bowl Project -- means that certain resort property
commonly known as The Jordan Grand at Sunday River, A Condominium,
situated on certain land located in Oxford County, Maine, and
particularly described on Schedule 2-E attached hereto and made a part
hereof, and including all improvements now or hereafter located on said
land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto belonging.
The Jordan Bowl Project shall include, when the Jordan Bowl Declaration
is recorded, the Jordan Bowl Residential Units (if any), the Jordan
Bowl Quartershare Interests, the Jordan Bowl Commercial Units, the
Jordan Bowl Common Elements and the Jordan Bowl Limited Common
Elements.
Jordan Bowl Project Documents -- means the Jordan Bowl
Declaration, the Articles of Incorporation and the By-Laws of the
Jordan Bowl Association, and the rules and regulations of the Jordan
Bowl Association.
Jordan Bowl Quartershare Interest -- means the "Quarter Share
Estates" as defined and described in the Jordan Bowl Declaration, with
such interest being entitled to the exclusive right to the possession,
use and occupancy of a Jordan Bowl Residential Unit during thirteen
(13) calendar weeks of each calendar year, as more particularly
provided in the Jordan Bowl Declaration.
Jordan Bowl Residential Unit -- means any condominium unit at
the Jordan Bowl Project other than those units that have been
designated for commercial use.
Jordan Bowl Resort Map -- means the plats and plans in respect
of the Jordan Bowl Project to be recorded in the real property records
of Oxford County, Maine Registry of Deeds and which shall be
satisfactory to the Administrative Agent.
Jordan Bowl Required Lenders -- means the Jordan Bowl
Inventory Required Lenders.
Jordan Bowl 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) the day on which the Jordan Bowl Inventory
Advance is made hereunder.
Killington Assignment of Contracts -- means an assignment of
the Contracts arising in respect of the sale of Killington Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
Killington Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the Killington
Declaration substantially in the form of Exhibit K-6 to this Agreement,
as amended from time to time.
Killington Assignment of Property-Related Contracts -- means
the assignment in respect of Property-Related Contracts connected with
the Killington Project substantially in the form of Exhibit Q-6 to this
Agreement, as amended from time to time.
Killington Assignment of Rents -- means the Assignment of
Lease and Rents in respect of the Killington Project dated as of
September 25, 1997, as amended from time to time.
Killington Architect -- means a duly licensed architect under
Vermont law approved by the Administrative Agent.
Killington Association -- means Killington Grand Hotel and
Crown Club Owners Association, Inc., a Vermont non-profit corporation,
or any successor association thereto as provided in the Killington
Declaration.
Killington Blanket Mortgage -- means the Mortgage, Assignment
of Rents, Security Agreement and Financing Statement encumbering the
Killington Project dated as of September 25, 1997, as amended from time
to time.
Killington CCR's -- means (a) that certain Killington Grand
Hotel and Crown Club at Killington Declaration of Protective Covenants
by GSRP, as declarant, which is to be recorded in the land records of
the Town of Sherburne, Vermont, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof and (b) that certain Declaration
of Easements by and between GSRP and Killington, Ltd., a Vermont
corporation, which is to be recorded in the applicable land records of
Town of Sherburne, Vermont, and which shall be satisfactory in form and
substance to the Administrative Agent in its discretion, as amended
from time to time in accordance with the provisions hereof.
Killington Commercial Common Areas and Facilities -- means
those areas at the Killington Project that have been designated in
accordance with the Killington Declaration, on the Killington Resort
Map or by the Killington Association as "Commercial Common Areas and
Facilities," as defined in the Killington Declaration, for the primary
or exclusive use of the owners of Killington Commercial Units.
Killington Commercial Unit -- means a commercial condominium
unit at the Killington Project.
Killington Commitment Period -- means, with respect to the
Killington Project and the Killington Inventory Advance to be made in
respect thereof, the period commencing on the Closing Date and ending
on the Killington Termination Date.
Killington Common Elements -- means the real estate and
improvements located at the Killington Project other than those areas
designated as Killington Residential Units or Killington Commercial
Units and, with respect to the Killington Residential Units and
Killington Quartershare Interests, shall mean the Killington
Residential Common Areas and Facilities and the Killington Common
Furnishings and the Killington General Common Areas and Facilities
applicable thereto, and with respect to the Killington Commercial
Units, means the Killington Commercial Common Areas and Facilities and
the Killington Common Furnishings and the Killington General Common
Areas and Facilities applicable thereto, in each case as more
particularly provided for in the Killington Declaration.
Killington Common Furnishings -- means all furniture,
furnishings, appliances, fixtures and equipment, and all other personal
property from time to time owned or leased by the Killington
Association at the Killington Project for the use by the owners of
Killington Residential Units, the Killington Quartershare Interests or
the Killington Commercial Units.
Killington Declaration -- means that certain Declaration of
Condominium and Interval Ownership, Killington Grand Hotel and Crown
Club at Killington, by GSRP, as declarant, which is to be recorded in
the applicable land records, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof.
Killington Escrow Agent -- means Key Bank in Rutland, Vermont,
or such escrowee duly authorized to act as such under applicable
Vermont law.
Killington General Common Areas and Facilities -- means all
Common Areas and Facilities (as defined in the Killington Declaration)
other than the Killington Residential Common Areas and Facilities and
the Killington Commercial Common Areas and Facilities.
Killington Host Company -- as defined in the definition of
"Beneficial Improvements Agreements" in this Section 1.1.
Killington Inventory Advance -- as defined in Section 2.2
hereof.
Killington Inventory Advance Commitment-- means, with respect
to each Killington Inventory Advance Lender, the amount set forth
underneath its signature hereto with respect to the Killington
Inventory 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.
Killington Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made an Killington
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the Killington Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
Killington Inventory Advance Maturity Date -- means the
January 2, 2001.
Killington Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
Killington Inventory Required Lenders -- means any one or more
of the Killington Inventory Advance Lenders having or holding 51% or
more of the Killington Loan Exposure.
Killington Loan -- means, at any time, the aggregate principal
balance of the Killington Inventory Advance outstanding at such time.
Killington Loan Exposure -- means, with respect to any
Killington Inventory Advance Lender, as of any date of determination,
(a) prior to the termination of the Killington Commitment Period, the
total of the Killington Inventory Advance Commitments of the Killington
Inventory Advance Lenders and (b) after the termination of the
Killington Commitment Period, the aggregate principal amount of the
Killington Inventory Advance outstanding on such date.
Killington Resort Map -- means the plat and floor plans for
the Killington Project to be recorded in the real property records of
the Town of Sherburne, Vermont and which shall be satisfactory to the
Administrative Agent.
Killington Notes -- means the Killington Inventory Advance
Notes.
Killington Obligations -- means all sums now or hereafter
loaned or advanced by any one or more the Killington Inventory Advance
Lenders and/or the Administrative Agent to, or otherwise incurred by,
GSRP under this Agreement in respect of the Killington Project, the
Killington Notes and/or any of the other Killington Security Documents
(including, without limitation, accrued and unpaid interest in respect
of the Killington Notes and Loan Costs attributable to the Killington
Project and/or the Killington Security Documents), and the full, prompt
and complete performance of all obligations owed by, or undertakings or
indemnities of, GSRP in respect of the Killington Project and/or the
Killington Security Documents arising hereunder or thereunder.
Killington Project -- means that certain resort property
commonly known as the Killington Grand Hotel and Crown Club at
Killington, situated on certain land located in Killington, Vermont,
and particularly described on Schedule 2-G attached hereto and made a
part hereof, and including all improvements now or hereafter located on
said land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto belonging.
The Killington Project shall include, when the Killington Declaration
is recorded, the Killington Residential Units (if any), the Killington
Quartershare Interests, the Killington Commercial Units and the
Killington Common Elements.
Killington Project Documents -- means the Killington
Declaration, the Articles of Incorporation and the By-Laws of the
Killington Association, and the rules and regulations of the Killington
Association.
Killington Quartershare Interest -- means the "Interval
Ownership Interests" as defined and described in the Killington
Declaration, with the owner of such interest being entitled to the
exclusive right to the possession, use and occupancy of a Killington
Residential Unit during thirteen (13) calendar weeks of each calendar
year, as more particularly provided in the Killington Declaration.
Killington Residential Common Areas and Facilities -- means
those areas at the Killington Project that have been designated in
accordance with the Killington Declaration, on the Killington Resort
Map or by the Killington Association as "Residential Common Areas and
Facilities," as defined in the Killington Declaration, for the primary
or exclusive use of the owners of Killington Residential Units or
Killington Quartershare Interests.
Killington Residential Unit -- means a residential
condominium unit at the Killington Project.
Killington Resort Map -- means the plat and floor plans for
the Killington Project to be recorded in the real property records of
the Town of Rutland, Vermont and which shall be satisfactory to the
Administrative Agent.
Killington Required Lenders -- means the Killington
Inventory Required Lenders.
Killington 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) the day on which the Killington Inventory
Advance is made hereunder.
Lenders -- as defined in the preamble to this Agreement,
together with their successors and permitted assigns pursuant to
Section 2.6(b) of this Agreement.
Lien -- any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property,
whether such interest is based on the common law, statute or contract,
and including, but not limited to, attachments, judgments or tax liens
and the security interest or lien arising from a mortgage, deed of
trust, encumbrance, pledge, conditional sale or trust receipt or a
lease, consignment or bailment for security purposes. The term "Lien"
shall include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and other
title exceptions and encumbrances affecting Property. For the purpose
of this Agreement, GSRP shall be deemed to be the owner of any Property
which it has acquired or holds subject to a conditional sale agreement
or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes.
Loan -- means, at any time, the aggregate principal balance of
the Steamboat Loan, the Canyons Loan, the *Sugarbush Loan, the
*Sugarloaf Loan, the Jordan Bowl Loan, the Attitash Loan, the
Killington Loan and the Mt. Snow Loan.
Loan Costs -- as defined in Section 11.2 of this Agreement.
Loan Disbursement Agreement -- means that certain loan
disbursement agreement of even date herewith among the Disbursement
Agent, GSRP and the Lenders, substantially in the form of Exhibit C
hereto, as amended from time to time. If the Administrative Agent shall
be the Disbursement Agent, then "Loan Disbursement Agreement" shall
refer to such agreements, letters or other writings which the
Administrative Agent and GSRP shall identify from time to time as
memorializing their agreements with respect to disbursement services to
be provided by the Administrative Agent.
Loan Exposure -- means, as the context may require, any one or
more of the following: Steamboat Loan Exposure, Canyons Loan Exposure,
*Sugarbush Loan Exposure, *Sugarloaf Loan Exposure, the Jordan Bowl
Loan Exposure, the Attitash Loan Exposure, the Killington Loan Exposure
and/or the Mt. Snow Loan Exposure.
LSA I -- means that certain Loan and Security Agreement, dated
as of August 1, 1997, among GSRP, Textron Financial Corporation and
Green Tree Financial Servicing Corporation, as lenders, and the
Administrative Agent I, as amended.
Maturity Date -- means, as the context may require, any one or
more of the following: the Steamboat Construction Project Advances
Maturity Date, the *Sugarloaf Construction Project Advances Maturity
Date, the Canyons Construction Project Advances Maturity Date, the
*Sugarbush Construction Project Advances Maturity Date, the Steamboat
Inventory Maturity Date, the *Sugarloaf Inventory Advance Maturity
Date, the Canyons Inventory Advance Maturity Date, the *Sugarbush
Inventory Advance Maturity Date, the Steamboat Inventory Maturity Date,
the Jordan Bowl Inventory Maturity Date, the Attitash Inventory
Maturity Date, the Killington Inventory Maturity Date and the Mt. Snow
Inventory Maturity Date.
Maximum Rate -- as defined in Section 2.4(c)(iv) of this
Agreement.
Monthly Average Weighted Loan Balance -- means, for any
calendar month with respect to each of the Steamboat Loan, Canyons
Loan, *Sugarbush Loan, *Sugarloaf Loan, the Jordan Bowl Loan, the
Attitash Loan, the Killington Loan and the Mt. Snow Loan, the quotient
of
(a) the aggregate of the Daily Loan Balances for such
Loan for each of the days of such month in respect of such
Loan, divided by
(b) the number of days in such month.
For purposes of this definition, "Daily Loan Balance" shall mean, for
any day and with respect to each of the Steamboat Loan, Canyons Loan,
*Sugarbush Loan, *Sugarloaf Loan, the Jordan Bowl Loan, the Attitash
Loan, the Killington Loan and the Mt. Snow Loan, the principal balance
of such Loan outstanding as of the close of business of the
Administrative Agent for such day after giving effect to all payments
received and Advances, if any, made during such day with respect to
such Loan.
Monthly Rental Amount -- means
(a) with respect to each Construction Project and the Host
Company Lease Agreement in respect thereof, the following:
(i) Steamboat Project - $198,999 per month,
which shall commence to be payable upon the
completion of the construction of the facilities
being leased at the Steamboat Project pursuant to the
Host Company Lease Agreement in respect thereof;
(ii) *Sugarloaf Project - $[to be
determined] per month, which shall commence to be
payable upon the completion of the construction of
the facilities being leased at the *Sugarloaf Project
pursuant to the Host Company Lease Agreement in
respect thereof;
(iii) Canyons Project - $152,029 per month,
which shall commence to be payable upon the
completion of the construction of the facilities
being leased at the Canyons Project pursuant to the
Host Company Lease Agreement in respect thereof; and
(iv) *Sugarbush Project - $[to be
determined] per month, which shall commence to be
payable upon the completion of the construction of
the facilities being leased at the *Sugarbush Project
pursuant to the Host Company Lease Agreement in
respect thereof.
(b) with respect to each 1997 Project and the Beneficial
Improvement Agreements in respect thereof, the following:
(i) Jordan Bowl Project - $71,400 per month,
which shall commence to be payable upon the
completion of the construction of the facilities
being leased at the Jordan Bowl Project pursuant to
the Beneficial Improvements Agreement in respect
thereof;
(ii) Killington Project - $92,600 per month,
which shall commence to be payable upon the
completion of the construction of the facilities
being leased at the Killington Project pursuant to
the Beneficial Improvements Agreement in respect
thereof; and
(iii) Mt. Snow Project - $29,000 per month,
which shall commence to be payable upon the
completion of the construction of the facilities
being leased at the Mt. Snow Project pursuant to the
Beneficial Improvements Agreement in respect thereof.
Mt. Snow Assignment of Contracts -- means an assignment of the
Contracts arising in respect of the sale of Mt. Snow Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
Mt. Snow Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the Mt. Snow
Declaration substantially in the form of Exhibit K-7 to this Agreement,
as amended from time to time.
Mt. Snow Assignment of Property-Related Contracts -- means the
assignment in respect of Property-Related Contracts connected with the
Mt. Snow Project substantially in the form of Exhibit Q-7 to this
Agreement, as amended from time to time.
Mt. Snow Assignment of Rents -- means the Assignment of
Lease and Rents in respect of the Mt. Snow Project dated as of
September 25, 1997, as amended from time to time.
Mt. Snow Architect -- means a duly licensed architect under
Vermont law approved by the Administrative Agent.
Mt. Snow Association -- means the Mount Snow Grand Summit
Hotel and Crown Club Owners Association, a Vermont non-profit
corporation, or any successor association thereto as provided in the
Mt. Snow Declaration.
Mt. Snow Blanket Mortgage -- means the Mortgage, Assignment
of Rents, Security Agreement and Financing Statement encumbering the
Mt. Snow Project dated as of September 25, 1997, as amended from time
to time.
Mt. Snow CCR's -- means (a) that certain Grand Summit Hotel
and Crown Club at Mount Snow Declaration of Protective Covenants by
GSRP, as declarant, which is to be recorded in the land records of the
Town of West Dover, Vermont, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof and (b) that certain Declaration
of Easements by and between GSRP and Mount Snow, Ltd., a Vermont
corporation, which is to be recorded in the applicable land records of
the Town of West Dover, Vermont, and which shall be satisfactory in
form and substance to the Administrative Agent in its discretion, as
amended from time to time in accordance with the provisions hereof.
Mt. Snow Commercial Common Areas and Facilities -- means
those areas at the Mt. Snow Project that have been designated in
accordance with the Mt. Snow Declaration, on the Mt. Snow Resort Map
or by the Mt. Snow Association as "Commercial Common Areas and
Facilities," as defined in the Mt. Snow Declaration, for the primary
or exclusive use of the owners of Mt. Snow Commercial Units.
Mt. Snow Commercial Unit -- means a commercial condominium
unit at the Mt. Snow Project.
Mt. Snow Commitment Period -- means, with respect to the Mt.
Snow Project and the Mt. Snow Inventory Advance to be made in respect
thereof, the period commencing on the Closing Date and ending on the
Mt. Snow Termination Date.
Mt. Snow Common Elements -- means the real estate and
improvements located at the Mt. Snow Project other than those areas
designated as Mt. Snow Residential Units or Mt. Snow Commercial Units
and, with respect to the Mt. Snow Residential Units and Mt. Snow
Quartershare Interests, shall mean the Mt. Snow Residential Common
Areas and Facilities and the Mt. Snow Common Furnishings and the Mt.
Snow General Common Areas and Facilities applicable thereto, and with
respect to the Mt. Snow Commercial Units, means the Mt. Snow
Commercial Common Areas and Facilities and the Mt. Snow Common
Furnishings and the Mt. Snow General Common Areas and Facilities
applicable thereto, in each case as more particularly provided for in
the Mt. Snow Declaration.
Mt. Snow Common Furnishings -- means all furniture,
furnishings, appliances, fixtures and equipment, and all other
personal property from time to time owned or leased by the Mt. Snow
Association at the Mt. Snow Project for the use by the owners of Mt.
Snow Residential Units, the Mt. Snow Quartershare Interests or the Mt.
Snow Commercial Units.
Mt. Snow Declaration -- means that certain Declaration of
Condominium and Interval Ownership, Grand Summit Hotel and Crown Club
at Mount Snow, by GSRP, as declarant, which is to be recorded in the
land records of the Town of West Dover, Vermont, and which shall be
satisfactory to the Administrative Agent in its discretion, as amended
from time to time in accordance with the provisions hereof.
Mt. Snow Escrow Agent -- means Key Bank in Rutland, Vermont,
or such escrowee duly authorized to act as such under applicable
Vermont law.
Mt. Snow General Common Areas and Facilities -- means all
"Common Areas and Facilities" (as defined in the Mt. Snow Declaration)
other than the Mt. Snow Residential Common Areas and Facilities and
the Mt. Snow Commercial Common Areas and Facilities.
Mt. Snow Host Company -- as defined in the definition of
"Beneficial Improvements Agreements" in this Section 1.1.
Mt. Snow Inventory Advance -- as defined in Section 2.2
hereof.
Mt. Snow Inventory Advance Commitment-- means, with respect to
each Mt. Snow Inventory Advance Lender, the amount set forth underneath
its signature hereto with respect to the Mt. Snow Inventory 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.
Mt. Snow Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made an Mt. Snow
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the Mt. Snow Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
Mt. Snow Inventory Advance Maturity Date -- means the
January 2, 2001.
Mt. Snow Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
Mt. Snow Inventory Required Lenders -- means any one or more
of the Mt. Snow Inventory Advance Lenders having or holding 51% or
more of the Mt. Snow Loan Exposure.
Mt. Snow Loan -- means, at any time, the aggregate principal
balance of the Mt. Snow Inventory Advance outstanding at such time.
Mt. Snow Loan Exposure -- means, with respect to any Mt.
Snow Inventory Advance Lender, as of any date of determination, (a)
prior to the termination of the Mt. Snow Commitment Period, the total
of the Mt. Snow Inventory Advance Commitments of the Mt. Snow
Inventory Advance Lenders and (b) after the termination of the Mt.
Snow Commitment Period, the aggregate principal amount of the Mt. Snow
Inventory Advance outstanding on such date.
Mt. Snow Notes -- means the Mt. Snow Inventory Advance Notes.
Mt. Snow Obligations -- means all sums now or hereafter loaned
or advanced by any one or more the Mt. Snow Inventory Advance Lenders
and/or the Administrative Agent to, or otherwise incurred by, GSRP
under this Agreement in respect of the Mt. Snow Project, the Mt. Snow
Notes and/or any of the other Mt. Snow Security Documents (including,
without limitation, accrued and unpaid interest in respect of the Mt.
Snow Notes and Loan Costs attributable to the Mt. Snow Project and/or
the Mt. Snow Security Documents), and the full, prompt and complete
performance of all obligations owed by, or undertakings or indemnities
of, GSRP in respect of the Mt. Snow Project and/or the Mt. Snow
Security Documents arising hereunder or thereunder.
Mt. Snow Project -- means that certain resort property
commonly known as the Grand Summit Hotel and Crown Club at Mount Snow,
situated on certain land located at Mount Snow, West Dover, Vermont,
and particularly described on Schedule 2-H attached hereto and made a
part hereof, and including all improvements now or hereafter located
on said land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto
belonging. The Mt. Snow Project shall include, when the Mt. Snow
Declaration is recorded, the Mt. Snow Residential Units (if any), the
Mt. Snow Quartershare Interests, the Mt. Snow Commercial Units and the
Mt. Snow Common Elements.
Mt. Snow Project Documents -- means the Mt. Snow
Declaration, the Articles of Incorporation and the By-Laws of the Mt.
Snow Association, and the rules and regulations of the Mt. Snow
Association.
Mt. Snow Quartershare Interest -- means the "Interval
Ownership Interests" as defined and described in the Mt. Snow
Declaration, with the owner of such interest being entitled to the
exclusive right to the possession, use and occupancy of a Mt. Snow
Residential Unit during thirteen (13) calendar weeks of each calendar
year, as more particularly provided in the Mt. Snow Declaration.
Mt. Snow Residential Unit -- means a residential condominium
unit at the Mt. Snow Project.
Mt. Snow Residential Common Areas and Facilities -- means
those areas at the Mt. Snow Project that have been designated in
accordance with the Mt. Snow Declaration, on the Mt. Snow Resort Map
or by the Mt. Snow Association as "Residential Common Areas and
Facilities," as defined in the Mt. Snow Declaration, for the primary
or exclusive use of the owners of Mt. Snow Residential Units or Mt.
Snow Quartershare Interests.
Mt. Snow Resort Map -- means the plat and floor plans for the
Mt. Snow Project to be recorded in the real property records of the
Town of West Dover, Vermont and which shall be satisfactory to the
Administrative Agent.
Mt. Snow Required Lenders -- means the Mt. Snow Inventory
Required Lenders.
Mt. Snow 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) the day on which the Mt. Snow Inventory
Advance is made hereunder.
1997 Inventory Advance Date -- as defined in Section 6B of
this Agreement.
1997 Inventory Advance Request -- as defined in Section 6B
of this Agreement.
1997 Project(s) -- means, as the context may require, any
one or more of the following: the Jordan Bowl Project, the Attitash
Project, the Killington Project and/or the Mt. Snow Project.
Nonconstruction Cost Certificate -- means, as of any date and
with respect to any Construction Project, a certificate, addressed to
the Administrative Agent and in form and substance satisfactory to the
Administrative Agent, signed by GSRP, which
(a) includes as an attachment thereto the TFC
Architect's Nonconstruction Cost Certificate for such
Construction Project in the case of any Construction Project
Advance being made in respect of FF&E Costs,
(b) includes as an attachment thereto copies of all
invoices and bills in respect of FF&E Costs and/or Sales,
Marketing & Other Costs for which GSRP is to be reimbursed, in
whole or part, by a Construction Project Advance to be made
hereunder in respect of such Construction Project and
certifies the accuracy and correctness of such invoices and
bills,
(c) certifies (i) the aggregate costs incurred by
GSRP in respect of Construction Costs, FF&E Costs and Sales,
Marketing & Other Costs in each case for such Construction
Project up to and including such date, (ii) the aggregate
amount of Equity Moneys and Construction Project Advances in
each case for such Construction Project utilized prior to such
date to satisfy, in whole or part, such Costs and (iii) that
the unutilized principal amount of this Agreement for such
Construction Project, the Construction Project Advances likely
to be repaid and to be reborrowable in respect of such
Construction Project and the remaining Equity Moneys, if any,
are sufficient to satisfy the remaining Construction Costs,
FF&E Costs and Sales, Marketing & Other Costs for such
Construction Project, and
(d) compares the actual costs incurred in respect of
each line item in the Budget for such Construction Project
with respect to such FF&E and Sales, Marketing & Other Costs
with the projected amount thereof as of such date and explains
any material variance in respect thereof.
Notes -- means, as the context may require, any one or more of
the following: the Steamboat Construction Project Advance Notes, the
Steamboat Inventory Advance Notes, the Canyons Construction Project
Advance Notes, the Canyons Inventory Advance Notes, the *Sugarbush
Construction Project Advance Notes, the *Sugarbush Inventory Advance
Notes, the *Sugarloaf Construction Project Advance Notes, the
*Sugarloaf Inventory Advance Notes, the Jordan Bowl Inventory Advance
Notes, the Attitash Inventory Advance Notes, the Killington Inventory
Advance Notes and/or the Mt. Snow Inventory Advance Notes.
Note Purchase Agreement -- means that certain Note Purchase
Agreement, dated as of September 1, 1998, between GSRP and either
Textron Financial Corporation or TBS Business Services, Inc., as
amended from time to time.
Obligations -- means all of the Steamboat Obligations, the
Canyons Obligations, the *Sugarbush Obligations, the *Sugarloaf
Obligations, the Jordan Bowl Obligations, the Attitash Obligations, the
Killington Obligations, the Mt. Snow Obligations and all other sums now
or hereafter loaned, advanced or incurred by any one or more of the
Lenders or the Administrative Agent to or on behalf of GSRP under this
Agreement, the Notes and any other Security Document, and the full,
prompt and complete performance of all obligations owed by, or
undertakings or indemnities of, GSRP arising hereunder or thereunder.
"Obligations" shall also include GSRP's obligations and undertaking to
or in favor of the "buyer" under the Note Purchase Agreement, provided
that if all of the Steamboat Obligations, the Canyons Obligations, the
*Sugarbush Obligations, the *Sugarloaf Obligations, the Jordan Bowl
Obligations, the Attitash Obligations, the Killington Obligations, the
Mt. Snow Obligations and all other sums now or hereafter loaned,
advanced or incurred by any one or more of the Lenders or the
Administrative Agent to or on behalf of GSRP under this Agreement, the
Notes and any other Security Document shall have been fully and finally
paid and no Event of Default shall exist immediately prior to such
payment in full, then "Obligations shall be deemed not to include
GSRP's obligations and undertaking to or in favor of the "buyer" under
the Note Purchase Agreement and, in such case, the Collateral shall not
thereafter secure any of such obligations.
Parent -- means American Skiing Company Resort Properties,
Inc., a Maine corporation.
Participating Lender -- means any Person which (a) shall have
been granted the right by a Lender to participate in the Note of such
Lender and (b) shall have entered into a participation agreement with
such Lender which shall provide, inter alia, that such Participating
Lender shall communicate and deal only with such Lender with respect to
such Participating Lender's interest in such Note.
Permitted Exceptions -- means the title exceptions set forth
in Schedule 4 of this Agreement.
Person -- means an individual, partnership, corporation,
trust, unincorporated organization, limited liability company or a
government or agency or political subdivision thereof.
Plans -- means, with respect to any Construction Project,
those certain plans, specifications and designs prepared by the
Architect for such Construction Project in connection with the
construction and development of such Construction Project.
Prepayment Premium -- with respect to any prepayment, in whole
or part, of the Loan pursuant to Section 2.5(e) of this Agreement or as
a result of the acceleration, in whole or part, of the Loan pursuant to
Section 8.2 of this Agreement, means the percentage set forth below,
corresponding to the date on which the Loan (or a portion thereof) is
prepaid or accelerated, of the principal balance of the Loan being so
prepaid or accelerated at such time:
<TABLE>
<CAPTION>
=========================================================== =========================================================
IF PREPAYMENT IS MADE, OR ACCELERATION OCCURS, DURING THE APPLICABLE PERCENTAGE OF PRINCIPAL AMOUNT
FOLLOWING PERIODS
=========================================================== =========================================================
<S> <C>
From and including the first Business Day of the 12th 3%
month following the Closing Date (not counting, for purposes of determining such
12th month, the month in which the Closing Date occurs) to (but excluding) the
last day of the 24th month following the Closing Date (not counting, for
purposes of determining such 24th month, the month in which the Closing Date
occurs)
=========================================================== =========================================================
From and including the first Business Day of the 24th 2%
month following the Closing Date (not counting, for purposes of determining such
24th month, the month in which the Closing Date occurs) to (but excluding) the
last day of the 36th month following the Closing Date (not counting, for
purposes of determining such 36th month, the month in which the Closing Date
occurs)
=========================================================== =========================================================
From and including the first Business Day of the 36th 1%
month following the Closing Date (not counting, for purposes of determining such
36th month, the month in which the Closing Date occurs) to (but excluding) the
last day of the 48th month following the Closing Date (not counting, for
purposes of determining such 48th month, the month in which the Closing Date
occurs)
=========================================================== =========================================================
On and after the first Business Day of the 48th month 0%
following the Closing Date (not counting, for purposes of
determining such 48th month, the month in which the
Closing Date occurs)
=========================================================== =========================================================
</TABLE>
Anything contained herein to the contrary notwithstanding and for the
avoidance of doubt since prepayment of the Canyons Loan, the Steamboat Loan, the
*Sugarloaf Loan and the *Sugarbush Loan are not provided for during the first 12
months of the term hereof, if such Loans shall be accelerated during the first
12 months of the term hereof, the Prepayment Premium in respect thereof shall
nonetheless be deemed to be 3%.
Prime Rate -- as defined in the definition of "Interest
Rate" in this Section 1.1.
Project(s) -- means, as the context may require, any one or
more of the following: the Construction Projects and/or the 1997
Projects.
Project Documents -- means, as the context may require, any
one or more of the following: the Steamboat Project Documents, the
*Sugarloaf Project Documents, the Canyons Project Documents, the
*Sugarbush Project Documents, the Jordan Bowl Project Documents, the
Attitash Project Documents, the Killington Project Documents and/or Mt.
Snow Project Documents.
Property -- means any interest in any kind of property or
asset of GSRP, whether real, personal or mixed, or tangible or
intangible.
Property-Related Contract -- as defined in Section 3.1(b) of
this Agreement.
Project Required Lenders -- means, as the context may, any one
or more of the following: Steamboat Required Lenders, Canyons Required
Lenders, *Sugarbush Required Lenders, *Sugarloaf Required Lenders, the
Jordan Bowl Required Lenders, the Attitash Required Lenders, the
Killington Required Lenders and/or the Mt. Snow Required Lenders. A
"group of Project Required Lenders" shall mean and refer to, in the
case of the Steamboat Required Lenders, the group of Lenders consisting
of the Steamboat Construction Project Advance Lenders and the Steamboat
Inventory Advance Lenders, in the case of the Canyons Required Lenders,
the group of Lenders consisting of the Canyons Construction Project
Advance Lenders and the Canyons Inventory Advance Lenders, in the case
of the *Sugarbush Required Lenders, the group of Lenders consisting of
the *Sugarbush Construction Project Advance Lenders and the *Sugarbush
Inventory Advance Lenders and in the case of the *Sugarloaf Required
Lenders, the group of Lenders consisting of the *Sugarloaf Construction
Project Advance Lenders and the *Sugarloaf Inventory Advance Lenders,
in the case of the Jordan Bowl Required Lenders, the group of Lenders
consisting of the Jordan Bowl Inventory Advance Lenders, in the case of
the Attitash Required Lenders, the group of Lenders consisting of the
Attitash Inventory Advance Lenders, in the case of the Killington
Required Lenders, the group of Lenders consisting of the Killington
Inventory Advance Lenders and, in the case of the Mt. Snow Required
Lenders, the group of Lenders consisting of the Mt. Snow Inventory
Advance Lenders.
Pro Rata Share -- means at any time a fraction determined as
follows:
(a) with respect to any Steamboat Construction Project Advance
Lender, the share of the Steamboat Loan Exposure of such Lender divided
by the total Steamboat Loan Exposure, determined at such time,
(b) with respect to any Canyons Construction Project Advance
Lender, the share of the Canyons Loan Exposure of such Lender divided
by the total Canyons Loan Exposure, determined at such time,
(c) with respect to any *Sugarbush Construction Project
Advance Lender, the share of the *Sugarbush Loan Exposure of such
Lender divided by the total *Sugarbush Loan Exposure, determined at
such time,
(d) with respect to any *Sugarloaf Construction Project
Advance Lender, the share of the *Sugarloaf Loan Exposure of such
Lender divided by the total *Sugarloaf Loan Exposure, determined at
such time,
(e) with respect to any Steamboat Inventory Advance Lender,
the share of the Steamboat Loan Exposure of such Lender divided by the
total Steamboat Loan Exposure, determined at such time,
(f) with respect to any Canyons Inventory Advance Lender, the
share of the Canyons Loan Exposure of such Lender divided by the total
Canyons Loan Exposure, determined at such time,
(g) with respect to any *Sugarbush Inventory Advance Lender,
the share of the *Sugarbush Loan Exposure of such Lender divided by the
total *Sugarbush Loan Exposure, determined at such time,
(h) with respect to any *Sugarloaf Inventory Advance Lender,
the share of the *Sugarloaf Loan Exposure of such Lender divided by the
total *Sugarloaf Loan Exposure, determined at such time,
(i) with respect to any Jordan Bowl Inventory Advance Lender,
the share of the Jordan Bowl Loan Exposure of such Lender divided by
the total Jordan Bowl Loan Exposure, determined at such time,
(j) with respect to any Attitash Inventory Advance Lender, the
share of the Attitash Loan Exposure of such Lender divided by the total
Attitash Loan Exposure, determined at such time,
(k) with respect to any Killington Inventory Advance Lender,
the share of the Killington Loan Exposure of such Lender divided by the
total Killington Loan Exposure, determined at such time,
(l) with respect to any Mt. Snow Inventory Advance Lender, the
share of the Mt. Snow Loan Exposure of such Lender divided by the total
Mt. Snow Loan Exposure, determined at such time,
(m) with respect to any Lender in connection with Sections
7.14 and 10.4, the share of the Loan Exposure of such Lender divided by
the total Loan Exposure, determined at such time.
If "Pro Rata Share" shall be determined by reference to one or more
Commitments with respect to which there shall be a Lender that shall have failed
to honor such Commitment (in whole or part), equitable adjustments shall be made
in this definition to give effect to any other Lenders that have assumed, in
whole or part, the Commitment of such defaulting Lender and not to give effect
to the holding by such defaulting Lender of such defaulted Commitment. For the
avoidance of doubt, any reference in this Agreement to the pro rata sharing of
any payment during any relevant Commitment Period shall be based on the
calculation of the applicable Loan Exposure that is, in turn, based upon the
principal outstanding under the applicable component of the Loan at the relevant
point or points in time.
Purchaser -- as defined in the definition of "Contract" in
this Section 1.1.
Quartershare Interest(s) -- means, as the context may
require, any one or more of the following: the Steamboat Quartershare
Interests, the *Sugarloaf Quartershare Interests, the Canyons
Quartershare Interests, the *Sugarbush Quartershare Interests, the
Jordan Bowl Quartershare Interests, the Attitash Quartershare
Interests, the Killington Quartershare Interests and/or the Mt. Snow
Quartershare Interests.
Quartershare Mortgage -- means, with respect to any
Quartershare Note, a mortgage or deed of trust in and to the
Quartershare Interest whose purchase is being financed, in whole or
part, by such Quartershare Note.
Quartershare Note -- means any promissory note made payable to
the order of GSRP which provides for payment of the deferred purchase
price of one or more Quartershare Interests purchased by the Purchaser
thereof.
Release Price -- means,
(a) in the case of any Steamboat Quartershare
Interest, (i) for so long as any Steamboat 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 Steamboat
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,
(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, (i) for so long as any Jordan Bowl 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 Jordan Bowl
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,
(d) in the case of any Attitash Quartershare
Interest, (i) for so long as any Attitash 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 Attitash
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,
(e) in the case of any Killington Quartershare
Interest, (i) for so long as any Killington 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 Killington
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,
(f) in the case of any Mt. Snow Quartershare
Interest, (i) for so long as any Mt. Snow 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 Mt. Snow
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,
(g) in the case of any *Sugarbush Quartershare
Interest, (i) for so long as any *Sugarbush Obligations are
outstanding, 100% of [a dollar amount to be determined] and
(ii) after the *Sugarbush Obligations have been fully and
finally paid, 50% of [a dollar amount to be determined], and
(h) in the case of any *Sugarloaf Quartershare
Interest, (i) for so long as any *Sugarloaf Obligations are
outstanding, 100% of [a dollar amount to be determined] and
(ii) after the *Sugarloaf Obligations have been fully and
finally paid, 50% of [a dollar amount to be determined].
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.
Required Parties -- means Lenders that, in the aggregate,
constitute each of the following: (a) the Steamboat Required Lenders
for so long as Steamboat Loan Exposure shall exist, (b) the Canyons
Required Lenders for so long as Canyons Loan Exposure shall exist, (c)
the *Sugarbush Required Lenders for so long as *Sugarbush Loan Exposure
shall exist, (d) the *Sugarloaf Required Lenders for so long as
*Sugarloaf Loan Exposure shall exist, (e) the Jordan Bowl Required
Lenders for so long as Jordan Bowl Loan Exposure shall exist, (f) the
Attitash Required Lenders for so long as Attitash Loan Exposure shall
exist, (g) the Killington Required Lenders for so long as Killington
Loan Exposure shall exist and (h) the Mt. Snow Required Lenders for so
long as Mt. Snow Loan Exposure shall exist. After all of the
Obligations in respect of the Loan shall have been paid in full,
"Required Parties" shall have the meaning ascribed to such term or
concept in the Note Purchase Agreement.
Reservation Contract -- means any reservation contract between
a Person, as a potential purchaser, and GSRP, as seller, which
agreement provides for the reservation by GSRP for such potential
purchaser of one or more Quartershare Interests at the Steamboat
Project.
Residential Unit(s) -- means, as the context may require, any
one or more of the following: the Steamboat Residential Units, the
*Sugarloaf Residential Units, the Canyons Residential Units, the
*Sugarbush Residential Units, the Jordan Bowl Residential Units, the
Attitash Residential Units, the Killington Residential Units and/or the
Mt. Snow Residential Units.
Resort Map(s) -- means, as the context may require, any one
or more of the following: the Steamboat Resort Map, the *Sugarloaf
Resort Map, the Canyons Resort Map, the *Sugarbush Resort Map, the
Jordan Bowl Resort Map, the Attitash Resort Map, the Killington Resort
Map and/or the Mt. Snow Resort Map.
Retainage Amount -- shall mean any one or more of the Canyons
Retainage Amount or the Steamboat Retainage Amount.
Sales, Marketing & Other Costs -- means, with respect to any
Construction Project, all out-of-pocket costs for such Construction
Project incurred by GSRP in connection with selling and marketing of
the Quartershare Interests, all general and administrative
out-of-pocket costs of GSRP, all interest costs and loan or commitment
fees of GSRP relating to such Construction Project, all professional
fees of GSRP relating to such Construction Project (including
architectural, accounting, engineering and legal fees) and all other
out-of-pocket costs incurred by GSRP in connection with the development
(for purposes of the avoidance of doubt, "development" shall exclude
construction), sale and operation of such Construction Project and the
maintenance of the Collateral relating to such Construction Project.
Security -- shall have the same meaning as in Section 2(1)
of the Securities Act of 1933, as amended.
Security Documents -- means the Steamboat Security Documents,
the Canyons Security Documents, the *Sugarbush Security Documents, the
*Sugarloaf Security Documents, the Jordan Bowl Security Documents, the
Attitash Security Documents, the Killington Security Documents and the
Mt. Snow Security Documents, including, without limitation, this
Agreement, the Notes, all assignments of Contracts, all assignments of
Property-Related Contracts, the Blanket Mortgages, the Subordination
Agreements, the Steamboat Assignment of Declarant's Rights, the proxies
referred to in Section 3.9(c) hereof, the Loan Disbursement Agreement,
the collateral trust indenture to be entered into by Textron Financial
Corporation and GSRP in respect of the Jordan Bowl Project, as amended,
and all assignments, instruments, certificates, notices and other
documents now or hereafter executed and delivered in connection with
the transactions contemplated herein.
Steamboat Architect -- means a duly licensed architect under
Colorado law approved by the Administrative Agent.
Steamboat Assignment of Architect's Contract -- means the
assignment of GSRP's rights under that certain architect's contract
with the Steamboat Architect in respect of the Steamboat Project
substantially in the form of Exhibit S to this Agreement, as amended
from time to time.
Steamboat Assignment of Contracts -- means an assignment of
the Contracts arising in respect of the sale Steamboat Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
Steamboat Assignment of Construction Contract -- means the
assignment of GSRP's rights under the Steamboat Construction Contract
substantially in the form of Exhibit T to this Agreement, as amended
from time to time.
Steamboat Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the Steamboat
Declaration substantially in the form of Exhibit K-1 to this Agreement,
as amended from time to time.
Steamboat Assignment of Property-Related Contracts -- means
the assignment in respect of Property-Related Contracts connected with
the Steamboat Project substantially in the form of Exhibit Q-1 to this
Agreement, as amended from time to time.
Steamboat Assignment of Rents -- means the Assignment of Lease
and Rents in respect of the Steamboat Project substantially in the Form
of Exhibit R-1 to the Agreement, as amended from time to time.
Steamboat Association -- means the GS Steamboat Condominium
Association, a non-profit corporation established under the laws of
Colorado, or any successor association thereto as provided in the
Steamboat Declaration.
Steamboat Blanket Mortgage -- means the Combination Deed of
Trust, Security Agreement and Fixture Financing Statement encumbering
the Steamboat Project substantially in the form of Exhibit B-1 to this
Agreement, as amended from time to time.
Steamboat Commitment Period -- means, with respect to the
Steamboat Project and the Steamboat Construction Project Advances,
Steamboat Interest Advances and the Steamboat Inventory Advance to be
made in respect thereof, the period commencing on the Closing Date and
ending on the Steamboat Termination Date.
Steamboat Common Areas -- means those areas at the Steamboat
Project that have been designated in accordance with the Steamboat
Declaration, on the Steamboat Resort Map or by the Steamboat
Association as "Common Areas," as used and defined in the Steamboat
Declaration, for the primary or exclusive use of the owners of
Steamboat Residential Units, Steamboat Quartershare Interests and
Steamboat Commercial Units.
Steamboat Commercial Unit -- means a commercial condominium
unit at the Steamboat Project.
Steamboat Construction Contract -- means that certain Standard
Form of Agreement between GSRP and the Steamboat General Contractor, as
amended from time to time, as approved by the Administrative Agent.
Steamboat Construction Project Advances -- as defined in
Section 2.1 hereof.
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.
Steamboat Construction Project Advance Lenders -- means the
Lenders identified on the signature pages hereto that have made a
Steamboat Construction Project Advance Commitment (subject to the terms
and conditions hereof) to lend the amounts set forth under their
respective signature blocks in respect of Steamboat Construction
Project Advances and Steamboat Interest Advances, together with their
successors and permitted assigns pursuant to Section 2.6(b) of this
Agreement.
Steamboat Construction Project Advances Maturity Date -- means
the earlier of (a) the first Business Day of the 24th month following
the date on which the first Steamboat Construction Project Advance is
made (not counting the month in which such Advance was made) and (b)
the first Business Day of the 24th month following the Closing Date
(not counting the month in which the Closing Date fell).
Steamboat Construction Project Advance Note -- as defined in
Section 2.4(a) of this Agreement.
Steamboat Construction Project Borrowing Base -- means, on any
date and with respect to the Steamboat Project, 80% of the aggregate
amount of
(a) Construction Costs for the Steamboat Project,
FF&E Costs for the Steamboat Project and Sales, Marketing &
Other Costs for the Steamboat Project incurred and paid for by
GSRP on or prior to such date in respect of the Steamboat
Project under and in accordance with the Budget for the
Steamboat Project plus
(b) pre-development expenses and land values (net of
mortgage debt) for such Project set forth on Schedule 1
hereto,
provided that the "Steamboat Construction Project Borrowing Base"
shall, in no case, exceed the lesser of:
(i) $77,100,000; and
(ii) the remainder of (A) $145,000,000, minus (B) the
sum of (1) the aggregate outstanding principal balance of all
Construction Project Advances other than Steamboat
Construction Project Advances as of such date, (2) the
aggregate outstanding principal balance of all Inventory
Advances as of such date and (3) the aggregate outstanding
principal balance of Interest Advances other than Steamboat
Interest Advances as of such date.
Steamboat Construction Project Required Lenders -- means any
one or more of the Steamboat Construction Project Advance Lenders
having or holding 51% or more of the Steamboat Loan Exposure.
Steamboat Declaration -- means that certain Declaration of
Condominium and Plan for Quarter Share Ownership for Grand Summit
Resort Hotel, Steamboat by GSRP, as declarant, which is to be recorded
in the real property records of the Office of the Clerk and Recorder
for Routt County, Colorado, as amended from time to time in accordance
with the provisions hereof.
Steamboat Escrow Agent -- means Transnation Title Insurance
Company, or such escrowee duly authorized to act as such under
applicable Colorado law.
Steamboat Final Construction Cost Advance -- means the last
Steamboat Construction Project Advance in respect of Construction Costs
for the Steamboat Project, which shall have as its sole purpose the
financing of the payment of any unutilized Steamboat Retainage Amount
under the Steamboat Construction Contract.
Steamboat General Contractor -- means such general contractor
as shall be acceptable to the Administrative Agent.
Steamboat Host Company -- means, with respect to the Steamboat
Project, Steamboat Ski & Resort Corporation, a Delaware corporation.
Steamboat Host Company Lease Agreement -- means, with respect
to the Steamboat Project, that certain lease agreement to be entered
into between GSRP and the Steamboat Host Company with respect to the
Steamboat Commercial Unit.
Steamboat Interest Advance -- as defined in Section 2.4(c) of
this Agreement.
Steamboat Inventory Advance -- as defined in Section 2.2
hereof.
Steamboat Inventory Advance Commitment-- means, with respect
to each Steamboat Inventory Advance Lender, the amount set forth
underneath its signature hereto with respect to the Steamboat Inventory
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.
Steamboat Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have a Steamboat
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the Steamboat Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
Steamboat Inventory Advance Maturity Date -- means the earlier
of (a) the first Business Day of the 24th month following the date on
which the Steamboat Inventory Advance is made (not counting the month
in which such Advance was made) and (b) the first Business Day of the
48th month following the Closing Date (not counting the month in which
the Closing Date fell).
Steamboat Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
Steamboat Inventory Required Lenders -- means any one or more
of the Steamboat Inventory Advance Lenders having or holding 51% or
more of the Steamboat Loan Exposure.
Steamboat Loan -- means, at any time, the aggregate principal
balance of all Steamboat Construction Project Advances and Steamboat
Interest Advances outstanding at such time and, after the making of the
Steamboat Inventory Advance, the principal balance of the Steamboat
Inventory Advance outstanding at such time.
Steamboat Loan Exposure -- means
(a) with respect to any Steamboat Construction Project Advance
Lender, as of any date of determination, (i) prior to the termination
of the Steamboat Commitment Period, the total of the Steamboat
Construction Project Advance Commitments of the Steamboat Construction
Project Advance Lenders and (ii) after the termination of the Steamboat
Commitment Period, the aggregate principal amount of the Steamboat
Construction Project Advances outstanding on such date and
(b) with respect to any Steamboat Inventory Advance Lender, as
of any date of determination, (i) prior to the termination of the
Steamboat Commitment Period, the total of the Steamboat Inventory
Advance Commitments of the Steamboat Inventory Advance Lenders and (ii)
after the termination of the Steamboat Commitment Period, the aggregate
principal amount of the Steamboat Inventory Advance outstanding on such
date.
Steamboat Limited Common Areas -- means those areas at the
Steamboat Project that have been designated in accordance with the
Steamboat Declaration, on the Steamboat Resort Map or by the Steamboat
Association as "Limited Common Areas," as used and defined in the
Steamboat Declaration, for the primary or exclusive use of certain of
the owners of Steamboat Residential Units, Steamboat Quartershare
Interests and Steamboat Commercial Units, as the case may be.
Steamboat Notes -- means the Steamboat Construction Project
Advance Notes and the Steamboat Inventory Advance Notes, as the case
may be.
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 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), 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.
Steamboat Project -- means that certain resort property
commonly known as The Grand Summit Hotel and Crown Club at Steamboat,
situated on certain land located in Steamboat Springs, Colorado, and
particularly described on Schedule 2-B attached hereto and made a part
hereof, and including all improvements now or hereafter located on said
land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto belonging.
Steamboat Project shall include the Steamboat Residential Units (if
any), the Steamboat Quartershare Interests, the Steamboat Commercial
Units, the Steamboat Common Area and the Steamboat Limited Common Areas
in respect of said land.
Steamboat Project Documents -- means the Steamboat
Declaration, the Articles of Incorporation and the By-Laws of the
Steamboat Association, and the rules and regulations of the Steamboat
Association.
Steamboat Quartershare Interest -- means the "Quarter Share
Estate," as described and defined in the Steamboat Declaration and the
By-Laws of the Steamboat Association, with the owner of such estate
being entitled to the exclusive right to the possession, use and
occupancy of a Steamboat Residential Unit during thirteen (13) calendar
weeks of each calendar year, as more particularly provided in the
Steamboat Declaration.
Steamboat Required Amortization Amount -- means, at any time,
the quotient equal to the outstanding principal amount of the Steamboat
Construction Project Advances or, after the payment in full of the
Steamboat Construction Project Advances, the Steamboat Inventory
Advance, determined at such time, divided by 80% of the number of
unsold Steamboat Quartershare Interests, determined at such time.
Steamboat Required Lenders -- means, as the context may
require, the Steamboat Construction Project Required Lenders or the
Steamboat Inventory Required Lenders.
Steamboat Residential Unit -- means a residential
condominium unit at the Steamboat Project.
Steamboat Resort Map -- means the plats and plans in respect
of the Steamboat Project to be recorded in the real property records in
the Office of the Clerk and Recorder for Routt County, Colorado and
which shall be satisfactory to the Administrative Agent.
Steamboat Retainage Amount -- as defined in Section 2.1(a)
of this Agreement.
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, (j) the
Steamboat Assignment of Declarant's Rights and (k) the proxy for the
Steamboat Declaration referred to in Section 3.9(c) hereof.
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) the day immediately preceding the Steamboat
Construction Project Advances Maturity Date.
If the first Construction Project Advance in respect of the Steamboat
Project shall not have been made prior to December 15, 1998, then the
Steamboat Termination Date shall be deemed to be December 15, 1998.
Subordination Agreement -- as defined in Section 5.6 of this
Agreement.
Subsequent Phase -- means
(a) the expansion of any or all of the Projects and
the Property and improvements located thereon (i) to include
additional Property, (ii) to accommodate the construction of
additional buildings constituting the Projects, and/or (iii)
to accommodate the expansion of any buildings existing at the
Projects at the time of such expansion or
(b) the construction or development of any other
hotel projects by GSRP similar to any one or more of the
Projects.
*Sugarbush Architect -- means a duly licensed architect under
Vermont law approved by the Administrative Agent.
*Sugarbush Assignment of Architect's Contract -- means the
assignment of GSRP's rights under that certain architect's contract
with the *Sugarbush Architect in respect of the *Sugarbush Project
substantially in the form of Exhibit S to this Agreement, as amended
from time to time.
*Sugarbush Assignment of Construction Contract -- means the
assignment of GSRP's rights under the *Sugarbush Construction Contract
substantially in the form of Exhibit T to this Agreement, as amended
from time to time.
*Sugarbush Assignment of Contracts -- means an assignment of
the Contracts arising in respect of the sale of *Sugarbush Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
*Sugarbush Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the *Sugarbush
Declaration substantially in the form of Exhibit K-3 to this Agreement,
as amended from time to time.
*Sugarbush Assignment of Property-Related Contracts -- means
the assignment in respect of Property-Related Contracts connected with
the *Sugarbush Project substantially in the form of Exhibit Q-3 to this
Agreement, as amended from time to time.
*Sugarbush Assignment of Rents -- means the Assignment of
Lease and Rents in respect of the *Sugarbush Project substantially in
the Form of Exhibit R-3 to the Agreement, as amended from time to time.
*Sugarbush Association -- means the *Sugarbush Grand Summit
Hotel and Crown Club Owners Association, a Vermont non-profit
corporation, or any successor association thereto as provided in the
*Sugarbush Declaration.
*Sugarbush Blanket Mortgage(s) -- means the Mortgage,
Assignment of Rents and Fixture Financing Statement encumbering the
*Sugarbush Project substantially in the form of Exhibit B-3 to this
Agreement, as amended from time to time.
*Sugarbush CCR's -- means (a) that certain Grand Summit Hotel
and Crown Club at *Sugarbush Declaration of Protective Covenants by
GSRP, as declarant, which is to be recorded in the land records of the
Town of Warren, Vermont, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof and (b) that certain Declaration
of Easements by and between GSRP and *Sugarbush Resort Holdings, Inc.,
a Vermont corporation, which is to be recorded in the applicable land
records of the Town of Warren, Vermont, and which shall be satisfactory
in form and substance to the Administrative Agent in its discretion, as
amended from time to time in accordance with the provisions hereof.
*Sugarbush Commercial Common Areas and Facilities -- means
those areas at the *Sugarbush Project that have been designated in
accordance with the *Sugarbush Declaration, on the *Sugarbush Resort
Map or by the *Sugarbush Association as "Commercial Common Areas and
Facilities," as defined in the *Sugarbush Declaration, for the primary
or exclusive use of the owners of *Sugarbush Commercial Units.
*Sugarbush Commercial Unit -- means a commercial condominium
unit at the *Sugarbush Project.
*Sugarbush Commitment Period -- means, with respect to the
*Sugarbush Project and the *Sugarbush Construction Project Advances,
*Sugarbush Interest Advances and the *Sugarbush Inventory Advance to be
made in respect thereof, the period commencing on the Closing Date and
ending on the *Sugarbush Termination Date.
*Sugarbush Common Elements -- means the real estate and
improvements located at the *Sugarbush Project other than those areas
designated as *Sugarbush Residential Units or *Sugarbush Commercial
Units and, with respect to the *Sugarbush Residential Units and
*Sugarbush Quartershare Interests, shall mean the *Sugarbush
Residential Common Areas and Facilities and the *Sugarbush Common
Furnishings and the *Sugarbush General Common Areas and Facilities
applicable thereto, and with respect to the *Sugarbush Commercial
Units, means the *Sugarbush Commercial Common Areas and Facilities and
the *Sugarbush Common Furnishings and the *Sugarbush General Common
Areas and Facilities applicable thereto, in each case as more
particularly provided for in the *Sugarbush Declaration.
*Sugarbush Common Furnishings -- means all furniture,
furnishings, appliances, fixtures and equipment, and all other personal
property from time to time owned or leased by the *Sugarbush
Association at the *Sugarbush Project for the use by the owners of
*Sugarbush Residential Units, the *Sugarbush Quartershare Interests or
the *Sugarbush Commercial Units.
*Sugarbush Construction Contract -- means that certain
Standard Form of Agreement between GSRP and the *Sugarbush General
Contractor, as amended from time to time, and satisfactory to the
Administrative Agent.
*Sugarbush Construction Project Advances -- as defined in
Section 2.1 hereof.
*Sugarbush Construction Project Advance Commitment-- means,
with respect to each *Sugarbush Construction Project Advance Lender,
the amount set forth underneath its signature hereto with respect to
the making of *Sugarbush Construction Project Advances and *Sugarbush
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.
*Sugarbush Construction Project Advance Lenders -- means the
Lenders identified on the signature pages hereto that have made a
*Sugarbush Construction Project Advance Commitment (subject to the
terms and conditions hereof) to lend the amounts set forth under their
respective signature blocks in respect of *Sugarbush Construction
Project Advances and *Sugarbush Interest Advances, together with their
successors and permitted assigns pursuant to Section 2.6(b) of this
Agreement.
*Sugarbush Construction Project Advances Maturity Date --
means the earlier of (a) the first Business Day of the 24th month
following the date on which the first *Sugarbush Construction Project
Advance is made (not counting the month in which such Advance was made)
and (b) the first Business Day of the 24th month following the Closing
Date (not counting the month in which the Closing Date fell).
*Sugarbush Construction Project Advance Note -- as defined
in Section 2.4(a) of this Agreement.
*Sugarbush Construction Project Borrowing Base -- means, on
any date and with respect to the *Sugarbush Project, 80% of the
aggregate amount of
(a) Construction Costs for the *Sugarbush Project,
FF&E Costs for the *Sugarbush Project and Sales, Marketing &
Other Costs for the *Sugarbush Project incurred and paid for
by GSRP on or prior to such date in respect of the *Sugarbush
Project under and in accordance with the Budget for the
*Sugarbush Project plus
(b) pre-development expenses and land values (net of
mortgage debt) for such Project set forth on Schedule 1
hereto,
provided that the "*Sugarbush Construction Project Borrowing Base"
shall, in no case, exceed the lesser of:
(i) $[to be determined]; and
(ii) the remainder of (A) [to be determined], minus
(B) the sum of (1) the aggregate outstanding principal balance
of all Construction Project Advances other than *Sugarbush
Construction Project Advances as of such date, (2) the
aggregate outstanding principal balance of all Inventory
Advances as of such date and (3) the aggregate outstanding
principal balance of Interest Advances other than *Sugarbush
Interest Advances as of such date.
*Sugarbush Construction Project Required Lenders -- means any
one or more of the *Sugarbush Construction Project Advance Lenders
having or holding 51% or more of the *Sugarbush Loan Exposure.
*Sugarbush Declaration -- means that certain Declaration of
Condominium and Interval Ownership, Grand Summit Hotel and Crown Club
at *Sugarbush, by GSRP, as declarant, which is to be recorded in the
land records of the Town of Warren, Vermont, and which shall be
satisfactory to the Administrative Agent in its discretion, as amended
from time to time in accordance with the provisions hereof.
*Sugarbush Escrow Agent -- means [a bank to be determined], or
such escrowee duly authorized to act as such under applicable Vermont
law.
*Sugarbush Final Construction Cost Advance -- means the last
*Sugarbush *Construction Project Advance in respect of Construction
Costs for the *Sugarbush Project, which shall have as its sole purpose
the financing of the payment of any unutilized *Sugarbush Retainage
Amount under the *Sugarbush Construction Contract.
*Sugarbush General Common Areas and Facilities -- means all
"Common Areas and Facilities" (as defined in the *Sugarbush
Declaration) other than the *Sugarbush Residential Common Areas and
Facilities and the *Sugarbush Commercial Common Areas and Facilities.
*Sugarbush General Contractor -- means such general contractor
as shall be acceptable to the Administrative Agent.
*Sugarbush Host Company -- means, with respect to the
*Sugarbush Project, *Sugarbush Resort Holdings, Inc., a Vermont
corporation.
*Sugarbush Host Company Lease Agreement -- means, with respect
to the *Sugarbush Project, that certain lease agreement to be entered
into between GSRP and the *Sugarbush Host Company with respect to
certain infrastructure items located at the *Sugarbush Project.
*Sugarbush Interest Advance -- as defined in Section 2.4(c)
of this Agreement.
*Sugarbush Inventory Advance -- as defined in Section 2.2
hereof.
*Sugarbush Inventory Advance Commitment-- means, with respect
to each *Sugarbush Inventory Advance Lender, the amount set forth
underneath its signature hereto with respect to the *Sugarbush
Inventory 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.
*Sugarbush Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made a *Sugarbush
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the *Sugarbush Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
*Sugarbush Inventory Advance Maturity Date -- means the
earlier of (a) the first Business Day of the 24th month following the
date on which the *Sugarbush Inventory Advance is made (not counting
the month in which such Advance was made) and (b) the first Business
Day of the 48th month following the Closing Date (not counting the
month in which the Closing Date fell).
*Sugarbush Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
*Sugarbush Inventory Required Lenders -- means any one or more
of the *Sugarbush Inventory Advance Lenders having or holding 51% or
more of the *Sugarbush Loan Exposure.
*Sugarbush Loan -- means, at any time, the aggregate principal
balance of all *Sugarbush Construction Project Advances and *Sugarbush
Interest Advances outstanding at such time and, after the making of the
*Sugarbush Inventory Advance, the principal balance of the *Sugarbush
Inventory Advance outstanding at such time.
*Sugarbush Loan Exposure -- means
(a) with respect to any *Sugarbush Construction Project
Advance Lender, as of any date of determination, (i) prior to the
termination of the *Sugarbush Commitment Period, the total of the
*Sugarbush Construction Project Advance Commitments of the *Sugarbush
Construction Project Advance Lenders and (ii) after the termination of
the *Sugarbush Commitment Period, the aggregate principal amount of the
*Sugarbush Construction Project Advances outstanding on such date and
(b) with respect to any *Sugarbush Inventory Advance Lender,
as of any date of determination, (i) prior to the termination of the
*Sugarbush Commitment Period, the total of the *Sugarbush Inventory
Advance Commitments of the *Sugarbush Inventory Advance Lenders and
(ii) after the termination of the *Sugarbush Commitment Period, the
aggregate principal amount of the *Sugarbush Inventory Advance
outstanding on such date.
*Sugarbush Notes -- means the *Sugarbush Construction Project
Advance Notes and the *Sugarbush Inventory Advance Notes, as the case
may be.
*Sugarbush Obligations -- means all sums now or hereafter
loaned or advanced by any one or more of the *Sugarbush Project
Construction Advance Lenders, the *Sugarbush Inventory Advance Lenders
and/or the Administrative Agent to, or otherwise incurred by, GSRP
under this Agreement in respect of the *Sugarbush Project, the
*Sugarbush Notes and/or any of the other *Sugarbush Security Documents
(including, without limitation, accrued and unpaid interest in respect
of the *Sugarbush Notes and the Loan Costs attributable to the
*Sugarbush Project and/or the *Sugarbush Security Documents), and the
full, prompt and complete performance of all obligations owed by, or
undertakings or indemnities of, GSRP in respect of the *Sugarbush
Project and/or the *Sugarbush Security Documents arising hereunder or
thereunder.
*Sugarbush Project -- means that certain resort property
commonly known as the Grand Summit Hotel and Crown Club at *Sugarbush,
situated on certain land located at *Sugarbush, Warren, Vermont, and
particularly described on Schedule 2-C attached hereto and made a part
hereof, and including all improvements now or hereafter located on said
land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto belonging.
The *Sugarbush Project shall include, when the *Sugarbush Declaration
is recorded, the *Sugarbush Residential Units, the *Sugarbush
Quartershare Interests, the *Sugarbush Commercial Units and the
*Sugarbush Common Elements.
*Sugarbush Project Documents -- means the *Sugarbush
Declaration, the Articles of Incorporation and the By-Laws of the
*Sugarbush Association, and the rules and regulations of the *Sugarbush
Association.
*Sugarbush Quartershare Interest -- means the "Interval
Ownership Interests" as defined and described in the *Sugarbush
Declaration, with the owner of such interest being entitled to the
exclusive right to the possession, use and occupancy of a *Sugarbush
Residential Unit during thirteen (13) calendar weeks of each calendar
year, as more particularly provided in the *Sugarbush Declaration.
*Sugarbush Required Amortization Amount -- means, at any time,
the quotient equal to the outstanding principal amount of the
*Sugarbush Construction Project Advances or, after the payment in full
of the *Sugarbush Construction Project Advances, the *Sugarbush
Inventory Advance, determined at such time, divided by [to be
determined] of the number of unsold *Sugarbush Quartershare Interests,
determined at such time.
*Sugarbush Residential Unit -- means a residential
condominium unit at the *Sugarbush Project.
*Sugarbush Residential Common Areas and Facilities -- means
those areas at the *Sugarbush Project that have been designated in
accordance with the *Sugarbush Declaration, on the *Sugarbush Resort
Map or by the *Sugarbush Association as "Residential Common Areas and
Facilities," as defined in the *Sugarbush Declaration, for the primary
or exclusive use of the owners of *Sugarbush Residential Units or
*Sugarbush Quartershare Interests.
*Sugarbush Required Lenders -- means, as the context may
require, the *Sugarbush Construction Project Required Lenders or the
*Sugarbush Inventory Required Lenders.
*Sugarbush Resort Map -- means the plat and floor plans for
the *Sugarbush Project to be recorded in the real property records of
the Town of Warren, Vermont and which shall be satisfactory to the
Administrative Agent.
*Sugarbush Retainage Amount -- as defined in Section 2.1(c)
of this Agreement.
*Sugarbush Security Documents -- means (a) this Agreement to
the extent that it deals with the *Sugarbush Project, the *Sugarbush
Construction Project Advances, the *Sugarbush Interest Advances and/or
the *Sugarbush Inventory Advances, (b) the *Sugarbush Notes, (c) the
*Sugarbush Blanket Mortgage, (d) the *Sugarbush Assignment of Rents,
(e) the *Sugarbush Assignment of Contracts, (f) the *Sugarbush
Assignment of Property-Related Contracts, (g) the *Sugarbush Assignment
of the Construction Contract, (h) the *Sugarbush Assignment of the
Architect's Contract, (i) the Subordination Agreement executed by the
*Sugarbush Host Company in respect of the *Sugarbush Host Company
Lease, (j) the *Sugarbush Assignment of Declarant's Rights and (k) the
proxy for the *Sugarbush Declaration referred to in Section 3.9(c)
hereof.
*Sugarbush 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) the day immediately preceding the *Sugarloaf
Construction Project Advances Maturity Date.
If the first Construction Project Advance in respect of the *Sugarbush
Project shall not have been made prior to [a date to be determined],
then the *Sugarbush Termination Date shall be deemed to be [a date to
be determined].
*Sugarloaf Architect -- means a duly licensed architect under
Maine law approved by the Administrative Agent.
*Sugarloaf Assignment of Architect's Contract -- means the
assignment of GSRP's rights under that certain architect's contract
with the *Sugarloaf Architect in respect of the *Sugarloaf Project
substantially in the form of Exhibit S to this Agreement, as amended
from time to time.
*Sugarloaf Assignment of Construction Contract -- means the
assignment of GSRP's rights under the *Sugarloaf Construction Contract
substantially in the form of Exhibit T to this Agreement, as amended
from time to time.
*Sugarloaf Assignment of Contracts -- means an assignment of
the Contracts arising in respect of the sale of *Sugarloaf Quartershare
Interests substantially in the form of Exhibit V attached to this
Agreement.
*Sugarloaf Assignment of Declarant's Rights -- means the
assignment in respect of GSRP's declarant's rights under the *Sugarloaf
Declaration substantially in the form of Exhibit K-4 to this Agreement,
as amended from time to time.
*Sugarloaf Assignment of Property-Related Contracts -- means
the assignment in respect of Property-Related Contracts connected with
the *Sugarloaf Project substantially in the form of Exhibit Q-4 to this
Agreement, as amended from time to time.
*Sugarloaf Assignment of Rents -- means the Assignment of
Lease and Rents in respect of the *Sugarloaf Project substantially in
the Form of Exhibit R-4 to the Agreement, as amended from time to time.
*Sugarloaf Association -- means the *Sugarloaf Grand Summit
Hotel and Crown Club Owners Association, a Maine non-profit
corporation, or any successor association thereto as provided in the
*Sugarloaf Declaration.
*Sugarloaf Blanket Mortgage(s) -- means the Mortgage,
Assignment of Rents and Security Agreement encumbering the *Sugarloaf
Project substantially in the form of Exhibit B-4 to this Agreement, as
amended from time to time.
*Sugarloaf CCR's -- means (a) that certain Grand Summit Hotel
and Crown Club at *Sugarloaf Declaration of Protective Covenants by
GSRP, as declarant, which is to be recorded in the land records of
Franklin County, Maine, and which shall be satisfactory to the
Administrative Agent in its discretion, as amended from time to time in
accordance with the provisions hereof and (b) that certain Declaration
of Easements by and between GSRP and *Sugarloaf Mountain Corporation, a
Maine corporation, which is to be recorded in the applicable land
records of Franklin County, Maine, and which shall be satisfactory in
form and substance to the Administrative Agent in its discretion, as
amended from time to time in accordance with the provisions hereof.
*Sugarloaf Commercial Common Areas and Facilities -- means
those areas at the *Sugarloaf Project that have been designated in
accordance with the *Sugarloaf Declaration, on the *Sugarloaf Resort
Map or by the *Sugarloaf Association as "Commercial Common Areas and
Facilities," as defined in the *Sugarloaf Declaration, for the primary
or exclusive use of the owners of *Sugarloaf Commercial Units.
*Sugarloaf Commercial Unit -- means a commercial condominium
unit at the *Sugarloaf Project.
*Sugarloaf Commitment Period -- means, with respect to the
*Sugarloaf Project and the *Sugarloaf Construction Project Advances,
*Sugarloaf Interest Advances and the *Sugarloaf Inventory Advance to be
made in respect thereof, the period commencing on the Closing Date and
ending on the *Sugarloaf Termination Date.
*Sugarloaf Common Elements -- means the real estate and
improvements located at the *Sugarloaf Project other than those areas
designated as *Sugarloaf Residential Units or *Sugarloaf Commercial
Units and, with respect to the *Sugarloaf Residential Units and
*Sugarloaf Quartershare Interests, shall mean the *Sugarloaf
Residential Common Areas and Facilities and the *Sugarloaf Common
Furnishings and the *Sugarloaf General Common Areas and Facilities
applicable thereto, and with respect to the *Sugarloaf Commercial
Units, means the *Sugarloaf Commercial Common Areas and Facilities and
the *Sugarloaf Common Furnishings and the *Sugarloaf General Common
Areas and Facilities applicable thereto, in each case as more
particularly provided for in the *Sugarloaf Declaration.
*Sugarloaf Common Furnishings -- means all furniture,
furnishings, appliances, fixtures and equipment, and all other personal
property from time to time owned or leased by the *Sugarloaf
Association at the *Sugarloaf Project for the use by the owners of
*Sugarloaf Residential Units, the *Sugarloaf Quartershare Interests or
the *Sugarloaf Commercial Units.
*Sugarloaf Construction Contract -- means that certain
Standard Form of Agreement between GSRP and the *Sugarloaf General
Contractor, as amended from time to time, and satisfactory to the
Administrative Agent.
*Sugarloaf Construction Project Advances -- as defined in
Section 2.1 hereof.
*Sugarloaf Construction Project Advance Commitment-- means,
with respect to each *Sugarloaf Construction Project Advance Lender,
the amount set forth underneath its signature hereto with respect to
the making of *Sugarloaf Construction Project Advances and *Sugarloaf
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.
*Sugarloaf Construction Project Advance Lenders -- means the
Lenders identified on the signature pages hereto that have made a
*Sugarloaf Construction Project Advance Commitment (subject to the
terms and conditions hereof) to lend the amounts set forth under their
respective signature blocks in respect of *Sugarloaf Construction
Project Advances and *Sugarloaf Interest Advances, together with their
successors and permitted assigns pursuant to Section 2.6(b) of this
Agreement.
*Sugarloaf Construction Project Advances Maturity Date --
means the earlier of (a) the first Business Day of the 24th month
following the date on which the first *Sugarloaf Construction Project
Advance is made (not counting the month in which such Advance was made)
and (b) the first Business Day of the 24th month following the Closing
Date (not counting the month in which the Closing Date fell).
*Sugarloaf Construction Project Borrowing Base -- means, on
any date and with respect to the *Sugarloaf Project, 80% of the
aggregate amount of
(a) Construction Costs for the *Sugarloaf Project,
FF&E Costs for the *Sugarloaf Project and Sales, Marketing &
Other Costs for the *Sugarloaf Project incurred and paid for
by GSRP on or prior to such date in respect of the *Sugarloaf
Project under and in accordance with the Budget for the
*Sugarloaf Project plus
(b) pre-development expenses and land values (net of
mortgage debt) for such Project set forth on Schedule 1
hereto,
provided that the "*Sugarloaf Project Borrowing Base" shall, in no
case, exceed the lesser of:
(i) $[to be determined]; and
(ii) the remainder of (A) $[to be determined], minus
(B) the sum of (1) the aggregate outstanding principal balance
of all Construction Project Advances other than *Sugarloaf
Construction Project Advances as of such date, (2) the
aggregate outstanding principal balance of all Inventory
Advances as of such date and (3) the aggregate outstanding
principal balance of Interest Advances other than *Sugarloaf
Interest Advances as of such date.
*Sugarloaf Project Documents -- means the *Sugarloaf
Declaration, the Articles of Incorporation and the By-Laws of the
*Sugarloaf Association, and the rules and regulations of the *Sugarloaf
Association.
*Sugarloaf Construction Project Advance Note -- as defined
in Section 2.4(a) of this Agreement.
*Sugarloaf Construction Project Required Lenders -- means any
one or more of the *Sugarloaf Construction Project Advance Lenders
having or holding 51% or more of the *Sugarloaf Loan Exposure.
*Sugarloaf Declaration -- means that certain Declaration of
Condominium and Interval Ownership, Grand Summit Hotel and Crown Club
at *Sugarloaf, by GSRP, as declarant, which is to be recorded in the
land records of [town to be determined], and which shall be
satisfactory to the Administrative Agent in its discretion, as amended
from time to time in accordance with the provisions hereof.
*Sugarloaf Escrow Agent -- means [a bank to be determined], or
such escrowee duly authorized to act as such under applicable Maine
law.
*Sugarloaf Final Construction Cost Advance -- means the last
*Sugarloaf Construction Project Advance in respect of Construction
Costs for the *Sugarloaf Project, which shall have as its sole purpose
the financing of the payment of any unutilized *Sugarloaf Retainages
under the Construction Contract for the *Sugarloaf Project.
*Sugarloaf General Common Areas and Facilities -- means all
"Common Areas and Facilities" (as defined in the *Sugarloaf
Declaration) other than the *Sugarloaf Residential Common Areas and
Facilities and the *Sugarloaf Commercial Common Areas and Facilities.
*Sugarloaf General Contractor -- means such general contractor
as shall be acceptable to the Administrative Agent.
*Sugarloaf Host Company -- means, with respect to the
*Sugarloaf Project, *Sugarloaf Mountain Corporation, a Colorado
corporation.
*Sugarloaf Host Company Lease Agreement -- means, with respect
to the *Sugarloaf Project, that certain lease agreement to be entered
into between GSRP and the *Sugarloaf Host Company with respect to
certain infrastructure items located at the *Sugarloaf Project.
*Sugarloaf Interest Advance -- as defined in Section 2.4(c)
of this Agreement.
*Sugarloaf Inventory Advance -- as defined in Section 2.2
hereof.
*Sugarloaf Inventory Advance Note -- as defined in Section
2.4(a) of this Agreement.
*Sugarloaf Inventory Advance Commitment-- means, with respect
to each *Sugarloaf Inventory Advance Lender, the amount set forth
underneath its signature hereto with respect to the *Sugarloaf
Inventory 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.
*Sugarloaf Inventory Advance Lenders -- means the Lenders
identified on the signature pages hereto that have made a *Sugarloaf
Inventory Advance Commitment (subject to the terms and conditions
hereof) to lend the amounts set forth under their respective signature
blocks in respect of the *Sugarloaf Inventory Advance, together with
their successors and permitted assigns pursuant to Section 2.6(b) of
this Agreement.
*Sugarloaf Inventory Advance Maturity Date -- means the
earlier of (a) the first Business Day of the 24th month following the
date on which the *Sugarloaf Inventory Advance is made (not counting
the month in which such Advance was made) and (b) the first Business
Day of the 48th month following the Closing Date (not counting the
month in which the Closing Date fell).
*Sugarloaf Inventory Required Lenders -- means any one or more
of the *Sugarloaf Inventory Advance Lenders having or holding 51% or
more of the *Sugarloaf Loan Exposure.
*Sugarloaf Loan -- means, at any time, the aggregate principal
balance of all *Sugarloaf Construction Project Advances and *Sugarloaf
Interest Advances outstanding at such time and, after the making of the
*Sugarloaf Inventory Advance, the principal balance of the *Sugarloaf
Inventory Advance outstanding at such time.
*Sugarloaf Loan Exposure -- means
(a) with respect to any *Sugarloaf Construction Project
Advance Lender, as of any date of determination, (i) prior to the
termination of the *Sugarloaf Commitment Period, the total of the
*Sugarloaf Construction Project Advance Commitments of the *Sugarloaf
Construction Project Advance Lenders and (ii) after the termination of
the *Sugarloaf Commitment Period, the aggregate principal amount of the
*Sugarloaf Construction Project Advances outstanding on such date and
(b) with respect to any *Sugarloaf Inventory Advance Lender,
as of any date of determination, (i) prior to the termination of the
*Sugarloaf Commitment Period, the total of the *Sugarloaf Inventory
Advance Commitments of the *Sugarloaf Inventory Advance Lenders and
(ii) after the termination of the *Sugarloaf Commitment Period, the
aggregate principal amount of the *Sugarloaf Inventory Advance
outstanding on such date.
*Sugarloaf Notes -- means the *Sugarloaf Construction Project
Advance Notes and the *Sugarloaf Inventory Advance Notes, as the case
may be.
*Sugarloaf Obligations -- means all sums now or hereafter
loaned or advanced by any one or more of the *Sugarloaf Construction
Project Advance Lenders, the *Sugarloaf Inventory Advance Lenders
and/or the Administrative Agent to, or otherwise incurred by, GSRP
under this Agreement in respect of the *Sugarloaf Project, the
*Sugarloaf Notes and/or any of the other *Sugarloaf Security Documents
(including, without limitation, accrued and unpaid interest in respect
of the *Sugarloaf Notes and Loan Costs attributable to the *Sugarloaf
Project and/or the *Sugarloaf Security Documents), and the full, prompt
and complete performance of all obligations owed by, or undertakings or
indemnities of, GSRP in respect of the *Sugarloaf Project and/or the
*Sugarloaf Security Documents arising hereunder or thereunder.
*Sugarloaf Project -- means that certain resort property
commonly known as the Grand Summit Hotel and Crown Club at *Sugarloaf,
situated on certain land located at *Sugarloaf, Carrabassett, Maine,
and particularly described on Schedule 2-D attached hereto and made a
part hereof, and including all improvements now or hereafter located on
said land, and all facilities, roadways, common furnishings, club
furnishings, equipment and all other appurtenances thereunto belonging.
The *Sugarloaf Project shall include, when the *Sugarloaf Declaration
is recorded, the *Sugarloaf Residential Units, the *Sugarloaf
Quartershare Interests, the *Sugarloaf Commercial Units and the
*Sugarloaf Common Elements.
*Sugarloaf Quartershare Interest -- means the "Interval
Ownership Interests" as defined and described in the *Sugarloaf
Declaration, with the owner of such interest being entitled to the
exclusive right to the possession, use and occupancy of a *Sugarloaf
Residential Unit during thirteen (13) calendar weeks of each calendar
year, as more particularly provided in the *Sugarloaf Declaration.
*Sugarloaf Required Amortization Amount -- means, at any time,
the quotient equal to the outstanding principal amount of the
*Sugarloaf Construction Project Advances or, after the payment in full
of the *Sugarloaf Construction Project Advances, the *Sugarloaf
Inventory Advance, determined at such time, divided by [to be
determined] of the number of unsold *Sugarloaf Quartershare Interests,
determined at such time.
*Sugarloaf Required Lenders -- means, as the context may
require, the *Sugarloaf Construction Project Required Lenders or the
*Sugarloaf Inventory Required Lenders.
*Sugarloaf Residential Unit -- means a residential
condominium unit at the *Sugarloaf Project.
*Sugarloaf Residential Common Areas and Facilities -- means
those areas at the *Sugarloaf Project that have been designated in
accordance with the *Sugarloaf Declaration, on the *Sugarloaf Resort
Map or by the *Sugarloaf Association as "Residential Common Areas and
Facilities," as defined in the *Sugarloaf Declaration, for the primary
or exclusive use of the owners of *Sugarloaf Residential Units or
*Sugarloaf Quartershare Interests.
*Sugarloaf Resort Map -- means the plat and floor plans for
the *Sugarloaf Project to be recorded in the real property records of
Franklin County, Maine and which shall be satisfactory to the
Administrative Agent.
*Sugarloaf Retainage Amount -- as defined in Section 2.1(d)
of this Agreement.
*Sugarloaf Security Documents -- means (a) this Agreement to
the extent that it deals with the *Sugarloaf Project, the *Sugarloaf
Construction Project Advances, the *Sugarloaf Interest Advances and/or
the *Sugarloaf Inventory Advances, (b) the *Sugarloaf Notes, (c) the
*Sugarloaf Blanket Mortgage, (d) the *Sugarloaf Assignment of Rents,
(e) the *Sugarloaf Assignment of Contracts, (f) the *Sugarloaf
Assignment of Property-Related Contracts, (g) the *Sugarloaf Assignment
of the Construction Contract, (h) the *Sugarloaf Assignment of the
Architect's Contract, (i) the Subordination Agreement executed by the
*Sugarloaf Host Company in respect of the *Sugarloaf Host Company
Lease, (j) the *Sugarloaf Assignment of Declarant's Rights and (k) the
proxy for the *Sugarloaf Declaration referred to in Section 3.9(c)
hereof.
*Sugarloaf 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) the day immediately preceding the *Sugarloaf
Construction Project Advances Maturity Date.
If the first Construction Project Advance in respect of the *Sugarloaf
Project shall not have been made prior to [a date to be determined],
then the *Sugarloaf Termination Date shall be deemed to be [a date to
be determined].
TFC Acceptance -- as defined in Section 2.8 of this
Agreement.
TFC Architect -- means such person or firm as the
Administrative Agent shall select.
TFC Architect's Nonconstruction Cost Certificate -- means,
with respect to any Construction Project and any Construction Project
Advance in respect of FF&E Costs and the Nonconstruction Cost
Certificate in respect thereof, a certificate, addressed to the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent, from the TFC Architect in respect of such
Construction Project which
(a) confirms that such TFC Architect has inspected
such Construction Project and reviewed such Nonconstruction
Cost Certificate and the attachments thereto, and
(b) confirms that such Nonconstruction Cost
Certificate and the attachments thereto are satisfactory to
it.
TFC First Refusal Offer -- as defined in Section 2.8 of this
Agreement.
Third-Party Offer -- as defined in Section 2.8 of this
Agreement.
Title Company -- means Lawyers Title Insurance Company in
respect of the 1997 Projects, Transnation Title Insurance Company in
respect of the Steamboat Project, First American Title Insurance
Company in respect of the Canyons Project, [to be determined] in
respect of *Sugarbush Project and [to be determined] in respect of
*Sugarloaf Project or any successor or other title company approved by
the Administrative Agent from time to time.
Title Insurance Policy {Blanket} -- as defined in Section
6.1(d) hereof.
Uniform Commercial Code -- means the Uniform Commercial Code
as adopted and in force in the State of Maine from time to time in
effect.
Validated Contract -- means each Contract in respect of a
Quartershare Interest and any Construction Project and in respect of
which all of the following requirements shall have been satisfied:
(a) such Contract shall arise from the agreement of
any third-party Purchaser that is not an Affiliate of GSRP to
purchase, and GSRP to sell, one or more Quartershare Interests
in a Construction Project;
(b) the Purchaser shall be a legal resident of the
United States of America or Canada and the payments under such
Contract shall be payable in legal tender of the United States
of America;
(c) the executed original of such Contract, which
shall be satisfactory to the Administrative Agent in form and
substance, shall have been assigned by GSRP to the
Administrative Agent on behalf of the Lenders and a copy
thereof shall have been delivered to the Administrative Agent;
(d) the Administrative Agent shall have, at its
option (if so directed by the appropriate Construction Project
Required Lenders), received the original of such Contract and
shall, in any case, have a valid and perfected, first-priority
Lien in and to such Contract and all proceeds arising
therefrom;
(e) (i) the Purchaser shall have paid to GSRP, in
connection with the execution and delivery of such Contract, a
down payment (after giving effect to any discounts offered to
such Purchaser) of not less than 5% of the purchase price (as
set forth in such Contract) of the Quartershare Interest being
so purchased by such Purchaser, (ii) such downpayment shall
have been deposited by GSRP in an Approved Escrow Account in
respect of such Construction Project and (iii) GSRP shall have
delivered to the Administrative Agent evidence reasonably
satisfactory to the Administrative Agent of the depositing of
such downpayment in such Approved Escrow Account and the
clearing of such downpayment;
(f) such Contract (and the execution and delivery
thereof) shall comply with all requirements of United States
and applicable state law, including, without limitation, any
consumer credit code, as adopted and in effect from time to
time in the State in which the Construction Project is
situated, any condominium ownership act as adopted and in
effect from time to time in the State in which the
Construction Project is situated, any subdivision laws of the
State in which the Construction Project is situated, as
amended, and the rules and regulations as adopted from time to
time thereunder;
(g) all rights of rescission of the Purchaser in
respect of such Contract under federal law, the law of the
State in which the Construction Project is located, the law of
the state of the residence of the Purchaser and as expressly
provided in such Contract shall have expired and such
Purchaser shall have not at any time requested rescission in
respect of such Contract or otherwise stated in writing that
it does not intend to consummate such Contract;
(h) such Contract is, subject to the terms and
conditions thereof and applicable laws of rescission, a valid
and binding obligation of the Purchaser;
(i) the Purchaser under such Contract shall not be
subject to any bankruptcy or insolvency proceeding; and
(j) GSRP shall have confirmed the existence and bona
fide nature of such Contract and the satisfaction of such
Contract of each of the foregoing criteria by delivering to
the Administrative Agent a validation certificate in respect
of such Contract, which shall be substantially in the form of
Exhibit D-1 hereto.
Validated Reservation Contract -- means each Reservation
Contract in respect of which all of the following requirements shall
have been satisfied:
(a) such Reservation Contract shall arise from the
agreement of any third-party potential purchaser that is not
an Affiliate of GSRP;
(b) the potential purchaser shall be a legal resident
of the United States of America or Canada;
(c) the rights of GSRP (but not the obligations)
under such Reservation Contract, which shall be satisfactory
to the Administrative Agent in form and substance, shall have
been assigned by GSRP to the Administrative Agent on behalf of
the Lenders and a copy thereof shall have been delivered to
the Administrative Agent;
(d) the Administrative Agent shall have, at its
option (if so directed by the Steamboat Construction Project
Required Lenders), received the original of such Reservation
Contract and shall, in any case, have a valid and perfected,
first-priority Lien in and to the rights of GSRP under such
Reservation Contract;
(e) (i) the potential purchaser under such
Reservation Contract shall have paid to GSRP, in connection
with the execution and delivery of such Reservation Contract,
a down payment (after giving effect to any discounts offered
to such Purchaser) of not less than 5% of the purchase price
(as set forth in such Reservation Contract), (ii) such
downpayment shall have been deposited by GSRP in an Approved
Escrow Account in respect of the Steamboat Project and (iii)
GSRP shall have delivered to the Administrative Agent evidence
reasonably satisfactory to the Administrative Agent of the
depositing of such downpayment in such Approved Escrow Account
and the clearing of such downpayment;
(f) such Reservation Contract (and the execution and
delivery thereof) shall comply with all requirements of United
States and applicable state law, including, without
limitation, any consumer credit code, as adopted and in effect
from time to time in the State of Colorado, any condominium
ownership act as adopted and in effect from time to time in
the State of Colorado, any subdivision laws of the State of
Colorado, as amended, and the rules and regulations as adopted
from time to time thereunder;
(g) the potential purchaser under such Reservation
Contract shall not be subject to any bankruptcy or insolvency
proceeding; and
(h) GSRP shall have confirmed the existence and bona
fide nature of such Reservation Contract and the satisfaction
of such Reservation Contract of each of the foregoing criteria
by delivering to the Administrative Agent a validation
certificate in respect of such Reservation Contract, which
shall be substantially in the form of Exhibit D-2 hereto.
Voting Equity -- means Securities of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors
(or Persons performing similar functions) of such corporation or, in
the case of a Person which is not a corporation, Securities or similar
equity or partnership interests which entitle the holder thereof to
elect, select or control the management or policies of such Person.
<PAGE>
1.2 DIRECTLY OR INDIRECTLY
1.2 Directly or Indirectly.
Where any provision in this Agreement refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provisions
shall be applicable whether such action is taken directly or indirectly by such
Person.
<PAGE>
1.2 HEADINGS
1.3 Headings.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only; such section headings are not a part of this
Agreement and shall not be used in the interpretation of this Agreement.
<PAGE>
1.4 ACCOUNTING PRINCIPLES
1.4 Accounting Principles.
Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, the same shall be determined or made in accordance with generally
accepted accounting principles, procedures and practices consistently applied at
the time in effect, to the extent applicable, except where such principles are
inconsistent with the requirements of this Agreement.
2. ADVANCES AND NOTE
<PAGE>
2.1 PROJECT ADVANCES
. 2.1 Construction Project Advances
(a) Steamboat Construction Project Advances. Each of the
Steamboat Construction Project Advance Lenders agrees, pursuant to the
terms of this Agreement and subject to the satisfaction of the
conditions precedent in Section 6 of this Agreement, to make its Pro
Rata Share of one or more advances in respect of the Steamboat Project
(such advances, with respect to the Steamboat Project, are individually
referred to as a "Steamboat Construction Project Advance" and
collectively as the "Steamboat Construction Project Advances") to GSRP
from time to time during the Steamboat Commitment Period, provided that
(i) no Steamboat Construction Project Advance shall be made
(A) unless the proceeds thereof are to be used to
satisfy Construction Costs in respect of the Steamboat
Project, FF&E Costs in respect of the Steamboat Project and/or
Sales, Marketing & Other Costs in respect of the Steamboat
Project and no Equity Moneys are available that could be used
to satisfy such Costs;
(B) if the proceeds thereof are to be used to
reimburse GSRP for any Equity Moneys previously used to
satisfy Construction Costs in respect of the Steamboat
Project, FF&E Costs in respect of the Steamboat Project and/or
Sales, Marketing & Other Costs in respect of the Steamboat
Project;
(C) if a Default or Event of Default shall then exist
that has not been waived by the Steamboat Construction Project
Required Lenders,
(D) if such Construction Project Advance is the first
Steamboat Construction Project Advance, the Construction
Project Advance Request therefor shall not have been delivered
to the Administrative Agent on or prior to December 15, 1998;
and
(E) if the aggregate amount of the purchase prices
payable under Validated Contracts arising from the sale of
Steamboat Quartershare Interests is less than $16,500,000,
provided that, until the earlier of (I) December 31, 1999 and
(II) 60 days after GSRP shall have obtained its subdivision
license in Colorado, GSRP may satisfy the requirements under
this clause (E) by having Reservation Contracts having an
aggregate amount of purchase prices of not less than
$23,700,000;
(ii) (A) on the date of the making of any Steamboat
Construction Project Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Construction Project
Advances made hereunder with respect to all of the Projects shall not
exceed the Aggregate Construction Project Borrowing Base, determined as
of such date, and (B) on the date of the making of any Steamboat
Construction Project Advance hereunder (and after giving effect
thereto) the aggregate original principal amount of all Advances made
hereunder shall not exceed $200,000,000, provided that in making such
calculation there shall be no duplication in respect of any
Construction Project Advance or Advances which shall have been
refinanced by an Inventory Advance;
(iii) on the date of the making of any Steamboat Construction
Project Advance (and after giving effect thereto) (A) the aggregate
original principal amount of all Steamboat Construction Project
Advances made hereunder shall not exceed the amount described in clause
(a) of the definition of Steamboat Construction Project Borrowing Base
(without giving effect to the proviso with respect thereto) determined
as of such date and (B) on the date of the making of any Steamboat
Construction Project Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Steamboat Construction
Project Advances and all Steamboat Interest Advances made hereunder
shall not exceed the Steamboat Construction Project Borrowing Base,
determined as of such date (inclusive of the proviso set forth in the
definition thereof);
(iv) the original principal amount of each Steamboat
Construction Project Advance to be made in respect of Construction
Costs of the Steamboat Project, at the time of the making thereof,
shall have been determined by excluding from such Construction Costs a
contractor's retainage of not less than 10% of the first one-half of
the applicable Construction Costs (such 10% so reserved from any such
Construction Costs is referred to herein as the "Steamboat Retainage
Amount;" for purposes of the avoidance of doubt, the Steamboat
Retainage Amount shall be based upon the full amount of certified
Construction Costs for the Steamboat Project and shall remain as a
retainage until the final payment thereof), provided that, in
connection with the Steamboat Final Construction Cost Advance and
subject to the requirements of Section 6.4 hereof, this clause (iv)
shall not operate and the aggregate unutilized Steamboat Retainage
Amounts may then be borrowed in their entirety and provided further
that the Administrative Agent, as directed by the Steamboat
Construction Project Required Lenders and upon GSRP's submission of a
written request therefor (which request shall be based upon the
completion of construction work at the Steamboat Project by a
subcontractor or by the General Contractor for the Steamboat Project
and the desire of GSRP to pay such subcontractor or the General
Contractor for such work), may agree to advance any or all of such
unutilized Steamboat Retainage Amounts prior to the making of the
Steamboat Final Construction Cost Advance upon such terms and
conditions as it may require;
(v) the original principal amount of the Steamboat Final
Construction Cost Advance, assuming compliance with clauses (ii) and
(iii) above, shall not exceed 100% of the aggregate amount of the
Steamboat Retainage Amounts then owing to the General Contractor for
the Steamboat Project under the Construction Contract for the Steamboat
Project, as of the date of the making of such Steamboat Final
Construction Cost Advance;
(vi) no more than one Steamboat Construction Project Advance
shall be made during any weekly period and no Steamboat Construction
Project Advance shall be made if any other Construction Project Advance
was made during such weekly period;
(vii) each Steamboat Construction Project Advance shall only
relate or be attributable only to the Steamboat Project; and
(viii) no Steamboat Construction Project Advance shall be in
an amount of less than $50,000.
(b) Canyons Construction Project Advances. Each of the Canyons
Construction Project Advance Lenders agrees, pursuant to the terms of
this Agreement and subject to the satisfaction of the conditions
precedent in Section 6 of this Agreement, to make its Pro Rata Share of
one or more advances in respect of the Canyons Project (such advances,
with respect to the Canyons Project, are individually referred to
herein as a "Canyons Construction Project Advance" and collectively as
the "Canyons Construction Project Advances") to GSRP from time to time
during the Canyons Commitment Period, provided that
(i) no Canyons Construction Project Advance shall be made
(A) unless the proceeds thereof are to be used to
satisfy Construction Costs in respect of the Canyons Project,
FF&E Costs in respect of the Canyons Project and/or Sales,
Marketing & Other Costs in respect of the Canyons Project and
no Equity Moneys are available that could be used to satisfy
such Costs;
(B) if the proceeds thereof are to be used to
reimburse GSRP for any Equity Moneys previously used to
satisfy Construction Costs in respect of the Canyons Project,
FF&E Costs in respect of the Canyons Project and/or Sales,
Marketing & Other Costs in respect of the Canyons Project;
(C) if a Default or Event of Default shall then exist
that has not been waived by the Canyons Construction Project
Required Lenders,
(D) if such Construction Project Advance is the first
Canyons Construction Project Advance, the Construction Project
Advance Request therefor shall not have been delivered to the
Administrative Agent on or prior to September 1, 1998; and
(E) if the aggregate amount of the purchase prices
payable under Validated Contracts arising from the sale of
Canyons Quartershare Interests is less than $31,700,000;
(ii) (A) on the date of the making of any Canyons Construction
Project Advance (and after giving effect thereto) the aggregate
outstanding principal amount of all Construction Project Advances made
hereunder with respect to all of the Projects shall not exceed the
Aggregate Construction Project Borrowing Base, determined as of such
date, and (B) on the date of the making of any Canyons Construction
Project Advance hereunder (and after giving effect thereto) the
aggregate original principal amount of all Advances made hereunder
shall not exceed $200,000,000, provided that in making such calculation
there shall be no duplication in respect of any Construction Project
Advance or Advances which shall have been refinanced by an Inventory
Advance;
(iii) on the date of the making of any Canyons Construction
Project Advance (and after giving effect thereto) (A) the aggregate
original principal amount of all Canyons Construction Project Advances
made hereunder shall not exceed the amount described in clause (a) of
the definition of Canyons Construction Project Borrowing Base (without
giving effect to the proviso with respect thereto) determined as of
such date and (B) on the date of the making of any Canyons Construction
Project Advance (and after giving effect thereto) the aggregate
outstanding principal amount of all Canyons Construction Project
Advances and all Canyons Interest Advances made hereunder shall not
exceed the Canyons Construction Project Borrowing Base, determined as
of such date (inclusive of the proviso set forth in the definition
thereof);
(iv) the original principal amount of each Canyons
Construction Project Advance to be made in respect of Construction
Costs of the Canyons Project, at the time of the making thereof, shall
have been determined by excluding from such Construction Costs a
contractor's retainage of not less than 10% of the first one-half of
the applicable Construction Costs (such 10% so reserved from any such
Construction Costs is referred to herein as the "Canyons Retainage
Amount;" for purposes of the avoidance of doubt, the Canyons Retainage
Amount shall be based upon the full amount of certified Construction
Costs for the Canyons Project and shall remain as a retainage until the
final payment thereof), provided that, in connection with the Canyons
Final Construction Cost Advance and subject to the requirements of
Section 6.4 hereof, this clause (iv) shall not operate and the
aggregate unutilized Canyons Retainage Amounts may then be borrowed in
their entirety and provided further that the Administrative Agent, as
directed by the Canyons Construction Project Required Lenders and upon
GSRP's submission of a written request therefor (which request shall be
based upon the completion of construction work at the Canyons Project
by a subcontractor or by the General Contractor for the Canyons Project
and the desire of GSRP to pay such subcontractor or the General
Contractor for such work), may agree to advance any or all of such
unutilized Canyons Retainage Amounts prior to the making of the Canyons
Final Construction Cost Advance upon such terms and conditions as it
may require;
(v) the original principal amount of the Canyons Final
Construction Cost Advance, assuming compliance with clauses (ii) and
(iii) above, shall not exceed 100% of the aggregate amount of the
Canyons Retainage Amounts then owing to the General Contractor for the
Canyons Project under the Construction Contract for the Canyons
Project, as of the date of the making of such Canyons Final
Construction Cost Advance;
(vi) no more than one Canyons Construction Project Advance
shall be made during any weekly period and no Canyons Construction
Project Advance shall be made if any other Construction Project Advance
was made during such weekly period;
(vii) each Canyons Construction Project Advance shall only
relate or be attributable only to the Canyons Project; and
(viii) no Canyons Construction Project Advance shall be in an
amount of less than $50,000.
(c) Sugarbush Construction Project Advances. Each of the
*Sugarbush Construction Project Advance Lenders agrees, pursuant to the
terms of this Agreement and subject to the satisfaction of the
conditions precedent in Section 6 of this Agreement, to make its Pro
Rata Share of one or more advances in respect of the *Sugarbush Project
(such advances, with respect to the *Sugarbush Project, are
individually referred to herein as a "*Sugarbush Construction Project
Advance" and collectively as the "*Sugarbush Construction Project
Advances") to GSRP from time to time during the *Sugarbush Commitment
Period, provided that
(i) no *Sugarbush Construction Project Advance shall be made
(A) unless the proceeds thereof are to be used to
satisfy Construction Costs in respect of the *Sugarbush
Project, FF&E Costs in respect of the *Sugarbush Project
and/or Sales, Marketing & Other Costs in respect of the
*Sugarbush Project and no Equity Moneys are available that
could be used to satisfy such Costs;
(B) if the proceeds thereof are to be used to
reimburse GSRP for any Equity Moneys previously used to
satisfy Construction Costs in respect of the *Sugarbush
Project, FF&E Costs in respect of the *Sugarbush Project
and/or Sales, Marketing & Other Costs in respect of the
*Sugarbush Project;
(C) if a Default or Event of Default shall then exist
that has not been waived by the *Sugarbush Construction
Project Required Lenders,
(D) if such Construction Project Advance is the first
*Sugarbush Construction Project Advance, the Project Advance
Request therefor shall not have been delivered to the
Administrative Agent on or prior to September 1, 1998; and
(E) if the aggregate amount of the purchase prices
payable under Validated Contracts arising from the sale of
*Sugarbush Quartershare Interests is less than $[to be
determined];
(ii) (A) on the date of the making of any *Sugarbush
Construction Project Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Construction Project
Advances made hereunder with respect to all of the Projects shall not
exceed the Aggregate Construction Project Borrowing Base, determined as
of such date, and (B) on the date of the making of any *Sugarbush
Construction Project Advance hereunder (and after giving effect
thereto) the aggregate original principal amount of all Advances made
hereunder shall not exceed $[to be determined], provided that in making
such calculation there shall be no duplication in respect of any
Construction Project Advance or Advances which shall have been
refinanced by an Inventory Advance;
(iii) on the date of the making of any *Sugarbush Construction
Project Advance (and after giving effect thereto) (A) the aggregate
original principal amount of all *Sugarbush Construction Project
Advances made hereunder shall not exceed the amount described in clause
(a) of the definition of *Sugarbush Construction Project Borrowing Base
(without giving effect to the proviso with respect thereto) determined
as of such date and (B) on the date of the making of any *Sugarbush
Construction Project Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all *Sugarbush Construction
Project Advances and all *Sugarbush Interest Advances made hereunder
shall not exceed the *Sugarbush Construction Project Borrowing Base,
determined as of such date (inclusive of the proviso set forth in the
definition thereof);
(iv) the original principal amount of each *Sugarbush
Construction Project Advance to be made in respect of Construction
Costs of the *Sugarbush Project, at the time of the making thereof,
shall have been determined by excluding from such Construction Costs a
contractor's retainage of not less than 10% of the first one-half of
the applicable Construction Costs (such 10% so reserved from any such
Construction Costs is referred to herein as the "*Sugarbush Retainage
Amount;" for purposes of the avoidance of doubt, the *Sugarbush
Retainage Amount shall be based upon the full amount of certified
Construction Costs for the *Sugarbush Project and shall remain as a
retainage until the final payment thereof), provided that, in
connection with the *Sugarbush Final Construction Cost Advance and
subject to the requirements of Section 6.4 hereof, this clause (iv)
shall not operate and the aggregate unutilized *Sugarbush Retainage
Amounts may then be borrowed in their entirety and provided further
that the Administrative Agent, as directed by the *Sugarbush
Construction Project Required Lenders and upon GSRP's submission of a
written request therefor (which request shall be based upon the
completion of construction work at the *Sugarbush Project by a
subcontractor or by the General Contractor for the *Sugarbush Project
and the desire of GSRP to pay such subcontractor or the General
Contractor for such work), may agree to advance any or all of such
unutilized *Sugarbush Retainage Amounts prior to the making of the
*Sugarbush Final Construction Cost Advance upon such terms and
conditions as it may require;
(v) the original principal amount of the *Sugarbush Final
Construction Cost Advance, assuming compliance with clauses (ii) and
(iii) above, shall not exceed 100% of the aggregate amount of the
*Sugarbush Retainage Amounts then owing to the General Contractor for
the *Sugarbush Project under the Construction Contract for the
*Sugarbush Project, as of the date of the making of such *Sugarbush
Final Construction Cost Advance;
(vi) no more than one *Sugarbush Construction Project Advance
shall be made during any weekly period and no *Sugarbush Construction
Project Advance shall be made if any other Construction Project Advance
was made during such weekly period;
(vii) each *Sugarbush Construction Project Advance shall only
relate or be attributable only to the *Sugarbush Project; and
(viii) no *Sugarbush Construction Project Advance shall be
in an amount of less than $50,000.
(d) *Sugarloaf Construction Project Advances. Each of the
*Sugarloaf Construction Project Advance Lenders agrees, pursuant to the
terms of this Agreement and subject to the satisfaction of the
conditions precedent in Section 6 of this Agreement, to make its Pro
Rata Share of one or more advances in respect of the *Sugarloaf Project
(such advances, with respect to the *Sugarloaf Project, are
individually referred to herein as a "*Sugarloaf Construction Project
Advance" and collectively as the "*Sugarloaf Construction Project
Advances") to GSRP from time to time during the *Sugarloaf Commitment
Period, provided that
(i) no *Sugarloaf Construction Project Advance shall be made
(A) unless the proceeds thereof are to be used to
satisfy Construction Costs in respect of the *Sugarloaf
Project, FF&E Costs in respect of the *Sugarloaf Project
and/or Sales, Marketing & Other Costs in respect of the
*Sugarloaf Project and no Equity Moneys are available that
could be used to satisfy such Costs;
(B) if the proceeds thereof are to be used to
reimburse GSRP for any Equity Moneys previously used to
satisfy Construction Costs in respect of the *Sugarloaf
Project, FF&E Costs in respect of the *Sugarloaf Project
and/or Sales, Marketing & Other Costs in respect of the
*Sugarloaf Project;
(C) if a Default or Event of Default shall then exist
that has not been waived by the *Sugarloaf Construction
Project Required Lenders,
(D) if such Construction Project Advance is the first
*Sugarloaf Construction Project Advance, the Construction
Project Advance Request therefor shall not have been delivered
to the Administrative Agent on or prior to [a date to be
determined]; and
(E) if the aggregate amount of the purchase prices
payable under Validated Contracts arising from the sale of
*Sugarloaf Quartershare Interests is less than $[to be
determined];
(ii) (A) on the date of the making of any *Sugarloaf
Construction Project Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Construction Project
Advances made hereunder with respect to all of the Projects shall not
exceed the Aggregate Construction Project Borrowing Base, determined as
of such date, and (B) on the date of the making of any *Sugarloaf
Construction Project Advance hereunder (and after giving effect
thereto) the aggregate original principal amount of all Advances made
hereunder shall not exceed $[to be determined], provided that in making
such calculation there shall be no duplication in respect of any
Construction Project Advance or Advances which shall have been
refinanced by an Inventory Advance;
(iii) on the date of the making of any *Sugarloaf Construction
Project Advance (and after giving effect thereto) (A) the aggregate
original principal amount of all *Sugarloaf Construction Project
Advances made hereunder shall not exceed the amount described in clause
(a) of the definition of *Sugarloaf Construction Project Borrowing Base
(without giving effect to the proviso with respect thereto) determined
as of such date and (B) on the date of the making of any *Sugarloaf
Construction Project Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all *Sugarloaf Construction
Project Advances and all *Sugarloaf Interest Advances made hereunder
shall not exceed the *Sugarloaf Construction Project Borrowing Base,
determined as of such date (inclusive of the proviso set forth in the
definition thereof);
(iv) the original principal amount of each *Sugarloaf
Construction Project Advance to be made in respect of Construction
Costs of the *Sugarloaf Project, at the time of the making thereof,
shall have been determined by excluding from such Construction Costs a
contractor's retainage of not less than 10% of the first one-half of
the applicable Construction Costs (such 10% so reserved from any such
Construction Costs is referred to herein as the "*Sugarloaf Retainage
Amount;" for purposes of the avoidance of doubt, the *Sugarloaf
Retainage Amount shall be based upon the full amount of certified
Construction Costs for the *Sugarloaf Project and shall remain as a
retainage until the final payment thereof), provided that, in
connection with the *Sugarloaf Final Construction Cost Advance and
subject to the requirements of Section 6.4 hereof, this clause (iv)
shall not operate and the aggregate unutilized *Sugarloaf Retainage
Amounts may then be borrowed in their entirety and provided further
that the Administrative Agent, as directed by the *Sugarloaf
Construction Project Required Lenders and upon GSRP's submission of a
written request therefor (which request shall be based upon the
completion of construction work at the *Sugarloaf Project by a
subcontractor or by the General Contractor for the *Sugarloaf Project
and the desire of GSRP to pay such subcontractor or the General
Contractor for such work), may agree to advance any or all of such
unutilized *Sugarloaf Retainage Amounts prior to the making of the
*Sugarloaf Final Construction Cost Advance upon such terms and
conditions as it may require;
(v) the original principal amount of the *Sugarloaf Final
Construction Cost Advance, assuming compliance with clauses (ii) and
(iii) above, shall not exceed 100% of the aggregate amount of the
*Sugarloaf Retainage Amounts then owing to the General Contractor for
the *Sugarloaf Project under the Construction Contract for the
*Sugarloaf Project, as of the date of the making of such *Sugarloaf
Final Construction Cost Advance;
(vi) no more than one *Sugarloaf Construction Project Advance
shall be made during any weekly period and no *Sugarloaf Construction
Project Advance shall be made if any other Construction Project Advance
was made during such weekly period;
(vii) each *Sugarloaf Construction Project Advance shall only
relate or be attributable only to the *Sugarloaf Project;
(viii) no *Sugarloaf Construction Project Advance shall be in an
amount of less than $50,000; and
(ix) the *Sugarloaf Construction Project Advance Lenders shall
have confirmed to their reasonable satisfaction that the construction
and credit criteria that appeared to have been satisfied at the Closing
Date continue to be satisfied on the date of the first *Sugarloaf
Construction Project Advance.
<PAGE>
2.2 INVENTORY ADVANCES
. 2.2 Inventory Advances
(a) Steamboat Inventory Advances. Each of the Steamboat
Inventory Advance Lenders agrees, pursuant to the terms of this
Agreement and subject to the satisfaction of the conditions precedent
in Section 6A of this Agreement, to make its Pro Rata Share of the
single advance to be made in respect of the Steamboat Project (such
advance being referred to herein as the "Steamboat Inventory Advance")
to GSRP, provided that
(i) the Steamboat Inventory Advance shall be used for
the sole purpose of repaying in full all of the Steamboat
Construction Project Advances and Steamboat Interest Advances
then outstanding;
(ii) no Default or Event of Default shall then exist
which has not been waived by the Steamboat Inventory Required
Lenders;
(iii) on the date of the making of the Steamboat
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $200,000,000, provided that in making such
calculation there shall be no duplication in respect of any
Construction Project Advances which shall have been refinanced
by an Inventory Advance;
(iv) on the date of the making of the Steamboat
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $145,000,000 minus
the aggregate outstanding principal amount of all Construction
Project Advances and Interest Advances that shall not have
been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the Steamboat
Inventory Advance shall have fallen within the Steamboat
Commitment Period.
For the benefit of the Steamboat Construction Project Advance
Lenders, GSRP agrees that, with respect to the Steamboat Project, it
shall satisfy the conditions precedent in Section 6A and refinance the
Steamboat Construction Project Advances and Steamboat Interest Advances
with the Steamboat Inventory Advance as soon as possible after it shall
have satisfied the condition set forth in Section 6.4(b) hereof and
shall cause in any case the Inventory Advance Date for the Steamboat
Inventory Advance to fall within the Steamboat Commitment Period.
(b) Canyons Inventory Advances. Each of the Canyons Inventory
Advance Lenders agrees, pursuant to the terms of this Agreement and
subject to the satisfaction of the conditions precedent in Section 6A
of this Agreement, to make its Pro Rata Share of the single advance to
be made in respect of the Canyons Project (such advance being referred
to herein as the "Canyons Inventory Advance") to GSRP, provided that
(i) the Canyons Inventory Advance shall be used for
the sole purpose of repaying in full all of the Canyons
Construction Project Advances and Canyons Interest Advances
then outstanding;
(ii) no Default or Event of Default shall then exist
which has not been waived by the Canyons Inventory Required
Lenders;
(iii) on the date of the making of the Canyons
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $200,000,000, provided that in making such
calculation there shall be no duplication in respect of any
Construction Project Advances which shall have been refinanced
by an Inventory Advance;
(iv) on the date of the making of the Canyons
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $145,000,000 minus
the aggregate outstanding principal amount of all Construction
Project Advances and Interest Advances that shall not have
been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the Canyons
Inventory Advance shall have fallen within the Canyons
Commitment Period.
For the benefit of the Canyons Construction Project Advance
Lenders, GSRP agrees that, with respect to the Canyons Project, it
shall satisfy the conditions precedent in Section 6A and refinance the
Canyons Construction Project Advances and Canyons Interest Advances
with the Canyons Inventory Advance as soon as possible after it shall
have satisfied the condition set forth in Section 6.4(b) hereof and
shall cause in any case the Inventory Advance Date for the Canyons
Inventory Advance to fall within the Canyons Commitment Period.
(c) *Sugarbush Inventory Advances. Each of the *Sugarbush
Inventory Advance Lenders agrees, pursuant to the terms of this
Agreement and subject to the satisfaction of the conditions precedent
in Section 6A of this Agreement, to make its Pro Rata Share of the
single advance to be made in respect of the *Sugarbush Project (such
advance being referred to herein as the "*Sugarbush Inventory Advance")
to GSRP, provided that
(i) the *Sugarbush Inventory Advance shall be used
for the sole purpose of repaying in full all of the *Sugarbush
Construction Project Advances and *Sugarbush Interest Advances
then outstanding;
(ii) no Default or Event of Default shall then exist
which has not been waived by the *Sugarbush Inventory Required
Lenders;
(iii) on the date of the making of the *Sugarbush
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $[to be determined], provided that in making
such calculation there shall be no duplication in respect of
any Construction Project Advances which shall have been
refinanced by an Inventory Advance;
(iv) on the date of the making of the *Sugarbush
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $[to be determined]
minus the aggregate outstanding principal amount of all
Construction Project Advances and Interest Advances that shall
not have been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the *Sugarbush
Inventory Advance shall have fallen within the *Sugarbush
Commitment Period.
For the benefit of the *Sugarbush Construction Project Advance
Lenders, GSRP agrees that, with respect to the *Sugarbush Project, it
shall satisfy the conditions precedent in Section 6A and refinance the
*Sugarbush Construction Project Advances and *Sugarbush Interest
Advances with the *Sugarbush Inventory Advance as soon as possible
after it shall have satisfied the condition set forth in Section 6.4(b)
hereof and shall cause in any case the Inventory Advance Date for the
*Sugarbush Inventory Advance to fall within the *Sugarbush Commitment
Period.
(d) *Sugarloaf Inventory Advances. Each of the *Sugarloaf
Inventory Advance Lenders agrees, pursuant to the terms of this
Agreement and subject to the satisfaction of the conditions precedent
in Section 6A of this Agreement, to make its Pro Rata Share of the
single advance to be made in respect of the *Sugarloaf Project (such
advance being referred to herein as the "*Sugarloaf Inventory Advance")
to GSRP, provided that
(i) the *Sugarloaf Inventory Advance shall be used
for the sole purpose of repaying in full all of the *Sugarloaf
Construction Project Advances and *Sugarloaf Interest Advances
then outstanding;
(ii) no Default or Event of Default shall then exist
which has not been waived by the *Sugarloaf Inventory Required
Lenders;
(iii) on the date of the making of the *Sugarloaf
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $[to be determined], provided that in making
such calculation there shall be no duplication in respect of
any Construction Project Advances which shall have been
refinanced by an Inventory Advance;
(iv) on the date of the making of the *Sugarloaf
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $[to be determined]
minus the aggregate outstanding principal amount of all
Construction Project Advances and Interest Advances that shall
not have been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the *Sugarloaf
Inventory Advance shall have fallen within the *Sugarloaf
Commitment Period.
For the benefit of the *Sugarloaf Construction Project Advance
Lenders, GSRP agrees that, with respect to the *Sugarloaf Project, it
shall satisfy the conditions precedent in Section 6A and refinance the
*Sugarloaf Construction Project Advances and *Sugarloaf Interest
Advances with the *Sugarloaf Inventory Advance as soon as possible
after it shall have satisfied the condition set forth in Section 6.4(b)
hereof and shall cause in any case the Inventory Advance Date for the
*Sugarloaf Inventory Advance to fall within the *Sugarloaf Commitment
Period.
(e) Jordan Bowl Inventory Advance. Each of the Jordan Bowl
Inventory Advance Lenders agrees, pursuant to the terms of this
Agreement and subject to the satisfaction of the conditions precedent
in Section 6B of this Agreement, to make its Pro Rata Share of the
single advance to be made in respect of the Jordan Bowl Project (such
advance being referred to herein as the "Jordan Bowl Inventory
Advance") to GSRP, provided that
(i) the Jordan Bowl Inventory Advance shall be used
for the sole purpose of repaying in full all of the loans in
respect of the Jordan Bowl Project then outstanding under LSA
I and paying a portion of the Loan Costs and commitment fee
then due and payable hereunder;
(ii) no Default or Event of Default shall then exist
which has not been waived by the Jordan Bowl Inventory
Required Lenders;
(iii) on the date of the making of the Jordan Bowl
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $200,000,000;
(iv) on the date of the making of the Jordan Bowl
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $145,000,000 minus
the aggregate outstanding principal amount of all Construction
Project Advances and Interest Advances that shall not have
been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the Jordan Bowl
Inventory Advance shall have fallen within the Jordan Bowl
Commitment Period.
(f) Attitash Inventory Advance. Each of the Attitash Inventory
Advance Lenders agrees, pursuant to the terms of this Agreement and
subject to the satisfaction of the conditions precedent in Section 6B
of this Agreement, to make its Pro Rata Share of the single advance to
be made in respect of the Attitash Project (such advance being referred
to herein as the "Attitash Inventory Advance") to GSRP, provided that
(i) the Attitash Inventory Advance shall be used for
the sole purpose of repaying in full all of the loans in
respect of the Attitash Project then outstanding under LSA I
and paying a portion of the Loan Costs and commitment fee then
due and payable hereunder;
(ii) no Default or Event of Default shall then exist
which has not been waived by the Attitash Inventory Required
Lenders;
(iii) on the date of the making of the Attitash
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $200,000,000;
(iv) on the date of the making of the Attitash
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $145,000,000 minus
the aggregate outstanding principal amount of all Construction
Project Advances and Interest Advances that shall not have
been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the Attitash
Inventory Advance shall have fallen within the Attitash
Commitment Period.
(g) Killington Inventory Advance. Each of the Killington
Inventory Advance Lenders agrees, pursuant to the terms of this
Agreement and subject to the satisfaction of the conditions precedent
in Section 6B of this Agreement, to make its Pro Rata Share of the
single advance to be made in respect of the Killington Project (such
advance being referred to herein as the "Killington Inventory Advance")
to GSRP, provided that
(i) the Killington Inventory Advance shall be used
for the sole purpose of repaying in full all of the loans in
respect of the Killington Project then outstanding under LSA I
and paying a portion of the Loan Costs and commitment fee then
due and payable hereunder;
(ii) no Default or Event of Default shall then exist
which has not been waived by the Killington Inventory Required
Lenders;
(iii) on the date of the making of the Killington
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $200,000,000;
(iv) on the date of the making of the Killington
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $145,000,000 minus
the aggregate outstanding principal amount of all Construction
Project Advances and Interest Advances that shall not have
been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the Killington
Inventory Advance shall have fallen within the Killington
Commitment Period.
(h) Mt. Snow Inventory Advance. Each of the Mt. Snow Inventory
Advance Lenders agrees, pursuant to the terms of this Agreement and
subject to the satisfaction of the conditions precedent in Section 6B
of this Agreement, to make its Pro Rata Share of the single advance to
be made in respect of the Mt. Snow Project (such advance being referred
to herein as the "Mt. Snow Inventory Advance") to GSRP, provided that
(i) the Mt. Snow Inventory Advance shall be used for
the sole purpose of repaying in full all of the loans in
respect of the Mt. Snow Project then outstanding under LSA I
and paying a portion of the Loan Costs and commitment fee then
due and payable hereunder;
(ii) no Default or Event of Default shall then
exist which has not been waived by the Mt. Snow Inventory
Required Lenders;
(iii) on the date of the making of the Mt. Snow
Inventory Advance (and after giving effect thereto) the
aggregate original principal amount of all Advances hereunder
shall not exceed $200,000,000;
(iv) on the date of the making of the Mt. Snow
Inventory Advance (and after giving effect thereto) the
aggregate outstanding principal amount of all Inventory
Advances shall not exceed the remainder of $145,000,000 minus
the aggregate outstanding principal amount of all Construction
Project Advances and Interest Advances that shall not have
been refinanced by an Inventory Advance; and
(v) the Inventory Advance Date for the Mt. Snow
Inventory Advance shall have fallen within the Mt. Snow
Commitment Period.
<PAGE>
2.3 BORROWING MECHANICS; ADVANCES GENERALLY
. 2.3 Borrowing Mechanics; Advances Generally
(a) Borrowing Mechanics.
(i) (A) All requested Steamboat Construction Project
Advances and Steamboat Interest Advances under this
Agreement shall be made by the Steamboat Construction
Project Advance Lenders simultaneously and
proportionately to their respective Pro Rata Shares
and in accordance with their respective Steamboat
Construction Project Advance Commitments, it being
understood that no Steamboat Construction Project
Advance Lender shall be responsible for any default
by any other Steamboat Construction Project Advance
Lender in that other Lender's obligation to make its
share of a requested Steamboat Construction Project
Advance or Steamboat Interest Advance nor shall the
Steamboat Construction Project Advance Commitment of
any Steamboat Construction Project Advance Lender be
increased or decreased as a result of a default by
any other Steamboat Construction Project Advance
Lender in that other Lender's obligation to make its
share of a requested Steamboat Construction Project
Advance or Steamboat Interest Advance, provided that
any one or more of the nondefaulting Steamboat
Construction Project Advance Lenders may, in their
sole discretion and by a written notice to GSRP, the
Administrative Agent and the defaulting Steamboat
Construction Project Advance Lender, elect to assume
that portion of the Steamboat Construction Project
Advance Commitment of such defaulting Steamboat
Construction Project Advance Lender not then being
honored by such defaulting Steamboat Construction
Project Advance Lender and, in any such case, the
Steamboat Construction Project Advance Commitment of
such nondefaulting Steamboat Construction Project
Advance Lenders and the Steamboat Construction
Project Advance Commitment of such defaulting
Steamboat Construction Project Advance Lender shall
be appropriately adjusted to reflect such assumption
(if more than one nondefaulting Steamboat
Construction Project Advance Lender shall desire to
effect the assumption referred to in this sentence,
such assumption shall be shared ratably among such
nondefaulting Steamboat Construction Project Advance
Lenders in accordance with their respective Steamboat
Construction Project Advance Commitments, as
determined immediately prior to such assumption) and
new Steamboat Construction Project Advance Notes
shall be issued in exchange for the then outstanding
Steamboat Construction Project Advance Notes to
reflect such assumption.
(B) All requested Canyons Construction
Project Advances and Canyons Interest Advances under
this Agreement shall be made by the Canyons
Construction Project Advance Lenders simultaneously
and proportionately to their respective Pro Rata
Shares and in accordance with their respective
Canyons Construction Project Advance Commitments, it
being understood that no Canyons Construction Project
Advance Lender shall be responsible for any default
by any other Canyons Construction Project Advance
Lender in that other Lender's obligation to make its
share of a requested Canyons Construction Project
Advance or Canyons Interest Advance nor shall the
Canyons Construction Project Advance Commitment of
any Canyons Construction Project Advance Lender be
increased or decreased as a result of a default by
any other Canyons Construction Project Advance Lender
in that other Lender's obligation to make its share
of a requested Canyons Construction Project Advance
or Canyons Interest Advance, provided that any one or
more of the nondefaulting Canyons Construction
Project Advance Lenders may, in their sole discretion
and by a written notice to GSRP, the Administrative
Agent and the defaulting Canyons Construction Project
Advance Lender, elect to assume that portion of the
Canyons Construction Project Advance Commitment of
such defaulting Canyons Construction Project Advance
Lender not then being honored by such defaulting
Canyons Construction Project Advance Lender and, in
any such case, the Canyons Construction Project
Advance Commitment of such nondefaulting Canyons
Construction Project Advance Lenders and the Canyons
Construction Project Advance Commitment of such
defaulting Canyons Construction Project Advance
Lender shall be appropriately adjusted to reflect
such assumption (if more than one nondefaulting
Canyons Construction Project Advance Lender shall
desire to effect the assumption referred to in this
sentence, such assumption shall be shared ratably
among such nondefaulting Canyons Construction Project
Advance Lenders in accordance with their respective
Canyons Construction Project Advance Commitments, as
determined immediately prior to such assumption) and
new Canyons Construction Project Advance Notes shall
be issued in exchange for the then outstanding
Canyons Construction Project Advance Notes to reflect
such assumption.
(C) All requested *Sugarbush Construction
Project Advances and *Sugarbush Interest Advances
under this Agreement shall be made by the *Sugarbush
Construction Project Advance Lenders simultaneously
and proportionately to their respective Pro Rata
Shares and in accordance with their respective
*Sugarbush Construction Project Advance Commitments,
it being understood that no *Sugarbush Construction
Project Advance Lender shall be responsible for any
default by any other *Sugarbush Construction Project
Advance Lender in that other Lender's obligation to
make its share of a requested *Sugarbush Construction
Project Advance or *Sugarbush Interest Advance nor
shall the *Sugarbush Construction Project Advance
Commitment of any *Sugarbush Construction Project
Advance Lender be increased or decreased as a result
of a default by any other *Sugarbush Construction
Project Advance Lender in that other Lender's
obligation to make its share of a requested
*Sugarbush Construction Project Advance or *Sugarbush
Interest Advance, provided that any one or more of
the nondefaulting *Sugarbush Construction Project
Advance Lenders may, in their sole discretion and by
a written notice to GSRP, the Administrative Agent
and the defaulting *Sugarbush Construction Project
Advance Lender, elect to assume that portion of the
*Sugarbush Construction Project Advance Commitment of
such defaulting *Sugarbush Construction Project
Advance Lender not then being honored by such
defaulting *Sugarbush Construction Project Advance
Lender and, in any such case, the *Sugarbush
Construction Project Advance Commitment of such
nondefaulting *Sugarbush Construction Project Advance
Lenders and the *Sugarbush Construction Project
Advance Commitment of such defaulting *Sugarbush
Construction Project Advance Lender shall be
appropriately adjusted to reflect such assumption (if
more than one nondefaulting *Sugarbush Construction
Project Advance Lender shall desire to effect the
assumption referred to in this sentence, such
assumption shall be shared ratably among such
nondefaulting *Sugarbush Construction Project Advance
Lenders in accordance with their respective
*Sugarbush Construction Project Advance Commitments,
as determined immediately prior to such assumption)
and new *Sugarbush Construction Project Advance Notes
shall be issued in exchange for the then outstanding
*Sugarbush Construction Project Advance Notes to
reflect such assumption.
(D) All requested *Sugarloaf Construction
Project Advances and *Sugarloaf Interest Advances
under this Agreement shall be made by the *Sugarloaf
Construction Project Advance Lenders simultaneously
and proportionately to their respective Pro Rata
Shares and in accordance with their respective
*Sugarloaf Construction Project Advance Commitments,
it being understood that no *Sugarloaf Construction
Project Advance Lender shall be responsible for any
default by any other *Sugarloaf Construction Project
Advance Lender in that other Lender's obligation to
make its share of a requested *Sugarloaf Construction
Project Advance or *Sugarloaf Interest Advance nor
shall the *Sugarloaf Construction Project Advance
Commitment of any *Sugarloaf Construction Project
Advance Lender be increased or decreased as a result
of a default by any other *Sugarloaf Construction
Project Advance Lender in that other Lender's
obligation to make its share of a requested
*Sugarloaf Construction Project Advance or *Sugarloaf
Interest Advance, provided that any one or more of
the nondefaulting *Sugarloaf Construction Project
Advance Lenders may, in their sole discretion and by
a written notice to GSRP, the Administrative Agent
and the defaulting *Sugarloaf Construction Project
Advance Lender, elect to assume that portion of the
*Sugarloaf Construction Project Advance Commitment of
such defaulting *Sugarloaf Construction Project
Advance Lender not then being honored by such
defaulting *Sugarloaf Construction Project Advance
Lender and, in any such case, the *Sugarloaf
Construction Project Advance Commitment of such
nondefaulting *Sugarloaf Construction Project Advance
Lenders and the *Sugarloaf Construction Project
Advance Commitment of such defaulting *Sugarloaf
Construction Project Advance Lender shall be
appropriately adjusted to reflect such assumption (if
more than one nondefaulting *Sugarloaf Construction
Project Advance Lender shall desire to effect the
assumption referred to in this sentence, such
assumption shall be shared ratably among such
nondefaulting *Sugarloaf Construction Project Advance
Lenders in accordance with their respective
*Sugarloaf Construction Project Advance Commitments,
as determined immediately prior to such assumption)
and new *Sugarloaf Construction Project Advance Notes
shall be issued in exchange for the then outstanding
*Sugarloaf Construction Project Advance Notes to
reflect such assumption.
(E) The Steamboat Inventory Advance shall be
made by the Steamboat Inventory Lenders
simultaneously and proportionately to their
respective Pro Rata Shares and in accordance with
their respective Steamboat Inventory Advance
Commitments, it being understood that no Steamboat
Inventory Advance Lender shall be responsible for any
default by any other Steamboat Inventory Advance
Lender in that other Lender's obligation to make its
share of the Steamboat Inventory Advance nor shall
the Steamboat Inventory Advance Commitment of any
Steamboat Inventory Advance Lender be increased or
decreased as a result of a default by any other
Steamboat Inventory Advance Lender in that other
Lender's obligation to make its share of the
Steamboat Inventory Advance, provided that any one or
more of the nondefaulting Steamboat Inventory Advance
Lenders may, in their sole discretion and by a
written notice to GSRP, the Administrative Agent and
the defaulting Steamboat Inventory Advance Lender,
elect to assume that portion of the Steamboat
Inventory Advance Commitment of such defaulting
Steamboat Inventory Advance Lender not then being
honored by such defaulting Steamboat Inventory
Advance Lender and, in any such case, the Steamboat
Inventory Advance Commitment of such nondefaulting
Steamboat Inventory Advance Lenders and the Steamboat
Inventory Advance Commitment of such defaulting
Steamboat Inventory Advance Lender shall be
appropriately adjusted to reflect such assumption (if
more than one nondefaulting Steamboat Inventory
Advance Lender shall desire to effect the assumption
referred to in this sentence, such assumption shall
be shared ratably among such nondefaulting Steamboat
Inventory Advance Lenders in accordance with their
respective Steamboat Inventory Advance Commitments,
as determined immediately prior to such assumption)
and new Steamboat Inventory Advance Notes shall be
issued in exchange for the then outstanding Steamboat
Inventory Advance Notes to reflect such assumption.
(F) The Canyons Inventory Advance shall be
made by the Canyons Inventory Lenders simultaneously
and proportionately to their respective Pro Rata
Shares and in accordance with their respective
Canyons Inventory Advance Commitments, it being
understood that no Canyons Inventory Advance Lender
shall be responsible for any default by any other
Canyons Inventory Advance Lender in that other
Lender's obligation to make its share of the Canyons
Inventory Advance nor shall the Canyons Inventory
Advance Commitment of any Canyons Inventory Advance
Lender be increased or decreased as a result of a
default by any other Canyons Inventory Advance Lender
in that other Lender's obligation to make its share
of the Canyons Inventory Advance, provided that any
one or more of the nondefaulting Canyons Inventory
Advance Lenders may, in their sole discretion and by
a written notice to GSRP, the Administrative Agent
and the defaulting Canyons Inventory Advance Lender,
elect to assume that portion of the Canyons Inventory
Advance Commitment of such defaulting Canyons
Inventory Advance Lender not then being honored by
such defaulting Canyons Inventory Advance Lender and,
in any such case, the Canyons Inventory Advance
Commitment of such nondefaulting Canyons Inventory
Advance Lenders and the Canyons Inventory Advance
Commitment of such defaulting Canyons Inventory
Advance Lender shall be appropriately adjusted to
reflect such assumption (if more than one
nondefaulting Canyons Inventory Advance Lender shall
desire to effect the assumption referred to in this
sentence, such assumption shall be shared ratably
among such nondefaulting Canyons Inventory Advance
Lenders in accordance with their respective Canyons
Inventory Advance Commitments, as determined
immediately prior to such assumption) and new Canyons
Inventory Advance Notes shall be issued in exchange
for the then outstanding Canyons Inventory Advance
Notes to reflect such assumption.
(G) The *Sugarbush Inventory Advance shall
be made by the *Sugarbush Inventory Lenders
simultaneously and proportionately to their
respective Pro Rata Shares and in accordance with
their respective *Sugarbush Inventory Advance
Commitments, it being understood that no *Sugarbush
Inventory Advance Lender shall be responsible for any
default by any other *Sugarbush Inventory Advance
Lender in that other Lender's obligation to make its
share of the *Sugarbush Inventory Advance nor shall
the *Sugarbush Inventory Advance Commitment of any
*Sugarbush Inventory Advance Lender be increased or
decreased as a result of a default by any other
*Sugarbush Inventory Advance Lender in that other
Lender's obligation to make its share of the
*Sugarbush Inventory Advance, provided that any one
or more of the nondefaulting *Sugarbush Inventory
Advance Lenders may, in their sole discretion and by
a written notice to GSRP, the Administrative Agent
and the defaulting *Sugarbush Inventory Advance
Lender, elect to assume that portion of the
*Sugarbush Inventory Advance Commitment of such
defaulting *Sugarbush Inventory Advance Lender not
then being honored by such defaulting *Sugarbush
Inventory Advance Lender and, in any such case, the
*Sugarbush Inventory Advance Commitment of such
nondefaulting *Sugarbush Inventory Advance Lenders
and the *Sugarbush Inventory Advance Commitment of
such defaulting *Sugarbush Inventory Advance Lender
shall be appropriately adjusted to reflect such
assumption (if more than one nondefaulting *Sugarbush
Inventory Advance Lender shall desire to effect the
assumption referred to in this sentence, such
assumption shall be shared ratably among such
nondefaulting *Sugarbush Inventory Advance Lenders in
accordance with their respective *Sugarbush Inventory
Advance Commitments, as determined immediately prior
to such assumption) and new *Sugarbush Inventory
Advance Notes shall be issued in exchange for the
then outstanding *Sugarbush Inventory Advance Notes
to reflect such assumption.
(H) The *Sugarloaf Inventory Advance shall
be made by the *Sugarloaf Inventory Lenders
simultaneously and proportionately to their
respective Pro Rata Shares and in accordance with
their respective *Sugarloaf Inventory Advance
Commitments, it being understood that no *Sugarloaf
Inventory Advance Lender shall be responsible for any
default by any other *Sugarloaf Inventory Advance
Lender in that other Lender's obligation to make its
share of the *Sugarloaf Inventory Advance nor shall
the *Sugarloaf Inventory Advance Commitment of any
*Sugarloaf Inventory Advance Lender be increased or
decreased as a result of a default by any other
*Sugarloaf Inventory Advance Lender in that other
Lender's obligation to make its share of the
*Sugarloaf Inventory Advance, provided that any one
or more of the nondefaulting *Sugarloaf Inventory
Advance Lenders may, in their sole discretion and by
a written notice to GSRP, the Administrative Agent
and the defaulting *Sugarloaf Inventory Advance
Lender, elect to assume that portion of the
*Sugarloaf Inventory Advance Commitment of such
defaulting *Sugarloaf Inventory Advance Lender not
then being honored by such defaulting *Sugarloaf
Inventory Advance Lender and, in any such case, the
*Sugarloaf Inventory Advance Commitment of such
nondefaulting *Sugarloaf Inventory Advance Lenders
and the *Sugarloaf Inventory Advance Commitment of
such defaulting *Sugarloaf Inventory Advance Lender
shall be appropriately adjusted to reflect such
assumption (if more than one nondefaulting *Sugarloaf
Inventory Advance Lender shall desire to effect the
assumption referred to in this sentence, such
assumption shall be shared ratably among such
nondefaulting *Sugarloaf Inventory Advance Lenders in
accordance with their respective *Sugarloaf Inventory
Advance Commitments, as determined immediately prior
to such assumption) and new *Sugarloaf Inventory
Advance Notes shall be issued in exchange for the
then outstanding *Sugarloaf Inventory Advance Notes
to reflect such assumption.
(I) The Jordan Bowl Inventory Advance shall
be made by the Jordan Bowl Inventory Lenders
simultaneously and proportionately to their
respective Pro Rata Shares and in accordance with
their respective Jordan Bowl Inventory Advance
Commitments, it being understood that no Jordan Bowl
Inventory Advance Lender shall be responsible for any
default by any other Jordan Bowl Inventory Advance
Lender in that other Lender's obligation to make its
share of the Jordan Bowl Inventory Advance nor shall
the Jordan Bowl Inventory Advance Commitment of any
Jordan Bowl Inventory Advance Lender be increased or
decreased as a result of a default by any other
Jordan Bowl Inventory Advance Lender in that other
Lender's obligation to make its share of the Jordan
Bowl Inventory Advance, provided that any one or more
of the nondefaulting Jordan Bowl Inventory Advance
Lenders may, in their sole discretion and by a
written notice to GSRP, the Administrative Agent and
the defaulting Jordan Bowl Inventory Advance Lender,
elect to assume that portion of the Jordan Bowl
Inventory Advance Commitment of such defaulting
Jordan Bowl Inventory Advance Lender not then being
honored by such defaulting Jordan Bowl Inventory
Advance Lender and, in any such case, the Jordan Bowl
Inventory Advance Commitment of such nondefaulting
Jordan Bowl Inventory Advance Lenders and the Jordan
Bowl Inventory Advance Commitment of such defaulting
Jordan Bowl Inventory Advance Lender shall be
appropriately adjusted to reflect such assumption (if
more than one nondefaulting Jordan Bowl Inventory
Advance Lender shall desire to effect the assumption
referred to in this sentence, such assumption shall
be shared ratably among such nondefaulting Jordan
Bowl Inventory Advance Lenders in accordance with
their respective Jordan Bowl Inventory Advance
Commitments, as determined immediately prior to such
assumption) and new Jordan Bowl Inventory Advance
Notes shall be issued in exchange for the then
outstanding Jordan Bowl Inventory Advance Notes to
reflect such assumption.
(J) The Attitash Inventory Advance shall be
made by the Attitash Inventory Lenders simultaneously
and proportionately to their respective Pro Rata
Shares and in accordance with their respective
Attitash Inventory Advance Commitments, it being
understood that no Attitash Inventory Advance Lender
shall be responsible for any default by any other
Attitash Inventory Advance Lender in that other
Lender's obligation to make its share of the Attitash
Inventory Advance nor shall the Attitash Inventory
Advance Commitment of any Attitash Inventory Advance
Lender be increased or decreased as a result of a
default by any other Attitash Inventory Advance
Lender in that other Lender's obligation to make its
share of the Attitash Inventory Advance, provided
that any one or more of the nondefaulting Attitash
Inventory Advance Lenders may, in their sole
discretion and by a written notice to GSRP, the
Administrative Agent and the defaulting Attitash
Inventory Advance Lender, elect to assume that
portion of the Attitash Inventory Advance Commitment
of such defaulting Attitash Inventory Advance Lender
not then being honored by such defaulting Attitash
Inventory Advance Lender and, in any such case, the
Attitash Inventory Advance Commitment of such
nondefaulting Attitash Inventory Advance Lenders and
the Attitash Inventory Advance Commitment of such
defaulting Attitash Inventory Advance Lender shall be
appropriately adjusted to reflect such assumption (if
more than one nondefaulting Attitash Inventory
Advance Lender shall desire to effect the assumption
referred to in this sentence, such assumption shall
be shared ratably among such nondefaulting Attitash
Inventory Advance Lenders in accordance with their
respective Attitash Inventory Advance Commitments, as
determined immediately prior to such assumption) and
new Attitash Inventory Advance Notes shall be issued
in exchange for the then outstanding Attitash
Inventory Advance Notes to reflect such assumption.
(K) The Killington Inventory Advance shall
be made by the Killington Inventory Lenders
simultaneously and proportionately to their
respective Pro Rata Shares and in accordance with
their respective Killington Inventory Advance
Commitments, it being understood that no Killington
Inventory Advance Lender shall be responsible for any
default by any other Killington Inventory Advance
Lender in that other Lender's obligation to make its
share of the Killington Inventory Advance nor shall
the Killington Inventory Advance Commitment of any
Killington Inventory Advance Lender be increased or
decreased as a result of a default by any other
Killington Inventory Advance Lender in that other
Lender's obligation to make its share of the
Killington Inventory Advance, provided that any one
or more of the nondefaulting Killington Inventory
Advance Lenders may, in their sole discretion and by
a written notice to GSRP, the Administrative Agent
and the defaulting Killington Inventory Advance
Lender, elect to assume that portion of the
Killington Inventory Advance Commitment of such
defaulting Killington Inventory Advance Lender not
then being honored by such defaulting Killington
Inventory Advance Lender and, in any such case, the
Killington Inventory Advance Commitment of such
nondefaulting Killington Inventory Advance Lenders
and the Killington Inventory Advance Commitment of
such defaulting Killington Inventory Advance Lender
shall be appropriately adjusted to reflect such
assumption (if more than one nondefaulting Killington
Inventory Advance Lender shall desire to effect the
assumption referred to in this sentence, such
assumption shall be shared ratably among such
nondefaulting Killington Inventory Advance Lenders in
accordance with their respective Killington Inventory
Advance Commitments, as determined immediately prior
to such assumption) and new Killington Inventory
Advance Notes shall be issued in exchange for the
then outstanding Killington Inventory Advance Notes
to reflect such assumption.
(L) The Mt. Snow Inventory Advance shall be
made by the Mt. Snow Inventory Lenders simultaneously
and proportionately to their respective Pro Rata
Shares and in accordance with their respective Mt.
Snow Inventory Advance Commitments, it being
understood that no Mt. Snow Inventory Advance Lender
shall be responsible for any default by any other Mt.
Snow Inventory Advance Lender in that other Lender's
obligation to make its share of the Mt. Snow
Inventory Advance nor shall the Mt. Snow Inventory
Advance Commitment of any Mt. Snow Inventory Advance
Lender be increased or decreased as a result of a
default by any other Mt. Snow Inventory Advance
Lender in that other Lender's obligation to make its
share of the Mt. Snow Inventory Advance, provided
that any one or more of the nondefaulting Mt. Snow
Inventory Advance Lenders may, in their sole
discretion and by a written notice to GSRP, the
Administrative Agent and the defaulting Mt. Snow
Inventory Advance Lender, elect to assume that
portion of the Mt. Snow Inventory Advance Commitment
of such defaulting Mt. Snow Inventory Advance Lender
not then being honored by such defaulting Mt. Snow
Inventory Advance Lender and, in any such case, the
Mt. Snow Inventory Advance Commitment of such
nondefaulting Mt. Snow Inventory Advance Lenders and
the Mt. Snow Inventory Advance Commitment of such
defaulting Mt. Snow Inventory Advance Lender shall be
appropriately adjusted to reflect such assumption (if
more than one nondefaulting Mt. Snow Inventory
Advance Lender shall desire to effect the assumption
referred to in this sentence, such assumption shall
be shared ratably among such nondefaulting Mt. Snow
Inventory Advance Lenders in accordance with their
respective Mt. Snow Inventory Advance Commitments, as
determined immediately prior to such assumption) and
new Mt. Snow Inventory Advance Notes shall be issued
in exchange for the then outstanding Mt. Snow
Inventory Advance Notes to reflect such assumption.
(ii) Each Lender shall deliver the amount of each of
its Advances directly to the Administrative Agent on the
applicable Advance Date in respect thereof as provided for
herein.
(iii) Subject to the satisfaction of the conditions
precedent set forth in Section 6, 6A or 6B hereof, as the case
may be, the Administrative Agent shall (A) deliver the
proceeds of the Pro Rata Share of each Construction Project
Advance from each Construction Project Advance Lender
delivered to it in immediately available funds to GSRP on the
applicable Advance Date in immediately available funds as
provided for in Schedule 7 hereto and (B) deliver the proceeds
of the Pro Rata Share of each Inventory Advance from each
Inventory Advance Lender delivered to it in immediately
available funds to, in the case of Inventory Advances in
respect of the Construction Projects, the Construction Project
Advance Lenders whose Construction Project Advances and
Interest Advances are to be paid by such Inventory Advance
and, in the case of Inventory Advances in respect of the 1997
Projects, the lenders under LSA I. Unless the Administrative
Agent shall have been notified by a Lender prior to any
applicable Advance Date that such Lender does not intend to
make available to the Administrative Agent its Pro Rata Share
of the then applicable Construction Project Advance or
Inventory Advance in respect of such Advance Date, the
Administrative Agent may assume, for purposes of this clause
(iii), that such Lender will make such Pro Rata Share of such
Advance then requested available to the Administrative Agent
on the applicable Advance Date, and the Administrative Agent
may, in its sole discretion, but shall not be obligated to,
deliver to GSRP, as provided in clause (ii) above, the amount
of such Pro Rata Share of such Advance. If such Lender does
not in fact make such Pro Rata Share of such Construction
Project Advance available to the Administrative Agent on the
applicable Advance Date, the Administrative Agent shall be
entitled to recover such amount from such Lender together with
interest accrued thereon at the Interest Rate. If such Lender
shall not pay to the Administrative Agent such amount
(together with interest) forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent may promptly
inform, in writing, GSRP of such circumstances and GSRP shall
promptly repay or pay, as the case may be, such Pro Rata Share
of such Advance together with interest accrued thereon at the
Interest Rate for the period of time such Advance shall have
been outstanding. Nothing in this clause (iii) shall be deemed
to relieve any Lender from its obligations to fulfill its
Commitment hereunder and nothing in this clause (iii) shall be
deemed to relieve any nondefaulting Lender from its rights
under clause (i) above.
(b) Advances Generally.
(i) Other than as provided in Sections 2.5, 3.5 and
3.6 hereof, GSRP may not prepay the Loan. It is the intention
of GSRP and the Lenders that the Loan be available to GSRP in
a series of advances (including the Interest Advances, the
Construction Project Advances and Inventory Advances) to be
made during the Commitment Period, provided that GSRP and the
Lenders acknowledge that certain of the Lenders may have
extended commitments to GSRP only in respect of certain of the
Advances. GSRP may not re-borrow any amount of any Inventory
Advance that has been paid in whole or part. GSRP may not
re-borrow any amount of any Interest Advance that has been
paid. GSRP may re-borrow, in accordance with the terms and
conditions hereof, any Construction Project Advance that has
been paid except that no Construction Project Advance which is
a Final Construction Cost Advance may be re-borrowed and, with
respect to any Project, no Construction Project Advance in
respect of such Project made prior to the making of a Final
Construction Cost Advance in respect of such Project may be
reborrowed after the making of such Final Construction Cost
Advance.
(ii) The Loan shall be payable in the manner set
forth in Sections 2.4 and 2.5 of this Agreement. The Steamboat
Construction Project Advances and the Steamboat Interest
Advances shall be due and payable on the Steamboat
Construction Project Advances Maturity Date together with any
accrued interest thereon then remaining unpaid and any other
unpaid amounts outstanding hereunder and related to the
Steamboat Construction Project Advances; the Steamboat
Inventory Advance shall be due and payable on the Steamboat
Inventory Advance Maturity Date together with any accrued
interest thereon then remaining unpaid and any other unpaid
amounts outstanding hereunder and related to the Steamboat
Inventory Advance. The Canyons Construction Project Advances
and the Canyons Interest Advances shall be due and payable on
the Canyons Construction Project Advances Maturity Date
together with any accrued interest thereon then remaining
unpaid and any other unpaid amounts outstanding hereunder and
related to the Canyons Construction Project Advances; the
Canyons Inventory Advance shall be due and payable on the
Canyons Inventory Advance Maturity Date together with any
accrued interest thereon then remaining unpaid and any other
unpaid amounts outstanding hereunder and related to the
Canyons Inventory Advances. The *Sugarbush Construction
Project Advances and the *Sugarbush Interest Advances shall be
due and payable on the *Sugarbush Construction Project
Advances Maturity Date together with any accrued interest
thereon then remaining unpaid and any other unpaid amounts
outstanding hereunder and related to the *Sugarbush
Construction Project Advances; the *Sugarbush Inventory
Advance shall be due and payable on the *Sugarbush Inventory
Advance Maturity Date together with any accrued interest
thereon then remaining unpaid and any other unpaid amounts
outstanding hereunder and related to the *Sugarbush Inventory
Advance. The *Sugarloaf Construction Project Advances and the
*Sugarloaf Interest Advances shall be due and payable on the
*Sugarloaf Construction Project Advances Maturity Date
together with any accrued interest thereon then remaining
unpaid and any other unpaid amounts outstanding hereunder and
related to the *Sugarloaf Inventory Advance; the *Sugarloaf
Inventory Advance shall be due and payable on the *Sugarloaf
Inventory Advance Maturity Date together with any accrued
interest thereon then remaining unpaid and any other unpaid
amounts outstanding hereunder and related to the *Sugarloaf
Inventory Advance. The Jordan Bowl Inventory Advance shall be
due and payable on the Jordan Bowl Inventory Advance Maturity
Date together with any accrued interest thereon then remaining
unpaid and any other unpaid amounts outstanding hereunder and
related to the Jordan Bowl Inventory Advance. The Attitash
Inventory Advance shall be due and payable on the Attitash
Inventory Advance Maturity Date together with any accrued
interest thereon then remaining unpaid and any other unpaid
amounts outstanding hereunder and related to the Attitash
Inventory Advance. The Killington Inventory Advance shall be
due and payable on the Killington Inventory Advance Maturity
Date together with any accrued interest thereon then remaining
unpaid and any other unpaid amounts outstanding hereunder and
related to the Killington Inventory Advance. The Mt. Snow
Inventory Advance shall be due and payable on the Mt. Snow
Inventory Advance Maturity Date together with any accrued
interest thereon then remaining unpaid and any other unpaid
amounts outstanding hereunder and related to the Mt. Snow
Inventory Advance.
(iii) For the avoidance of doubt, no Lender shall be
obligated to make any Advance hereunder if, after giving
effect thereto, the maximum amount of such Lender's Loan
Exposure would be exceeded.
<PAGE>
2.4 ISSUANCE OF NOTE; INTEREST PAYMENTS
2.4 Issuance of Note; Interest Payments.
(a) Notes. GSRP shall authorize, issue and deliver the following:
(i) to each Steamboat Construction Project Advance
Lender a Steamboat Construction Project Advance Note (as
amended from time to time, a "Steamboat Construction Project
Advance Note," and, collectively, the "Steamboat Construction
Project Advance Notes"), substantially in the form attached to
this Agreement as Exhibit E-1, to evidence such Lender's Pro
Rata Share of the Steamboat Loan and in the original stated
principal amount of such Lender's Steamboat Construction
Project Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of each Steamboat Construction Project Advance
extended to GSRP hereunder,
(B) whether the Advance is a Steamboat
Interest Advance, and
(C) the date and amount of its Pro Rata
Share of each repayment of principal of each such
Advance and its Pro Rata Share of each payment of
interest on account of each such Advance.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Steamboat Construction
Project Advance, each Steamboat Interest Advance and the
Steamboat Loan as well as such Lender's Pro Rata Share of the
payment of interest accrued thereunder; provided, that the
failure to make any such record entry with respect to any such
Advance or any such payment shall not limit or otherwise
affect the obligations of GSRP to such Lender under this
Agreement, the Steamboat Construction Project Advance Note of
such Lender or any other Steamboat Security Document.
(ii) to each Canyons Construction Project Advance
Lender a Canyons Construction Project Advance Note (as amended
from time to time, a "Canyons Construction Project Advance
Note," and, collectively, the "Canyons Construction Project
Advance Notes"), substantially in the form attached to this
Agreement as Exhibit E-2, to evidence such Lender's Pro Rata
Share of the Canyons Loan and in the original stated principal
amount of such Lender's Canyons Construction Project Advance
Commitment. Each of the Lenders is hereby authorized by GSRP
to record (in good faith) in the manual or data processing
records of such Lender, or on the grid schedule annexed to the
Note of such Lender,
(A) the date and amount of its Pro Rata
Share of each Canyons Construction Project Advance
extended to GSRP hereunder,
(B) whether the Advance is a Canyons
Interest Advance, and
(C) the date and amount of its Pro Rata
Share of each repayment of principal of each such
Advance and its Pro Rata Share of each payment of
interest on account of each such Advance.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Canyons Construction
Project Advance, each Canyons Interest Advance and the Canyons
Loan as well as such Lender's Pro Rata Share of the payment of
interest accrued thereunder; provided, that the failure to
make any such record entry with respect to any such Advance or
any such payment shall not limit or otherwise affect the
obligations of GSRP to such Lender under this Agreement, the
Canyons Construction Project Advance Note of such Lender or
any other Canyons Security Document.
(iii) to each *Sugarbush Construction Project Advance
Lender a *Sugarbush Project Advance Note (as amended from time
to time, a "*Sugarbush Construction Project Advance Note,"
and, collectively, the "*Sugarbush Construction Project
Advance Notes"), substantially in the form attached to this
Agreement as Exhibit E-3, to evidence such Lender's Pro Rata
Share of the *Sugarbush Loan and in the original stated
principal amount of such Lender's *Sugarbush Construction
Project Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of each *Sugarbush Construction Project Advance
extended to GSRP hereunder,
(B) whether the Advance is a *Sugarbush
Interest Advance, and
(C) the date and amount of its Pro Rata
Share of each repayment of principal of each such
Advance and its Pro Rata Share of each payment of
interest on account of each such Advance.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each *Sugarbush Construction
Project Advance, each *Sugarbush Interest Advance and the
*Sugarbush Loan as well as such Lender's Pro Rata Share of the
payment of interest accrued thereunder; provided, that the
failure to make any such record entry with respect to any such
Advance or any such payment shall not limit or otherwise
affect the obligations of GSRP to such Lender under this
Agreement, the *Sugarbush Construction Project Advance Note of
such Lender or any other *Sugarbush Security Document.
(iv) to each *Sugarloaf Construction Project Advance
Lender a *Sugarloaf Construction Project Advance Note (as
amended from time to time, a "*Sugarloaf Construction Project
Advance Note," and, collectively, the "*Sugarloaf Construction
Project Advance Notes"), substantially in the form attached to
this Agreement as Exhibit E-4, to evidence such Lender's Pro
Rata Share of the *Sugarloaf Loan and in the original stated
principal amount of such Lender's *Sugarloaf Construction
Project Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of each *Sugarloaf Construction Project Advance
extended to GSRP hereunder,
(B) whether the Advance is a *Sugarloaf
Interest Advance, and
(C) the date and amount of its Pro Rata
Share of each repayment of principal of each such
Advance and its Pro Rata Share of each payment of
interest on account of each such Advance.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each *Sugarloaf Construction
Project Advance, each *Sugarloaf Interest Advance and the
*Sugarloaf Loan as well as such Lender's Pro Rata Share of the
payment of interest accrued thereunder; provided, that the
failure to make any such record entry with respect to any such
Advance or any such payment shall not limit or otherwise
affect the obligations of GSRP to such Lender under this
Agreement, the *Sugarloaf Construction Project Advance Note of
such Lender or any other *Sugarloaf Security Document.
(v) to each Steamboat Inventory Advance Lender a
Steamboat Inventory Advance Note (as amended from time to
time, a "Steamboat Inventory Advance Note," and, collectively,
the "Steamboat Inventory Advance Notes"), substantially in the
form attached to this Agreement as Exhibit E-5, to evidence
such Lender's Pro Rata Share of the Steamboat Inventory
Advance and Steamboat Loan and in the original stated
principal amount of such Lender's Steamboat Inventory Advance
Commitment. Each of the Lenders is hereby authorized by GSRP
to record (in good faith) in the manual or data processing
records of such Lender, or on the grid schedule annexed to the
Note of such Lender,
(A) the date and amount of its Pro Rata
Share of the Steamboat Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the Steamboat
Inventory Advance and its Pro Rata Share of each
payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Steamboat Inventory
Advance and the Steamboat Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the Steamboat Inventory Advance or any such payment
shall not limit or otherwise affect the obligations of GSRP to
such Lender under this Agreement, the Steamboat Inventory
Advance Note of such Lender or any other Steamboat Security
Document.
(vi) to each Canyons Inventory Advance Lender a
Canyons Inventory Advance Note (as amended from time to time,
a "Canyons Inventory Advance Note," and, collectively, the
"Canyons Inventory Advance Notes"), substantially in the form
attached to this Agreement as Exhibit E-6, to evidence such
Lender's Pro Rata Share of the Canyons Inventory Advance and
Canyons Loan and in the original stated principal amount of
such Lender's Canyons Inventory Advance Commitment. Each of
the Lenders is hereby authorized by GSRP to record (in good
faith) in the manual or data processing records of such
Lender, or on the grid schedule annexed to the Note of such
Lender,
(A) the date and amount of its Pro Rata
Share of the Canyons Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the Canyons
Inventory Advance and its Pro Rata Share of each
payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Canyons Inventory Advance
and the Canyons Loan as well as such Lender's Pro Rata Share
of the payment of interest accrued thereunder; provided, that
the failure to make any such record entry with respect to the
Canyons Inventory Advance or any such payment shall not limit
or otherwise affect the obligations of GSRP to such Lender
under this Agreement, the Canyons Inventory Advance Note of
such Lender or any other Canyons Security Document.
(vii) to each *Sugarbush Inventory Advance Lender a
*Sugarbush Inventory Advance Note (as amended from time to
time, a "*Sugarbush Inventory Advance Note," and,
collectively, the "*Sugarbush Inventory Advance Notes"),
substantially in the form attached to this Agreement as
Exhibit E-7, to evidence such Lender's Pro Rata Share of the
*Sugarbush Inventory Advance and *Sugarbush Loan and in the
original stated principal amount of such Lender's *Sugarbush
Inventory Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of the *Sugarbush Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the
*Sugarbush Inventory Advance and its Pro Rata Share
of each payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each *Sugarbush Inventory
Advance and the *Sugarbush Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the *Sugarbush Inventory Advance or any such
payment shall not limit or otherwise affect the obligations of
GSRP to such Lender under this Agreement, the *Sugarbush
Inventory Advance Note of such Lender or any other *Sugarbush
Security Document.
(viii) to each *Sugarloaf Inventory Advance Lender a
*Sugarloaf Inventory Advance Note (as amended from time to
time, a "*Sugarloaf Inventory Advance Note," and,
collectively, the "*Sugarloaf Inventory Advance Notes"),
substantially in the form attached to this Agreement as
Exhibit E-8, to evidence such Lender's Pro Rata Share of the
*Sugarloaf Inventory Advance and *Sugarloaf Loan and in the
original stated principal amount of such Lender's *Sugarloaf
Inventory Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of the *Sugarloaf Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the
*Sugarloaf Inventory Advance and its Pro Rata Share
of each payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each *Sugarloaf Inventory
Advance and the *Sugarloaf Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the *Sugarloaf Inventory Advance or any such
payment shall not limit or otherwise affect the obligations of
GSRP to such Lender under this Agreement, the *Sugarloaf
Inventory Advance Note of such Lender or any other *Sugarloaf
Security Document.
(ix) to each Jordan Bowl Inventory Advance Lender a
Jordan Bowl Inventory Advance Note (as amended from time to
time, a "Jordan Bowl Inventory Advance Note," and,
collectively, the "Jordan Bowl Inventory Advance Notes"),
substantially in the form attached to this Agreement as
Exhibit E-9, to evidence such Lender's Pro Rata Share of the
Jordan Bowl Inventory Advance and Jordan Bowl Loan and in the
original stated principal amount of such Lender's Jordan Bowl
Inventory Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of the Jordan Bowl Inventory Advance extended
to GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the Jordan
Bowl Inventory Advance and its Pro Rata Share of each
payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Jordan Bowl Inventory
Advance and the Jordan Bowl Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the Jordan Bowl Inventory Advance or any such
payment shall not limit or otherwise affect the obligations of
GSRP to such Lender under this Agreement, the Jordan Bowl
Inventory Advance Note of such Lender or any other Jordan Bowl
Security Document.
(x) to each Attitash Inventory Advance Lender a
Attitash Inventory Advance Note (as amended from time to time,
a "Attitash Inventory Advance Note," and, collectively, the
"Attitash Inventory Advance Notes"), substantially in the form
attached to this Agreement as Exhibit E-10, to evidence such
Lender's Pro Rata Share of the Attitash Inventory Advance and
Attitash Loan and in the original stated principal amount of
such Lender's Attitash Inventory Advance Commitment. Each of
the Lenders is hereby authorized by GSRP to record (in good
faith) in the manual or data processing records of such
Lender, or on the grid schedule annexed to the Note of such
Lender,
(A) the date and amount of its Pro Rata
Share of the Attitash Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the Attitash
Inventory Advance and its Pro Rata Share of each
payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Attitash Inventory
Advance and the Attitash Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the Attitash Inventory Advance or any such payment
shall not limit or otherwise affect the obligations of GSRP to
such Lender under this Agreement, the Attitash Inventory
Advance Note of such Lender or any other Attitash Security
Document.
(xi) to each Killington Inventory Advance Lender a
Killington Inventory Advance Note (as amended from time to
time, a "Killington Inventory Advance Note," and,
collectively, the "Killington Inventory Advance Notes"),
substantially in the form attached to this Agreement as
Exhibit E-11, to evidence such Lender's Pro Rata Share of the
Killington Inventory Advance and Killington Loan and in the
original stated principal amount of such Lender's Killington
Inventory Advance Commitment. Each of the Lenders is hereby
authorized by GSRP to record (in good faith) in the manual or
data processing records of such Lender, or on the grid
schedule annexed to the Note of such Lender,
(A) the date and amount of its Pro Rata
Share of the Killington Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the
Killington Inventory Advance and its Pro Rata Share
of each payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Killington Inventory
Advance and the Killington Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the Killington Inventory Advance or any such
payment shall not limit or otherwise affect the obligations of
GSRP to such Lender under this Agreement, the Killington
Inventory Advance Note of such Lender or any other Killington
Security Document.
(xii) to each Mt. Snow Inventory Advance Lender a Mt.
Snow Inventory Advance Note (as amended from time to time, a
"Mt. Snow Inventory Advance Note," and, collectively, the "Mt.
Snow Inventory Advance Notes"), substantially in the form
attached to this Agreement as Exhibit E-12, to evidence such
Lender's Pro Rata Share of the Mt. Snow Inventory Advance and
Mt. Snow Loan and in the original stated principal amount of
such Lender's Mt. Snow Inventory Advance Commitment. Each of
the Lenders is hereby authorized by GSRP to record (in good
faith) in the manual or data processing records of such
Lender, or on the grid schedule annexed to the Note of such
Lender,
(A) the date and amount of its Pro Rata
Share of the Mt. Snow Inventory Advance extended to
GSRP hereunder, and
(B) the date and amount of its Pro Rata
Share of each repayment of principal of the Mt. Snow
Inventory Advance and its Pro Rata Share of each
payment of interest on account thereof.
In the absence of manifest error, such records and schedule
shall be conclusive as to such Lender's Pro Rata Share of the
outstanding principal amount of each Mt. Snow Inventory
Advance and the Mt. Snow Loan as well as such Lender's Pro
Rata Share of the payment of interest accrued thereunder;
provided, that the failure to make any such record entry with
respect to the Mt. Snow Inventory Advance or any such payment
shall not limit or otherwise affect the obligations of GSRP to
such Lender under this Agreement, the Mt. Snow Inventory
Advance Note of such Lender or any other Mt. Snow Security
Document.
(b) Assumptions as to Holders. the Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until an assignment agreement effecting the
assignment or transfer thereof shall have been accepted by the
Administrative Agent as provided in Section 2.6(b) hereof. Any request,
authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note
shall be conclusive and binding on any subsequent holder, assignee or
transferee of that Note or of any Note or Notes issued in exchange
therefor.
(c) Interest Payments.
(i) Interest shall accrue on the Steamboat Loan, the
Canyons Loan, the *Sugarbush Loan, the *Sugarloaf Loan, the
Jordan Bowl Loan, the Attitash Loan, the Killington Loan and
the Mt. Snow Loan, as more particularly provided for in this
clause (c), and shall be due and payable monthly in arrears on
the 10th day of the month following the month in respect of
which such interest accrued, provided that all accrued and
unpaid interest on any Maturity Date shall be due on such
Maturity Date. Subject to the accrual of interest on the
Steamboat Loan, the Canyons Loan, the *Sugarbush Loan, the
*Sugarloaf Loan, the Jordan Bowl Loan, the Attitash Loan, the
Killington Loan and the Mt. Snow Loan after the occurrence of
a Default or Event of Default with respect thereto, as more
particularly provided in this clause (c), the Monthly Average
Weighted Loan Balance in respect of each of such Loans for
each calendar month shall bear interest at a rate per annum
equal to the Interest Rate. Interest shall be calculated on
the basis of actual days elapsed over a period of a 360 day
year.
(ii) Each Lender's Pro Rata Share of an Advance shall
bear interest as of the date of such Lender's wiring of funds
thereof, in the case, of a Construction Project Advance or an
Inventory Advance and as otherwise provided under Section
2.4(c) with respect to an Interest Advance through the date of
the receipt by such Lender of the repayment thereof (if the
repayment of all or any portion of such Lender's Pro Rata
Share of the principal amount thereof is received by the
Administrative Agent later than 12:00 pm, Eastern time, then
interest accrual thereon shall be through the next Business
Day following such receipt). After the occurrence of an Event
of Default or after the applicable Maturity Date (if the
applicable outstanding principal balance of the Loan and any
other sums due under any Security Document is not paid in full
on such Maturity Date), each Lender's Pro Rata Share of such
aggregate outstanding principal balance of the Loan will bear
interest at the Default Rate.
(iii) (A) GSRP hereby requests the Steamboat
Construction Project Advance Lenders (such request to
be deemed a standing request unless rescinded in
writing by GSRP), and hereby authorizes the Steamboat
Construction Project Advance Lenders, to make an
advance (each such advance to be made by the
Steamboat Construction Project Advance Lenders is
referred to herein as a "Steamboat Interest Advance")
to it on the 10th day of each calendar month during
the Steamboat Commitment Period in an amount equal to
the lesser of (y) the amount of accrued interest due
and payable on such day to the Steamboat Construction
Project Advance Lenders in respect of the Steamboat
Loan and (z) an amount, which when added to the
aggregate outstanding principal amounts of all prior
Steamboat Construction Project Advances and Steamboat
Interest Advances would not exceed the Steamboat
Construction Project Borrowing Base, and the
Steamboat Construction Project Advance Lenders agree,
subject only to the lack of existence of a Default or
Event of Default, to extend their respective Pro Rata
Shares of each such Steamboat Interest Advance to
GSRP, provided that all of the proceeds of each such
Pro Rata Share shall be used by the Steamboat
Construction Project Advance Lender related to such
Pro Rata Share for the sole purpose of satisfying (in
whole or part, as the case may be) the accrued
interest due and payable on such 10th day of such
month and GSRP hereby irrevocably authorizes and
instructs such use. To the extent that the amount of
any such Steamboat Interest Advance is insufficient
to pay in full the amount of such interest due and
payable on such 10th day of such month or no such
Steamboat Interest Advance is made, GSRP shall pay,
on such 10th day, the balance of interest due and
payable on such 10th day. In connection with any such
Steamboat Interest Advance, GSRP shall deliver 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 date of such
Steamboat Interest Advance, all exclusions and/or
exceptions not satisfactory to the Administrative
Agent shall have been removed or appropriate
endorsements in respect thereof shall have been
obtained; such Title Insurance Policy {Blanket} shall
be in an amount not less than the sum of the
principal amount of the Steamboat Loan outstanding
after giving effect to such Steamboat Interest
Advance. All premiums in respect of such endorsement
to such Title Insurance Policy {Blanket} shall have
been paid in full and evidence thereof shall have
been delivered to the Administrative Agent. No
Steamboat Inventory Advance Lender shall be obligated
to make any Steamboat Interest Advance.
(B) GSRP hereby requests the Canyons
Construction Project Advance Lenders (such request to
be deemed a standing request unless rescinded in
writing by GSRP), and hereby authorizes the Canyons
Construction Project Advance Lenders, to make an
advance (each such advance to be made by the Canyons
Construction Project Advance Lenders is referred to
herein as a "Canyons Interest Advance") to it on the
10th day of each calendar month during the Canyons
Commitment Period in an amount equal to the lesser of
(y) the amount of accrued interest due and payable on
such day to the Canyons Construction Project Advance
Lenders in respect of the Canyons Loan and (z) an
amount, which when added to the aggregate outstanding
principal amounts of all prior Canyons Construction
Project Advances and Canyons Interest Advances would
not exceed the Canyons Construction Project Borrowing
Base, and the Canyons Construction Project Advance
Lenders agree, subject only to the lack of existence
of a Default or Event of Default, to extend their
respective Pro Rata Shares of each such Canyons
Interest Advance to GSRP, provided that all of the
proceeds of each such Pro Rata Share shall be used by
the Canyons Construction Project Advance Lender
related to such Pro Rata Share for the sole purpose
of satisfying (in whole or part, as the case may be)
the accrued interest due and payable on such 10th day
of such month and GSRP hereby irrevocably authorizes
and instructs such use. To the extent that the amount
of any such Canyons Interest Advance is insufficient
to pay in full the amount of such interest due and
payable on such 10th day of such month or no such
Canyons Interest Advance is made, GSRP shall pay, on
such 10th day, the balance of interest due and
payable on such 10th day. In connection with any such
Canyons Interest Advance, GSRP shall deliver to the
Administrative Agent title insurance endorsements to
the Title Insurance Policy {Blanket} in respect of
the Canyons Project in form and substance reasonably
satisfactory to the Administrative Agent whereby the
effective date of such Title Insurance Policy
{Blanket} shall be made the date of such Canyons
Interest Advance, all exclusions and/or exceptions
not satisfactory to the Administrative Agent shall
have been removed or appropriate endorsements in
respect thereof shall have been obtained; such Title
Insurance Policy {Blanket} shall be in an amount not
less than the sum of the principal amount of the
Canyons Loan outstanding after giving effect to such
Canyons Interest Advance. All premiums in respect of
such endorsement to such Title Insurance Policy
{Blanket} shall have been paid in full and evidence
thereof shall have been delivered to the
Administrative Agent. No Canyons Inventory Advance
Lender shall be obligated to make any Canyons
Interest Advance.
(C) GSRP hereby requests the *Sugarbush
Construction Project Advance Lenders (such request to
be deemed a standing request unless rescinded in
writing by GSRP), and hereby authorizes the
*Sugarbush Construction Project Advance Lenders, to
make an advance (each such advance to be made by the
*Sugarbush Construction Project Advance Lenders is
referred to herein as a "*Sugarbush Interest
Advance") to it on the 10th day of each calendar
month during the *Sugarbush Commitment Period in an
amount equal to the lesser of (y) the amount of
accrued interest due and payable on such day to the
*Sugarbush Construction Project Advance Lenders in
respect of the *Sugarbush Loan and (z) an amount,
which when added to the aggregate outstanding
principal amounts of all prior *Sugarbush
Construction Project Advances and *Sugarbush Interest
Advances would not exceed the *Sugarbush Construction
Project Borrowing Base, and the *Sugarbush
Construction Project Advance Lenders agree, subject
only to the lack of existence of a Default or Event
of Default, to extend their respective Pro Rata
Shares of each such *Sugarbush Interest Advance to
GSRP, provided that all of the proceeds of each such
Pro Rata Share shall be used by the *Sugarbush
Construction Project Advance Lender related to such
Pro Rata Share for the sole purpose of satisfying (in
whole or part, as the case may be) the accrued
interest due and payable on such 10th day of such
month and GSRP hereby irrevocably authorizes and
instructs such use. To the extent that the amount of
any such *Sugarbush Interest Advance is insufficient
to pay in full the amount of such interest due and
payable on such 10th day of such month or no such
*Sugarbush Interest Advance is made, GSRP shall pay,
on such 10th day, the balance of interest due and
payable on such 10th day. In connection with any such
*Sugarbush Interest Advance, GSRP shall deliver to
the Administrative Agent title insurance endorsements
to the Title Insurance Policy {Blanket} in respect of
the *Sugarbush Project in form and substance
reasonably satisfactory to the Administrative Agent
whereby the effective date of such Title Insurance
Policy {Blanket} shall be made the date of such
*Sugarbush Interest Advance, all exclusions and/or
exceptions not satisfactory to the Administrative
Agent shall have been removed or appropriate
endorsements in respect thereof shall have been
obtained; such Title Insurance Policy {Blanket} shall
be in an amount not less than the sum of the
principal amount of the *Sugarbush Loan outstanding
after giving effect to such *Sugarbush Interest
Advance. All premiums in respect of such endorsement
to such Title Insurance Policy {Blanket} shall have
been paid in full and evidence thereof shall have
been delivered to the Administrative Agent. No
*Sugarbush Inventory Advance Lender shall be
obligated to make any *Sugarbush Interest Advance.
(D) GSRP hereby requests the *Sugarloaf
Construction Project Advance Lenders (such request to
be deemed a standing request unless rescinded in
writing by GSRP), and hereby authorizes the
*Sugarloaf Construction Project Advance Lenders, to
make an advance (each such advance to be made by the
*Sugarloaf Construction Project Advance Lenders is
referred to herein as a "*Sugarloaf Interest
Advance") to it on the 10th day of each calendar
month during the *Sugarloaf Commitment Period in an
amount equal to the lesser of (y) the amount of
accrued interest due and payable on such day to the
*Sugarloaf Construction Project Advance Lenders in
respect of the *Sugarloaf Loan and (z) an amount,
which when added to the aggregate outstanding
principal amounts of all prior *Sugarloaf
Construction Project Advances and *Sugarloaf Interest
Advances would not exceed the *Sugarloaf Construction
Project Borrowing Base, and the *Sugarloaf
Construction Project Advance Lenders agree, subject
only to the lack of existence of a Default or Event
of Default, to extend their respective Pro Rata
Shares of each such *Sugarloaf Interest Advance to
GSRP, provided that all of the proceeds of each such
Pro Rata Share shall be used by the *Sugarloaf
Construction Project Advance Lender related to such
Pro Rata Share for the sole purpose of satisfying (in
whole or part, as the case may be) the accrued
interest due and payable on such 10th day of such
month and GSRP hereby irrevocably authorizes and
instructs such use. To the extent that the amount of
any such *Sugarloaf Interest Advance is insufficient
to pay in full the amount of such interest due and
payable on such 10th day of such month or no such
*Sugarloaf Interest Advance is made, GSRP shall pay,
on such 10th day, the balance of interest due and
payable on such 10th day. In connection with any such
*Sugarloaf Interest Advance, GSRP shall deliver to
the Administrative Agent title insurance endorsements
to the Title Insurance Policy {Blanket} in respect of
the *Sugarloaf Project in form and substance
reasonably satisfactory to the Administrative Agent
whereby the effective date of such Title Insurance
Policy {Blanket} shall be made the date of such
*Sugarloaf Interest Advance, all exclusions and/or
exceptions not satisfactory to the Administrative
Agent shall have been removed or appropriate
endorsements in respect thereof shall have been
obtained; such Title Insurance Policy {Blanket} shall
be in an amount not less than the sum of the
principal amount of the *Sugarloaf Loan outstanding
after giving effect to such *Sugarloaf Interest
Advance. All premiums in respect of such endorsement
to such Title Insurance Policy {Blanket} shall have
been paid in full and evidence thereof shall have
been delivered to the Administrative Agent. No
*Sugarloaf Inventory Advance Lender shall be
obligated to make any *Sugarloaf Interest Advance.
(iv) GSRP and each Lender intend to comply at all
times with applicable usury laws. All agreements between GSRP
and such Lender, whether now existing or hereafter arising and
whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of
the maturity of any Note or otherwise, shall the interest
contracted for, charged, received, paid or agreed to be paid
to such Lender exceed the maximum amount permissible under
applicable law (the "Maximum Rate"). Each Lender may, in
determining the Maximum Rate in effect from time to time, take
advantage of any law, rule or regulation in effect from time
to time available to such Lender which exempts such Lender
from any limit upon the rate of interest it may charge or
grants to such Lender the right to charge a higher rate of
interest than that otherwise permitted by applicable law. If,
from any circumstance whatsoever, interest would otherwise be
payable to a Lender in excess of the Maximum Rate, the
interest payable to such Lender shall be reduced to the
Maximum Rate; and if from any circumstance such Lender shall
ever receive anything of value deemed interest by applicable
law in excess of the Maximum Rate, an amount equal to any
excessive interest shall be applied to the reduction of the
principal of the Pro Rata Share of the Steamboat Loan, the
Canyons Loan, the *Sugarbush Loan, the *Sugarloaf Loan, the
Jordan Bowl Loan, the Attitash Loan, the Killington Loan
and/or the Mt. Snow Loan allocable to such Lender hereunder,
as the case may be, and not to the payment of interest, or if
such excessive interest exceeds the unpaid balance of
principal of such Pro Rata Share of such Loan or Loans, such
excess shall be refunded to GSRP by such Lender. All interest
paid or agreed to be paid to a Lender shall, to the extent
permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full period until payment in full of
the principal so that the interest on the portion of the Loan
allocable to such Lender for such full period shall not exceed
the Maximum Rate for such Lender. GSRP agrees that in
determining whether or not any interest payment under the
Security Documents exceeds the Maximum Rate for a Lender, any
non-principal payment (except payments specifically described
in the Security Documents as "interest") including without
limitation, fees and late charges, shall to the maximum extent
not prohibited by law, be an expense, fee or premium rather
than interest in respect of such Lender. Each Lender hereby
expressly disclaims any intent to contract for, charge or
receive interest in an amount which exceeds the Maximum Rate
for such Lender. The provisions of this Agreement, the Notes,
and all other Security Documents are hereby modified to the
extent necessary to conform with the limitations and
provisions of this paragraph, and this paragraph shall govern
over all other provisions in any document or agreement now or
hereafter existing. This paragraph shall never be superseded
or waived unless there is a written document executed by each
Lender and GSRP, expressly declaring the usury limitation set
forth in this paragraph to be null and void, and no other
method or language shall be effective to supersede or waive
this paragraph.
(d) Interest and Other Payments Due on Holidays. If any
payment due on, or with respect to, this Agreement, the Notes or any
other Security Document shall fall due on a day other than a Business
Day, then such payment shall be made on the 1st Business Day following
the day on which such payment shall have so fallen due; provided that
if all or any portion of such payment shall consist of a payment of
interest, for purposes of calculating such interest, such payment shall
be deemed to have been originally due on such first following Business
Day, and such interest shall accrue and be payable to (but not
including, subject to clause (e) below) the actual date of payment.
(e) Application of Payments Received after 12:00 pm.
(i) Any payment to be made to the Administrative
Agent and actually received by the Administrative Agent at or
before 12:00 p.m. Eastern time, by federal funds wire transfer
on any Business Day, shall be deemed to have been received by
the Administrative Agent on such day. Any payment actually
received by the Administrative Agent after 12:00 p.m. Eastern
time, by federal funds wire transfer on any Business Day,
shall be deemed to have been received on the next following
Business Day. All payments received by the Administrative
Agent on a day other than a Business Day, or in a manner other
than by federal funds wire transfer, shall be deemed to have
been received by such Person on the Business Day such amounts
actually become available to such Person prior to 12:00 p.m.
Eastern time in immediately available funds.
(ii) All payments from GSRP to the Administrative
Agent or any Lender shall be by means of federal funds wire
transfer as set forth in Schedule 7 hereto (or as otherwise
instructed in a writing from the Administrative Agent or such
Lender to GSRP and delivered to GSRP not less than 2 Business
Days prior to any date of any payment that is to be subject to
such new instructions).
(iii) All payments from the Administrative Agent to
GSRP or any Lender shall be by means of federal funds wire
transfer as set forth in Schedule 7 hereto (or as otherwise
instructed in a writing from GSRP or such Lender and delivered
to the Administrative Agent not less than 2 Business Days
prior to any date of any payment that is to be subject to such
new instructions).
(f) No Defenses. All payments by GSRP of principal, interest,
fees and other Obligations hereunder and under the other Security
Documents shall be made without defense, setoff or counterclaim and
free of any restriction or condition.
(g) Payments Pro Rata. For the avoidance of doubt, aggregate
principal and interest payments hereunder in respect of the Steamboat
Construction Project Advances and under the Steamboat Construction
Project Advance Notes shall be apportioned such that each Steamboat
Construction Project Advance Lender receives its Pro Rata Share
thereof. For the avoidance of doubt, aggregate principal and interest
payments hereunder in respect of the Canyons Construction Project
Advances and under the Canyons Construction Project Advance Notes shall
be apportioned such that each Canyons Construction Project Advance
Lender receives its Pro Rata Share thereof. For the avoidance of doubt,
aggregate principal and interest payments hereunder in respect of the
*Sugarbush Construction Project Advances and under the *Sugarbush
Construction Project Advance Notes shall be apportioned such that each
*Sugarbush Construction Project Advance Lender receives its Pro Rata
Share thereof. For the avoidance of doubt, aggregate principal and
interest payments hereunder in respect of the *Sugarloaf Construction
Project Advances and under the *Sugarloaf Construction Project Advance
Notes shall be apportioned such that each *Sugarloaf Construction
Project Advance Lender receives its Pro Rata Share thereof. For the
avoidance of doubt, aggregate principal and interest payments hereunder
in respect of the Steamboat Inventory Advance and under the Steamboat
Inventory Advance Notes shall be apportioned such that each Steamboat
Inventory Advance Lender receives its Pro Rata Share thereof. For the
avoidance of doubt, aggregate principal and interest payments hereunder
in respect of the Canyons Inventory Advance and under the Canyons
Inventory Advance Notes shall be apportioned such that each Canyons
Inventory Advance Lender receives its Pro Rata Share thereof. For the
avoidance of doubt, aggregate principal and interest payments hereunder
in respect of the *Sugarbush Inventory Advance and under the *Sugarbush
Inventory Advance Notes shall be apportioned such that each *Sugarbush
Inventory Advance Lender receives its Pro Rata Share thereof. For the
avoidance of doubt, aggregate principal and interest payments hereunder
in respect of the *Sugarloaf Inventory Advance and under the *Sugarloaf
Inventory Advance Notes shall be apportioned such that each *Sugarloaf
Inventory Advance Lender receives its Pro Rata Share thereof. For the
avoidance of doubt, aggregate principal and interest payments hereunder
in respect of the Jordan Bowl Inventory Advance and under the Jordan
Bowl Inventory Advance Notes shall be apportioned such that each Jordan
Bowl Inventory Advance Lender receives its Pro Rata Share thereof. For
the avoidance of doubt, aggregate principal and interest payments
hereunder in respect of the Attitash Inventory Advance and under the
Attitash Inventory Advance Notes shall be apportioned such that each
Attitash Inventory Advance Lender receives its Pro Rata Share thereof.
For the avoidance of doubt, aggregate principal and interest payments
hereunder in respect of the Killington Inventory Advance and under the
Killington Inventory Advance Notes shall be apportioned such that each
Killington Inventory Advance Lender receives its Pro Rata Share
thereof. For the avoidance of doubt, aggregate principal and interest
payments hereunder in respect of the Mt. Snow Inventory Advance and
under the Mt. Snow Inventory Advance Notes shall be apportioned such
that each Mt. Snow Inventory Advance Lender receives its Pro Rata Share
thereof.
(h) Payments to the Administrative Agent. For the avoidance of
doubt, GSRP shall make all payments hereunder to the Administrative
Agent for distribution to the Lenders as provided for herein.
<PAGE>
2.5 COLLECTIONS; SALES PROCEEDS; REQUIRED PAYMENTS; VOLUNTARY
PREPAYMENTS OF THE LOAN 124
2.5 Collections; Sales Proceeds; Required Payments; Voluntary
Prepayments of the Loan.
(a) Host Company Lease Agreements Payments.
(i) GSRP shall direct or otherwise cause the
Steamboat Host Company to make all payments under the
Steamboat Host Company Lease Agreement (including, without
limitation, all Monthly Rental Amounts in respect thereof) to
the Administrative Agent. For the avoidance of doubt, GSRP
shall, on or before the tenth (10th) day of each month, cause
the Steamboat Host Company to make each payment in respect of
the Monthly Rental Amount that accrued in respect of the
immediately preceding month to the Administrative Agent. All
such payments in respect of Monthly Rental Amounts delivered
to the Administrative Agent shall be in good, collected funds
in legal tender of the United States of America and shall be
applied as set forth in Section 2.5(d) hereof, provided that,
as set forth in said Section and for the avoidance of doubt,
its first use shall be to the servicing and/or payment of the
Steamboat Loan and the other amounts owing hereunder in
respect of the Steamboat Project, provided further that, if a
Default or an Event of Default shall then exist, all such
payments shall be applied pursuant to Section 2.5(d) or
Section 8.2(c) of this Agreement, whichever shall be
applicable, but, in any case and for the avoidance of doubt,
such application shall be first to the servicing and/or
payment of the Steamboat Loan and the other amounts owing
hereunder in respect of the Steamboat Project. If any payment
under a Steamboat Host Company Lease Agreement (other than a
Monthly Rental Amount) is delivered to the Administrative
Agent, then such payment shall be treated as a prepayment
under Section 2.5(e), to the extent permitted thereunder, and
applied to the Steamboat Loan on a priority basis in
accordance with such Section; otherwise such payment shall be
deposited into the Cash Collateral Account.
(ii) GSRP shall direct or otherwise cause the Canyons
Host Company to make all payments under the Canyons Host
Company Lease Agreement (including, without limitation, all
Monthly Rental Amounts in respect thereof) to the
Administrative Agent. For the avoidance of doubt, GSRP shall,
on or before the tenth (10th) day of each month, cause the
Canyons Host Company to make each payment in respect of the
Monthly Rental Amount that accrued in respect of the
immediately preceding month to the Administrative Agent. All
such payments in respect of Monthly Rental Amounts delivered
to the Administrative Agent shall be in good, collected funds
in legal tender of the United States of America and shall be
applied as set forth in Section 2.5(d) hereof, provided that,
as set forth in said Section and for the avoidance of doubt,
its first use shall be to the servicing and/or payment of the
Canyons Loan and the other amounts owing hereunder in respect
of the Canyons Project, provided further that, if a Default or
an Event of Default shall then exist, all such payments shall
be applied pursuant to Section 2.5(d) or Section 8.2(c) of
this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, such application shall always
be first to the servicing and/or payment of the Canyons Loan
and the other amounts owing hereunder in respect of the
Canyons Project. If any payment under a Canyons Host Company
Lease Agreement (other than a Monthly Rental Amount) is
delivered to the Administrative Agent, then such payment shall
be treated as a prepayment under Section 2.5(e), to the extent
permitted thereunder, and applied to the Canyons Loan on a
priority basis in accordance with such Section; otherwise such
payment shall be deposited into the Cash Collateral Account.
(iii) GSRP shall direct or otherwise cause the
*Sugarbush Host Company to make all payments under the
*Sugarbush Host Company Lease Agreement (including, without
limitation, all Monthly Rental Amounts in respect thereof) to
the Administrative Agent. For the avoidance of doubt, GSRP
shall, on or before the tenth (10th) day of each month, cause
the *Sugarbush Host Company to make each payment in respect of
the Monthly Rental Amount that accrued in respect of the
immediately preceding month to the Administrative Agent. All
such payments in respect of Monthly Rental Amounts delivered
to the Administrative Agent shall be in good, collected funds
in legal tender of the United States of America and shall be
applied as set forth in Section 2.5(d) hereof, provided that,
as set forth in said Section and for the avoidance of doubt,
its first use shall be to the servicing and/or payment of the
*Sugarbush Loan and the other amounts owing hereunder in
respect of the *Sugarbush Project, provided further that, if a
Default or an Event of Default shall then exist, all such
payments shall be applied pursuant to Section 2.5(d) or
Section 8.2(c) of this Agreement, whichever shall be
applicable, but, in any case and for the avoidance of doubt,
such application shall also be first to the servicing and/or
payment of the *Sugarbush Loan and the other amounts owing
hereunder in respect of the *Sugarbush Project. If any payment
under a *Sugarbush Host Company Lease Agreement (other than a
Monthly Rental Amount) is delivered to the Administrative
Agent, then such payment shall be treated as a prepayment
under Section 2.5(e), to the extent permitted thereunder, and
applied to the *Sugarbush Loan on a priority basis in
accordance with such Section; otherwise such payment shall be
deposited into the Cash Collateral Account.
(iv) GSRP shall direct or otherwise cause the
*Sugarloaf Host Company to make all payments under the
*Sugarloaf Host Company Lease Agreement (including, without
limitation, all Monthly Rental Amounts in respect thereof) to
the Administrative Agent. For the avoidance of doubt, GSRP
shall, on or before the tenth (10th) day of each month, cause
the *Sugarloaf Host Company to make each payment in respect of
the Monthly Rental Amount that accrued in respect of the
immediately preceding month to the Administrative Agent. All
such payments in respect of Monthly Rental Amounts delivered
to the Administrative Agent shall be in good, collected funds
in legal tender of the United States of America and shall be
applied as set forth in Section 2.5(d) hereof, provided that,
as set forth in said Section and for the avoidance of doubt,
its first use shall be to the servicing and/or payment of the
*Sugarloaf Loan and the other amounts owing hereunder in
respect of the *Sugarloaf Project, provided further that, if a
Default or an Event of Default shall then exist, all such
payments shall be applied pursuant to Section 2.5(d) or
Section 8.2(c) of this Agreement, whichever shall be
applicable, but, in any case and for the avoidance of doubt,
such application shall also be first to the servicing and/or
payment of the *Sugarloaf Loan and the other amounts owing
hereunder in respect of the *Sugarloaf Project. If any payment
under a *Sugarloaf Host Company Lease Agreement (other than a
Monthly Rental Amount) is delivered to the Administrative
Agent, then such payment shall be treated as a prepayment
under Section 2.5(e), to the extent permitted thereunder, and
applied to the *Sugarloaf Loan on a priority basis in
accordance with such Section; otherwise such payment shall be
deposited into the Cash Collateral Account.
(v) GSRP shall direct or otherwise cause the Jordan
Bowl Host Company to make all payments under the Beneficial
Improvement Agreement in respect thereof (including, without
limitation, all Monthly Rental Amounts in respect thereof) to
the Administrative Agent. For the avoidance of doubt, GSRP
shall, on or before the tenth (10th) day of each month, cause
the Jordan Bowl Host Company to make each payment in respect
of the Monthly Rental Amount that accrued in respect of the
immediately preceding month to the Administrative Agent. All
such payments in respect of Monthly Rental Amounts delivered
to the Administrative Agent shall be in good, collected funds
in legal tender of the United States of America and shall be
applied as set forth in Section 2.5(d) hereof, provided that,
as set forth in said Section and for the avoidance of doubt,
its first use shall be to the servicing and/or payment of the
Jordan Bowl Loan and the other amounts owing hereunder in
respect of the Jordan Bowl Project, provided further that, if
a Default or an Event of Default shall then exist, all such
payments shall be applied pursuant to Section 2.5(d) or
Section 8.2(c) of this Agreement, whichever shall be
applicable, but, in any case for the avoidance of doubt, such
application shall always be first to the servicing and/or
payment of the Jordan Bowl Loan and the other amounts owing
hereunder in respect of the Jordan Bowl Project. If any
payment under the Beneficial Improvements Agreement in respect
of the Jordan Bowl Project (other than a Monthly Rental
Amount) is delivered to the Administrative Agent, then such
payment shall be treated as a prepayment under Section 2.5(e),
to the extent permitted thereunder, and applied to the Jordan
Bowl Loan on a priority basis in accordance with such Section;
otherwise such payment shall be deposited into the Cash
Collateral Account.
(vi) Intentionally Omitted.
(vii) GSRP shall direct or otherwise cause the
Killington Host Company to make all payments under the
Beneficial Improvement Agreement in respect thereof
(including, without limitation, all Monthly Rental Amounts in
respect thereof) to the Administrative Agent. For the
avoidance of doubt, GSRP shall, on or before the tenth (10th)
day of each month, cause the Killington Host Company to make
each payment in respect of the Monthly Rental Amount that
accrued in respect of the immediately preceding month to the
Administrative Agent. All such payments in respect of Monthly
Rental Amounts delivered to the Administrative Agent shall be
in good, collected funds in legal tender of the United States
of America and shall be applied as set forth in Section 2.5(d)
hereof, provided that, as set forth in said Section and for
the avoidance of doubt, its first use shall be to the
servicing and/or payment of the Killington Loan and the other
amounts owing hereunder in respect of the Killington Project,
provided further that, if a Default or an Event of Default
shall then exist, all such payments shall be applied pursuant
to Section 2.5(d) or Section 8.2(c) of this Agreement,
whichever shall be applicable, but, in any case for the
avoidance of doubt, such application shall always be first to
the servicing and/or payment of the Killington Loan and the
other amounts owing hereunder in respect of the Killington
Project. If any payment under the Beneficial Improvements
Agreement in respect of the Killington Project (other than a
Monthly Rental Amount) is delivered to the Administrative
Agent, then such payment shall be treated as a prepayment
under Section 2.5(e), to the extent permitted thereunder, and
applied to the Killington Loan on a priority basis in
accordance with such Section; otherwise such payment shall be
deposited into the Cash Collateral Account.
(viii) GSRP shall direct or otherwise cause the Mt.
Snow Host Company to make all payments under the Beneficial
Improvement Agreement in respect thereof (including, without
limitation, all Monthly Rental Amounts in respect thereof) to
the Administrative Agent. For the avoidance of doubt, GSRP
shall, on or before the tenth (10th) day of each month, cause
the Mt. Snow Host Company to make each payment in respect of
the Monthly Rental Amount that accrued in respect of the
immediately preceding month to the Administrative Agent. All
such payments in respect of Monthly Rental Amounts delivered
to the Administrative Agent shall be in good, collected funds
in legal tender of the United States of America and shall be
applied as set forth in Section 2.5(d) hereof, provided that,
as set forth in said Section and for the avoidance of doubt,
its first use shall be to the servicing and/or payment of the
Mt. Snow Loan and the other amounts owing hereunder in respect
of the Mt. Snow Project, provided further that, if a Default
or an Event of Default shall then exist, all such payments
shall be applied pursuant to Section 2.5(d) or Section 8.2(c)
of this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, such application shall always
be first to the servicing and/or payment of the Mt. Snow Loan
and the other amounts owing hereunder in respect of the Mt.
Snow Project. If any payment under the Beneficial Improvements
Agreement in respect of the Mt. Snow Project (other than a
Monthly Rental Amount) is delivered to the Administrative
Agent, then such payment shall be treated as a prepayment
under Section 2.5(e), to the extent permitted thereunder, and
applied to the Mt. Snow Loan on a priority basis in accordance
with such Section; otherwise such payment shall be deposited
into the Cash Collateral Account.
(b) Receipts from Sale Proceeds of Quartershare Interests
and Commercial Units and Residential Units.
(i) GSRP shall promptly consummate the purchase and
sale of each Quartershare Interest under each Contract as soon
as possible after the Project applicable thereto shall have
received a permanent certificate of occupancy from the town or
other municipality that covers such Project, and the
Declaration and Resort Map for such Project shall have been
recorded in the applicable office(s) or amendments thereto
shall have been so recorded (as the case may be). GSRP shall
use its best efforts, as soon as practicable after the
completion of the construction and furnishing of such Project
to obtain a permanent certificate of occupancy in respect
thereof and in respect of the Residential Units and Commercial
Units (including, if permitted by the town or other
municipality that covers such Project, obtaining certificates
of occupancy on a floor by floor basis) and to record the
aforesaid Declarations, Resort Maps and amendments in the
applicable offices. GSRP shall, consistent with Colorado law,
promptly convert each Reservation Contract to a Contract in
order to consummate the purchase and sale of the Quartershare
Interest in respect thereof, as contemplated in this subclause
(i). For the avoidance of doubt, GSRP agrees that it shall not
sell Residential Units as "whole" residential units but rather
will only sell Quartershare Interests in respect thereof.
(ii) With respect to each sale of a Quartershare
Interest in any Project, GSRP shall deliver, or cause to be
delivered, to the Administrative Agent (A) the Release Price
in respect thereof on the Consummation Date of such sale if no
Default or Event of Default shall then exist and (B) all cash
downpayments and all other cash payments received by GSRP and
paid by the Purchaser under each Contract on the Consummation
Date of such sale if a Default or Event of Default shall then
exist. GSRP agrees to instruct, and hereby so instructs, the
Escrow Agent for such Project to deliver directly to the
Administrative Agent all of the aforesaid amounts upon receipt
by such Escrow Agent of a written confirmation from either
GSRP or the Administrative Agent that such sale has been
consummated. GSRP agrees that all payments delivered by any
Purchaser to GSRP on the Consummation Date of its Contract
shall be delivered by GSRP to the applicable Escrow Agent and
shall be subject to the terms and requirements of this clause
(ii). GSRP shall not permit any payments from the Purchaser
under any Contract to be escrowed or retained by the Escrow
Agent after the Consummation Date in respect thereof, unless
the same shall have been consented to by GSRP and the
Administrative Agent. If GSRP shall have provided financing to
the Purchaser under any Contract in order to consummate such a
sale and such Purchaser shall have executed and delivered to
GSRP a Quartershare Note and Quartershare Mortgage in respect
thereof, GSRP shall promptly sell such Quartershare Note and
Quartershare Mortgage to the "buyer" under the Note Purchase
Agreement. GSRP shall irrevocably instruct the "buyer" under
the Note Purchase Agreement to immediately deliver all
proceeds that arise out of any purchases of the Quartershare
Notes (including, without limitation, any payment to GSRP by
Textron Financial Corporation of cash reserves originally
withheld from any purchase by the "buyer" of Quartershare
Notes under and pursuant to the Note Purchase Agreement and
subsequently paid back to GSRP) (A) to the Administrative
Agent to the extent of the unpaid Release Price in respect of
such sale if no Default or Event of Default shall then exist
and (B) to the Administrative if a Default or Event of Default
shall then exist (it being the intention of the parties hereto
that the full amount of such proceeds shall be paid to the
Administrative Agent in such case). To the extent that any of
the cash downpayments, cash payments, loan proceeds and/or
sale proceeds in respect of any Contract that are payable to
the Administrative Agent hereunder shall be paid to GSRP, GSRP
shall hold the same in trust for the Administrative Agent and
promptly deliver the same to the Administrative Agent. The
escrow procedures and the escrow account being used by each
Escrow Agent shall be satisfactory to the Administrative
Agent. GSRP shall cause such changes in such escrow procedures
(in accordance with applicable law and the terms of any
Contract and the escrow agreement in respect thereof and
subject to the approval of any applicable governmental agency
or agencies) as the Administrative Agent may reasonably
request from time to time. Upon not less than 30 days' prior
written notice from the Administrative Agent and subject to
the receipt of all applicable governmental agency approvals,
GSRP shall establish a different escrowee for all Contracts to
be entered into thereafter, which escrowee shall be subject to
the terms and requirements set forth in this clause (ii) and
shall be satisfactory in all respects to the Administrative
Agent, provided that the Administrative Agent agrees not to
request such a change of escrowee unless a sufficient cause,
in the reasonable judgment of the Administrative Agent, shall
have arisen to justify such change. All payments made
hereunder to the Administrative Agent in respect of proceeds
from the sale of any Quartershare Interest under a Contract
shall be net of all customary and normal costs of closing not
previously deducted from other proceeds in respect of such
Contract.
On the Consummation Date of the sale of any Steamboat
Quartershare Interest made in the normal and ordinary course
of GSRP's business on an arm's-length basis to Persons that
are not Affiliates (or, with the prior consent of the
Administrative Agent, to an Affiliate), the cash downpayments,
cash payments, loan proceeds and/or sale proceeds paid to the
Administrative Agent pursuant to this clause (ii) in respect
thereof in the amount of the Release Price with respect to
such Steamboat Quartershare Interest shall be applied to the
Steamboat Loan and the other amounts owing hereunder in
respect of the Steamboat Project and under the Steamboat
Security Documents and the other Obligations as provided in
Section 2.5(d) hereof, provided that if a Default or an Event
of Default shall then exist (which shall have not been waived
by the Steamboat Required Lenders), the entire amount of all
cash downpayments, cash payments, loan proceeds and/or sale
proceeds delivered to the Administrative Agent shall be
applied pursuant to Section 2.5(d) or Section 8.2(c) of this
Agreement, whichever shall be applicable, but, in any case for
the avoidance of doubt, any such application shall be on a
priority basis to service and/or pay the Steamboat Loan and
the other related amounts owing hereunder in respect of the
Steamboat Project. Anything contained in this clause (ii)
notwithstanding, if any Steamboat Quartershare Interest is
sold in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then Section 2.5(f) hereof
shall be applicable thereto. All payments to be applied to the
Steamboat Loan under this paragraph shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any Canyons
Quartershare Interest made in the normal and ordinary course
of GSRP's business on an arm's-length basis to Persons that
are not Affiliates (or, with the prior consent of the
Administrative Agent, to an Affiliate), the cash downpayments,
cash payments, loan proceeds and/or sale proceeds paid to the
Administrative Agent pursuant to this clause (ii) in respect
thereof in the amount of the Release Price with respect to
such Canyons Quartershare Interest shall be applied to the
Canyons Loan and the other amounts owing hereunder in respect
of the Canyons Project and under the Canyons Security
Documents and the other Obligations as provided in Section
2.5(d) hereof, provided that if a Default or an Event of
Default shall then exist (which shall have not been waived by
the Canyons Required Lenders), the entire amount of all cash
downpayments, cash payments, loan proceeds and/or sale
proceeds delivered to the Administrative Agent shall be
applied pursuant to Section 2.5(d) or Section 8.2(c) of this
Agreement, whichever shall be applicable, but, in any case for
the avoidance of doubt, any such application shall be on a
priority basis to service and/or pay the Canyons Loan and the
other related amounts owing hereunder in respect of the
Canyons Project. Anything contained in this clause (ii)
notwithstanding, if any Canyons Quartershare Interest is sold
in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then Section 2.5(f) hereof
shall be applicable thereto. All payments to be applied to the
Canyons Loan under this paragraph shall be in good, collected
funds in legal tender of the United States of America.
On the Consummation Date of the sale of any
*Sugarbush Quartershare Interest made in the normal and
ordinary course of GSRP's business on an arm's-length basis to
Persons that are not Affiliates (or, with the prior consent of
the Administrative Agent, to an Affiliate), the cash
downpayments, cash payments, loan proceeds and/or sale
proceeds paid to the Administrative Agent pursuant to this
clause (ii) in respect thereof in the amount of the Release
Price with respect to such *Sugarbush Quartershare Interest
shall be applied to the *Sugarbush Loan and the other amounts
owing hereunder in respect of the *Sugarbush Project and under
the *Sugarbush Security Documents and the other Obligations as
provided in Section 2.5(d) hereof, provided that if a Default
or an Event of Default shall then exist (which shall have not
been waived by the *Sugarbush Required Lenders), the entire
amount of all cash downpayments, cash payments, loan proceeds
and/or sale proceeds delivered to the Administrative Agent
shall be applied pursuant to Section 2.5(d) or Section 8.2(c)
of this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the *Sugarbush Loan
and the other related amounts owing hereunder in respect of
the *Sugarbush Project. Anything contained in this clause (ii)
notwithstanding, if any *Sugarbush Quartershare Interest is
sold in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then Section 2.5(f) hereof
shall be applicable thereto. All payments to be applied to the
*Sugarbush Loan under this paragraph shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any
*Sugarloaf Quartershare Interest made in the normal and
ordinary course of GSRP's business on an arm's-length basis to
Persons that are not Affiliates (or, with the prior consent of
the Administrative Agent, to an Affiliate), the cash
downpayments, cash payments, loan proceeds and/or sale
proceeds paid to the Administrative Agent pursuant to this
clause (ii) in respect thereof in the amount of the Release
Price with respect to such *Sugarloaf Quartershare Interest
shall be applied to the *Sugarloaf Loan and the other amounts
owing hereunder in respect of the *Sugarloaf Project and under
the *Sugarloaf Security Documents and the other Obligations as
provided in Section 2.5(d) hereof, provided that if a Default
or an Event of Default shall then exist (which shall have not
been waived by the *Sugarloaf Required Lenders), the entire
amount of all cash downpayments, cash payments, loan proceeds
and/or sale proceeds delivered to the Administrative Agent
shall be applied pursuant to Section 2.5(d) or Section 8.2(c)
of this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the *Sugarloaf Loan
and the other related amounts owing hereunder in respect of
the *Sugarloaf Project. Anything contained in this clause (ii)
notwithstanding, if any *Sugarloaf Quartershare Interest is
sold in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then Section 2.5(f) hereof
shall be applicable thereto. All payments to be applied to the
*Sugarloaf Loan under this paragraph shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any Jordan
Bowl Quartershare Interest made in the normal and ordinary
course of GSRP's business on an arm's-length basis to Persons
that are not Affiliates (or, with the prior consent of the
Administrative Agent, to an Affiliate), the cash downpayments,
cash payments, loan proceeds and/or sale proceeds paid to the
Administrative Agent pursuant to this clause (ii) in respect
thereof in the amount of the Release Price with respect to
such Jordan Bowl Quartershare Interest shall be applied to the
Jordan Bowl Loan and the other amounts owing hereunder in
respect of the Jordan Bowl Project and under the Jordan Bowl
Security Documents and the other Obligations as provided in
Section 2.5(d) hereof, provided that if a Default or an Event
of Default shall then exist (which shall have not been waived
by the Jordan Bowl Required Lenders), the entire amount of all
cash downpayments, cash payments, loan proceeds and/or sale
proceeds delivered to the Administrative Agent shall be
applied pursuant to Section 2.5(d) or Section 8.2(c) of this
Agreement, whichever shall be applicable, but, in any case for
the avoidance of doubt, any such application shall be on a
priority basis to service and/or pay the Jordan Bowl Loan and
the other related amounts owing hereunder in respect of the
Jordan Bowl Project. Anything contained in this clause (ii)
notwithstanding, if any Jordan Bowl Quartershare Interest is
sold in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then the last sentence of
Section 2.5(f) hereof shall be applicable thereto. All
payments to be applied to the Jordan Bowl Loan under this
paragraph shall be in good, collected funds in legal tender of
the United States of America.
On the Consummation Date of the sale of any Attitash
Quartershare Interest made in the normal and ordinary course
of GSRP's business on an arm's-length basis to Persons that
are not Affiliates (or, with the prior consent of the
Administrative Agent, to an Affiliate), the cash downpayments,
cash payments, loan proceeds and/or sale proceeds paid to the
Administrative Agent pursuant to this clause (ii) in respect
thereof in the amount of the Release Price with respect to
such Attitash Quartershare Interest shall be applied to the
Attitash Loan and the other amounts owing hereunder in respect
of the Attitash Project and under the Attitash Security
Documents and the other Obligations as provided in Section
2.5(d) hereof, provided that if a Default or an Event of
Default shall then exist (which shall have not been waived by
the Attitash Required Lenders), the entire amount of all cash
downpayments, cash payments, loan proceeds and/or sale
proceeds delivered to the Administrative Agent shall be
applied pursuant to Section 2.5(d) or Section 8.2(c) of this
Agreement, whichever shall be applicable, but, in any case for
the avoidance of doubt, any such application shall be on a
priority basis to service and/or pay the Attitash Loan and the
other related amounts owing hereunder in respect of the
Attitash Project. Anything contained in this clause (ii)
notwithstanding, if any Attitash Quartershare Interest is sold
in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then the last sentence of
Section 2.5(f) hereof shall be applicable thereto. All
payments to be applied to the Attitash Loan under this
paragraph shall be in good, collected funds in legal tender of
the United States of America.
On the Consummation Date of the sale of any
Killington Quartershare Interest made in the normal and
ordinary course of GSRP's business on an arm's-length basis to
Persons that are not Affiliates (or, with the prior consent of
the Administrative Agent, to an Affiliate), the cash
downpayments, cash payments, loan proceeds and/or sale
proceeds paid to the Administrative Agent pursuant to this
clause (ii) in respect thereof in the amount of the Release
Price with respect to such Killington Quartershare Interest
shall be applied to the Killington Loan and the other amounts
owing hereunder in respect of the Killington Project and under
the Killington Security Documents and the other Obligations as
provided in Section 2.5(d) hereof, provided that if a Default
or an Event of Default shall then exist (which shall have not
been waived by the Killington Required Lenders), the entire
amount of all cash downpayments, cash payments, loan proceeds
and/or sale proceeds delivered to the Administrative Agent
shall be applied pursuant to Section 2.5(d) or Section 8.2(c)
of this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the Killington Loan
and the other related amounts owing hereunder in respect of
the Killington Project. Anything contained in this clause (ii)
notwithstanding, if any Killington Quartershare Interest is
sold in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then the last sentence of
Section 2.5(f) hereof shall be applicable thereto. All
payments to be applied to the Killington Loan under this
paragraph shall be in good, collected funds in legal tender of
the United States of America.
On the Consummation Date of the sale of any Mt. Snow
Quartershare Interest made in the normal and ordinary course
of GSRP's business on an arm's-length basis to Persons that
are not Affiliates (or, with the prior consent of the
Administrative Agent, to an Affiliate), the cash downpayments,
cash payments, loan proceeds and/or sale proceeds paid to the
Administrative Agent pursuant to this clause (ii) in respect
thereof in the amount of the Release Price with respect to
such Mt. Snow Quartershare Interest shall be applied to the
Mt. Snow Loan and the other amounts owing hereunder in respect
of the Mt. Snow Project and under the Mt. Snow Security
Documents and the other Obligations as provided in Section
2.5(d) hereof, provided that if a Default or an Event of
Default shall then exist (which shall have not been waived by
the Mt. Snow Required Lenders), the entire amount of all cash
downpayments, cash payments, loan proceeds and/or sale
proceeds delivered to the Administrative Agent shall be
applied pursuant to Section 2.5(d) or Section 8.2(c) of this
Agreement, whichever shall be applicable, but, in any case for
the avoidance of doubt, any such application shall be on a
priority basis to service and/or pay the Mt. Snow Loan and the
other related amounts owing hereunder in respect of the Mt.
Snow Project. Anything contained in this clause (ii)
notwithstanding, if any Mt. Snow Quartershare Interest is sold
in other than in the normal and ordinary course of GSRP's
business, or on other than an arm's-length basis, or to
Persons that are Affiliates (unless the Administrative Agent
shall have consented thereto), then the last sentence of
Section 2.5(f) hereof shall be applicable thereto. All
payments to be applied to the Mt. Snow Loan under this
paragraph shall be in good, collected funds in legal tender of
the United States of America.
(iii) With respect to each sale of a Commercial Unit
GSRP shall deliver, or cause to be delivered, to the
Administrative Agent all cash downpayments and all other cash
payments received by GSRP and paid by the purchaser of such
Commercial Unit under the contract of purchase in respect
thereof on the Consummation Date of such sale to the extent,
but only to the extent, of the Release Price in respect
thereof. GSRP agrees to instruct, and hereby so instructs, any
escrowee involved in connection with such sale to deliver
directly to the Administrative Agent such Release Price. To
the extent that any of the cash downpayments and cash payments
in respect of the Release Price for the sale of a Commercial
Unit shall be paid to GSRP, GSRP shall hold the same in trust
for the Administrative Agent and promptly deliver the same to
the Administrative Agent. The escrow procedures and the escrow
account being used by GSRP in connection with such sales shall
be satisfactory to the Administrative Agent. Anything
contained herein to the contrary notwithstanding, if any
Default or Event of Default shall exist at the time of the
sale of any Commercial Unit, the Administrative Agent shall be
entitled to elect to receive, as a release price therefor, all
cash downpayments and other cash and noncash payments in
respect of such sale but shall not be obligated to effect any
such election or to release any Lien in and to such Commercial
Unit if tendered such release price or any other release
price.
On the Consummation Date of the sale of any Steamboat
Commercial Unit, the Release Price paid to the Administrative
Agent pursuant to this clause (iii) in respect thereof shall
be applied to the Steamboat Loan and the other amounts owing
hereunder in respect of the Steamboat Project and under the
Steamboat Security Documents and the other Obligations as
provided in Section 2.5(d) hereof, provided that if a Default
or an Event of Default shall then exist (which shall have not
been waived by the Steamboat Required Lenders), the entire
amount of the cash downpayments, cash payments, loan proceeds
and/or sale proceeds in respect of such sale shall be paid to
the Administrative Agent and shall be applied pursuant to
Section 2.5(d) or Section 8.2(c) of this Agreement, whichever
shall be applicable, but, in any case for the avoidance of
doubt, any such application shall be on a priority basis to
service and/or pay the Steamboat Loan and the other related
amounts owing hereunder in respect of the Steamboat Project.
All payments to be applied to the Steamboat Loan under this
clause (iii) shall be in good, collected funds in legal tender
of the United States of America.
On the Consummation Date of the sale of any Canyons
Commercial Unit, the Release Price paid to the Administrative
Agent pursuant to this clause (iii) in respect thereof shall
be applied to the Canyons Loan and the other amounts owing
hereunder in respect of the Canyons Project and under the
Canyons Security Documents and the other Obligations as
provided in Section 2.5(d) hereof, provided that if a Default
or an Event of Default shall then exist (which shall have not
been waived by the Canyons Required Lenders), the entire
amount of the cash downpayments, cash payments, loan proceeds
and/or sale proceeds in respect of such sale shall be paid to
the Administrative Agent and shall be applied pursuant to
Section 2.5(d) or Section 8.2(c) of this Agreement, whichever
shall be applicable, but, in any case for the avoidance of
doubt, any such application shall be on a priority basis to
service and/or pay the Canyons Loan and the other related
amounts owing hereunder in respect of the Canyons Project. All
payments to be applied to the Canyons Loan under this clause
(iii) shall be in good, collected funds in legal tender of the
United States of America.
On the Consummation Date of the sale of any
*Sugarbush Commercial Unit, the Release Price paid to the
Administrative Agent pursuant to this clause (iii) in respect
thereof shall be applied to the *Sugarbush Loan and the other
amounts owing hereunder in respect of the *Sugarbush Project
and under the *Sugarbush Security Documents and the other
Obligations as provided in Section 2.5(d) hereof, provided
that if a Default or an Event of Default shall then exist
(which shall have not been waived by the *Sugarbush Required
Lenders), the entire amount of the cash downpayments, cash
payments, loan proceeds and/or sale proceeds in respect of
such sale shall be paid to the Administrative Agent and shall
be applied pursuant to Section 2.5(d) or Section 8.2(c) of
this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the *Sugarbush Loan
and the other related amounts owing hereunder in respect of
the *Sugarbush Project. All payments to be applied to the
*Sugarbush Loan under this clause (iii) shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any
*Sugarloaf Commercial Unit, the Release Price paid to the
Administrative Agent pursuant to this clause (iii) in respect
thereof shall be applied to the *Sugarloaf Loan and the other
amounts owing hereunder in respect of the *Sugarloaf Project
and under the *Sugarloaf Security Documents and the other
Obligations as provided in Section 2.5(d) hereof, provided
that if a Default or an Event of Default shall then exist
(which shall have not been waived by the *Sugarloaf Required
Lenders), the entire amount of the cash downpayments, cash
payments, loan proceeds and/or sale proceeds in respect of
such sale shall be paid to the Administrative Agent and shall
be applied pursuant to Section 2.5(d) or Section 8.2(c) of
this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the *Sugarloaf Loan
and the other related amounts owing hereunder in respect of
the *Sugarloaf Project. All payments to be applied to the
*Sugarloaf Loan under this clause (iii) shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any Jordan
Bowl Commercial Unit, the Release Price paid to the
Administrative Agent pursuant to this clause (iii) in respect
thereof shall be applied to the Jordan Bowl Loan and the other
amounts owing hereunder in respect of the Jordan Bowl Project
and under the Jordan Bowl Security Documents and the other
Obligations as provided in Section 2.5(d) hereof, provided
that if a Default or an Event of Default shall then exist
(which shall have not been waived by the Jordan Bowl Required
Lenders), the entire amount of the cash downpayments, cash
payments, loan proceeds and/or sale proceeds in respect of
such sale shall be paid to the Administrative Agent and shall
be applied pursuant to Section 2.5(d) or Section 8.2(c) of
this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the Jordan Bowl Loan
and the other related amounts owing hereunder in respect of
the Jordan Bowl Project. All payments to be applied to the
Jordan Bowl Loan under this clause (iii) shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any Attitash
Commercial Unit, the Release Price paid to the Administrative
Agent pursuant to this clause (iii) in respect thereof shall
be applied to the Attitash Loan and the other amounts owing
hereunder in respect of the Attitash Project and under the
Attitash Security Documents and the other Obligations as
provided in Section 2.5(d) hereof, provided that if a Default
or an Event of Default shall then exist (which shall have not
been waived by the Attitash Required Lenders), the entire
amount of the cash downpayments, cash payments, loan proceeds
and/or sale proceeds in respect of such sale shall be paid to
the Administrative Agent and shall be applied pursuant to
Section 2.5(d) or Section 8.2(c) of this Agreement, whichever
shall be applicable, but, in any case for the avoidance of
doubt, any such application shall be on a priority basis to
service and/or pay the Attitash Loan and the other related
amounts owing hereunder in respect of the Attitash Project.
All payments to be applied to the Attitash Loan under this
clause (iii) shall be in good, collected funds in legal tender
of the United States of America.
On the Consummation Date of the sale of any
Killington Commercial Unit, the Release Price paid to the
Administrative Agent pursuant to this clause (iii) in respect
thereof shall be applied to the Killington Loan and the other
amounts owing hereunder in respect of the Killington Project
and under the Killington Security Documents and the other
Obligations as provided in Section 2.5(d) hereof, provided
that if a Default or an Event of Default shall then exist
(which shall have not been waived by the Killington Required
Lenders), the entire amount of the cash downpayments, cash
payments, loan proceeds and/or sale proceeds in respect of
such sale shall be paid to the Administrative Agent and shall
be applied pursuant to Section 2.5(d) or Section 8.2(c) of
this Agreement, whichever shall be applicable, but, in any
case for the avoidance of doubt, any such application shall be
on a priority basis to service and/or pay the Killington Loan
and the other related amounts owing hereunder in respect of
the Killington Project. All payments to be applied to the
Killington Loan under this clause (iii) shall be in good,
collected funds in legal tender of the United States of
America.
On the Consummation Date of the sale of any Mt. Snow
Commercial Unit, the Release Price paid to the Administrative
Agent pursuant to this clause (iii) in respect thereof shall
be applied to the Mt. Snow Loan and the other amounts owing
hereunder in respect of the Mt. Snow Project and under the Mt.
Snow Security Documents and the other Obligations as provided
in Section 2.5(d) hereof, provided that if a Default or an
Event of Default shall then exist (which shall have not been
waived by the Mt. Snow Required Lenders), the entire amount of
the cash downpayments, cash payments, loan proceeds and/or
sale proceeds in respect of such sale shall be paid to the
Administrative Agent and shall be applied pursuant to Section
2.5(d) or Section 8.2(c) of this Agreement, whichever shall be
applicable, but, in any case for the avoidance of doubt, any
such application shall be on a priority basis to service
and/or pay the Mt. Snow Loan and the other related amounts
owing hereunder in respect of the Mt. Snow Project. All
payments to be applied to the Mt. Snow Loan under this clause
(iii) shall be in good, collected funds in legal tender of the
United States of America.
(c) Borrowing Base Prepayments.
(i) If on any date the aggregate outstanding
principal amount of the Loan shall exceed the Aggregate
Construction Project Borrowing Base, determined as of such
date, 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 to prepay ratably each outstanding Advance.
(ii) If on any date the aggregate outstanding
principal amount of the Steamboat Loan shall exceed the
Steamboat Construction Project Borrowing Base, determined as
of such date, 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 to prepay the Steamboat
Loan.
If on any date the aggregate outstanding principal
amount of the Canyons Loan shall exceed the Canyons
Construction Project Borrowing Base, determined as of such
date, 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 to prepay the Canyons Loan.
If on any date the aggregate outstanding principal
amount of the *Sugarbush Loan shall exceed the *Sugarbush
Construction Project Borrowing Base, determined as of such
date, 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 to prepay the *Sugarbush Loan.
If on any date the aggregate outstanding principal
amount of the *Sugarloaf Loan shall exceed the *Sugarloaf
Construction Project Borrowing Base, determined as of such
date, 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 to prepay the *Sugarloaf Loan.
(iii) If on each of the following test dates the
aggregate outstanding principal amount of all Inventory
Advances (other the Inventory Advances in respect of the 1997
Projects) exceeds the maximum outstanding principal amount of
Inventory 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 Inventory
Advances (other than Inventory Advances in respect of the 1997
Projects):
Test Date Maximum Outstanding Principal Amount of Inventory
Advances
March 31, 2001 $60,000,000
September 30, 2001 $40,000,000
March 31, 2002 $15,000,000
September 30, 2002 $0
(iv) Intentionally omitted.
(d) Application of Lease Payments, Sales Proceeds and Other
Payments.
(i) Subject to the appropriate application of Section
8.2(c) hereof, the payments under this Section 2.5 or under
Sections 3.5 and 3.6 hereof (received by the Administrative
Agent in good, collected funds in legal tender of the United
States of America) in respect of the Steamboat Host Company
Lease, the sale of Steamboat Quartershare Interests, the sale
of Steamboat Commercial Units, payments in respect of
Steamboat Construction Project Borrowing Base deficiencies and
any other payments received by the Administrative Agent that
are directly derived from the Steamboat Project shall be
applied as follows to the Steamboat Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of Steamboat
Obligations;
second, towards the accrued and unpaid
interest on the Steamboat Loan at the Interest Rate
or Default Rate for and in respect of each complete
calendar month immediately preceding such payment (to
the extent not paid by the making of a Steamboat
Interest Advance hereunder);
third, towards the payment of any prepayment
premiums then due in respect of all or any portion of
the Steamboat Loan being prepaid with any of the
foregoing payments;
fourth, towards the payment of the
principal amount of any Steamboat Interest
Advances then outstanding;
fifth, towards the then-outstanding
principal amount of the Steamboat Loan,
sixth, towards any remaining Steamboat
Obligations
seventh, upon the payment in full of all
Steamboat Obligations, any remaining amounts
consisting of Release Prices in respect of sales
of Steamboat Quartershare Interests and/or
Steamboat Commercial Units or scheduled payments
under the Steamboat Host Company Lease shall be
applied ratably to the then outstanding Canyons
Obligations, *Sugarloaf Obligations, *Sugarbush
Obligations, Jordan Bowl Obligations, Attitash
Obligations, Killington Obligations and Mt. Snow
Obligations (after giving effect to the latest
application to such Obligations of the cash flows
referred to in this Section 2.5(d)), and
eighth, any remaining amounts shall be
deposited into the Cash Collateral Account.
At any time when the Steamboat Obligations hereunder shall be
equal to $0 (whether during the Steamboat Commitment Period or
otherwise), all cash payments, cash downpayments and other
proceeds referred to above and all other payments delivered to
the Administrative Agent pursuant to this Section 2.5 or
Sections 3.5 or 3.6 hereof in respect of the Steamboat Project
shall be deposited into the Cash Collateral Account if other
Obligations are then still outstanding; if such other
Obligations shall at such time be equal to $0, such cash
payments, cash downpayments and other proceeds may be retained
by GSRP.
(ii) Subject to the appropriate application of
Section 8.2(c) hereof, the payments under this Section 2.5 or
under Sections 3.5 and 3.6 hereof (received by the
Administrative Agent in good, collected funds in legal tender
of the United States of America) in respect of the Canyons
Host Company Lease, the sale of Canyons Quartershare
Interests, the sale of Canyons Commercial Units, payment in
respect of Canyons Construction Project Borrowing Base
deficiencies and any other payments received by the
Administrative Agent that are directly derived from the
Canyons Project shall be applied as follows to the Canyons
Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of Canyons Obligations;
second, towards the accrued and unpaid
interest on the Canyons Loan at the Interest Rate or
Default Rate for and in respect of each complete
calendar month immediately preceding such payment (to
the extent not paid by the making of a Canyons
Interest Advance hereunder);
third, towards the payment of any prepayment
premiums then due in respect of all or any portion of
the Canyons Loan being prepaid with any of the
foregoing payments;
fourth, towards the payment of the
principal amount of any Canyons Interest Advances
then outstanding;
fifth, towards the then-outstanding
principal amount of the Canyons Loan,
sixth, towards any remaining Canyons
Obligations
seventh, upon the payment in full of all
Canyons Obligations, any remaining amounts consisting
of Release Prices in respect of sales of Canyons
Quartershare Interests and/or Canyons Commercial
Units or scheduled payments under the Canyons Host
Company Lease shall be applied ratably to the then
outstanding Steamboat Obligations, *Sugarloaf
Obligations, *Sugarbush Obligations, Jordan Bowl
Obligations, Attitash Obligations, Killington
Obligations and Mt. Snow Obligations (after giving
effect to the latest application to such Obligations
of the cash flows referred to in this Section
2.5(d)), and
eighth, any remaining amounts shall be
deposited into the Cash Collateral Account.
At any time when the Canyons Obligations hereunder shall be
equal to $0 (whether during the Canyons Commitment Period or
otherwise), all cash payments, cash downpayments and other
proceeds referred to above and all other payments delivered to
the Administrative Agent pursuant to this Section 2.5 or
Sections 3.5 or 3.6 hereof in respect of the Canyons Project
shall be deposited into the Cash Collateral Account if other
Obligations are then still outstanding; if such other
Obligations shall at such time be equal to $0, such cash
payments, cash downpayments and other proceeds may be retained
by GSRP.
(iii) Subject to the appropriate application of
Section 8.2(c) hereof, the payments under this Section 2.5 or
under Sections 3.5 and 3.6 hereof (received by the
Administrative Agent in good, collected funds in legal tender
of the United States of America) in respect of the *Sugarbush
Host Company Lease, the sale of *Sugarbush Quartershare
Interests, the sale of *Sugarbush Commercial Units, payment in
respect of *Sugarbush Construction Project Borrowing Base
deficiencies and any other payments received by the
Administrative Agent that are directly derived from the
*Sugarbush Project shall be applied as follows to the
*Sugarbush Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of *Sugarbush
Obligations;
second, towards the accrued and unpaid
interest on the *Sugarbush Loan at the Interest Rate
or Default Rate for and in respect of each complete
calendar month immediately preceding such payment (to
the extent not paid by the making of a *Sugarbush
Interest Advance hereunder);
third, towards the payment of any prepayment
premiums then due in respect of all or any portion of
the *Sugarbush Loan being prepaid with any of the
foregoing payments;
fourth, towards the payment of the principal amount of
any *Sugarbush Interest Advances then outstanding;
fifth, towards the then-outstanding
principal amount of the *Sugarbush Loan,
sixth, towards any remaining *Sugarbush
Obligations
seventh, upon the payment in full of all
*Sugarbush Obligations, any remaining amounts
consisting of Release Prices in respect of sales of
*Sugarbush Quartershare Interests and/or *Sugarbush
Commercial Units or scheduled payments under the
*Sugarbush Host Company Lease shall be applied
ratably to the then outstanding Steamboat
Obligations, *Sugarloaf Obligations, Canyons
Obligations, Jordan Bowl Obligations, Attitash
Obligations, Killington Obligations and Mt. Snow
Obligations (after giving effect to the latest
application to such Obligations of the cash flows
referred to in this Section 2.5(d)), and
eighth, any remaining amounts shall be
deposited into the Cash Collateral Account.
At any time when the *Sugarbush Obligations hereunder shall be
equal to $0 (whether during the *Sugarbush Commitment Period
or otherwise), all cash payments, cash downpayments and other
proceeds referred to above and all other payments delivered to
the Administrative Agent pursuant to this Section 2.5 or
Sections 3.5 or 3.6 hereof in respect of the *Sugarbush
Project shall be deposited into the Cash Collateral Account if
other Obligations are then still outstanding; if such other
Obligations shall at such time be equal to $0, such cash
payments, cash downpayments and other proceeds may be retained
by GSRP.
(iv) Subject to the appropriate application of
Section 8.2(c) hereof, the payments under this Section 2.5 or
under Sections 3.5 and 3.6 hereof (received by the
Administrative Agent in good, collected funds in legal tender
of the United States of America) in respect of the *Sugarloaf
Host Company Lease, the sale of *Sugarloaf Quartershare
Interests, the sale of *Sugarloaf Commercial Units, payment in
respect of *Sugarloaf Construction Project Borrowing Base
deficiencies and any other payments received by the
Administrative Agent that are directly derived from the
*Sugarloaf Project shall be applied as follows to the
*Sugarloaf Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of *Sugarloaf
Obligations;
second, towards the accrued and unpaid
interest on the *Sugarloaf Loan at the Interest Rate
or Default Rate for and in respect of each complete
calendar month immediately preceding such payment (to
the extent not paid by the making of a *Sugarloaf
Interest Advance hereunder);
third, towards the payment of any prepayment
premiums then due in respect of all or any portion of
the *Sugarloaf Loan being prepaid with any of the
foregoing payments;
fourth, towards the payment of the
principal amount of any *Sugarloaf Interest
Advances then outstanding;
fifth, towards the then-outstanding
principal amount of the *Sugarloaf Loan,
sixth, towards any remaining *Sugarloaf
Obligations
seventh, upon the payment in full of all
*Sugarloaf Obligations, any remaining amounts
consisting of Release Prices in respect of sales of
*Sugarloaf Quartershare Interests and/or *Sugarloaf
Commercial Units or scheduled payments under the
*Sugarloaf Host Company Lease shall be applied
ratably to the then outstanding Steamboat
Obligations, Canyons Obligations, *Sugarbush
Obligations, Jordan Bowl Obligations, Attitash
Obligations, Killington Obligations and Mt. Snow
Obligations (after giving effect to the latest
application to such Obligations of the cash flows
referred to in this Section 2.5(d)), and
eighth, any remaining amounts shall be
deposited into the Cash Collateral Account.
At any time when the *Sugarloaf Obligations hereunder shall be
equal to $0 (whether during the *Sugarloaf Commitment Period
or otherwise), all cash payments, cash downpayments and other
proceeds referred to above and all other payments delivered to
the Administrative Agent pursuant to this Section 2.5 or
Sections 3.5 or 3.6 hereof in respect of the *Sugarloaf
Project shall be deposited into the Cash Collateral Account if
other Obligations are then still outstanding; if such other
Obligations shall at such time be equal to $0, such cash
payments, cash downpayments and other proceeds may be retained
by GSRP.
(v) Subject to the appropriate application of Section
8.2(c) hereof, the payments under this Section 2.5 or under
Sections 3.5 and 3.6 hereof (received by the Administrative
Agent in good, collected funds in legal tender of the United
States of America) in respect of the Beneficial Improvements
Agreement in respect of the Jordan Bowl Project, the sale of
Jordan Bowl Quartershare Interests, the sale of Jordan Bowl
Commercial Units and any other payments received by the
Administrative Agent that are directly derived from the Jordan
Bowl Project shall be applied as follows to the Jordan Bowl
Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of Jordan Bowl
Obligations;
second, towards the accrued and unpaid
interest on the Jordan Bowl Loan at the Interest Rate
or Default Rate for and in respect of each complete
calendar month immediately preceding such payment;
third, towards the then-outstanding
principal amount of the Jordan Bowl Loan,
fourth, towards any remaining Jordan
Bowl Obligations,
fifth, upon the payment in full of all
Jordan Bowl Obligations, any remaining amounts
consisting of Release Prices in respect of sales of
Jordan Bowl Quartershare Interests and/or Jordan Bowl
Commercial Units or scheduled payments under the
Beneficial Improvements Agreement for the Jordan Bowl
Project shall be applied ratably to the then
outstanding Steamboat Obligations, *Sugarloaf
Obligations, *Sugarbush Obligations, Canyons
Obligations, Attitash Obligations, Killington
Obligations and Mt. Snow Obligations (after giving
effect to the latest application to such Obligations
of the cash flows referred to in this Section
2.5(d)), and
sixth, any remaining amounts shall be
deposited into the Cash Collateral Account.
(vi) Subject to the appropriate application of
Section 8.2(c) hereof, the payments under this Section 2.5 or
under Sections 3.5 and 3.6 hereof (received by the
Administrative Agent in good, collected funds in legal tender
of the United States of America) in respect of the sale of
Attitash Quartershare Interests, the sale of Attitash
Commercial Units and any other payments received by the
Administrative Agent that are directly derived from the
Attitash Project shall be applied as follows to the Attitash
Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of Attitash
Obligations;
second, towards the accrued and unpaid
interest on the Attitash Loan at the Interest Rate or
Default Rate for and in respect of each complete
calendar month immediately preceding such payment;
third, towards the then-outstanding
principal amount of the Attitash Loan,
fourth, towards any remaining Attitash
Obligations,
fifth, upon the payment in full of all
Attitash Obligations, any remaining amounts
consisting of Release Prices in respect of sales of
Attitash Quartershare Interests and/or Attitash
Commercial Units or scheduled payments under the
Beneficial Improvements Agreement for the Attitash
Project shall be applied ratably to the then
outstanding Steamboat Obligations, *Sugarloaf
Obligations, *Sugarbush Obligations, Canyons
Obligations, Jordan Bowl Obligations, Killington
Obligations and Mt. Snow Obligations (after giving
effect to the latest application to such Obligations
of the cash flows referred to in this Section
2.5(d)), and
sixth, any remaining amounts shall be
deposited into the Cash Collateral Account.
(vii) Subject to the appropriate application of
Section 8.2(c) hereof, the payments under this Section 2.5 or
under Sections 3.5 and 3.6 hereof (received by the
Administrative Agent in good, collected funds in legal tender
of the United States of America) in respect of the Beneficial
Improvements Agreement in respect of the Killington Project,
the sale of Killington Quartershare Interests, the sale of
Killington Commercial Units and any other payments received by
the Administrative Agent that are directly derived from the
Killington Project shall be applied as follows to the
Killington Obligations:
first, towards the fees, costs and expenses
required to be paid under this Agreement, including,
without limitation, any Loan Costs and all other
fees, costs and expenses set forth in Section 11.2 of
this Agreement, in each case, as the same constitute
or may have arisen in respect of Killington
Obligations;
second, towards the accrued and unpaid
interest on the Killington Loan at the Interest Rate
or Default Rate for and in respect of each complete
calendar month immediately preceding such payment;
third, towards the then-outstanding
principal amount of the Killington Loan,
fourth, towards any remaining Killington
Obligations,
fifth, upon the payment in full of all
Killington Obligations, any remaining amounts
consisting of Release Prices in respect of sales of
Killington Quartershare Interests and/or Killington
Commercial Units or scheduled payments under the
Beneficial Improvements Agreement for the Killington
Project shall be applied ratably to the then
outstanding Steamboat Obligations, *Sugarloaf
Obligations, *Sugarbush Obligations, Canyons
Obligations, Attitash Obligations, Jordan Bowl
Obligations and Mt. Snow Obligations (after giving
effect to the latest application to such Obligations
of the cash flows referred to in this Section
2.5(d)), and
sixth, any remaining amounts shall be
deposited into the Cash Collateral Account.
(viii) Subject to the appropriate application of
Section 8.2(c) hereof, the payments under this Section 2.5 or
under Sections 3.5 and 3.6 hereof (received by the
Administrative Agent in good, collected funds in legal tender
of the United States of America) in respect of the Beneficial
Improvements Agreement in respect of the Mt. Snow Project, the
sale of Mt. Snow Quartershare Interests, the sale of Mt. Snow
Commercial Units and any other payments received by the
Administrative Agent that are directly derived from the Mt.
Snow Project shall be applied as follows to the Mt. Snow
Obligations:
first, towards the fees, costs and
expenses required to be paid under this Agreement,
including, without limitation, any Loan Costs and
all other fees, costs and expenses set forth in
Section 11.2 of this Agreement, in each case, as
the same constitute or may have arisen in respect
of Mt. Snow Obligations;
second, towards the accrued and unpaid
interest on the Mt. Snow Loan at the Interest Rate
or Default Rate for and in respect of each
complete calendar month immediately preceding such
payment;
third, towards the then-outstanding
principal amount of the Mt. Snow Loan,
fourth, towards any remaining Mt. Snow
Obligations,
fifth, upon the payment in full of all Mt.
Snow Obligations, any remaining amounts consisting of
Release Prices in respect of sales of Mt. Snow
Quartershare Interests and/or Mt. Snow Commercial
Units or scheduled payments under the Beneficial
Improvements Agreement for the Mt. Snow Project shall
be applied ratably to the then outstanding Steamboat
Obligations, *Sugarloaf Obligations, *Sugarbush
Obligations, Canyons Obligations, Attitash
Obligations, Killington Obligations and Jordan Bowl
Obligations (after giving effect to the latest
application to such Obligations of the cash flows
referred to in this Section 2.5(d)), and
sixth, any remaining amounts shall be
deposited into the Cash Collateral Account.
(ix) Subject to the appropriate application of
Section 8.2(c) hereof, each test date excess payment delivered
to the Administrative Agent pursuant to Section 2.5(c)(iii)
shall be applied ratably to each of the then outstanding
Inventory Advances (other than Inventory Advances in respect
of the 1997 Projects) and any amounts remaining thereafter
shall then be applied ratably to any then outstanding
Obligations in respect of the Loan; if there shall be no
outstanding Obligations, any remaining amounts shall be
deposited into the Cash Collateral Account;
(x) Subject to the appropriate application of Section
8.2(c) hereof, each Borrowing Base prepayment delivered to the
Administrative Agent pursuant to Section 2.5(c)(i) shall be
applied ratably to each of the then outstanding Advances and
any amounts remaining thereafter shall then be applied ratably
to any then outstanding Obligations in respect of the Loan; if
there shall be no outstanding Obligations, any remaining
amounts shall be deposited into the Cash Collateral Account;
(xi) Intentionally Omitted;
(xii) Subject to the appropriate application of
Section 8.2(c) hereof and to the appropriate prior
applications set forth in this Section 2.5, whichever shall
then be in effect, any moneys received by the Administrative
Agent in respect of the Collateral shall be deposited into the
Cash Collateral Account; and
(xiii) If each of the Steamboat Loan, Canyons Loan,
*Sugarbush Loan, *Sugarloaf Loan, the Jordan Bowl Loan, the
Attitash Loan, the Killington Loan and the Mt. Snow Loan shall
have either been paid in full or accelerated, then any balance
of moneys (in good, collected funds) that may from time to
time exist in the Cash Collateral Account shall be paid by the
Administrative Agent to the Lenders as provided for in Section
8.2(c) hereof. Subject to Section 8.2(c) hereof, upon the
payment in full of all Steamboat Obligations, Canyons
Obligations, *Sugarbush Obligations, *Sugarloaf Obligations,
Jordan Bowl Obligations, Attitash Obligations, Killington
Obligations and Mt. Snow Obligations, the balance of moneys
(in good, collected funds) that may from time to time exist in
the Cash Collateral Account shall be paid by the
Administrative Agent to the "buyer" under the Note Purchase
Agreement to the extent that GSRP then owes any payments
thereunder. Subject to Section 8.2(c) hereof, upon the payment
in full of all Obligations (including, without limitation, all
obligations of GSRP under the Note Purchase Agreement), any
moneys remaining in the Cash Collateral Fund shall be
delivered to GSRP.
(e) No Voluntary Prepayments.
(i) GSRP shall not have the right to voluntarily
prepay the Canyons Loan, the Steamboat Loan, the *Sugarloaf
Loan and/or the *Sugarbush Loan prior to the first Business
Day of the 12th month following the Closing Date (not
counting, for purposes of determining such 12th month, the
month in which the Closing Date occurs) except, as provided in
this Section 2.5, in connection with the sales of Quartershare
Interests, and/or Commercial Units in any one or more of the
Jordan Bowl Project, the Attitash Project, the Killington
Project and the Mt. Snow Project made in the normal and
ordinary course of GSRP's business on an arm's-length basis to
Persons that are not Affiliates or, with the prior consent of
the Administrative Agent, to an Affiliate, and except as
otherwise set forth in this Section 2.5 or in Sections 3.5 or
3.6 hereof. GSRP shall not have the right to voluntarily
prepay the Jordan Bowl Loan, the Attitash Loan, the Killington
Loan and/or the Mt. Snow Loan except, as provided under this
Section 2.5, in connection with the sales of Quartershare
Interests and/or Commercial Units in any one or more of the
Jordan Bowl Project, the Attitash Project, the Killington
Project, the Mt. Snow Project, the Steamboat Project, the
Canyons Project, the *Sugarbush Project and the *Sugarloaf
Project made in the normal and ordinary course of GSRP's
business on an arm's-length basis to Persons that are not
Affiliates or, with the prior consent of the Administrative
Agent, to an Affiliate, and except as otherwise set forth in
this Section 2.5 or in Sections 3.5 or 3.6 hereof.
(ii) GSRP shall have the right at any time on or
after the first Business Day of the 12th month following the
Closing Date (not counting, for purposes of determining such
12th month, the month in which the Closing Date occurs), upon
30 days' prior written notice to the Lender, to prepay the
Canyons Loan, the Steamboat Loan, the *Sugarloaf Loan and/or
the *Sugarbush Loan, in whole or in part, together with
(A) the Prepayment Premium, determined at
the time of the making of such prepayment in respect
of the principal amount of such Loans being prepaid,
(B) all accrued and unpaid interest due on
the portion of such Loans being prepaid as at the
time of the making of such prepayment, and
(C) all other amounts due and payable
hereunder in respect of the portion of such Loans
being prepaid, determined at the time of making such
prepayment;
provided, however, no Prepayment Premium shall be payable if
the cash for such prepayment shall be sourced through Release
Prices or internally generated excess operating cash flow
(e.g., cash flow in excess of Release Prices in respect of
sales in the ordinary course of Quartershare Interests or
Commercial Units at the Canyons Project, the Steamboat
Project, the *Sugarbush Project, the *Sugarloaf Project, the
Jordan Bowl Project, the Attitash Project, the Killington
Project and/or the Mt. Snow Project); for the avoidance of
doubt, any prepayment of the aforesaid Loans whose funding
shall be sourced, in whole or part, from any refinancing of
such Loans (other than through the Administrative Agent) or
from equity contributions to GSRP shall be subject to the
payment of the Prepayment Premium. For the avoidance of doubt,
any prepayment of the aforesaid Loans under this clause (ii)
shall be allocated among all of the then outstanding Advances
in respect of such Loans in accordance with the outstanding
principal amounts thereof (and interest and Prepayment
Premiums in respect thereof shall likewise be so allocated)
and paid to the Lenders holding such Advances for application
to the principal amount thereof, interest accrued thereon and
Prepayment Premium in respect thereof.
(iii) Anything contained in this clause (e) to the
contrary notwithstanding, if any Lender shall fail to extend
on or after the Closing Date its Pro Rata Share of any
Commitment applicable to it and with respect to which all
conditions precedent have been satisfied and for which GSRP
shall have not failed to perform any undertaking or Obligation
required of it hereunder and if the Administrative Agent or
any other Lender shall not have performed in the place and
stead of such defaulting Lender (after obtaining knowledge of,
or being given notice by GSRP of, such defaulting Lender and
also being granted a reasonable period of time to so perform)
and if such failure to perform by such defaulting Lender
shall, in the reasonable judgment of GSRP, create a Default or
Event of Default hereunder or have a material adverse effect
on the completion or operation of one or more of the Projects,
then GSRP shall have the right, to give prompt written notice
of the same to the Administrative Agent and within 90 days
after the giving of such notice, to prepay, in its entirety
and at par (without any Prepayment Premium or other penalty or
premium), the Loan and all other Loan Obligations with respect
thereto. Upon the giving of any such notice, no further
Advances shall be made hereunder and the Loan and all Loan
Obligations, subject to earlier acceleration pursuant to
Section 8.2 hereof, shall become due and payable upon the
earlier of the date of prepayment elected by GSRP or the 90th
day following the receipt by the Administrative Agent of the
aforesaid notice. This subclause (iii) shall have equal
application to any instance in which GSRP must return any
Advance made by the Administrative Agent in respect of a
defaulting Lender pursuant to Section 2.3(a)(iii) hereof or to
any other Lender that may have only temporarily performed in
the place and stead of a defaulting Lender.
(f) Nonordinary Course Sales. GSRP acknowledges and agrees
that if any of the Quartershare Interests and/or Commercial Units in
any of the Projects are sold by GSRP in other than in the normal and
ordinary course of GSRP's business, or by GSRP on other than an
arm's-length basis, or to Persons that are Affiliates (unless the
Administrative Agent shall have consented thereto), then GSRP shall not
have the right to prepay all or any part of the Loan with the proceeds
therefrom. In such event, GSRP's obligation to make the payments set
forth in Section 2.5 hereof in respect of such sales shall be mandatory
but the Administrative Agent shall retain such payments as additional
Collateral hereunder on behalf of the Lenders and shall deposit the
same in the Cash Collateral Account.
<PAGE>
2.6 PARTICIPATING LENDER
2.6 Participating Lender.
(a) Participations. Each of the Lenders shall have the right,
without prior notice to GSRP or the approval of GSRP, to designate one
or more Participating Lenders and to grant to such Participating
Lenders participations in such Lender's Pro Rata Share of the Steamboat
Loan, the Canyons Loan, the *Sugarbush Loan, the *Sugarloaf Loan, the
Jordan Bowl Loan, the Attitash Loan, the Killington Loan and/or the Mt.
Snow Loan, as the case may be, on terms and conditions satisfactory to
such Lender. In the event that such Lender so designates such a
Participating Lender and grants such Participating Lender a
participation in its Pro Rata Share of such Loan or Loans, such
Participating Lender shall communicate and deal only with such Lender
in respect to such Participating Lender's interest in such Loan or
Loans and neither GSRP nor the Administrative Agent shall be obligated
to communicate or deal with such Participating Lender. Anything
contained in this Section 2.6(a) notwithstanding, GSRP and each Lender
hereby acknowledge and agree that, solely for purposes of Section 11.7
and Section 11.8 hereof, (i) any participation held by a Participating
Lender will give rise to a direct obligation of GSRP to such
Participating Lender and (ii) such Participating Lender shall be
considered to be a "Lender" hereunder. Nothing in this clause (a) shall
relieve any Lender from its obligations hereunder to make Advances and
to honor its designated share of any of the Commitments.
(b) Assignments. Each Lender shall have the right, at any
time, to sell, assign or transfer to any Eligible Assignee all or any
part of its Commitment or its Pro Rata Share of the Steamboat Loan, the
Canyons Loan, the *Sugarbush Loan, the *Sugarloaf Loan, the Jordan Bowl
Loan, the Attitash Loan, the Killington Loan and/or the Mt. Snow Loan,
as the case may be, provided that
(i) GSRP and Administrative Agent shall have right to
approve any such Eligible Assignee, which approval shall not
be unreasonably withheld,
(ii) no such sale, assignment or transfer shall,
without the prior written consent of GSRP, require GSRP to
file a registration statement with the Securities and Exchange
Commission or apply to qualify such sale, assignment or
transfer under the securities laws of any state, and
(iii) no such sale, assignment or transfer shall be
effective unless and until an assignment agreement effecting
such sale, assignment or transfer, in form and substance
reasonably satisfactory to the Administrative Agent, shall
have been accepted by the Administrative Agent, and
(iv) no such sale, assignment or transfer shall be
effected in an amount of less than $1,000,000.
To the extent of any such assignment in accordance with the
requirements of this Section 2.6(b), the assigning Lender shall be
relieved of its obligations with respect to its respective Commitment
and the portion of such Loan or Loans so assigned that corresponds to
such Commitment. Upon such execution, deliver and acceptance from and
after the effective date specified in the aforesaid assignment
agreement, (A) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such assignment agreement, shall have the rights and
obligations of a Lender hereunder that corresponds to the portion of
the Loan so assigned and (B) the assigning Lender thereunder shall, to
the extent that rights and obligations hereunder have been assigned by
it pursuant to such assignment agreement, relinquish its rights and be
released from its obligations under this Agreement to the extent of the
portion of such Loan or Loans so assigned. The appropriate Commitments
hereunder shall be modified to reflect the acceptance of the assigned
portion of the appropriate Commitment by such assignee and to reflect
any remaining Commitment of such assigning Lender not so assigned and,
if any such assignment occurs after the issuance of the Notes
hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its Note
to GSRP for cancellation, and thereupon new Notes shall be issued by
GSRP to the assignee and to the assigning Lender, substantially in the
form of Exhibits E-1, E-2, E-3, E-4, E-5, E-6, E-7, E-8, E-9, E-10,
E-11 or E-12, as the case may be, attached hereto with appropriate
insertions, to reflect the new appropriate Commitments of the assignee
and the assigning Lender. Except as otherwise provided in this Section
2.6(b) and in Section 2.3(a)(i) hereof, no Lender shall, as between
GSRP and such Lender, be relieved of any of its obligations hereunder
as a result of any sale, assignment or transfer of all or any part of
its Commitment or its Pro Rata Share of the Loan.
(c) Additional Lenders. Textron Financial Corporation, in its
individual capacity, shall have the right, at any time, to bring
additional "Lenders" into the Agreement and to cause such "Lenders" to
become obligated in respect of one or more Commitments, provided that
(i) GSRP shall have right to approve any such
additional "Lender," which approval shall not be unreasonably
withheld,
(ii) the addition of such "Lender" shall not, without
the prior written consent of GSRP, require GSRP to file a
registration statement with the Securities and Exchange
Commission or apply to qualify under the securities laws of
any state, and
(iii) the addition of such "Lender" shall not become
effective unless and until each of the following shall have
been done (upon the satisfaction of the following, such
additional "Lender" shall be a party hereto and, shall have
the rights and obligations of a "Lender" hereunder in respect
of the Commitment or Commitments designated by such additional
"Lender"):
(A) such additional "Lender" shall have
executed an accession agreement (in a form
satisfactory to the Administrative Agent) pursuant to
which it becomes bound to perform as a "Lender"
hereunder and shall have delivered an executed copy
of the same to GSRP and the Administrative Agent;
(B) the appropriate Commitments hereunder
shall be modified by the Administrative Agent, if
necessary, to reflect such "additional" Lender, and
the Administrative Agent shall inform each of the
affected Lenders in respect thereof (no such
modifications shall increase or decrease any existing
individual Commitments hereunder);
(C) GSRP shall execute and deliver to such
"additional" Lender Notes substantially in the form
of Exhibits E-1, E-2, E-3, E-4, E-5, E-6, E-7, E-8,
E-9, E-10, E-11 or E-12, as the case may be, attached
hereto, with appropriate insertions to reflect such
"additional" Lender and its designated shares of any
Commitment or Commitments;
(D) a date-down endorsement for the Title
Insurance Policy {Blanket} in respect of each Project
shall be delivered by GSRP to the Administrative
Agent and shall show that no Liens in and to the
Projects other than Permitted Exceptions to which all
Lenders are subject; and
(E) notice of such "addditional" Lender
shall have been sent by the Administrative Agent to
the other Lenders.
For the avoidance of doubt, any "additional Lender"
added to the LSA in accordance with the requirements
of this clause shall not require the consent of any
other Lender. Other than Textron Financial
Corporation, no Lender shall have the right to
propose the addition hereto of any other "additional
Lenders."
(d) Information. Each Lender and the Administrative Agent may
furnish any information concerning GSRP, any of the Projects, the
Collateral and the Security Documents in the possession of such Person
from time to time to assignees, Participating Lenders (including,
without limitation, prospective assignees and participants) and
"additional" Lenders (including, without limitation, prospective
"additional" Lenders), subject to the prior execution of a
confidentiality agreement by any such assignee, Participating Lender or
any such prospective assignee or prospective Participating Lender or
"additional" Lender or any such prospective "additional" Lender in form
and substance substantially similar to the form of confidentiality
agreement executed by such Lender or the Administrative Agent, provided
that no such confidentiality agreement shall be required to be executed
in connection with any such assignee, Participating Lender or
"additional" Lender that is an affiliate of such Lender and would,
pursuant to the terms of the confidentiality agreement executed by such
Lender, be covered by such confidentiality agreement.
<PAGE>
2.7 COMMITMENT FEE
2.7 Commitment Fee.
GSRP agrees to pay to Textron Financial Corporation, in its individual
capacity and not as the Administrative Agent, a total commitment fee of
$1,450,000 in connection with the Loan. The foregoing fee shall be due and
payable to Textron Financial Corporation, in its individual capacity and not as
the Administrative Agent, as follows: (a) on the Closing Date, 1% of the
aggregate amount of Commitments of all Lenders then in effect and (b) on each
date after the Closing Date on which an additional Commitment is extended
hereunder by a Lender, 1% of the amount of such additional Commitment so
extended. Subject to clause (i) below, to the extent that GSRP shall have paid
the aforesaid fee or fees to Textron Financial Corporation (in its individual
capacity and not as the Administrative Agent), as required hereunder, and any
Construction Project Advance Lender fails to extend on or after the Closing Date
its Pro Rata Share of any Construction Project Advance with respect to which all
conditions precedent have been satisfied and for which GSRP shall have not
failed to perform any undertaking or Obligation required of it hereunder and
Textron Financial Corporation shall not have, within 30 days of such funding
failure, either itself made, or procured another Lender or lender to make, such
failed funding, Textron Financial Corporation, in its individual capacity and
not as the Administrative Agent, shall, upon receipt of a written demand from
GSRP, pay to GSRP 1% of the Commitment of such failing Construction Project
Advance Lender not then being honored less any unreimbursed Loan Costs incurred
by Textron Financial Corporation, in its individual capacity and not as the
Administrative Agent. Anything contained herein to the contrary notwithstanding,
(i) the full commitment fee of $1,450,000 shall be deemed to
have been irrevocably earned after its payment in full if Textron
Finance Corporation, as a Construction Project Advance Lender, is
willing to advance its Pro Rata Share of a Construction Project Advance
at such time and GSRP is either unwilling to accept such Construction
Project Advance at such time or has failed to satisfy the requisite
conditions precedent set forth in Section 6 hereof with respect to a
Construction Project Advance that could have been made at such time and
(b) if GSRP shall, in good faith and after diligent effort,
have failed prior to December 31, 1999 to obtain the necessary
licenses, permits, franchises or other governmental authorizations from
the State of Colorado in respect of the Steamboat Project that are
necessary to the ownership and development of such Construction Project
and the offering and sale of Quartershare Interests therein, then (i)
the portion of the aforesaid commitment fee actually paid to such date
and otherwise attributable to the Steamboat Project shall be paid back
to GSRP by Textron Financial Corporation, in its individual capacity
and not as the Administrative Agent, (ii) if no such commitment fees
shall have been paid, any commitment fee otherwise payable in respect
of the Steamboat Project shall be eliminated and (iii) the Steamboat
Project's "Project Borrowing Base" shall be eliminated from this
Agreement and the $145,000,000 figure set forth in the definition of
"Aggregate Construction Project Borrowing Base" and as used elsewhere
in this Agreement shall be reduced by the maximum amount stated in
clause (i) in the Steamboat Project's definition of "Project Borrowing
Base."
No Lender other than Textron Financial Corporation shall have any
rights under this Section 2.7 (unless Textron Financial Corporation shall have
otherwise agreed in writing).
<PAGE>
2.8 RIGHT OF FIRST REFUSAL
2.8 Right of First Refusal.
If, at any time during the Commitment Period or at any time thereafter
when any Obligation shall be outstanding hereunder or the Note Purchase
Agreement shall still be in effect, GSRP or any Affiliate shall have obtained a
bona fide third-party offer (the "Third-Party Offer") for the financing of any
Subsequent Phase, GSRP shall, in writing, promptly inform Textron Financial
Corporation (such writing to Textron Financial Corporation is referred to herein
as the "TFC First Refusal Offer") of such Third-Party Offer and the terms and
conditions of such Third-Party Offer (and shall attach a copy of such
Third-Party Offer to such TFC First Refusal Offer) and, in such TFC First
Refusal Offer, shall offer, or shall cause its Affiliate to offer, to Textron
Financial Corporation a right of first refusal in respect of such financing.
Such right of first refusal shall grant Textron Financial Corporation the right
to, within 20 Business Days after the receipt of such TFC First Refusal Offer,
deliver a writing to GSRP or such Affiliate (the "TFC Acceptance") stating that
Textron Financial Corporation agrees to extend such financing on terms which
shall be the same or better than both (a) the terms of financing under such
Third-Party Offer (as such terms were communicated to the Textron Financial
Corporation by GSRP) and (b) the terms of financing that would have applied
hereunder if such financing were had hereunder. Upon receipt of the TFC
Acceptance by GSRP, Textron Financial Corporation and GSRP (or such Affiliate)
shall be deemed to have reached an agreement for such financing on the terms set
forth in such TFC Acceptance (subject to the satisfaction of appropriate
conditions in respect of due diligence, documentation and other customary and
commercial conditions precedent). If Textron Financial Corporation shall have
declined to exercise its right under such TFC First Refusal Offer, or shall have
failed to timely respond to such TFC First Refusal Offer or shall have offered a
counterproposal to GSRP (or such Affiliate) in respect of such TFC First Refusal
Offer, GSRP (or such Affiliate) shall be free to close such Third-Party Offer
within 180 days of the date of such TFC First Refusal Offer on terms
substantially similar to the terms thereof set forth in such Third-Party Offer
(as communicated to the Textron Financial Corporation). If GSRP (or such
Affiliate) shall have failed to so close such financing within said 180 days,
then a new right of first refusal for the benefit of Textron Financial
Corporation with respect to such financing shall immediately arise. GSRP agrees
to inform any Person making a Third-Party Offer of Textron Financial
Corporation's rights under this Section 2.8 in respect thereof. This Section 2.8
shall survive the final payment of all of the Obligations and the resulting
termination of this Agreement.
With respect to any Third-Party Offer that is paired with a take-out
facility with respect to the quartershare notes expected to be generated from
the sale of quartershare interests in such Subsequent Phase, Textron Financial
Corporation shall only have a right to issue a TFC Acceptance if Textron
Financial Corporation pairs such TFC Acceptance with an offer of a take-out
facility with respect to the quartershare notes expected to be generated from
the sale of quartershare interests in such Subsequent Phase that is on terms
that are the same or better than both (i) the terms of the take-out facility
associated with such Third-Party Offer and (ii) the terms under the Note
Purchase Agreement if then maintained by Textron Financial Corporation, TBS
Business Services, Inc. or another affiliate of Textron Financial Corporation.
No Lender other than Textron Financial Corporation shall have any
rights under this Section 2.8.
3. COLLATERAL
<PAGE>
3.1 SECURITY
3.1 Security.
For the purpose of securing the prompt and complete payment and
performance by GSRP of all of the Obligations, GSRP does unconditionally and
irrevocably hereby grant to the Administrative Agent on behalf of the Lenders a
security interest in, and a Lien upon, the following Property of GSRP, whether
now owned or hereafter acquired (such Property being herein referred to as the
"Collateral"):
(a) (i) all of GSRP's right, title and interest in, to and
under all Contracts (now or hereafter existing) together with all
downpayments, deposits, accounts, accounts receivable, contract rights,
general intangibles, chattel paper and other receivables arising under
or in connection with such Contracts or otherwise securing the
obligations thereunder of the Purchasers in respect thereof, together
with all payments and other proceeds thereunder (including, without
limitation, all Quartershare Notes and all Quartershare Mortgages),
(ii) all of GSRP's right, title and interest in, to and under any
purchase contract for the acquisition of any Commercial Unit, as a
condominium unit, (now or hereafter existing) together with all
downpayments, deposits, accounts, accounts receivable, contract rights,
general intangibles, chattel paper and other receivables arising under
or in connection with such purchase contracts or otherwise securing the
obligations thereunder of the purchasers in respect thereof, together
with all payments and other proceeds thereunder (including, without
limitation, all notes and mortgages arising from the financing of the
sales of such Commercial Units), (iii) all GSRP's rights to receive
payments from any escrow agent or other Person performing a similar
role in connection with the sale of any Quartershare Interest or
Commercial Unit and (iv) all GSRP's rights to receive payments under
the Note Purchase Agreement;
(b) all of GSRP's right, title and interest in, to and under
(including, without limitation, all revenues, proceeds, rents and other
benefits derived from) any franchises, permits, trade names, trademarks
(and goodwill associated therewith), approvals, leasehold interests
(whether as lessor or lessee or sublessor or sublessee), management
contracts, marketing contracts, maintenance contracts, utility
contracts, security contracts, other servicing contracts, licensing
contracts, Project Documents or other similar contracts and all
guaranties of any of the foregoing, including, without limitation, the
contracts set forth on Schedule 8 to this Agreement (individually, a
"Property-Related Contract" and, collectively, the "Property-Related
Contracts"), relating, in each case, to any of the Projects, the
Quartershare Interests, the Commercial Units and/or the Common
Elements;
(c) all other accounts, contract rights, general intangibles,
documents, instruments, chattel paper and proceeds of GSRP related to
the Property described in clause (a) or clause (b) above, or otherwise
connected with, or related to, the operation and/or construction,
management and use of any of the Projects, including, without
limitation, any of GSRP's right, title and interest in and to the
Approved Escrow Accounts or any other trust account maintained by any
Escrow Agent (or any successor escrow agent) for or on behalf of GSRP,
and including, without limitation, all of GSRP's right, title and
interest in, to and under each of Beneficial Improvement Agreements and
each of the Host Company Lease Agreements;
(d) all Books and Records and the Cash Collateral Account
(together with all investments in respect thereof);
(e) all fixtures, inventory, fittings, machinery, appliances,
equipment, apparatus, furnishings, and personal Property of every
nature found on or used in connection with any of the Projects and any
of the Common Elements;
(f) all of GSRP's right, title and interest of whatever
character (whether as owner, vendor, mortgagee, chattel lessee,
Declarant, Quartershare Interest owner, Residential Unit owner,
Commercial Unit owner or otherwise, whether vested or contingent and
whether now owned or hereafter acquired) in and to (i) any and all of
the Projects, including, without limitation, all Quartershare Interests
(now existing or hereafter created) relating thereto (whether sold or
unsold), (ii) the Declarations (including, without limitation, its
development rights under applicable law), (iii) all building materials,
supplies and other Property now or hereafter stored at or delivered to
any of the Projects or any other location for installation in or on any
of the Projects, (iv) any and all plans, specifications, drawings,
books, records, marketing materials and similar items now or hereafter
relating to any of the Projects the operation and use thereof, any
rights of GSRP thereto or any interest therein (including, without
limitation, the Plans for each of the Projects), (v) the Construction
Contract for each of the Projects and the architect and engineering
contracts entered into or to be entered into by GSRP in connection with
the construction and development of each of the Projects and (vi) any
payment, performance or other surety bonds obtained by any contractor
or subcontractor in connection with the development and construction of
each of the Projects;
(g) all of GSRP's right, title and interest of whatever
character (whether as owner, chattel lessee, Declarant, Quartershare
Interest owner, Residential Unit owner, Commercial Unit owner or
otherwise, whether vested or contingent and whether now owned or
hereafter acquired) in and to any and all judgments, settlements,
claims, awards, insurance proceeds and other proceeds and compensation,
and any interest thereon (collectively, "Compensation"), now or
hereafter made or payable in connection with (i) any casualty or other
damage to all or any part of any of the Projects, (ii) any condemnation
proceedings affecting all or any part of any of the Projects or any
rights thereto or any interest therein, (iii) any damage to or taking
of all or any part of any of the Projects, or any rights thereto or any
interest therein arising from or otherwise relating to any exercise of
the power of eminent domain (including, without limitation, any and all
Compensation for change of grade of streets or any other injury to or
decrease in the value of any of the Projects), or any conveyance in
lieu of or under threat of any such taking, (iv) any and all proceeds
of any sale, assignment or other disposition of all or any part of any
of the Projects or any rights thereto or any interest therein, (v) any
and all proceeds of any other conversion (whether voluntary or
involuntary) of all or any part of any of the Projects or any rights
thereto or any interest therein or to cash or any liquidated claim, and
(vi) any and all refunds and rebates of or with respect to any
Insurance Premium, any Imposition or any other charge for utilities
relating to all or any part of any of the Projects (including, without
limitation, any and all refunds and rebates of or with respect to any
deposit or prepayment relating to any such Insurance Premium,
Imposition or charge), and any and all interest thereon, whether now or
hereafter payable or accruing; and
(h) all other "Mortgaged Property," under and as defined in any of the
Blanket Mortgages, whether such Collateral shall be presently in existence or
whether it shall be acquired or created by GSRP at any time hereafter, wherever
located, together with the products and proceeds thereof and any replacements,
additions and/or accessions thereto and substitutions thereof and after-acquired
Property.
GSRP shall use its best efforts to the extent legally available to
cause each Association for each Project to grant to the Administrative Agent a
Lien and security interest in any all of its respective right, title and
interest in, to and under (including, without limitation, all revenues,
proceeds, rents and other benefits derived from) any management contracts,
marketing contracts, maintenance contracts, utility contracts, security
contracts, other servicing contracts, licensing contracts, Project Documents or
other similar contracts and all guaranties of any of the foregoing that may
affect such Project.
<PAGE>
3.2 UNDERTAKINGS REGARDING COLLATERAL
3.2 Undertakings Regarding Collateral.
(a) Maintenance of Perfection. Neither the Administrative
Agent nor the Lenders shall be required to take any steps to perfect or
maintain the perfection of its security interest in the Collateral and
no loss of, or damage to, the Collateral shall release GSRP from any of
the Obligations.
(b) Collections on all Contracts. Administrative Agent shall
have a security interest in, and may collect payments under, all of the
Contracts of GSRP and all of the contracts of purchase in respect of
the Commercial Units.
(c) No Assumption of Obligations. The execution and delivery
of this Agreement, and the granting of the Liens in and to the
Collateral, shall not subject the Administrative Agent or the Lenders
to, or transfer or pass to the Administrative Agent or any Lender or in
any way affect or modify, the liability of GSRP under any or all of the
Contracts, any of the contracts of purchase in respect of the
Commercial Units, the Property-Related Contracts or in connection with
any of the Projects, the Declarations, the Articles of Incorporation or
By-Laws for the Associations or the other Project Documents, it being
understood and agreed that notwithstanding this Agreement, and the
granting of the Liens in and to the Collateral, all of the obligations
of GSRP (whether as owner, chattel lessee, vendor, mortgagee,
Declarant, Residential Unit owner, Quartershare Interest owner,
Commercial Unit owner or otherwise) to each and every other party under
each and every one of the Contracts, the contracts of purchase in
respect of the Commercial Units and the Property-Related Contracts
and/or in connection with any of the Projects, the Declarations, the
Articles of Incorporation or By-Laws for the Associations and the other
Project Documents shall be and remain enforceable by such other party,
its successors and assigns, only against GSRP or Persons other than the
Administrative Agent or the Lenders, and the neither the Administrative
Agent nor the Lenders have assumed any of the obligations or duties of
GSRP under or with respect to any of the Contracts, such contracts of
purchase or the Property-Related Contracts or otherwise in connection
with any of the Projects, the Declarations, the Articles of
Incorporation or By-Laws for the Associations or the other Project
Documents.
(d) No Obligation to Take Action. GSRP hereby agrees and
acknowledges that neither the acceptance of this Agreement or any other
Security Document by the Administrative Agent or the Lenders nor the
exercise of, or failure to exercise, any right, power or remedy in this
Agreement or in any other Security Document conferred upon the
Administrative Agent or the Lenders shall be deemed or construed to
obligate the Administrative Agent or any of the Lenders to pay any sum
of money, take any other action or incur any liability in connection
with, or collect or realize upon, any of the Contracts or any other
Collateral. It is further agreed and understood by GSRP that the
neither the Administrative Agent nor the Lenders shall be liable in any
way for any cost, expense or liability connected with, or any charge or
liability arising from, any of the Contracts, any of the contracts of
purchase in respect of the Commercial Units, any of the
Property-Related Contracts or any other Collateral.
(e) Indemnification. GSRP hereby agrees to indemnify each of
the Administrative Agent and the Lenders, and hold each of such Persons
harmless, from any and all liability, loss or damage which such Person
may or might incur by reason of any and all claims and demands
whatsoever which may be asserted against such Person arising out of, as
a result of, or otherwise connected with, the Liens hereby granted to
the Administrative Agent for their benefit of the Lenders by GSRP under
or in respect of any of the Contracts or any other Collateral by reason
of (i) the failure by GSRP to perform any obligations or undertakings
required to be performed by GSRP under or in connection with any of
such Contracts, the Property-Related Contracts or any other Collateral,
(ii) any failure by GSRP, in connection with any of such Contracts, the
Property-Related Contracts or any other Collateral, to comply with any
applicable federal, state or local consumer credit, sale rescission,
blue-sky, securities or usury statute, including, without limitation,
any such statute of any state in which a Purchaser may reside, the
Consumer Credit Protection Act, as amended, the Federal Trade
Commission Act, as amended, the Interstate Land Sales Full Disclosure
Act, and all rules and regulations promulgated under the foregoing
statutes, acts and codes, and (iii) failure by GSRP to comply with any
applicable federal, state or local statutes, ordinances or declarations
and the restrictions, rules and regulations promulgated thereunder or
contained therein pertaining to the construction, use or operation of
any of the Projects (including, without limitation, the statutes,
ordinances, declarations, restrictions, rules and regulations of the
towns or other municipalities covering the areas in which the Project
are situated, and the declarations, restrictions and requirements of
the CCR's and Declarations affecting the Projects) or to otherwise
discharge its duties and obligations under applicable law, under the
Declarations or the Articles of Incorporation or By-Laws of the
Associations, unless such claims or demands were directly a result of
such Person's intentional misconduct or gross negligence.
<PAGE>
3.3 financing statements
3.3 Financing Statements.
GSRP agrees, at its own expense, to execute the financing statements
required by the Administrative Agent together with any and all other instruments
or documents and take such other action, including delivery of such instruments
and documents, as may be necessary to perfect, and to continue the perfection
of, the Administrative Agent's security interest and Liens in the Collateral
and, unless prohibited by law, GSRP hereby authorizes the Administrative Agent
to execute and file any such financing statement on GSRP's behalf. The parties
agree that a legible carbon, photographic or other reproduction of this
Agreement or of a financing statement shall be sufficient as a financing
statement.
GSRP agrees, at its own expense, to use its best efforts to cause each
Association to execute the financing statements required by the Administrative
Agent together with any and all other instruments or documents and take such
other action, including delivery of such instruments and documents, as may be
necessary to perfect, and to continue the perfection of, the Lender's security
interest and Liens in the collateral granted hereunder by such Association.
<PAGE>
3.4 LOCATION OF COLLATERAL; BOOKS AND RECORDS
3.4 Location of Collateral; Books and Records.
All tangible Collateral (other than Collateral delivered to the
Administrative Agent or located in any Approved Escrow Account) which is
personal Property is to remain, at all times, on the premises of GSRP at Sunday
River Road, in Bethel, Maine, or at the Projects and GSRP represents and
warrants to the Administrative Agent and the Lenders that all of the currently
existing tangible Collateral is now located there, and GSRP will not transfer
the Collateral from such premises to other locations without the prior written
approval of the Administrative Agent. GSRP shall, upon receipt of a written
request therefor from the Administrative Agent after the occurrence of an Event
of Default, deliver to the Administrative Agent then current copies of all
computer tapes, disks, software and micro-fiche records constituting, in whole
or in part, the Books and Records.
<PAGE>
3.5 INSURANCE OF COLLATERAL
3.5 Insurance of Collateral.
(a) Maintenance of Insurance.
(i) GSRP agrees to maintain or cause to be maintained
(including, without limitation, causing each General
Contractor to maintain with respect to any Construction
Project), or, as provided under the Declarations, cause each
of the Associations to maintain (as to their respective
Projects and the personal Property located thereon), insurance
(with financially sound and reputable insurers) with respect
to
(1) each Project,
(2) the personal Property located at the Projects
(including, without limitation, the furniture, fixtures and
furnishings thereof),
(3) all other equipment and other personal
Property of every nature whatsoever now or hereafter
located in or on, or attached to, and used or
intended to be used in connection with any of the
Projects, and
(4) the Books and Records and the other
valuable papers of GSRP,
against casualties, contingencies, hazards and such other
risks (including, without limitation, (A) fire, hurricane,
tornado, wind damage, and such other risks insured against by
a standard all-risk property and fire insurance policy and
endorsement for extended coverage, (B) flood insurance, if
applicable, and (C) builder's risk insurance in completed
value form) and in such amounts as shall be reasonably
satisfactory to the Administrative Agent (such insurance to be
maintained during the construction and development of each
Project and to cover materials in as well as adjacent to the
structures so insured; such insurance (other than such
builder's risk insurance) shall also be maintained after such
development and construction as well); provided, however, that
such casualty insurance shall (aa) in no case be in an amount
less than an amount sufficient to rebuild each Project or the
portions thereof which shall have suffered the loss and
replace any of the personal Property located therein, (bb) be
sufficient to avoid any co-insurance requirements in respect
of GSRP and/or the Associations, and (cc) be sufficient to
provide funds to fully compensate owners of Quartershare
Interests, and Commercial Units for any inability to utilize
any such condominium units or the Common Elements during any
period following a loss thereto. With respect to such
insurance, GSRP shall deliver or cause to be delivered, or
cause the Associations to deliver (to the extent permitted by
applicable law and the Declarations), certificates of
insurance to the Administrative Agent, with satisfactory
lender's loss payable endorsements naming the Administrative
Agent on behalf of the Lenders as loss payee to the extent of
its interest and as such interest may appear on the Closing
Date. Each policy of such insurance or endorsement with
respect thereto shall contain a clause requiring the insurer
to give not less than 30 days' prior written notice to the
Administrative Agent in the event of cancellation of the
policy for any reason whatsoever and a clause that the
interest of the Administrative Agent shall not be impaired or
invalidated by any act or neglect of GSRP or owner of the
Property nor by the occupation of the premises for purposes
more hazardous than are permitted by said policy. If GSRP
shall fail to provide for such insurance, or have the same
provided for, the Administrative Agent may, at GSRP's expense,
procure the same, but shall not be required to do so.
(ii) GSRP shall maintain or cause to be maintained
insurance with financially sound and reputable insurers with
respect to its Property and business (including, without
limitation, the Collateral) covering any public liability of
GSRP, its officers, agents or employees (including, without
limitation, damage by GSRP or its officers, agents or
employees to the Property of other Persons, any bodily injury
caused by GSRP or its officers, agents or employees to any
other Person, or any negligent act or other similar liability
of GSRP or its officers, agents or employees) and in such
amounts as are satisfactory to the Administrative Agent; the
Administrative Agent and the Lenders shall be named as an
additional insureds thereon. GSRP shall, as provided in the
Declarations, cause the Associations to maintain insurance
with financially sound and reputable insurers with respect to
the Projects covering any public liability of the Associations
or their officers, agents or employees to the Property of
other Persons, any bodily injury caused by the Associations or
their officers, agents or employees to any other Person, or
any negligent act or other similar liability of the
Association or its officers, agents or employees) and in such
amounts as are provided for in the Declarations.
(iii) GSRP shall, prior to renewal, submit, or cause
the Associations to submit, to the Administrative Agent
insurance certificates showing the type and amounts of
insurance coverage maintained in respect of the Projects. GSRP
shall, to the extent permitted by applicable law and the
Declarations, cause all casualty policies of insurance
provided under the Declarations to have mortgagee endorsements
in respect of the Administrative Agent's interests in and to
the Quartershare Interests Residential Units, and/or
Commercial Units that are the subject of the Blanket Mortgages
or any Quartershare Mortgage in which the Lender may have a
security interest and Lien hereunder.
(iv) GSRP shall pay, or cause the Associations to
pay, all premiums on the aforesaid insurance policies and all
other fees and charges payable in connection with such
insurance policies (such premiums, fees and charges being
collectively referred to herein as "Insurance Premiums") not
later than the due date thereof. If GSRP shall fail to pay, or
cause the Associations to pay, any such Insurance Premiums,
the Administrative Agent may (but shall not be obligated to),
at GSRP's expense and upon the written instructions of the
Required Parties, pay the same. Any such payment shall be
subject to Section 3.11 and Section 3.12 hereof.
(v) If the Mortgaged Property (under and as defined
in any of the Blanket Mortgages) or any portion is sold at a
foreclosure sale or if any Lender shall acquire title to said
Mortgaged Property or any such portion, such Lender shall have
all of the right, title and interest of GSRP in and to all
insurance policies required under this Section 3.5(a) and the
unearned premiums thereon, related to such Mortgaged Property
or such portion, and in and to the proceeds resulting from any
damage to said Mortgaged Property or such portion prior to
such sale or acquisition.
(vi) GSRP agrees to cause any contractor hired by it
to effect any of the construction and development of any
Construction Project to carry adequate insurance in respect of
bodily injury or other personal liability or property damage
in respect of its employees or other third persons in
connection with such construction and development. GSRP shall
use its best efforts to cause certificates of such insurance
to be filed with the Administrative Agent.
(vii) Anything contained in this Section 3.5(a) to
the contrary notwithstanding, any of the undertakings of GSRP
in this Section 3.5(a) in respect of insuring the Projects or
in respect of causing the Associations to perform any
undertaking under this Section 3.5(a) shall be subject to the
requirements of the condominium acts or other common interest
ownership acts as adopted and in effect from time to time in
the States in which the Project are situated, and the rules
and regulations as adopted from time to time thereunder and
the Declarations.
(b) Condominium Insurance Proceeds.
(i) Any proceeds of insurance in respect of the
Projects received by the Associations or any manager retained
by it and then further paid by the Associations or such
manager to GSRP (whether as Declarant or otherwise), as
provided for in the Declarations, shall be promptly paid
and/or turned over by GSRP to the Administrative Agent as
proceeds of the Collateral and applied to the prepayment of
the Loan as provided in Section 2.5(d) hereof.
(ii) Without limiting the immediately preceding
paragraph, any proceeds of insurance in respect of the
Projects received by GSRP at a time during which the insurance
provisions of the relevant Declaration shall not be in effect
as to the affected Project shall be treated as provided in
Section 3.5(c) of this Agreement.
(c) Miscellaneous Application of Insurance Proceeds. In
connection with, and pursuant to, Section 3.5(b)(ii) hereof, the
Lenders and GSRP agree to the following:
(i) Following the occurrence of any Default or Event
of Default (provided that if such Default or Event of Default
is cured by GSRP, then clause (ii) below and not this clause
(i) shall thereafter apply), the Administrative Agent (at the
instruction of the Required Steamboat Lenders in the case of a
Steamboat Project casualty or loss, the Required Canyons
Lenders in the case of a Canyons Project casualty or loss, the
Required *Sugarbush Lenders in the case of a *Sugarbush
Project casualty or loss, the Required *Sugarloaf Lenders in
the case of a *Sugarloaf Project casualty or loss, the
Required Jordan Bowl Lenders in the case of a Jordan Bowl
Project casualty or loss, the Required Attitash Lenders in the
case of an Attitash Project casualty or loss, the Required
Killington Lenders in the case of a Killington Project
casualty or loss, the Required Mt. Snow Lenders in the case of
a Mt. Snow Project casualty or loss, or the Required Parties
in any case other than as set forth above) is hereby
authorized and empowered to adjust or compromise any loss
under any insurance policies maintained pursuant to this
Section 3.5, and to collect and receive the proceeds from any
such policies. In such event, each insurance company is hereby
authorized and directed to make payment for all such losses
directly to the Administrative Agent, instead of to GSRP
(and/or the applicable Association) and the Administrative
Agent jointly. In the event any insurance company fails to
disburse directly and solely to the Administrative Agent but
disburses instead either solely to GSRP or to GSRP (and/or any
Association) and the Administrative Agent jointly, GSRP agrees
immediately to endorse and transfer, or cause to be endorsed
and transferred, such proceeds to the Administrative Agent.
Upon the failure of GSRP to endorse and transfer such proceeds
as aforesaid (or cause the same to be done), the
Administrative Agent (at the instruction of the appropriate
Required Parties, as aforesaid) may execute such endorsements
or transfers for and in the name of GSRP (whether as Declarant
or otherwise) and GSRP hereby unconditionally and irrevocably
appoints the Administrative Agent as GSRP's agent and
attorney-in-fact, coupled with an interest, to endorse and
transfer such proceeds to the Administrative Agent on behalf
of the Lenders. After deducting from said insurance proceeds
all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, the
Administrative Agent may apply the net proceeds or any part
thereof, as instructed by the aforesaid Required Parties, (i)
to payment of the Obligations, whether or not due, as provided
in Section 2.5(d) hereof, (ii) to the repair and/or
restoration of the applicable Project or (iii) for any other
purposes or objects for which the Administrative Agent or the
Lenders are entitled to advance funds under this Agreement or
any of the other Security Documents; all without affecting the
Liens and security interests of this Agreement and the other
Security Documents. Neither the Administrative Agent nor the
Lenders shall be held responsible for any failure to collect
any insurance proceeds due under the terms of any policy
regardless of the cause of such failure.
(ii) Prior to the occurrence of any Default or Event
of Default and if GSRP gives the Administrative Agent notice
of any casualty as provided in clause (d) below, GSRP shall
have the right to adjust and compromise losses under insurance
policies and to collect and receive insurance proceeds and
shall apply such insurance proceeds with respect to such
losses solely and exclusively to the repair and restoration of
the affected Project or, if consented to by the Administrative
Agent (at the instruction of the Required Steamboat Lenders in
the case of a Steamboat Project casualty or loss, the Required
Canyons Lenders in the case of a Canyons Project casualty or
loss, the Required *Sugarbush Lenders in the case of a
*Sugarbush Project casualty or loss, the Required *Sugarloaf
Lenders in the case of a *Sugarloaf Project casualty or loss,
the Required Jordan Bowl Lenders in the case of a Jordan Bowl
Project casualty or loss, the Required Attitash Lenders in the
case of an Attitash Project casualty or loss, the Required
Killington Lenders in the case of a Killington Project
casualty or loss, the Required Mt. Snow Lenders in the case of
a Mt. Snow Project casualty or loss, or the Required Parties
in any case other than as set forth above), to the payment of
the Steamboat Obligations, the Canyons Obligations, the
*Sugarbush Obligations, the *Sugarloaf, Obligations, Jordan
Bowl Obligations, Attitash Obligations, Killington
Obligations, Mt. Snow Obligations or other Obligations, as
GSRP deems appropriate in its reasonable discretion and as
shall have been consented to by the relevant Project Required
Lenders or Required Parties, as the case may be. With respect
to any such casualty loss, GSRP shall have the right to use
any insurance proceeds received on account of such loss to the
repair and restoration of the affected Project, provided that
prior written notice is given with respect thereto to the
Administrative Agent and the scope and plans for the repair or
restoration have been approved by the Administrative Agent,
which approval shall not be unreasonably withheld or delayed
if the repair or restoration will result in a new "resort"
which is substantially comparable to the pre-existing "resort"
at such Project in terms of overall usable square footage and
types of functions served by such pre-existing "resort", the
new "resort" is constructed with the same or better quality of
materials and workmanship as such pre-existing "resort," and
is constructed in accordance with the applicable requirements
of then existing zoning, design and building codes and other
applicable laws, the applicable CCR's and market
considerations. All such repair and restoration shall be
diligently prosecuted to completion by GSRP and shall be
completed on or prior to the Maturity Date.
(d) GSRP Undertakings. In the event of any material casualty
or loss in respect of any of the Projects (including, without
limitation, any of the Collateral), (i) GSRP shall immediately notify
the Administrative Agent of the same and (ii) the Administrative Agent
may, in addition to its rights as mortgagee under the Blanket
Mortgages, elect (at the instruction of the Required Steamboat Lenders
in the case of a Steamboat Project casualty or loss, the Required
Canyons Lenders in the case of a Canyons Project casualty or loss, the
Required *Sugarbush Lenders in the case of a *Sugarbush Project
casualty or loss, the Required *Sugarloaf Lenders in the case of a
*Sugarloaf Project casualty or loss, the Required Jordan Bowl Lenders
in the case of a Jordan Bowl Project casualty or loss, the Required
Attitash Lenders in the case of an Attitash Project casualty or loss,
the Required Killington Lenders in the case of a Killington Project
casualty or loss, the Required Mt. Snow Lenders in the case of a Mt.
Snow Project casualty or loss or the Required Parties in any case other
than as set forth above) to exercise the voting rights of GSRP as a
mortgagee or a holder of a security interest in respect of any
Quartershare Mortgage pledged to the Administrative Agent hereunder or
as the owner of any Quartershare Interest, Residential Unit or
Commercial Unit, as such voting rights are provided for under the
applicable Declaration, regarding all matters of repair and
restoration. In the event of any casualty or loss in respect of any
Project (including, without limitation, any of the Collateral), GSRP
shall pay all assessments as required by the applicable Declaration
and/or the applicable Articles of Incorporation or By-Laws for repair
and restoration due to inadequacy of insurance.
<PAGE>
3.6 CONDEMNATION
3.6 Condemnation.
(a) Condominium/Timeshare Condemnation Compensation.
(i) Any compensation, awards, damages, claims, rights
of action, proceeds, payment and other relief (collectively,
"Condemnation Compensation") of, or on account of, any damage
or taking of all or any part of the Projects in connection
with any condemnation proceedings or any exercise of the power
of eminent domain (or any conveyance in lieu of or under
threat of any such taking), including, without limitation, any
such Condemnation Compensation for change of grade of streets
or any other injury to or decrease in the value of all or any
part of the Projects, payable to any Association or any
manager retained by it and paid further by such Association or
such manager to GSRP (whether as Declarant or otherwise), as
provided for in the applicable Declaration, shall be promptly
paid and/or turned over to the Administrative Agent as
proceeds of the Collateral or otherwise and, subject to clause
(ii) below if such clause shall then be applicable, applied to
the prepayment of the Loan, as provided in Section 2.5(d)
hereof.
(ii) Any Condemnation Compensation in respect of any
of the Projects received by GSRP at a time during which the
condemnation provisions of the relevant Declaration shall not
be in effect with respect to the affected Project shall be
treated as provided in Section 3.6(b) below.
(b) Miscellaneous Application of Condemnation Compensation. In
connection with, and pursuant to, Section 3.6(a)(ii) hereof, the
Lenders and GSRP agree to the following:
(i) if all or any portion of any Project shall be
damaged or taken through condemnation (which term when used in
this Agreement shall include any damage or taking by any
governmental authority and any transfer by private sale in
lieu thereof), so as to, either
(A) temporarily or permanently, materially
adversely affect the type or scope of resort
operations existing prior to the condemnation or
taking of, or the net operating income of, such
Project (both being determined by the Administrative
Agent in its sole and absolute discretion), or
(B) result in Condemnation Compensation in excess
of $500,000,
then in the case of a Steamboat Project condemnation or
taking, all of the Steamboat Loan, in the case of a Canyons
Project condemnation or taking, all of the Canyons Loan, in
the case of a *Sugarbush Project condemnation or taking, all
of the *Sugarbush Loan, in the case of a *Sugarloaf Project
condemnation or taking, all of the *Sugarloaf Loan, in the
case of a Jordan Bowls Project condemnation or taking, all of
the Jordan Bowl Loan, in the case of an Attitash Project
condemnation or taking, all of the Attitash Loan, in the case
of a Killington Project condemnation or taking, all of the
Killington Loan and, in the case of a Mt. Snow Project
condemnation or taking, all of the Mt. Snow Loan (together
with accrued and unpaid interest thereon relating to each of
such Loans) shall, at the option of the Required Steamboat
Lenders, in the case of the Steamboat Project, the Required
Canyons Lenders, in the case of the Canyons Project, the
Required *Sugarbush Lenders, in the case of the *Sugarbush
Project, the Required *Sugarloaf Lenders, in the case of the
*Sugarloaf Project, the Required Jordan Bowl Lenders, in the
case of the Jordan Bowl Project, the Required Attitash
Lenders, in the case of the Attitash Project, the Required
Killington Lenders, in the case of the Killington Project and
the Required Mt. Snow Lenders, in the case of the Mt. Snow
Project, become immediately due and payable.
(ii) the Administrative Agent shall be entitled to
receive all Condemnation Compensation payable with respect to
any condemnation or taking. The application of such
Condemnation Compensation shall be as set forth below in
clause (iii) below. The Administrative Agent is hereby
authorized (at the instruction of the Steamboat Required
Lenders, in the case of any Steamboat Project condemnation or
taking, the Canyons Required Lenders, in the case of any
Canyons Project condemnation or taking, the *Sugarbush
Required Lenders, in the case of any *Sugarbush Project
condemnation or taking, the *Sugarloaf Required Lender, in the
case of any *Sugarloaf condemnation or taking, the Jordan Bowl
Required Lenders, in the case of any Jordan Bowl Project
condemnation or taking, the Attitash Required Lenders, in the
case of any Attitash Project condemnation or taking, the
Killington Required Lenders, in the case of any Killington
Project condemnation or taking and the Mt. Snow Required
Lenders, in the case of any Mt. Snow Project condemnation or
taking) to commence, appear in and prosecute, in its own or in
GSRP's name, any action or proceeding relating to any
condemnation or taking, and to settle or compromise any claim
in connection therewith. All Condemnation Compensation and the
rights thereto are hereby assigned by GSRP to the
Administrative Agent on behalf of the Lenders.
(iii) After deducting from any Condemnation
Compensation all of its expenses incurred in the collection
and administration thereof, including attorney's fees, the
Administrative Agent shall, if no Default or Event of Default
shall then exist, or may (at the instruction of the Steamboat
Required Lenders, in the case of any Steamboat Project
condemnation or taking, the Canyons Required Lenders, in the
case of any Canyons Project condemnation or taking, the
*Sugarbush Required Lenders, in the case of any *Sugarbush
Project condemnation or taking, the *Sugarloaf Required
Lender, in the case of any *Sugarloaf condemnation or taking,
the Jordan Bowl Required Lenders, in the case of any Jordan
Bowl Project condemnation or taking, the Attitash Required
Lenders, in the case of any Attitash Project condemnation or
taking, the Killington Required Lenders, in the case of any
Killington Project condemnation or taking and the Mt. Snow
Required Lenders, in the case of any Mt. Snow Project
condemnation or taking), if a Default or Event of Default
shall then exist, make the net Condemnation Compensation
available to GSRP to repair and/or restore the affected
Project, provided that
(1) GSRP requests that such proceeds be made
available for repairing or restoring such Project in
a written notice delivered to the Administrative
Agent within 30 days after the occurrence of the
condemnation or taking,
(2) the Administrative Agent and the
aforesaid Required Lenders approve GSRP's plans for
repair and/or replacement of such Project, which
approval shall not be unreasonably withheld or
delayed,
(3) any such repairs must restore such
Project to at least as good condition as prior to the
condemnation or taking,
(4) any replacement shall be of the same
or equal value to the Property replaced, and
(5) the Administrative Agent must determine
that the repairs or replacement can be substantially
completed prior to the Maturity Date or, if earlier,
the maturity date of the Project Advances related to
such Project.
If GSRP fails to comply with any of the requirements set forth
in the immediately preceding sentence or if a Default or Event
of Default exists and the Administrative Agent shall have
decided not to make such net Condemnation Compensation
available to GSRP, the Administrative Agent may (at the
instruction of the Steamboat Required Lenders, in the case of
any Steamboat Project condemnation or taking, the Canyons
Required Lenders, in the case of any Canyons Project
condemnation or taking, the *Sugarbush Required Lenders, in
the case of any *Sugarbush Project condemnation or taking, the
*Sugarloaf Required Lender, in the case of any *Sugarloaf
condemnation or taking, the *Sugarloaf Required Lenders, in
the case of any Jordan Bowl Project condemnation or taking,
the Jordan Bowl Required Lenders, in the case of any Attitash
Project condemnation or taking, the Attitash Required Lenders,
in the case of any Killington Project condemnation or taking,
the Killington Required Lenders and, in the case of any Mt.
Snow Project condemnation or taking, the Mt. Snow Required
Lenders, ) apply such net Condemnation Compensation or any
part thereof, (A) to the payment of the Steamboat Obligations,
the Canyons Obligations, the *Sugarbush Obligations, the
*Sugarloaf Obligations, the Jordan Bowl Obligations, the
Attitash Obligations, the Killington Obligations, the Mt. Snow
Obligations or other Obligations, whether or not due, as
provided in Section 2.5(d) hereof, or (B) for any other
purposes or objects for which the Administrative Agent is
entitled to advance funds under this Agreement, all without
affecting the security interests or Liens of this Agreement or
any of the other Security Documents. All net Condemnation
Compensation to be disbursed by the Administrative Agent
pursuant to this clause (iii) shall be disbursed in a manner
acceptable to the Administrative Agent as the repair and/or
replacement work proceeds. Neither the Administrative Agent
nor the Lenders shall be held responsible for any failure to
collect any condemnation regardless of the reason for such
failure. GSRP agrees to execute such further assignment of any
compensation, awards, damages, claims, rights of action and
proceeds as the Administrative Agent may require. All repair
and/or replacement work shall be diligently prosecuted to
completion by GSRP and shall be completed prior to the
Maturity Date or, if earlier, the maturity date of the Project
Advances related to such Project.
(c) GSRP Undertakings. In the event of any condemnation or
taking in respect of any Project (including, without limitation, any of
the Collateral), (i) GSRP shall immediately notify the Administrative
Agent of the same, (ii) the Administrative Agent may, in addition to
its rights under the Blanket Mortgages, elect to exercise the voting
rights of GSRP as mortgagee or the holder of a security interest in
respect of any Quartershare Mortgage pledged to it hereunder relating
to such Project or as the owner of any Quartershare Interest,
Residential Unit and/or Commercial Unit relating to such Project, as
such voting rights are provided for under the applicable Declaration,
regarding all matters of repair and restoration, and (iii) GSRP shall
pay all assessments as required by the applicable Declaration and/or
Articles of Incorporation or By-Laws for repair and restoration due to
inadequacy of the Condemnation Compensation.
<PAGE>
3.7 TAXES AFFECTING COLLATERAL
3.7 Taxes Affecting Collateral.
GSRP shall pay or, as provided in the Declarations, cause the
Associations to pay, on or before the last day when they may be paid without
interest or penalty, all taxes, assessments, rates, dues, charges, fees, levies,
excises, duties, fines, impositions, liabilities, obligations and encumbrances
(including, without limitation, water and sewer rents and charges, charges for
setting or repairing meters and charges for other utilities or services),
general or special, ordinary or extraordinary, foreseen or unforeseen, of every
kind whatsoever, now or hereafter imposed, levied or assessed by any public or
quasi-public authority or instrumentality upon or against any of the Collateral
or the use, occupancy or possession of any Project, or upon or against this
Agreement, the Notes or the other Security Documents, the Obligations or the
interest of the Administrative Agent or the Lenders in the Contracts, any of the
contracts of purchase in respect of the Commercial Units or the Blanket
Mortgages or any other item of Collateral (provided that this Section 3.7 shall
not be construed to require GSRP to pay any income tax imposed upon the general
income of the Administrative Agent or the Lenders), as well as all assessments
and other governmental or quasi-governmental charges imposed, levied or assessed
in respect of any Collateral, and any and all interest, costs and penalties on
or with respect to any of the foregoing (collectively, the "Impositions"). Upon
request by the Administrative Agent, GSRP shall deliver, or cause the
Associations to deliver, to the Administrative Agent receipts or other
satisfactory proof of payment of any Impositions.
GSRP shall not claim, demand or be entitled to receive any reduction
of, or credit toward, any Imposition on account of the Obligations. No deduction
shall be claimed from the taxable value of any Collateral or any Project by
reason of the Obligations, any of the Security Documents or the interest of the
Lender in the Collateral.
If existing laws or procedures governing the taxation of mortgages,
security documents or debts secured by deeds of trusts, mortgages or other
security documents shall be changed in any manner after the date hereof so as to
materially adversely impair the security of the Blanket Mortgages or the
security interest herein granted or granted in any of the other Security
Documents or to reduce the net income to any of the Lenders in respect of its
Obligations (excluding from any such determination of net income any reduction
in such net income attributable to a change in taxes imposed on, or measured by,
the net income of such Lender), then, upon request by such Lender, GSRP shall
pay to such Lender or to the taxing authority (if so directed by such Lender),
all taxes, charges and related costs for which the Lender may be liable as a
result thereof.
GSRP shall pay, or cause to be paid, when due, any and all recording
(deed of trust, mortgage or personal property), intangible property and
documentary stamp taxes, all similar taxes, and all filing, registration and
recording fees, which are now or hereafter may become payable in connection with
the Obligations, the Blanket Mortgages, this Agreement, any of the other
Security Documents, the Quartershare Mortgages or any of the other Collateral.
GSRP shall pay when due any and all excise, transfer and conveyance taxes which
are now or hereafter may become payable in connection with the Obligations, the
Blanket Mortgages, any Quartershare Mortgage, this Agreement or any of the other
Security Documents, or in connection with any foreclosure of the Blanket
Mortgages, any Quartershare Mortgage or any other foreclosure of any Collateral
under this Agreement or under any of the other Security Documents, or any other
transfer of any item of Collateral in extinguishment of all or any part of the
Obligations or any other enforcement of the rights of the Lender with respect
thereto.
<PAGE>
3.8 DISCHARGE OF LIENS AFFECTING COLLATERAL
3.8 Discharge of Liens Affecting Collateral.
If any mechanic's, laborer's, materialman's, statutory or other Lien
shall be filed or otherwise imposed upon or against any item of the Collateral
or any of the Projects, then GSRP shall, within 30 days after being given notice
of the filing of such Lien or otherwise becoming aware of the imposition of such
Lien, cause such Lien to be vacated or discharged of record by payment, deposit,
bond, final order of a court of competent jurisdiction or otherwise.
GSRP shall have the right, at its sole expense, to contest the validity
of any such Lien or of the claim evidenced or secured thereby, by appropriate
proceedings commenced prior to the expiration of the aforesaid 30-day period and
thereafter diligently and continuously conducted in good faith to final
determination, in which event GSRP shall not be required to cause any such Lien
to be vacated or discharged of record in accordance with the immediately
preceding paragraph if, and only so long as:
(a) no final judicial determination in respect of any
foreclosure or other enforcement proceeding in respect of such Lien or
the claim evidenced or secured thereby shall have been rendered and no
nonjudicial foreclosure proceeding or sale in respect of such Lien or
such claim shall have been commenced;
(b) no claim for liability of any kind shall have been
asserted against the Administrative Agent or any Lender in connection
with such Lien or the claim evidenced or secured thereby; and
(c) if such Lien shall secure a claim of more than $50,000,
GSRP shall have established an escrow with the Administrative Agent, or
shall have delivered to the Administrative Agent a satisfactory bond
issued by a surety acceptable to the Administrative Agent or a
satisfactory letter of credit for the benefit of the Administrative
Agent issued by a bank acceptable to the Administrative Agent, in each
case in an amount estimated by the Administrative Agent to be adequate
to cover (i) the unpaid amount of such claim, (ii) all interest,
penalties and similar charges which reasonably can be expected to
accrue by reason of such contest or by reason of such nonpayment, and
(iii) all costs, fees and expenses (including, without limitation,
attorneys' fees and disbursements) which reasonably can be expected to
be incurred in connection therewith by the Administrative Agent, which
escrow, bond or letter of credit shall be maintained in effect
throughout such contest and the amount of which shall be increased from
time to time if reasonably required by the Lender to cover the
foregoing amounts in subclause (i), subclause (ii) and subclause (iii).
GSRP shall inform the Administrative Agent, in advance and in writing,
of its intention to contest any Lien securing a claim, or such claim itself,
under this Section 3.8 if such claim shall exceed $50,000.
Upon termination of any such contest (whether by final determination or
otherwise), or at any time during the course of any such contest that the
conditions relieving GSRP of its obligation to cause such Lien to be vacated or
discharged shall no longer be satisfied or shall be discovered not to have been
satisfied, GSRP shall cause such Lien to be vacated or discharged of record. At
the Administrative Agent's option (at the instruction of the Steamboat Required
Lenders, in the case of a Steamboat Project Lien, at the instruction of the
Canyons Required Lenders, in the case of a Canyons Project Lien, at the
instruction of the *Sugarbush Required Lenders, in the case of a *Sugarbush
Project Lien, at the instruction of the *Sugarloaf Required Lenders in the case
of a *Sugarloaf Project Lien, at the instruction of the Jordan Bowl Required
Lenders, in the case of a Jordan Bowl Project Lien, at the instruction of the
Attitash Required Lenders, in the case of an Attitash Project Lien, at the
instruction of the Killington Required Lenders, in the case of a Killington
Project Lien and at the instruction of the Mt. Snow Required Lenders, in the
case of a Mt. Snow Project Lien), the escrow established or bond or letter of
credit, as the case may be, delivered pursuant to this Section 3.8 may be, in
the case of the escrow, liquidated, or, in the case of the bond or the letter of
credit, drawn upon, at such time and the proceeds thereof may be applied to
payment of all or any part of the claim evidenced or secured by such Lien and
the interest, penalties, charges, costs, fees and expenses (including, without
limitation, attorneys' fees and disbursements) referred to in subclause (ii) and
subclause (iii) of the immediately preceding paragraph. Promptly after such Lien
has been vacated or discharged of record, GSRP shall deliver to the
Administrative Agent evidence reasonably satisfactory to the Administrative
Agent that such Lien has been vacated or discharged of record. Thereafter, the
amount then remaining in the escrow established pursuant to this Section 3.8 or
such bond or letter of credit, as the case may be, shall be returned to GSRP
free and clear of the Lien of this Agreement or any other Security Document so
long as no Event of Default shall have occurred and be continuing or, if an
Event of Default shall have occurred and be continuing, shall be retained by the
Administrative Agent as part of the Collateral and deposited into the Cash
Collateral Account.
If any Lien shall not be vacated or discharged as required by this
Section, then, in addition to any other right or remedy of the Lenders, the
Administrative Agent may, but shall not be obligated to, discharge such Lien in
such manner as the Administrative Agent may select, and the Administrative Agent
shall be entitled (at the instruction of the Steamboat Required Lenders, in the
case of a Steamboat Project Lien, at the instruction of the Canyons Required
Lenders, in the case of a Canyons Project Lien, at the instruction of the
*Sugarbush Required Lenders, in the case of a *Sugarbush Project Lien, at the
instruction of the *Sugarloaf Required Lenders in the case of a *Sugarloaf
Project Lien, at the instruction of the *Sugarloaf Required Lenders, in the case
of a Jordan Bowl Project Lien, at the instruction of the Jordan Bowl Required
Lenders, in the case of an Attitash Project Lien, at the instruction of the
Attitash Required Lenders, in the case of a Killington Project Lien, at the
instruction of the Killington Required Lenders and in the case of a Mt. Snow
Project Lien, at the instruction of the Mt. Snow Required Lenders) to compel the
prosecution of an action for the foreclosure of such Lien by the lienor and to
pay the amount of any judgment in favor of such lienor with interest, costs and
allowances. Upon request by the Administrative Agent, GSRP shall pay to the
Administrative Agent, or to any other Person designated by the Administrative
Agent, the amount of all payments made by the Administrative Agent as provided
above and all costs, expenses and liabilities (including, without limitation,
attorneys' fees and disbursements) incurred by the Administrative Agent in
connection therewith, together with interest thereon at the Default Rate from
the date paid or incurred by the Administrative Agent until the date so paid to,
or as directed by, the Administrative Agent. To the extent permitted by law, the
Administrative Agent shall thereupon be subrogated to the rights of such lienor
and any such payments made by the Administrative Agent pursuant to this Section
3.8 shall be secured by the Collateral.
<PAGE>
3.9 USE OF THE PROJECTS; VOTING RIGHTS OF GSRP
3.9 Use of the Projects; Voting Rights of GSRP.
(a) Use of the Projects Generally. GSRP shall not, as
Declarant, Quartershare Interest owner, Residential Unit owner or
Commercial Unit owner, without the prior written consent of the
Administrative Agent,
(i) request or otherwise initiate or consent to any
zoning classification or reclassification of any of the
Projects or the adoption, issuance, imposition or amendment of
any other law, ordinance, rule, regulation, order, judgment,
injunction or decree relating to the use, occupancy,
operation, development, disposition or design of any of the
Projects which would limit the use of the Quartershare
Interests, Residential Units or Commercial Units in a manner
that materially reduces their Fair Market Value,
(ii) request or otherwise initiate or consent to the
annexation of any part of any of the Projects by or into any
municipality or other governmental or quasi-governmental unit,
(iii) execute, file or record any subdivision plat
affecting any of the Projects (other than as contemplated in
the Plans or other than pursuant to a request of a purchaser
of a Commercial Unit to subdivide the Commercial Unit being so
purchased or other than in respect of an amendment to a
Declaration for the purpose of submitting any Project to such
Declaration) or request or otherwise initiate, consent to or
acquiesce in any subdivision of any Project (other than as
contemplated and provided for in the Declarations or the
Plans),
(iv) enter into, consent to or otherwise cause,
permit or suffer any Project to become subject to any
covenant, agreement or other arrangement restricting or
limiting the use, occupancy, operation, development or
disposition thereof (other than any covenant of this Agreement
or the other Security Documents, the Declarations, and the
CCR's),
(v) materially and substantially modify, alter,
remove or improve any of the Common Elements without the prior
written consent of the Administrative Agent (except for the
creation of additional common elements and limited common
elements resulting from the construction and development of
the Residential Units, Commercial Units and the Projects in
accordance with the Plans),
(vi) maintain the Quartershare Interests, Residential
Units or Commercial Units owned by it for lease or as a rental
project (except as expressly permitted in the Declarations),
(vii) add or withdraw real Property from any of the
Projects or create additional club interests, club units or
commercial units beyond those existing or planned for in
accordance with, and pursuant to, the Declarations and the
Plans, or
(viii) permit the Quartershare Interests or
Residential Units to be used for other than for nonpermanent
residential purposes.
(b) Use by Public. GSRP shall not cause, permit or suffer any
Project to be used by the public without restriction (except as
required by applicable law or as otherwise provided with respect to the
Commercial Units, the Declarations and the CCR's) or in any manner that
might tend to impair GSRP's right, title and interest in and to the
Projects or in any manner that might make possible any claim of adverse
usage or adverse possession by the public or any claim of implied
dedication of all or any part of the Projects.
(c) Voting Rights. GSRP hereby appoints and constitutes the
Administrative Agent as its attorney-in-fact (with full power of
substitution) to exercise all of its voting rights pertaining to any
Quartershare Interest, Residential Unit and/or Commercial Unit owned by
GSRP or in which GSRP has an interest giving rise to the right to vote
(whether as Declarant, as a holder of any Quartershare Mortgage or
otherwise). This power of attorney is coupled with an interest and
shall be irrevocable for so long as any Obligations are owing by GSRP
to the any Lender. This power of attorney may be used from time to time
in the sole discretion of the Administrative Agent if there shall exist
an Event of Default, or a material casualty or a material condemnation
or taking (as contemplated in Section 3.6(b)(i) hereof) shall have
occurred with respect to the Projects or any part thereof. GSRP agrees
to execute, from time to time, such other documents as the
Administrative Agent may request (including, without limitation, the
form of proxy substantially in the form of Exhibit F to this Agreement;
which proxy shall, at the request of the Administrative Agent, be
periodically renewed) and file the same with the Secretary of the
applicable Association in accordance with such Association's By-Laws.
If any voting rights pertaining to any Quartershare Interest,
Residential Unit and/or Commercial Unit owned by GSRP or in which GSRP
has an interest giving rise to the right to vote (whether as Declarant,
as a holder of a Quartershare Mortgage or otherwise) shall be
exercisable pursuant to a written ballot distributed by the applicable
Association in accordance with the terms of the By-Laws of said
Association, GSRP agrees to exercise its right to vote in respect of
such written ballot in accordance with the rights of the Administrative
Agent under the first paragraph of this Section 3.9(c) as if the proxy
referred to therein were directly applicable to such written ballot
(any provision in said By-Laws to the contrary notwithstanding) and to
promptly give the Administrative Agent written notice of any such
written ballot if the Administrative Agent shall then be entitled to
exercise the voting rights in respect thereof.
If any voting rights pertaining to any Quartershare Interest,
Residential Unit and/or Commercial Unit owned by GSRP or in which GSRP
has an interest giving rise to the right to vote (whether as Declarant,
as a holder of a Quartershare Mortgage or otherwise) shall be
exercisable pursuant to the attendance by GSRP at a meeting of the
members of the applicable Association in accordance with the terms of
the By-Laws of such Association, GSRP agrees to exercise its right to
vote in respect of such attendance in accordance with the rights of the
Administrative Agent under the first paragraph of this Section 3.9(c)
as if the proxy referred to therein were directly applicable to such
meeting (any provision in said By-Laws to the contrary notwithstanding)
and to promptly give the Administrative Agent written notice of its
intention to attend any such meeting if the Administrative Agent shall
then be entitled to exercise the voting rights in respect thereof.
Except with the prior written consent of the Administrative
Agent, GSRP shall not propose or vote for or consent to any
modification of, or amendment to, any Declaration or any Association's
Articles of Incorporation or By-Laws which could have (in the
reasonable sole opinion of the Administrative Agent or the Steamboat
Required Lenders, in the case of the Steamboat Project, the Canyons
Required Lenders, in the case of the Canyons Project, the *Sugarbush
Required Lenders, in the case of the *Sugarbush Project, the *Sugarloaf
Required Lenders in the case of the *Sugarloaf Project, the Jordan Bowl
Required Lenders, in the case of the Jordan Bowl Project, the Attitash
Required Lenders, in the case of the Attitash Project, the Killington
Required Lenders, in the case of the Killington Project and the Mt.
Snow Required Lenders, in the case of the Mt. Snow Project) a material
adverse effect on the Collateral in respect of such Project or the
operation or prospects of such Project. In each case under any
Declaration and/or any Association's Articles of Incorporation or
By-Laws in which the consent or the vote of a holder of a mortgage in
respect of the Quartershare Interests, Residential Units and/or
Commercial Units (including any such case in which GSRP would be
considered to be a holder of a mortgage by virtue of any Quartershare
Mortgage) is provided for or is required, or in which GSRP's consent is
required (as Declarant or as an owner of a Quartershare Interest,
Residential Unit or Commercial Unit or as a vendor or mortgagee) for
any proposed action, GSRP shall not vote or give such consent without
obtaining the prior written consent of the Administrative Agent if such
action (in the reasonable sole opinion of the Administrative Agent)
could have an material adverse effect on the Collateral or the
operation or prospects of any Project.
<PAGE>
3.10 OTHER QUARTERSHARE COVENANTS
3.10 Other Quartershare Covenants.
(a) Access. With respect to the consummation of each sale of a
Quartershare Interest in respect of any Project to a Purchaser under a
Contract, GSRP shall cause the owner of such Quartershare Interest to
have access to a publicly dedicated road within such Project and shall
cause all private roadways and parking lots or areas in each Project to
be Common Elements in respect of such Quartershare Interest, as the
case may be, under the applicable Declaration.
(b) Utilities. With respect to the consummation of each sale
of a Quartershare Interest in respect of any Project to a Purchaser
under a Contract, GSRP shall cause electric, sewer, and water service
and other necessary utilities to be available to such Project and the
Residential Units for such Project in sufficient capacity to service
the same and shall pay, or cause to be paid, all tap fees or other
connection charges in respect thereof).
(c) Use of Amenities. With respect to the consummation of each
sale of a Quartershare Interest in respect of any Project to a
Purchaser under a Contract, GSRP shall cause the owner of such
Quartershare Interest to have access to, and the use of, all of the
amenities and public utilities relating to such Project and such
Quartershare Interest (consistent with the contractual provisions and
rules and regulations existing with respect to such amenities and
public utilities).
(d) Timeshare Regimen. With respect to the consummation of
each sale of a Quartershare Interest in respect of any Project to a
Purchaser under a Contract, GSRP shall do all things necessary in order
to preserve the condominium and quartershare regimens in respect of
such Quartershare Interest.
(e) Local Legal Compliance. GSRP shall comply, and shall cause
each Project and the Quartershare Interests and the Residential Units
and Commercial Units relating to such Project to comply, with all
applicable restrictive covenants, zoning, design and land use
ordinances and building codes, all applicable health and environmental
laws and regulations and all other applicable laws, rules and
regulations and all approvals, consents and licenses (including,
without limitation, the CCR's); and GSRP shall use its best efforts to
obtain all certificates of occupancy in respect of the use and
operation of each Project and the Residential Units and the Commercial
Units relating thereto as promptly as possible after the completion of
the construction of such Project, and GSRP shall keep such certificates
in full force and effect.
(f) Registration Compliance. GSRP shall maintain, or cause to
be maintained, all necessary consents, franchises, approvals, and
exemption certificates in connection with, and GSRP will make, or cause
to be made, all registrations or declarations with any government or
any agency or department thereof required in connection with, the
occupancy, use and operation of each Project and the marketing and sale
of the Quartershare Interests and/or the Commercial Units relating
thereto.
(g) Records. GSRP shall maintain accurate and complete files
relating to the Contracts, the Quartershare Notes and the other
Collateral to the reasonable satisfaction of the Administrative Agent,
and such files will contain copies of each Contract, Quartershare Note,
Quartershare Mortgage, all relevant credit memoranda, and all
collection information and correspondence in respect thereof.
(h) Forms of Project Documents. Instruments in substantially
the form of the Contract, the form of statement of rescission rights
required by the law of the State in which the Project is located or the
law of any of the Applicable States, and the form of other instruments
and documents related thereto, in each case in form and substance
acceptable to the Administrative Agent, shall be used by GSRP for all
purchase and sale transactions of Quartershare Interests consummated
during the Commitment Period. GSRP shall not materially modify, amend
or otherwise alter any of the terms of such forms without the
Administrative Agent's prior written consent, except as may be required
by any regulatory agency or applicable law. Notwithstanding the
Administrative Agent and/or Lenders' review and determination of
acceptability, if any, of such forms, GSRP shall remain solely liable
for all aspects of such forms and their use; any determination of
acceptability, if any, by the Administrative Agent or any Lender
relating to such forms shall only be for the Administrative Agent's and
each Lender's benefit and no other Person shall be entitled to rely
thereon in any manner.
Instruments in substantially the form of the Quartershare
Note, the form of the Quartershare Mortgage, the form of the special
warranty deed, the form of the Truth-in-Lending Statement and the form
of the other instruments and documents related thereto, that, in each
case, are in form and substance reasonably acceptable to the
Administrative Agent and the Lenders, shall be used by GSRP for all
sales of Quartershare Interests which may be closed after the Closing
Date and for so long as any Obligation remains outstanding. GSRP shall
not materially modify, amend or otherwise alter such forms or any of
the terms of such forms without the Administrative Agent's prior
written consent, except as may be required by any regulatory agency or
applicable law. Notwithstanding the Administrative Agent's or any
Lender's review and determination of acceptability, if any, of such
forms, GSRP shall remain solely liable for all aspects of such forms
and their use; any determination of acceptability, if any, by the
Administrative Agent or any Lender relating to such forms shall only be
for the Administrative Agent's and the Lenders' benefit and no other
Person shall be entitled to rely thereon in any manner.
(i) Payments on Validated Contracts and Other Purchase
Agreements. GSRP, except as specifically consented to in writing by the
Administrative Agent, shall not grant any extensions of time for the
payment of, compromise for less than the full face value of, release in
whole or in any part any Person liable for the payment of, allow any
credit whatsoever except for the amount of cash to be paid upon, or
otherwise modify or amend, any Validated Contract or any purchase
contract in respect of any Commercial Unit.
(j) Property-Related Contracts. Except as required by
applicable law, GSRP shall not materially modify or amend, or (subject
to the rights and obligations of the Associations under the
Declarations or the Articles of Incorporation or By-Laws of the
Associations) permit to be materially modified or amended, any material
Property-Related Contract without the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld,
or enter into, or (subject to the rights and obligations of the
Associations under the Declaration or Articles of Incorporation or
By-Laws of the Associations) permit to be entered into, any new
material Property-Related Contract without the prior written consent of
the Administrative Agent, which consent shall not be unreasonably
withheld. GSRP shall perform all of its obligations in a timely fashion
under each Property-Related Contract.
(k) Undertaking. GSRP shall perform each and every covenant,
agreement, and undertaking applicable to GSRP (whether as Declarant,
owner of a Quartershare Interest, Residential Unit or Commercial Unit
or otherwise) under the Declarations and the Articles of Incorporation
and By-Laws of the Associations.
(l) Notices. GSRP shall promptly deliver to the Administrative
Agent copies of each written notice or request, financial statement,
budget or other information received by GSRP under or with respect to
the Declarations and/or the Articles of Incorporation or By-Laws of the
Associations, whether in its capacity as Declarant, owner of a
Quartershare Interest, Residential Unit or Commercial Unit, holder of a
mortgage, deed of trust or other security interest or otherwise.
(m) Quartershare Interests. GSRP shall subject each of the
Residential Units to the "quartershare interest" regime contemplated
under each of the Declarations. It is the intention of GSRP to hold for
sale not less than 2,048 Quartershare Interests in respect of 512
Residential Units in the Projects. Each Residential Unit shall have a
full kitchen or kitchenettes, a dining area and a video cassette
player. Each Project shall have a grand ballroom, a conference room, a
restaurant, a three-level atrium lobby, retail space, a health club
with an outdoor pool and other recreational amenities. GSRP shall use
its best efforts to cause each of the following Projects to be accepted
by Resorts Condominium International, Inc. into its timeshare exchange
program and to maintain itself and such projects in good standing as
participants in such timeshare exchange program: Jordan Bowl Project,
Attitash Project, Killington Project, Mt. Snow Project, Steamboat
Project, *Sugarloaf Project, Canyons Project and *Sugarbush Project.
<PAGE>
3.11 PROTECTION OF COLLATERAL; ASSESSMENTS; REIMBURSEMENT
3.11 Protection of Collateral; Assessments; Reimbursement.
All Insurance Premiums and all expenses of protecting, storing,
warehousing, insuring, handling, maintaining and shipping the Collateral, any
and all Impositions on any of the Collateral or in respect of the sale or other
disposal thereof shall be borne and paid by GSRP or GSRP shall cause the
Associations or any manager retained by it to pay the same, as provided for in
the Declarations and/or the Articles of Incorporation or By-Laws of the
Associations. GSRP shall promptly pay, as the same become due and payable, its
share of all Insurance Premiums, expenses, Impositions and/or assessments as
required by the Declarations and/or the Articles of Incorporation or By-Laws of
the Associations. If GSRP shall fail to pay, or cause to be paid, any such
Insurance Premiums, expenses, Impositions and/or assessments, the Administrative
Agent may, at GSRP's expense, pay the same.
If, by reason of any suit or proceeding of any kind, nature or
description against GSRP, or by GSRP or any other party against any other
Person, or by reason of any other facts or circumstances, which in the
Administrative Agent's or any Lender's sole discretion makes it advisable for
such Person to seek counsel for the protection and preservation of the
Collateral, or to defend its own interest, such expenses and counsel fees shall
be allowed to such Person and borne and paid by GSRP.
<PAGE>
3.12 INTEREST ON LENDER PAID EXPENSES
3.12 Interest on Lender Paid Expenses.
All sums paid or incurred by the Administrative Agent or any Lender
under this Section 3, and any and all other sums for which GSRP may become
liable hereunder, and all costs and expenses (including payments to other Lien
holders and attorneys' fees, legal expenses and court costs) which the
Administrative Agent or any Lender may incur in enforcing or protecting its
Liens on, or rights and interest in, the Collateral or any of its rights or
remedies under this Agreement or any other Security Document or in respect of
any of the transactions contemplated herein or therein shall (a) be considered
as additional indebtedness owing by GSRP to the Administrative Agent or such
Lender hereunder and, as such, shall be secured by all of the Collateral and (b)
accrue interest at the Default Rate from the date paid or incurred until paid in
full by GSRP.
<PAGE>
3.13 LENDER RESPONSIBILITY
3.13 Lender Responsibility. Neither the Administrative Agent nor any
Lender shall be (a) obligated or responsible for, the payment of any of the
amounts or sums referred to in this Section 3, or (b) liable or responsible in
any way for the safekeeping of any of the Collateral or for any loss or damage
thereto.
<PAGE>
3.14 VERIFICATION OF CONTRACTS
3.14 Verification of Contracts. Upon prior notification to GSRP, the
Administrative Agent may contact any Purchaser in order to verify the Contract
to which such Purchaser is a party and GSRP shall render such assistance to the
Administrative Agent in connection therewith as the Administrative Agent may
reasonably request.
<PAGE>
3.15 RELEASE OF LIEN ON QUARTERSHARE INTEREST, RESIDENTIAL UNITS AND
COMMERCIAL UNITS
3.15 Release of Lien on Quartershare Interests and Commercial Units.
(a) Release for Quartershare Interests and Commercial Units.
the Administrative Agent agrees to execute and deliver to GSRP or its
escrowee the documents referred to below pursuant to which the security
interest and Lien in and to any Quartershare Interest or Commercial
Unit in any Project created by this Agreement, the Blanket Mortgages or
any other Security Document will be released if, but only if, all of
the following conditions shall have been fully satisfied:
(i) such Quartershare Interest or Commercial Unit in
such Project is being sold in the ordinary course of GSRP's
business,
(ii) the full Release Price in respect of such
Quartershare Interest or Commercial Unit in such Project shall
have been paid to the Administrative Agent or its agent in
good, collected funds;
(iii) a request, substantially in the form of Exhibit
G attached hereto, shall have been completed and executed by
GSRP and submitted to the Administrative Agent not less than 2
Business Days in advance of the date on which GSRP desires to
obtain such release; and
(iv) a partial release of mortgage substantially in
the form of Exhibit H attached hereto, and a partial release
of security interest, substantially in the form of Exhibit I
attached hereto, in each case, in respect of such Project,
shall have been completed by GSRP and submitted to the
Administrative Agent with the aforesaid request.
GSRP shall bear the responsibility of recording any and all documents
executed by the Administrative Agent under this Section. GSRP shall pay
all escrow costs and recording and transfer costs in respect of such
documents. GSRP shall establish an escrow in respect of any release
under this Section. the Administrative Agent shall deposit the
documents to be executed by it pursuant to clause (iv) above in such
escrow if, but only if,
(1) the documentation establishing such escrow is in
form and substance satisfactory to the Administrative Agent
and such documentation shall have been submitted to the
Administrative Agent together with the written request
referred to in clause (ii) above,
(2) the escrowee under such escrow documentation
is satisfactory to the Administrative Agent,
(3) such escrow documentation provides that
simultaneously with the release from such escrow of the
documents referred to in clause (iv) above, the Release Price
in respect of such Quartershare Interest or Commercial Unit
for such Project to be so released shall have been wired via
Federal Reserve Bank wire (in immediately available funds) to
the Administrative Agent and a confirmation of such wire shall
have been obtained,
(4) such escrow documentation provides that such
escrow will be consummated within 5 Business Days of the
Administrative Agent's depositing of such release documents
therein or such release documents shall be returned to the
Administrative Agent by the escrowee of such escrow, and
(5) at the time of the depositing of such
documentation into such escrow, all of the conditions in
clauses (ii) through (iv) above shall have been fully
satisfied.
(b) Full Release of Collateral and Blanket Mortgages. Upon the
full, final and indefeasible payment of all Obligations and the
termination of the Commitment Period, the Administrative Agent shall
release its security interests and Liens in and to the Collateral,
shall execute in favor of GSRP any UCC release or termination statement
in respect thereof, shall release the Blanket Mortgages, Assignment of
Rents and any other recorded Security Document and shall reassign and
deliver to GSRP all Contracts and the other Collateral then in the
physical possession of the Administrative Agent or its agent (without
recourse and without representations or warranties of any kind). GSRP
shall bear all out-of-pocket expenses (including, without limitation,
legal fees and disbursements of the Administrative Agent) in connection
with such release, reassignment and delivery. All such release and/or
termination documentation shall be reasonably satisfactory to the
Administrative Agent, the Lenders and their counsel.
<PAGE>
3.16 NONDISTURBANCE AGREEMENTS
3.16 Nondisturbance Agreements.
Anything contained herein to the contrary notwithstanding, the
Administrative Agent and the Lenders hereby agree to do, or cause to be done,
each of the following:
(a) the Administrative Agent shall subordinate its Liens and
security interests in and to each Construction Project to the Lien and
terms of the Declaration, the Resort Map, and the Common Elements for
such Construction Project and to the rights of any owner of a
Quartershare Interest or Commercial Unit in such Construction Project
and the Association under such Declaration if
(i) such Declaration and Resort Map are in form and
substance satisfactory to the Administrative Agent and
satisfactory to the Steamboat Required Lenders, in the case of
the Steamboat Declaration and Resort Map, the Canyons Required
Lenders, in the case of the Canyons Declaration and Resort
Map, the *Sugarbush Required Lenders, in the case of the
*Sugarbush Declaration and Resort Map and the *Sugarloaf
Required Lenders, in the case of the *Sugarloaf Declaration
and Resort Map;
(ii) no Default or Event of Default shall then
exist;
(iii) such Declaration and Resort Map shall have been
recorded in the applicable recording offices;
(iv) the instrument of subordination shall be
substantially in the form thereof set forth in Exhibit J
hereto;
(v) a title insurance endorsement to the Title
Insurance Policy {Blanket} in form and substance satisfactory
to the Administrative Agent and the Required Parties shall
have been delivered to the Administrative Agent whereby the
effective date of the Title Insurance Policy {Blanket} for
such Construction Project shall be extended through the date
of such instrument of subordination, which contains no
exclusions and/or exceptions unsatisfactory to the
Administrative Agent or the Required Parties (including the
removal of any exceptions or exclusions in respect of
mechanic's, materialmen's or laborer's liens or any exceptions
in respect of the failure to deliver a current survey,
provided that any exclusions or exceptions previously approved
by the Lenders shall be deemed satisfactory to the
Administrative Agent and the appropriate Required Parties (as
referred to above) and any Lien which (in the sole opinion of
such Required Parties) shall not have a material adverse
effect upon GSRP, such Construction Project or the Collateral
shall be deemed to be satisfactory) and in respect of which
all premiums shall have been paid;
(vi) the Blanket Mortgage in respect of such
Construction Project constitutes a first priority Lien in and
to all unsold Quartershare Interests, Residential Units and
Commercial Units in such Construction Project and all payments
under the Host Company Lease Agreement in respect of such
Construction Project shall continue to be assigned to the
Administrative Agent under such Blanket Mortgage and under the
Assignment of Rents in respect of such Construction Project
and all payments in respect thereof shall continue to be made
directly to the Administrative Agent;
(vii) the Administrative Agent shall have received a
satisfactory legal opinion from counsel to GSRP as to the
effectiveness of such Declaration to establish the
"quartershare interest" regime in respect of such Construction
Project, the continued validity and enforceability of this
Agreement, such Blanket Mortgage and the other Security
Documents and such other matters as the Administrative Agent
or the Required Parties may reasonably request; and
(viii) GSRP shall have paid for all of the costs and
expenses incurred by the Administrative Agent and the Lenders
in connection with the preparation and recordation of such
instrument of subordination (including, without limitation,
attorney's fees and expenses); and
(b) if the Administrative Agent or any Lender shall acquire
all or any Common Elements in any Construction Project or any of the
rights of any Association in any Construction Project in respect of any
management contract, marketing contract, maintenance contract, utility
contract, security contract, other servicing contract, licensing
contract, Project Document or other similar contract pursuant to the
rights and remedies provided for herein, in the Blanket Mortgages or in
any other Security Document, the Administrative Agent or such Lender
shall take such Common Elements or such rights subject to the rights of
owners of the Quartershare Interests and the owners of the Commercial
Units in and to such Construction Project and subject to the rights of
the Association for such Project and shall not interfere with the
rights of such owners or such Association, as provided for in the
Declaration and the other Project Documents.
<PAGE>
3.17 FILING OF DECLARATIONS; INCORPORATION OF ASSOCIATIONS
3.17 Filing of Declarations; Incorporation of Associations.
Notwithstanding anything to the contrary contained herein, GSRP shall
cause the Declaration and the Resort Map of each Construction Project to be
recorded in the applicable recording offices with respect thereto not later than
October 31, 1999 ([a date to be determined] in the case of the *Sugarbush
Project or the *Sugarloaf Project). Upon the recording of each such Declaration,
(a) GSRP shall undertake to assist the Administrative Agent in
(i) recording an assignment of GSRP's rights (but not obligations) as
developer and declarant under each such Declaration, which assignment
shall be substantially in the form of Exhibit K-1, K-2, K-3, K-4, K-5,
K-6 or K-7 hereof, as the case may be, and (ii) filing the proxy
referenced in Section 3.9(c) above with the Secretary of the applicable
Association, and
(b) GSRP shall deliver to the Administrative Agent duly
recorded copies of each such Declaration.
Notwithstanding anything to the contrary contained herein, GSRP shall
cause each Association in respect of each Construction Project to be duly
incorporated under the laws of the State in which the applicable Project is
located not later than October 31, 1999 ([a date to be determined] in the case
of the *Sugarloaf Project] and [a date to be determined] in the case of the
*Sugarbush Project]). Upon the effecting of each such incorporation, GSRP shall
have delivered to the Administrative Agent, in form satisfactory to the
Administrative Agent, (1) a certificate of the Secretary of such State
certifying the due corporate existence of each such Association, (2) copies of
recorded Articles of Incorporation and all amendments thereto of each such
Association certified to be true and correct by the Secretary of such State, and
(3) copies of the By-Laws of each such Association certified to be true and
correct by a senior officer of GSRP. Said Articles of Incorporation and By-Laws
shall be reasonably satisfactory to the Required Parties in both form and
substance.
<PAGE>
3.18 NOTE PURCHASE AGREEMENT
3.18 Note Purchase Agreement.
GSRP shall irrevocably direct the "buyer" under the Note Purchase
Agreement to pay all amounts owing to GSRP directly to the Administrative Agent
to the extent of payments required to be made by GSRP pursuant to Section 2.5
hereof. Otherwise, all other amounts owing to GSRP under the Note Purchase
Agreement shall be paid to GSRP. For the avoidance of doubt, GSRP acknowledges
that all amounts owing to it under the Note Purchase Agreement shall be paid to
the Administrative Agent if a Default or Event of Default shall exist, all such
amounts to be deposited into the Cash Collateral Account.
GSRP agrees that the Note Purchase Agreement will be in full force and
effect no later than October 31, 1998.
<PAGE>
3.19 NOTE PURCHASE AGREEMENT
3.19 LSA I Retainages.
GSRP agrees that any construction contract retained payments that may
be owing in respect of any of the 1997 Projects and that would have otherwise
been funded under LSA I will be directly funded and paid by GSRP, when they
become due and payable.
4. REPRESENTATIONS AND WARRANTIES AND COVENANTS
As an inducement to the Lenders to make the Loan, GSRP warrants and
represents, as of the date hereof, and covenants to the Lenders as follows (any
qualification to any representation made in Section 4 of LSA I in respect of any
of the 1997 Projects is hereby incorporated herein by reference with respect to
the parallel representation set forth below):
<PAGE>
4.1 SUBSIDIARIES AND CAPITAL STRUCTURE
4.1 Subsidiaries and Capital Structure.
GSRP owns no Voting Equities in any Person. The Parent owns 100% of the
Voting Equity of GSRP. Schedule 9 to this Agreement states the name of each
Affiliate of GSRP and the nature of the affiliation. Schedule 9 also describes
the equity ownership of each Host Company.
<PAGE>
4.2 CORPORATE MATTERS
4.2 Corporate Matters.
GSRP
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maine;
(b) has all requisite company power and authority and
necessary licenses and permits to own, construct and operate each
Project and to carry on its business as now conducted and contemplated
to be conducted in the future; and
(c) has duly qualified and is authorized to do business as a
foreign corporation in each jurisdiction where the character of its
Properties or the nature of its activities makes such qualification
necessary or desirable.
<PAGE>
4.3 BUSINESS AND PROPERTY
4.3 Business and Property.
Schedule 10 to this Agreement correctly describes the general nature of
the businesses and Properties (including all owned real Property, leases and
leasehold interests) of GSRP. Except as set forth on Schedule 10, GSRP has not
changed its name or acquired all or substantially all of the assets of any
Person. The Projects are GSRP's sole operating assets. The construction and
development of each Project and the proposed operation of each Project has not
caused, and there have not been, any public demonstrations in respect of,
injunctions obtained against, legislation or ordinances passed or introduced to
regulate or restrict, or any governmental administrative action directed at
preserving any species or any natural resources that may be adversely affected
by, such construction, development or proposed operation.
<PAGE>
4.4, 7.14 FINANCIAL STATEMENTS
4.4 Financial Statements.
The financial statements of GSRP set forth on Schedule 11 hereto have
been delivered to each Lender and, except as set forth on said Schedule 11,
present fairly the financial position of GSRP as at the date set forth on said
Schedule and the results of its operations for the period set forth on said
Schedule. GSRP intends to engage in no other business other than the ownership
and operation of each Project and the sale of Quartershare Interests and
Commercial Units in respect thereof.
The financial statements of each of the Host Companies set forth on
Schedule 11 hereto have been delivered to each Lender and, except as set forth
on said Schedule 11, present fairly the financial position of such Host Company
as at the date set forth on said Schedule and the results of its operations for
the period set forth on said Schedule.
<PAGE>
4.5 FULL DISCLOSURE
4.5 Full Disclosure.
Neither this Agreement nor any written statement made by GSRP or any
Affiliate in connection with this transaction contains any untrue statement of a
material fact or omits a material fact necessary to make the statements
contained herein or therein not misleading. There is no fact which GSRP or any
Affiliate has not disclosed to the Lenders in writing which materially affects
adversely or, so far as GSRP can now foresee, will materially affect adversely
the Property, business, prospects, profits or condition (financial or otherwise)
of GSRP or the ability of GSRP to perform its Obligations under this Agreement,
the Notes or the other Security Documents.
<PAGE>
4.6 PENDING LITIGATION
4.6 Pending Litigation.
Except as set forth in Schedule 12 to this Agreement, there are no
proceedings pending, or to the knowledge of GSRP threatened, against or
affecting GSRP, any Affiliate or any Project in any court or before any
governmental authority or arbitration board or tribunal (a) which either involve
the possibility of materially and adversely affecting the Property, business,
prospects, profits or condition (financial or otherwise) of GSRP or the ability
of GSRP to perform its obligations under this Agreement, the Notes or the other
Security Documents or (b) in respect of which more than $50,000 is sought in
damages. Neither GSRP nor any Affiliate nor any Project is in default with
respect to any order of any court, governmental authority, quasi-governmental
authority or arbitration board or tribunal.
<PAGE>
4.7 TITLE TO PROPERTIES; ENVIRONMENTAL STATUS
4.7 Title to Properties; Environmental Status.
GSRP has good and marketable title in fee simple (or its equivalent
under applicable law) to all the real Property which it purports to own free
from Liens except as set forth on Schedule 4 to this Agreement, and has good
title to, and is the sole owner of, all personal Property which it purports to
own (including, without limitation, the personal Property constituting the
Collateral), which personal Property is free from all Liens except as set forth
on Schedule 4 to this Agreement. Except as set forth on Schedule 13 hereto and
except for the Host Company Lease Agreements and the Beneficial Improvement
Agreements, the Projects are not subject to any leases or similar agreements.
The Projects are not under investigation with respect to, and are not
in violation of, any Environmental Protection Law. No proceedings have been
commenced against, nor notice received by, GSRP or any Affiliate concerning any
alleged violation of any Environmental Protection Law. The Projects are not, and
have not been, the subject of any threatened, proposed or actual cleanup or
other protective or remedial action relating to any Hazardous Substances,
whether pursuant to any Environmental Protection Law or otherwise. There are no
Hazardous Substances in, on, or under any of the Projects, except as set forth
on Schedule 14 to this Agreement.
<PAGE>
4.8 TRADEMARKS; LICENSES AND PERMITS
4.8 Trademarks; Licenses and Permits.
GSRP owns or possesses all of the trademarks, service marks, trade
names, copyrights, franchises and licenses, and rights with respect thereto
necessary for the conduct of its business as now conducted and as proposed to be
conducted, without any known conflict with the rights of others.
<PAGE>
4.9 TRANSACTION IS LEGAL AND AUTHORIZED
4.9 Transaction Is Legal and Authorized.
The execution and delivery of this Agreement, the Notes and the other
Security Documents by GSRP and the grant of the Liens to the Lender with respect
to the Collateral by GSRP and compliance by GSRP with all of the provisions of
this Agreement, the Notes and the other Security Documents are:
(a) within the corporate powers of GSRP; and
(b) valid and legal acts and will not conflict with, or result
in any breach in any of the provisions of, or constitute a default
under, or result in the creation of any Lien (except Liens contemplated
under this Agreement or any other Security Document) upon any Property
of GSRP under the provisions of, any agreement, articles or
organization, or other instrument to which GSRP is a party or by which
its Property may be bound.
<PAGE>
4.10 NO DEFAULTS
4.10 No Defaults.
No Default or Event of Default exists, and there is no violation in any
material respect of any term of any agreement, charter instrument, bylaw or
other instrument to which GSRP is a party or by which it may be bound. No
default or event of default under LSA I exists.
<PAGE>
4.11 GOVERNMENTAL CONSENT
4.11 Governmental Consent.
Neither the nature of GSRP nor its business or Properties, nor any
relationship between GSRP and any other Person, or any circumstance in
connection with the execution or delivery of this Agreement, the Notes or the
other Security Documents, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
governmental authority on the part of GSRP, as a condition of the execution,
delivery or performance of this Agreement, the Notes or any other Security
Document.
<PAGE>
3.7 TAXES
4.12 Taxes.
GSRP is not in default with respect to the payment of any taxes levied
or assessed against it or any of its assets and has not failed to file any tax
return required to be filed by it.
<PAGE>
4.13 USE OF PROCEEDS
4.13 Use of Proceeds.
The proceeds of Construction Project Advances will be used
(a) first, to pay any Loan Costs then due at the time of the
making of any Project Advance and
(b) second, to pay for or otherwise provide for the payment of
Construction Costs, FF&E Costs and Sales, Marketing & Other Costs.
The proceeds of the Interest Advances will be used to pay interest
accrued on the Loan and due and payable upon the date of the making of such
Interest Advances; cash will not be disbursed by the Lenders in connection with
any Interest Advance.
The proceeds of each Inventory Advance in respect of the 1997 Projects
will be used to repay in full the loans made under LSA I in respect thereof and
to pay certain Loan Costs and commitment fees. The proceeds of each other
Inventory Advance will be used to repay in full the Construction Project
Advances in respect of the Construction Project related to such Inventory
Advance; cash will not be disbursed to GSRP by the Lenders in connection with
any Inventory Advance.
None of the transactions contemplated in this Agreement will violate or
result in the violation of Section 7 of the Securities Exchange Act of 1934, as
amended, or any regulations issued pursuant thereto, including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R., Chapter II. GSRP does not intend to carry or purchase
any "margin security" within the meaning of said Regulation U. None of the
proceeds will be used to purchase or carry (or refinance any borrowing, the
proceeds of which were used to purchase or carry) any "margin security" within
the meaning of said Regulation.
<PAGE>
4.13 COMPLIANCE WITH LAW
4.14 Compliance with Law.
GSRP
(a) is not in violation of any laws, ordinances,
governmental rules or regulations to which it is subject; and
(b) except as set forth in Schedule 15 hereto, has not failed
to obtain any licenses, permits, franchises or other governmental
authorizations, or make or cause to be made any registrations or
declarations with any government or agency or department thereof or
quasi-governmental entity or under the CCR's, necessary to the
ownership of its Property or to the conduct of its business;
which violation or failure to obtain or register would materially adversely
affect the business, prospects, profits, Property or condition (financial or
otherwise) of GSRP.
<PAGE>
4.15 RESTRICTIONS OF GSRP
4.15 Restrictions of GSRP.
Except with respect to LSA I, GSRP is not a party to any contract or
agreement which restricts its right or ability to incur indebtedness, or
prohibits the execution of, or compliance with, this Agreement or any of the
other Security Documents 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 the Liens provided for herein, in
the other Security Documents and in the Declaration.
Without limiting the scope of the immediately preceding paragraph, GSRP
qualifies as a "Real Estate Subsidiary" under, and as defined in, the ASC
Indenture. The Board of Directors of ASC East, Inc. has designated GSRP as such
"Real Estate Subsidiary." The Loan constitutes "Non-Recourse Real Estate Debt"
and "Senior Debt" under, and as defined in, the ASC Indenture.
GSRP is an "Unrestricted Subsidiary" under, and as defined in, that
certain Amended and Restated Credit Agreement, dated as of November 12, 1997,
among ASC East, Inc., the other affiliates of ASC East, Inc. signatories
thereto, BankBoston, N.A., as agent, and the lenders signatory thereto, as
amended from time to time, and all designations with respect thereto thereunder
have been made and are valid and in effect. Neither GSRP nor any undertaking
required of it hereunder or under any other Security Document violates or
contravenes or, in connection with any future performance thereof, will violate
or contravene said Amended and Restated Credit Agreement.
GSRP is not bound by or otherwise affected by the terms and provisions
of that certain Credit Agreement, dated as of November 12, 1997, by and among
ASC Utah, ASC West, Inc. and the other affiliates thereof, BankBoston, N.A., as
agent, DLJ Capital Funding, Inc., as documentation agent, and the lenders
signatory thereto, as amended from time to time.
<PAGE>
4.16 BROKERS' FEES
4.16 Brokers' Fees.
There are no brokers or finders which are entitled to receive
compensation for their services rendered to GSRP with respect to the
transactions described in this Agreement and with which GSRP has had dealings.
<PAGE>
4.17 DEFERRED COMPENSATION PLANS
4.17 Deferred Compensation Plans.
Except as set forth on Schedule 17 hereto, GSRP does not have a
pension, profit sharing or other compensatory or similar plan providing for a
program of deferred compensation for any employee or officer which is subject to
any requirement of the Employee Retirement Income Security Act of 1974, as
amended.
<PAGE>
4.18 LABOR RELATIONS
4.18 Labor Relations.
GSRP is not a party to any collective bargaining agreement, there are
no material grievances, disputes or controversies with any union or any other
organization of GSRP's employees, or threats of strikes, work stoppages or any
asserted pending demands for collective bargaining by any union or organization.
<PAGE>
4.19 VALIDITY OF CONTRACTS
4.19 Validity of Contracts.
Each of the Contracts is a bona fide, genuine and true contract for the
purchase of a Quartershare Interest from GSRP by the Purchaser in respect
thereof and is valid and binding against such Purchaser (subject to the terms
and conditions thereof and any right of rescission granted under applicable law
or referred to in that certain letter from GSRP to the Administrative Agent
dated the Closing Date).
<PAGE>
4.20 VALIDITY OF LIENS GRANTED TO LENDER
4.20 Validity of Liens Granted to Lender.
Except with respect to the Permitted Exceptions and as provided for in
Section 3.16 and Section 3.17 hereof, all Liens granted to the Lender in respect
of the Collateral are, and shall continue to be, prior in right and superior to
all other Liens granted to, or held by, any other Person.
<PAGE>
4.21 QUARTERSHARE REGIMEN REPORTS
4.21 Quartershare Regimen Reports.
Subject to Section 3.17 hereof, GSRP has furnished to the
Administrative Agent true and correct copies of all Project Documents and all
filings and/or recordations in order to establish the condominium and the
quartershare ownership regimens in respect of each Project have been done and
all applicable laws and statutes in connection therewith have been complied
with.
<PAGE>
4.22 SALE OF QUARTERSHARE INTERESTS
4.22 Sale of Quartershare Interests.
The sale and offering of sale of Quartershare Interests (i) do not and
will not constitute the sale, or the offering of sale, of Securities subject to
the registration requirements of the Securities Act of 1933, as amended, or the
blue-sky securities laws of any of the Applicable States, (ii) are done and will
only be done in the State in which the Project is situated (and no solicitation
and no advertising in respect of the sale of Quartershare Interests that would,
in either case, be in violation of applicable law is done or will be done in any
States other than the Applicable States), (iii) except as set forth in that
certain letter from GSRP to the Administrative Agent dated the Closing Date, do
not violate and will not violate any applicable federal, state or local consumer
credit or sale rescission statute, including, without limitation, any such
statute of any State in which a Purchaser may reside, and (iv) do not violate
and will not violate any other applicable federal, state or local law, statute
or regulation (including, without limitation, any timeshare or subdivision law
applicable to the Projects or to the sale of Quartershare Interests and in
effect in any Applicable State or in any other State in which a Purchaser may
reside or in which the sale of any such Quartershare Interest to such Purchaser
was closed).
Without limiting the generality of the immediately preceding paragraph,
GSRP has, to the extent required by its activities and businesses, fully
complied with and will continue to fully comply with (1) (A) the Federal Trade
Commission Act, as amended, (B) except as set forth in that certain letter from
GSRP to the Administrative Agent dated the Closing Date, the Interstate Land
Sales Full Disclosure Act, as amended, (C) all other applicable federal statutes
and laws pertaining to the Projects and (D) the rules and regulations
promulgated under such Acts, statutes and laws and (2) all of the applicable
provisions of any law of any State (and the rules and regulations promulgated
thereunder) or municipality or other governmental or quasi-governmental
authority relating to the operation of the Projects. The sale and offering of
sale of Quartershare Interests is not affected and will not be affected by any
home solicitations.
<PAGE>
4.23 SOLVENCY
4.23 Solvency.
GSRP is not entering into this 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 Agreement and the
making of the Advances 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 4.23 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 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.
5. CONDITIONS PRECEDENT TO CLOSING OF THIS AGREEMENT
The effectiveness of this Agreement shall be subject to the following
conditions precedent (all deliveries required in this Section 5 shall be made to
the Administrative Agent not less than 15 Business Days prior to the Closing
Date):
<PAGE>
5.1 OPINIONS OF COUNSEL
5.1 Opinions of Counsel.
The Administrative Agent shall have received from (i) Christopher
Howard, general counsel for GSRP and the Parent, a closing opinion substantially
in the form of Exhibit L-1 attached to this Agreement dated the Closing Date.
<PAGE>
5.2 WARRANTIES AND REPRESENTATIONS TRUE AS OF CLOSING DATE
5.2 Warranties and Representations True as of Closing Date.
(a) The warranties and representations contained in this
Agreement shall be true in all material respects on the Closing Date.
(b) GSRP shall not have taken any action, or permitted any
condition to exist which would have been prohibited by any provision of
this Agreement if such provision had been binding and effective at all
times during the period from September 14, 1998 to and including the
Closing Date.
<PAGE>
5.3 COMPLIANCE WITH THIS AGREEMENT
5.3 Compliance with this Agreement.
GSRP shall have performed and complied with all covenants, agreements
and conditions contained herein (including all of the conditions set forth in
this Section 5) which are required to be performed or complied with by it before
or on the Closing Date.
<PAGE>
5.3 OFFICERS' CERTIFICATE; SECRETARY'S CERTIFICATES; GOOD-STANDING
CERTIFICATES 1
5.4 Officer's Certificates; Secretary's Certificates; Good-Standing
Certificates.
(a) The Administrative Agent shall have received a
certificate, substantially in the form of Exhibit M to this Agreement,
dated as of the Closing Date and signed by the chief financial officer
or other senior officer of GSRP, certifying that the conditions
specified in Sections 5.2 and 5.3 of this Agreement have been
fulfilled.
(b) The Administrative Agent shall have received a certificate
of the secretary or assistant secretary of GSRP, substantially in the
form of Exhibit N to this Agreement, dated as of the Closing Date,
certifying (i) the adoption by the board of directors of GSRP of a
resolution authorizing GSRP to enter into this Agreement and the
transactions and instruments contemplated hereby (including, without
limitation, the execution and delivery of the Security Documents to
which GSRP is a party and the granting of the Liens in and to the
Collateral), and (ii) as to the incumbency of, and verifying the
specimen signatures of, the signatories of GSRP.
(c) GSRP shall have delivered to the Administrative Agent, in
form satisfactory to the Administrative Agent, a recent good standing
certificate from the Secretary of State of Maine certifying GSRP's good
standing together with a certified copy of its articles of organization
duly recorded with the Secretary of State of Maine (and all amendments
thereto) and a copy of its By-Laws, certified by a senior officer of
GSRP to be true and correct.
(d) The Administrative Agent shall have received (i) a
certificate of the Secretary or any Assistant Secretary of the Parent
substantially in the form of Exhibit O to this Agreement, dated as of
the Closing Date, certifying (i) the adoption by the Board of Directors
of Parent of a resolution authorizing the Parent to enter into the
subordination agreement contemplated hereby and (ii) the incumbency and
authority of, and verifying the specimen signatures of, the officers of
the Parent authorized to execute and deliver such subordination
agreement.
(e) The Parent shall have delivered to the Administrative
Agent, in form satisfactory to the Administrative Agent, a recent good
standing certificate from the Secretary of State of Maine certifying
the Parent's due corporate existence and including a certified copy of
its articles of organization duly recorded with the Secretary of State
of Maine (and all amendments thereto) and a copy of its By-Laws,
certified by a senior officer of the Parent to be true and correct. The
Parent shall have delivered to the Administrative Agent, in form
satisfactory to the Administrative Agent, a recent certificate from the
Secretary of States of Vermont, Colorado and Utah certifying the
Parent's status as a foreign corporation duly qualified to transact
business in the States of Vermont, Colorado and Utah.
<PAGE>
5.5 UNIFORM COMMERCIAL CODE FINANCING STATEMENTS
5.5 Uniform Commercial Code Financing Statements.
All filings of Uniform Commercial Code financing statements and all
other filings and actions necessary to perfect the Administrative Agent's
security interests in and to the Collateral shall have been filed and
confirmation thereof received.
<PAGE>
5.6 SUBORDINATION OF INDEBTEDNESS
5.6 Subordination of Indebtedness.
GSRP and the Parent shall have entered into one or more Subordination
Agreements, substantially in the form of Exhibit P attached to this Agreement
(as amended, individually, a "Subordination Agreement" and, collectively, the
"Subordination Agreements").
<PAGE>
5.7 EXPENSES
5.7 Expenses.
GSRP shall have paid all fees and expenses required to be paid under
this Agreement, including, without limitation, the fees and expenses set forth
in Section 11.2 of this Agreement and a $600,000 commitment fee, as required
under Section 2.7 hereof.
<PAGE>
5.8 NOTES; TFC ARCHITECT
. 5.8 Notes; TFC Architect
(a) Notes. GSRP shall have executed and delivered the Notes to
the respective Lenders therefor.
(b) TFC Architect. The TFC Architect shall have accepted its
appointment.
<PAGE>
5.9, 7.16 INSPECTION
5.9 Inspection.
GSRP shall have permitted the Administrative Agent, the Lenders, the
TFC Architect, and/or any of their representatives to make an inspection/audit
of its books, accounts and records and such other papers as they may desire and
of its premises and of the Projects, as the Lenders may in its sole discretion
determine. Such inspection/audit shall have been satisfactory to the Lenders (in
its sole determination).
<PAGE>
5.10 LOAN DISBURSEMENT AGREEMENTS
5.10 Loan Disbursement Agreements.
GSRP and the Disbursement Agent shall have executed the Loan
Disbursement Agreement and delivered an executed copy thereof to the
Administrative Agent.
<PAGE>
5.11 PROCEEDINGS SATISFACTORY
5.11 Proceedings Satisfactory.
All actions taken in connection with the execution of this Agreement,
the Notes, any other Security Document and all documents and papers relating
thereto shall be satisfactory to the Lenders and their counsel. The Lenders and
their counsel shall have received copies of such documents and papers as the
Lenders or such counsel may reasonably request in connection therewith, all in
form and substance satisfactory to the Lenders and their counsel.
<PAGE>
6. CONSTRUCTION PROJECT ADVANCES CLOSING CONDITIONS
6. CONSTRUCTION PROJECT ADVANCES CLOSING CONDITIONS
The obligation of the Lenders to make Construction Project Advances in
respect of any Construction Project on a Business Day of any month (herein
referred to as a "Construction Project Advance Date") shall be subject to the
satisfaction of all of the following conditions precedent as applicable to such
Project:
<PAGE>
6.1 FIRST PROJECT ADVANCE
. 6.1 First Project Advance
The following conditions shall be satisfied if the Construction Project
Advance is the first Construction Project Advance in respect of such
Construction Project:
(a) Opinions of Counsel. The Administrative Agent shall have
received from Christopher Howard, general counsel for GSRP and for the
Host Company in respect of such Construction Project substantially in
the form of Exhibit L-2 attached to this Agreement dated the
Construction Project Advance Date. With respect to the first
Construction Project Advance in respect of the *Sugarloaf Project, the
Administrative Agent shall have received a closing opinion
substantially in the form of Exhibit L-3 attached to this Agreement
dated such Construction Project Advance Date, from Pierce Atwood, local
counsel for GSRP and the Host Company, in respect of the *Sugarloaf
Project. With respect to the first Construction Project Advance in
respect of the *Sugarbush Project, the Administrative Agent shall have
received a closing opinion substantially in the form of Exhibit L-4
attached to this Agreement dated such Construction Project Advance
Date, from Reiber, Kenlan, Schweibert & Facey, local counsel for GSRP
and the Host Company in respect of the *Sugarbush Project. With respect
to the first Construction Project Advance in respect of the Steamboat
Project, the Administrative Agent shall have received a closing opinion
substantially in the form of Exhibit L-5 attached to this Agreement
dated the Closing Date, from Weiss, Van Scoyk & Coe, local counsel for
GSRP and the Host Company in respect of the Steamboat Project. With
respect to the first Construction Project Advance in respect of the
Canyons Project, the Administrative Agent shall have received a closing
opinion substantially in the form of Exhibit L-6 attached to this
Agreement dated the Closing Date, from Parsons Behle & Latimer, local
counsel for GSRP and the Host Company in respect of the Canyons
Project.
(b) Assignment of Property-Related Contracts. GSRP shall have
delivered to the Administrative Agent certified copies of all material
Property-Related Contracts in respect of the Construction Project and
executed and delivered in favor of the Administrative Agent an
Assignment of Property-Related Contracts in respect thereof. All such
Property-Related Contracts shall be satisfactory to the Administrative
Agent in form and substance. If requested by the Administrative Agent,
each Person (other than GSRP) which is a party to any such
Property-Related Contract set forth on Schedule 8 hereto shall have
been notified of the assignment thereof.
(c) Assignment of Declarant's Rights. The rights (but not the
obligations) of GSRP as declarant under the Declaration in respect of
such Construction Project shall have been assigned to the
Administrative Agent pursuant to an Assignment of Declarant's Rights in
respect thereof.
(b) Blanket Mortgages. GSRP shall have executed and delivered
the Blanket Mortgage encumbering such Construction Project and all
other Projects to the Administrative Agent. Such Blanket Mortgages
shall have been recorded, as of the Closing Date, in the applicable
recording office in Maine, Vermont, Colorado and Utah and all taxes,
recording fees and other fees and charges required by applicable law to
be paid in connection therewith shall have been duly paid in full. Such
Blanket Mortgages shall have created a valid Lien in and to the
Projects in respect of the Obligations, subject to no other Liens
except for the Permitted Exceptions. It is the intention of the Lenders
and GSRP that all Blanket Mortgages shall be executed and recorded in
connection with the very first Construction Project Advance.
(c) Assignment of Rents. GSRP shall have executed and
delivered to the Administrative Agent an Assignment of Rents for such
Construction Project and for each of the other Projects, which shall
assign to the Administrative Agent, among other things, all of GSRP's
right, title and interest in and to the Host Company Lease Agreement
relating to such Construction Project and the other Construction
Projects and in and to the Beneficial Improvement Agreements in respect
of the 1997 Projects. Such Assignments of Rents shall have been
recorded in the applicable recording office of Maine, Vermont, Colorado
and Utah and all taxes, recording fees and other fees and charges
required by applicable law to be paid in connection therewith shall
have been duly paid in full. Such Assignments of Rents shall have
created a valid Lien in and to the Property referred to therein in
respect of the Obligations subject to no other Liens except for the
Permitted Exceptions. The appropriate Host Company shall have
acknowledged in writing its obligation to make all payments under such
Host Company Lease Agreements and Beneficial Improvement Agreements
directly to the Administrative Agent. It is the intention of the
Lenders and GSRP that all Assignments of Rent shall be executed and
recorded in connection with the very first Construction Project
Advance.
(d) Title Insurance Policy {Blanket}. GSRP shall have
delivered to the Administrative Agent a mortgagee's title insurance
policy (issued to the Administrative Agent and in full force and
effect) in respect of the Blanket Mortgages encumbering each of the
Projects (said mortgagee's title insurance policies in respect of the
Blanket Mortgages are referred to herein, individually, as a "Title
Insurance Policy {Blanket}" and, collectively, as the "Title Insurance
Policies {Blanket}") together with such endorsements thereto as the
Administrative Agent may require, dated the Closing Date. Such Title
Insurance Policies {Blanket} (a) shall have been issued by a title
insurance company which is satisfactory to the Administrative Agent,
(b) shall be in form and substance satisfactory to the Administrative
Agent and its special counsel, (c) shall be in a maximum amount not
less than $145,000,000 subject to such tie-in or coordination
endorsements as shall be acceptable to the Administrative Agent and
shall be reflective of the values set forth in the first proviso set
forth below, provided that the allocation of such coverage to the
Steamboat Blanket Mortgage shall not be less than $66,110,890, the
allocation of such coverage to the Canyons Blanket Mortgage shall not
be less than $71,539,110, the allocation of such coverage to the
*Sugarbush Blanket Mortgage shall not be less than $[to be determined],
the allocation of such coverage to the *Sugarloaf Blanket Mortgage
shall not be less than $[to be determined], the allocation of such
coverage to the Jordan Bowl Blanket Mortgage shall not be less than
$10,105,634.92, the allocation of such coverage to the Attitash Bowl
Blanket Mortgage shall not be less than $2,017,134.15, the allocation
of such coverage to the Killington Blanket Mortgage shall not be less
than $8,681,720.08 and the allocation of such coverage to the Mt. Snow
Blanket Mortgage shall not be less than $12,651,953.54, (d) shall
insure that such Blanket Mortgages create a valid first Lien in and to
the *Sugarloaf Project, the Canyons Project, the Steamboat Project, the
*Sugarbush Project, the Jordan Bowl Project, the Attitash Project, the
Killington Project and the Mt Snow Project, respectively, free and
clear of all defects, encumbrances and other Liens unacceptable to the
Administrative Agent and (e) shall contain such further endorsements
and affirmative coverage as the Administrative Agent may request,
including, without limitation, automatic increases in the amount of the
insurance upon the making of future Advances by the Lenders so that, at
all times, the amount of the insurance provided by the Title Insurance
Policy {Blanket} shall equal or exceed the aggregate outstanding amount
of all Advances, provided that no mechanic's, materialmen's or
laborer's liens endorsement or current survey or easement endorsement
shall be required in respect of the so-called mechanic's lien, easement
and survey exceptions in such Title Insurance Policies {Blanket}. All
premiums in respect of such Title Insurance Policies {Blanket} shall
have been paid in full and evidence thereof shall have been delivered
to the Administrative Agent. It is the intention of the Lenders and
GSRP that all Title Insurance Policies {Blanket} shall be obtained in
connection with the very first Construction Project Advance.
(e) Insurance. GSRP shall have delivered to the Administrative
Agent certificates of insurance evidencing the insurance policies and
endorsements relating to such Construction Project and the other
Projects that are required to be delivered pursuant to Section 3.5
hereof, together with copies of such insurance policies certified by
GSRP to be true and correct. All premiums in respect of such insurance
policies shall have been paid in full and evidence thereof shall have
been delivered to the Administrative Agent. It is the intention of the
Lenders and GSRP that all certificates of insurance and insurance
policies shall be obtained in connection with the very first
Construction Project Advance.
(f) Environmental Site Assessment Report. GSRP (at its own
expense) shall have delivered to the Administrative Agent not less than
15 Business Days prior to the aforesaid Construction Project Advance
Date a "Phase I" environmental survey of such Construction Project and
the other Construction Projects, provided that if such "Phase I"
environmental survey is not available or is unsatisfactory to the
Administrative Agent (in its sole determination), GSRP (at its own
cost) shall have delivered to the Administrative Agent an engineering
report or reports which shall be in form and substance satisfactory to
the Administrative Agent and shall confirm the following items:
(i) the absence of Hazardous Substances on or under such
Construction Project or the other Construction Projects, as the case
may be; and
(ii) that the engineering firm has obtained, reviewed
and included within its report a printout from the
Comprehensive Environmental Response Compensation and
Liability Information System of the Environmental Protection
Agency and all other applicable state and local authorities
and such other information as the Administrative Agent may
reasonably require, all of which information shall confirm
that there is no reason to believe that any Hazardous
Substances exist on or under such Construction Project and the
other Construction Projects and that there is no known or
suspected Hazardous Substance waste site located at such
Construction Project and the other Construction Projects or in
such proximity thereto as to create a material risk of
contamination of such Construction Project and the other
Construction Projects.
GSRP (at its own expense) shall have also delivered
to the Administrative Agent an engineering report in respect
of the soil conditions at such Construction Project and the
other Construction Projects and the ability of such soil to
support the improvements contemplated in the Plans for such
Construction Project and the other Construction Projects. Each
such engineering report shall be accompanied by a satisfactory
opinion to the Lenders from the TFC Architect regarding such
engineering report and the ability of the soil at such
Construction Project and the other Construction Projects to
support the improvements contemplated in the Plans for such
Construction Project and the other Construction Projects.
Each environmental survey and engineering report
delivered pursuant to this clause (f) shall provide that the
Lenders may rely thereon in connection with its making
Advances hereunder.
It is the intention of the Lenders and GSRP that all
reports and documents referred to in this clause (f) shall be
obtained in connection with the very first Construction
Project Advance.
(g) Taxes. GSRP shall have delivered to the Administrative
Agent copies of the most recent tax receipts for such Construction
Project (or certificates in respect thereof) evidencing no delinquency
in the payment thereof.
(h) Inspection. GSRP shall have permitted the Administrative
Agent, the Lenders, the TFC Architect, and/or any of their
representatives to make an inspection/audit of such Construction
Project as the Lenders may in its sole discretion determine. Such
inspection/audit shall have been satisfactory to the Lenders (in its
sole determination).
(i) Survey. GSRP shall have delivered to the Administrative
Agent a survey of such Construction Project and the other Construction
Projects showing its perimeter; such survey shall be prepared in
accordance with ALTA/ACSM 1992 Minimum Survey Requirements by a
licensed surveyor acceptable to the Administrative Agent and shall be
dated (or re-certified) as of a recent date and shall contain a
certification noted thereon in form and substance satisfactory to the
Administrative Agent; such survey shall show no easements,
rights-of-way, encroachments, streets or alleys which interfere with
the use, enjoyment or market value of such Construction Project and the
other Construction Projects. It is the intention of the Lenders and
GSRP that all such surveys shall be obtained in connection with the
very first Construction Project Advance.
(j) Permits. GSRP shall have delivered to the Administrative
Agent a copy of all of the permits allowing the construction and
development of such Construction Project.
(k) Architect's Contract. GSRP shall have delivered to the
Administrative Agent and the TFC Architect a copy of the architectural
contract with the Architect for such Construction Project. GSRP shall
have delivered to the Administrative Agent an Assignment of Architect's
Contract in respect of its rights under each such contract (duly
consented to by each such Architect). Such Architect and each such
architectural contract shall be satisfactory to the Administrative
Agent.
(l) Construction Contract. GSRP shall have delivered to the
Administrative Agent and the TFC Architect a copy of the Construction
Contract with the General Contractor for such Construction Project.
GSRP shall have delivered to the Administrative Agent an Assignment of
Construction Contract in respect of its rights under such Construction
Contract (duly consented to by each such General Contractor), and an
assignment of each payment and performance bond covering such General
Contractor, which bonding companies and the surety(s) issuing the same
shall be satisfactory to the Administrative Agent and shall name the
Administrative Agent on behalf of the Lenders as dual obligee. Such
General Contractor and such Construction Contract shall be satisfactory
to the Administrative Agent. GSRP shall have delivered to the
Administrative Agent and the TFC Architect a copy of each subcontract
in respect of such Construction Project in excess of $50,000.
(m) Budgets. GSRP shall have submitted to the Administrative
Agent the Budget for such Construction Project and such Budget shall be
reasonably satisfactory to the Administrative Agent and the TFC
Architect, and shall have been certified as being true and correct by
the chief financial officer of GSRP. No such Budget shall have been
modified or supplemented without the prior written consent of the
Administrative Agent.
(n) Plans. GSRP shall have delivered to the Administrative
Agent and the TFC Architect a copy of the Plans for such Construction
Project and each such Plan shall be reasonably satisfactory to the
Administrative Agent and to the TFC Architect. No such Plan shall have
been modified or supplemented without the prior written consent of the
Administrative Agent.
(o) Architect's Certificate. The Architect shall have
delivered a certificate to the Administrative Agent to the effect that
(i) the Plans for such Construction Project are complete, (ii) the
construction and furnishing of such Construction Project pursuant to
the Plans for such Construction Project and the intended use of such
Construction Project complies with all zoning and other ordinances,
rules, regulations and building and use restrictions applicable
thereto, (iii) all necessary architectural, design and landscaping
approvals have been obtained under applicable law for such Construction
Project and (iv) the construction and furnishing of such Construction
Project in accordance with the Plans therefor can be completed within
the construction budget criteria therefor as set forth in the
respective Budget for such Construction Project. Such certificate shall
be reasonably satisfactory to the Administrative Agent and to the TFC
Architect and shall address such other issues or matters as the
Administrative Agent may reasonably request.
(p) Escrow Letter. An Escrow Agent for such Construction
Project shall have executed and delivered to the Administrative Agent
the escrow account acknowledgement letter set forth in Exhibit A
attached to this Agreement.
(q) Secretary's Certificate. The Administrative Agent shall
have received a certificate of the Secretary or any Assistant Secretary
of the Host Company for such Construction Project and each of the other
Host Companies for the other Construction Projects substantially in the
form of Exhibit O to this Agreement, dated as of the Closing Date,
certifying (i) the adoption by the Board of Directors of each such Host
Company of a resolution authorizing each such Host Company to enter
into the subordination agreement contemplated hereby and its Host
Company Lease Agreement and (ii) the incumbency and authority of, and
verifying the specimen signatures of, the officers of such Host Company
authorized to execute and deliver such subordination agreement and such
Host Company Lease Agreement. It is the intention of the Lenders and
GSRP that all such certificates shall be obtained in connection with
the very first Construction Project Advance.
(r) Good Standing Certificates. The Host Company of such
Construction Project and the Host Companies of each of the other
Construction Projects shall have delivered to the Administrative Agent,
in form satisfactory to the Administrative Agent, a recent good
standing certificate from the Secretary of State of its incorporation,
certifying such Host Company's due corporate existence and including a
certified copy of its articles of organization duly recorded with the
appropriate Secretary of State (and all amendments thereto) and a copy
of its By-Laws, certified by a senior officer of such Host Company. It
is the intention of the Lenders and GSRP that all such certificates
shall be obtained in connection with the very first Construction
Project Advance.
(s) Host Company Lease Agreements; Subordination Agreements.
GSRP shall have delivered to the Administrative Agent a fully executed
and valid Host Company Lease Agreement for such Construction Project
and for each of the other Construction Projects. Each of the Host
Companies in respect of the Projects and GSRP shall have executed and
delivered to the Administrative Agent a Subordination Agreement. It is
the intention of the Lenders and GSRP that all such deliveries shall be
obtained in connection with the very first Project Advance. The form
and substance of each of the Host Company Lease Agreements and each
lessee thereunder shall be acceptable to the Administrative Agent in
its sole discretion.
(t) Funding Date Equity Moneys. If the first Construction
Project Advance is in respect of the Steamboat Project, GSRP shall have
delivered to the Administrative Agent a certificate executed by the
chief financial officer or other senior officer of GSRP showing that
GSRP has received Equity Moneys and other contributions to its equity
in respect of the Steamboat Project in an aggregate amount of not less
than $16,664,611 of which not less than $11,564,611 shall consist of
cash contributions to GSRP and not less than $5,100,000 shall consist
of equity contributions in respect of land for the Project. If
requested by the Administrative Agent, GSRP shall have delivered to the
Administrative Agent reasonable evidence that the fair market value of
the land contributed to GSRP in respect of the Steamboat Project is not
less than $5,100,000. If the first Construction Project Advance is in
respect of the Canyons Project, GSRP shall have delivered to the
Administrative Agent a certificate executed by the chief financial
officer or other senior officer of GSRP showing that GSRP has received
Equity Moneys and other contributions to its equity in respect of the
Canyons Project in an aggregate amount of not less than $12,366,720 of
which not less than all of such amount shall consist of cash
contributions to GSRP. In connection with any Construction Project
Advance, which, together with any previous Construction Project
Advance, will mean that Construction Project Advances will have been
made in respect of the Canyons Project and the Steamboat Project, GSRP
shall have delivered to the Administrative Agent a certificate executed
by the chief financial officer or other senior officer of GSRP showing
that GSRP has received Equity Moneys and other contributions to its
equity in respect of the Construction Projects in an aggregate amount
of not less than $29,025,000 of which not less than $23,925,000 shall
consist of cash contributions to GSRP and not less than $5,100,000
shall consist of contributions of land for the Construction Projects
(the aforesaid Equity Moneys and other contributions are referred to
herein as "Funding Date Equity Contributions").
<PAGE>
6.2 SPECIAL SUBMISSIONS
. 6.2 Special Submissions
The obligation of the Lenders to make any Construction Project Advance
in respect of any Construction Project shall be subject to the satisfaction of
all of the following additional conditions precedent as applicable to such
Project:
(a) Amendments to Plans and Budgets. GSRP shall have submitted
to the Administrative Agent any amendments and/or modifications to the
Plans for such Construction Project and any of the other Construction
Projects, which amendments and modifications shall be acceptable to the
Administrative Agent in its reasonable discretion. GSRP shall have
submitted to the Administrative Agent any amendments and/or
modifications to the Budget for such Construction Project and any of
the other Construction Projects, which amendments and/or modifications
shall be acceptable to the Administrative Agent in its reasonable
discretion.
(b) Declaration Requirements. GSRP shall have complied with
the requirements of Section 3.17 hereof.
(c) Note Purchase Agreement. The Note Purchase Agreement shall
be in full force and effect.
(d) Change Orders. No change orders in respect of the
Construction Contract for such Construction Project or for any of the
other Construction Projects shall have been effected without the prior
written consent of the Administrative Agent if any such change order
for such Construction Project has a cost of in excess of $50,000 or if
such change order and all other such change orders for such
Construction Project have an aggregate cost in excess of $200,000.
(e) Material Change Orders. No change orders in respect of the
Construction Contract for such Construction Project or any of the other
Construction Projects shall have been effected without the prior
written consent of the Administrative Agent if any such change order
involved (i) a material modification in the architectural, mechanical
or structural design of the building to be constructed in respect of
such Construction Project or such other Construction Projects or (ii) a
material change in the quality of workmanship or materials to be used
in any such building or (iii) a delay in the final completion date for
the construction of such building beyond September 1, 2000.
(f) Modifications to Other Contracts. No modifications to the
architectural contract with the Architect for such Construction Project
or any other Construction Project shall have been effected without the
prior written consent of the Administrative Agent.
(g) Construction Contract Default. No material default shall
exist in respect of the Construction Contract for such Construction
Project or any other Construction Project.
(i) Delivery of Contracts. GSRP shall have delivered to the
Administrative Agent copies of all of its Contracts relating to such
Construction Project and each other Construction Project and, if not
delivered earlier, an instrument (substantially in the form of Exhibit
V attached to this Agreement) confirming the collateral assignment to
the Administrative Agent hereunder of all of GSRP's right, title and
interest in and to each of such Contracts.
(j) Section 2.1 Conditions. All of the conditions to lending
set forth in Section 2.1 shall have been satisfied.
<PAGE>
6.3 REQUESTS FOR CONSTRUCTION PROJECT ADVANCE
. 6.3 Requests for Construction Project Advance
A request for such Construction Project Advance in respect of any
Project (a "Construction Project Advance Request")
(a) shall be in writing,
(b) shall state the name of the Construction Project to which
such Construction Project Advance relates,
(c) if all or portion of such Construction Project Advance is
to be used to satisfy Construction Costs for such Construction Project,
GSRP shall have certified the same in such request to the
Administrative Agent and shall attach to such request a fully executed
and completed Construction Cost Certificate for such Construction
Project (with all attachments thereto, including, without limitation,
an Architect's Construction Cost Certificate for such Construction
Project),
(d) if all or portion of such Construction Project Advance is
to be used to satisfy FF&E Costs for such Construction Project and/or
Sales, Marketing & Other Costs for such Construction Project, GSRP
shall have certified the same to the Administrative Agent in such
request and shall attach to such request a fully executed and completed
Nonconstruction Cost Certificate for such Construction Project (with
all attachments thereto, including, without limitation in the case of a
Construction Project Advance financing FF&E Costs for such Construction
Project, a TFC Architect's Nonconstruction Cost Certificate for such
Construction Project),
(e) shall state what portion of such Construction Project
Advance is to defray Construction Costs, FF&E Costs and/or Sales,
Marketing & Other Costs, in each case, in respect of such Construction
Project, shall show the calculation of any Retainage Amounts in respect
thereof of the portion of such Construction Project Advance in respect
of Construction Costs for such Construction Project, shall certify that
the conditions to borrowing set forth in Section 2.1 hereof are
satisfied in respect of such Construction Project Advance and shall
certify that no Default or Event of Default exists,
(f) if such Construction Project Advance is to also constitute
a Final Construction Cost Advance for such Construction Project, shall
so identify such Construction Project Advance as the "Final
Construction Cost Advance", shall show and certify all calculations in
respect of the aggregate amount of all contractually required Retainage
Amounts to be financed thereby, and shall have attached thereto the
Final Construction Cost Certificate for such Construction Project
(including all attachments thereto, which shall include the Architect's
Final Construction Cost Certificate for such Construction Project),
(g) shall have been delivered to the office of the
Administrative Agent and the TFC Architect at least 10 Business Days in
advance of the Construction Project Advance Date, and
(h) shall otherwise be substantially in the form of Exhibit
U-1 attached to this Agreement.
The requirements in clause (a) through clause (g) above
shall be satisfied in the sole opinion of the Administrative Agent and
the TFC Architect. GSRP acknowledges that the Lenders making
Construction Project Advances shall not make such Construction Project
Advances in respect of costs which have not been approved by them. The
Lenders making Construction Project Advances agree with GSRP that the
costs set forth in the Budget for their respective Construction
Projects are acceptable to them and that neither they nor the
Administrative Agent shall unreasonably withhold its approval in
respect of costs corresponding to those in such Budget subject to (i)
such costs conforming to the amounts, conditions, assumptions and
requirements of such Budget, (ii) the proper incurrence and
documentation of such costs, and (iii) the submission of proper
written certification in respect of such costs from GSRP, the General
Contractor for such Construction Project, the Architect for such
Construction Project and the TFC Architect, as provided for above.
GSRP agrees to submit one Construction Project Advance Request for
each Construction Project for which a Construction Project Advance is
needed; GSRP agrees not to use one Construction Project Advance
Request to request Construction Project Advances for more than one
Construction Project.
<PAGE>
6.4 FINAL CONSTRUCTION ADVANCE CONDITIONS
. 6.4 Final Construction Advance Conditions
If such Construction Project Advance for any such Construction Project
shall constitute, in whole or part, a Final Construction Cost Advance, then the
following additional conditions shall apply to the making thereof:
(a) As-Built Survey. GSRP shall have delivered to the
Administrative Agent an as-built survey showing the location of the
building as well as the remainder of such Construction Project and the
other improvements thereon; such survey shall be prepared in accordance
with ALTA/ACSM 1992 Minimum Survey Requirements and in accordance with
the applicable rules and regulations of the appropriate state licensing
board by a licensed surveyor acceptable to the Administrative Agent and
shall be dated a date not more than 15 days prior to such Construction
Project Advance Date and shall contain a certification noted thereon in
form and substance satisfactory to the Administrative Agent and the
Title Company issuing the Title Insurance Policy {Blanket} in respect
of such Construction Project; such survey shall show no easement,
rights-of-way, party walls, encroachments, streets or alleys which
interfere with the use, enjoyment or market value of the building
constructed at such Construction Project, the Residential Units or
Commercial Units therein and the Common Elements relating thereto. All
easements in respect of egress and ingress, all amenity easements, all
utility easements, parking easements and all other easements shall be
drawn on, and/or otherwise shown or referred to in, such survey and/or
certificate; and
(b) Certificate of Occupancy. GSRP shall have delivered to the
Administrative Agent a copy (certified to be true and correct) of a
permanent and unconditional certificate of occupancy in respect of the
building to be built at such Construction Project and each of the
Residential Units and Commercial Units therein. GSRP shall have
delivered to the Administrative Agent a copy (certified to be true and
correct) of any other governmental certificates or licenses necessary
for the occupancy of such building and the Residential Units and
Commercial Units therein.
<PAGE>
6.5 DEFAULTS; EXPENSES; MISCELLANEOUS
. 6.5 Defaults; Expenses; Miscellaneous
(a) No Default or Event of Default. No Default or Event of
Default shall exist immediately prior to the making of such
Construction Project Advance or, after giving effect thereto,
immediately after the making of such Construction Project Advance.
(b) Insufficient Availability. No such Construction Project
Advance shall be made if the Administrative Agent shall have determined
that the remaining availability under this Agreement for Construction
Project Advances in respect of such Construction Project (including any
such Construction Project Advances then outstanding and anticipated to
be repaid and then reborrowed) and any additional Equity Moneys
contributed to GSRP (in addition to the Closing Date Equity
Contributions) are insufficient to cover the remaining costs to
complete the construction, furnishing and marketing of such
Construction Project, as contemplated in the Plans for such
Construction Project and the Budget for such Construction Project.
(c) Fees and Expenses. GSRP shall have paid all fees and
expenses required to be paid under this Agreement (including, without
limitation, the fees and expenses set forth in Section 11.2 of this
Agreement and any incremental commitment fees due and payable) in
connection with such requested Construction Project Advance.
(d) Title Insurance Endorsement. GSRP shall have delivered to
the Administrative Agent title insurance endorsements to the Title
Insurance Policy {Blanket} in respect of such Construction Project in
form and substance reasonably satisfactory to the Administrative Agent
whereby the effective date of such Title Insurance Policy {Blanket}
shall be made such Construction Project Advance 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 sum of the aggregate principal amount of
the outstanding Construction Project Advances and Interest Advances for
such Construction Project on such Construction Project Advance Date,
after giving effect to the making of such Construction Project Advance.
All premiums in respect of such endorsement to such Title Insurance
Policy {Blanket} shall have been paid in full and evidence thereof
shall have been delivered to the Administrative Agent.
(e) Warranties and Representations True. The warranties and
representations contained in this Agreement shall be true in all
material respects as of Construction Project Advance Date.
(f) Legal Opinion Updates. If reasonably requested by the
Administrative Agent, GSRP shall have delivered to the Administrative
Agent updates and confirmations of the legal opinions delivered to the
Administrative Agent pursuant to Section 5.1 and/or Section 6.1(a)
hereof, which updates and confirmations shall be satisfactory to the
Administrative Agent in form and substance.
<PAGE>
6.6 DISBURSEMENTS; DISBURSEMENT AGENT REPORTS
. 6.6 Disbursements; Disbursement Agent Reports
The proceeds of such Construction Project Advance that are to defray
Construction Costs or are in respect of the Final Construction Cost Advance
shall be disbursed by the Administrative Agent, acting as the Disbursement
Agent, directly to the General Contractor or as the General Contractor may
direct in writing. The proceeds of such Construction Project Advance that are to
defray FF&E Costs and/or Sales, Marketing & Other Costs shall be disbursed by
the Administrative Agent to GSRP or as GSRP may direct in writing.
<PAGE>
5.11, 6.7 PROCEEDINGS SATISFACTORY
. 6.7 Proceedings Satisfactory
All actions taken in connection with the Construction Project Advance
shall be reasonably satisfactory to the Administrative Agent and its counsel.
the Administrative Agent and its counsel shall receive copies of such documents
and papers as the Administrative Agent or such counsel may reasonably request in
connection with any such Construction Project Advance, all in form and substance
satisfactory to the Administrative Agent and its counsel.
<PAGE>
6.8 SUBCONTRACTS
6.8 Subcontracts.
GSRP shall have delivered to the Administrative Agent and the TFC
Architect a copy of each subcontract in respect of any Construction Project in
excess of $50,000 that have not been previously so delivered.
<PAGE>
6.9 COSTS AND EXPENSES
6.9 Costs and Expenses.
All Loan Costs shall have been paid in full, provided that the
aggregate amount of fees payable by GSRP to the Administrative Agent, as the
Disbursement Agent, shall not exceed $40,000 (costs and expenses to be in
addition thereto) and the per Construction Project Advance portion thereof will
be approximately $3,077 (costs and expenses to be in addition thereto).
<PAGE>
6.9 REQUESTS FOR INVENTORY ADVANCE FOR CONSTRUCTION PROJECTS
6A. REQUESTS FOR INVENTORY ADVANCE FOR CONSTRUCTION PROJECTS.
The obligation of the Lenders to make any Inventory Advance in respect
of any Construction Project (the date on which such Inventory Advance in respect
of such Construction Project is made is referred to herein as the "Inventory
Advance Date") shall be subject to the satisfaction of all of the following
conditions precedent as applicable to such Construction Project:
(a) Request. A request for an Inventory Advance in respect
of any Construction Project (an "Inventory Advance Request")
(i) shall be in writing,
(ii) shall state the name of the Construction Project
to which such Inventory Advance relates,
(iii) shall have been delivered to the office of the
Administrative Agent and the TFC Architect at least 10
Business Days in advance of the Inventory Advance Date, and
(iv) shall otherwise be substantially in the form of
Exhibit U-2 attached to this Agreement.
The requirements in clause (i) through clause (iv) above shall be
satisfied in the sole opinion of the Administrative Agent. No Inventory
Advance shall be made until all of the conditions for the Final
Construction Cost Advance for the Construction Project in respect of
which such Inventory Advance is to be made have been satisfied and such
Final Construction Cost Advance has been made.
(b) No Default or Event of Default. No Default or Event of
Default shall exist immediately prior to the making of such Inventory
Advance or, after giving effect thereto, immediately after the making
of such Inventory Advance.
(c) Fees and Expenses. GSRP shall have paid all fees and
expenses required to be paid under this Agreement (including, without
limitation, the fees and expenses set forth in Section 11.2 of this
Agreement) in connection with such requested Inventory Advance.
(d) Title Insurance Endorsement. GSRP shall have delivered to
the Administrative Agent title insurance endorsements to the Title
Insurance Policy {Blanket} in respect of such Construction Project in
form and substance reasonably satisfactory to the Administrative Agent
whereby the effective date of such Title Insurance Policy {Blanket}
shall be made such Inventory Advance Date and 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 endorsements to such Title Insurance Policy {Blanket}
shall be in an aggregate amount not less than the amount of such
Inventory Advance. All premiums in respect of such endorsement to such
Title Insurance Policy {Blanket} shall have been paid in full and
evidence thereof shall have been delivered to the Administrative Agent.
(e) Warranties and Representations True. The warranties and
representations contained in this Agreement shall be true in all
material respects as of Inventory Advance Date.
(f) Legal Opinion Updates. If reasonably requested by the
Administrative Agent, GSRP shall have delivered to the Administrative
Agent updates and confirmations of the legal opinions delivered to the
Administrative Agent pursuant to Section 5.1 and/or Section 6.1(a)
hereof, which updates and confirmations shall be satisfactory to the
Administrative Agent in form and substance.
(g) Proceedings Satisfactory. All actions taken in connection
with such Inventory Advance shall be reasonably satisfactory to the
Administrative Agent and its counsel. the Administrative Agent and its
counsel shall receive copies of such documents and papers as the
Administrative Agent or such counsel may reasonably request in
connection with any such Inventory Advance, all in form and substance
satisfactory to the Administrative Agent and its counsel.
<PAGE>
6.9(g) REQUESTS FOR INVENTORY ADVANCE FOR 1997 PROJECTS
6B. REQUESTS FOR INVENTORY ADVANCE FOR 1997 PROJECTS.
The obligation of the Lenders to make any Inventory Advances in respect
of the 1997 Projects (the date on which such Inventory Advances is made is
referred to herein as the "1997 Inventory Advance Date") shall be subject to the
satisfaction of all of the following conditions precedent as applicable to such
Construction Project:
(a) Request. The request for the Inventory Advance in
respect of the 1997 Projects (the "1997 Inventory Advance Request")
(i) shall be in writing, and
(ii) shall have been delivered to the office of the
Administrative Agent and the TFC Architect at least 2 Business
Days in advance of the Inventory Advance Date.
The requirements in clause (i) through clause (ii) above shall be
satisfied in the sole opinion of the Administrative Agent.
(b) No Default or Event of Default. No Default or Event of
Default shall exist immediately prior to the making of such Inventory
Advance or, after giving effect thereto, immediately after the making
of such Inventory Advance.
(c) Fees and Expenses. GSRP shall have paid all fees and
expenses required to be paid under this Agreement (including, without
limitation, the fees and expenses set forth in Section 11.2 of this
Agreement) in connection with such requested Inventory Advance.
(d) Title Insurance Endorsement. GSRP shall have delivered to
the Administrative Agent title insurance endorsements to the Title
Insurance Policy {Blanket} in respect of the 1997 Projects in form and
substance reasonably satisfactory to the Administrative Agent whereby
the effective date of such Title Insurance Policy {Blanket} shall be
made such 1997 Inventory Advance 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
and the title insurance policies obtained under LSA I in respect of the
1997 Projects and the Blanket Mortgages in respect thereof shall have
been continued and shall continue to insure such Blanket Mortgages.
Such endorsements to the Title Insurance Policy {Blanket} shall be in
an aggregate amount not less than the amount of such Inventory Advance.
All premiums in respect of such endorsement to such Title Insurance
Policy {Blanket} shall have been paid in full and evidence thereof
shall have been delivered to the Administrative Agent.
(e) Warranties and Representations True. The warranties and
representations contained in this Agreement shall be true in all
material respects as of 1997 Inventory Advance Date.
(f) Legal Opinion Updates. GSRP shall have delivered to the
Administrative Agent updates and confirmations of the legal opinions
delivered under LSA I.
(g) Proceedings Satisfactory. All actions taken in connection
with such Inventory Advance shall be reasonably satisfactory to the
Administrative Agent and its counsel. the Administrative Agent and its
counsel shall receive copies of such documents and papers as the
Administrative Agent or such counsel may reasonably request in
connection with any such Inventory Advance, all in form and substance
satisfactory to the Administrative Agent and its counsel. The
amendments to the Attitash Blanket Mortgage, substantially in the form
of Exhibit B-6 hereto, shall have been executed and delivered and
recorded in the appropriate land records; the amendments to the
Killington Blanket Mortgage, substantially in the form of Exhibit B-7
hereto, shall have been executed and delivered and recorded in the
appropriate land records; and the amendments to the Mt. Snow Blanket
Mortgage, substantially in the form of Exhibit B-8 hereto, shall have
been executed and delivered and recorded in the appropriate land
records. The Jordan Bowl Blanket Mortgage and the Jordan Bowl
Assignment of Rents shall have been executed and delivered and recorded
in the appropriate land records.
7. COVENANTS
GSRP covenants that on and after the date hereof and so long as any
Obligation of GSRP to the Lenders exists as follows:
<PAGE>
7.1 PAYMENT OF TAXES AND CLAIMS
7.1 Payment of Taxes and Claims.
Except as otherwise provided for in Section 3.7 and Section 3.8
hereof, GSRP shall pay, or cause to be paid, before they become delinquent:
(a) all taxes, assessments and governmental charges or
levies imposed upon it or its Property, including, without limitation,
the Collateral; and
(b) all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons which, if unpaid, might
result in the creation of a Lien upon its Property, including, without
limitation, the Collateral.
<PAGE>
7.2 MAINTENANCE OF PROPERTIES; COMPANY EXISTENCE;
INDEBTEDNESS; LIENS; BUSINESS
7.2 Maintenance of Properties; Company Existence;
Indebtedness; Liens; Business.
GSRP shall:
(a) Property -- maintain its Property in good repair, working
order and condition and make all necessary renewals, repairs,
replacements, additions, betterments and improvements thereto and,
without limiting the generality of the foregoing, promptly complete the
construction and development of each Construction Project in accordance
with the Plans for such Project on or prior to September 1, 2000
(except with respect to the *Sugarloaf Project, whose construction and
development shall be completed on [a date to be determined] and except
with respect to the *Sugarbush Project, whose construction and
development shall be completed on [a date to be determined]) and
thereafter maintain, or cause to be maintained, such Project and each
of the 1997 Projects in good repair, working order and condition and
make, or cause to be made, all necessary repairs, replacements,
additions, betterments and improvements to each such Project;
(b) Insurance -- maintain, or cause to be maintained,
insurance as required by Section 3.5 of this Agreement;
(c) Financial Records -- (i) keep true books of records and
accounts (including, without limitation, the Books and Records) in
which full and correct entries will be made of all its business
transactions and (ii) reflect in its financial statements adequate
accruals and appropriations to reserves, all in accordance with
generally accepted accounting principles, practices and procedures at
the time in effect and consistently applied or on a cash basis
consistently applied;
(d) Company Existence and Rights -- do or cause to be done all
things necessary or required to preserve and keep in full force and
effect its corporate existence, rights, powers and franchises,
including, without limitation, its authorization to do business in the
states in which the Projects are located;
(e) Compliance with Law -- except as set forth in that certain
letter from GSRP to the Administrative Agent dated the Closing Date,
not be in violation of (i) any laws, ordinances, governmental rules and
regulations to which it is subject, and to that end, GSRP shall not
fail to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its Properties or to the
conduct of its business, which violation or failure to obtain might
materially and adversely affect the business, prospects, profits,
Property or condition (financial or otherwise) of GSRP, including,
without limitation, any zoning laws, land use, design controls,
subdivision controls or Environmental Protection Laws applicable to its
real Property (including, without limitation, the Projects), (ii) any
statutes, rules and regulations, whether now or hereafter in force, in
any jurisdiction in which GSRP may make sales of Quartershare Interests
relating to the right to do business in such jurisdiction and (iii) any
applicable federal, state or municipal statutes, rules and regulations
relating to sales of Quartershare Interests and the manner of
evidencing and financing the same to the end that all of the Contracts
shall be valid, binding and legally enforceable in accordance with
their respective terms subsequent to the assignment thereof to the
Administrative Agent;
(f) Deferred Compensation Plans -- to the extent that it has
one or more pension, profit sharing or other compensatory or similar
plans providing for a program of deferred compensation for any employee
or officer, be in compliance with all requirements of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated in connection therewith;
(g) Development and Construction of the Projects -- retain
only duly licensed and qualified architects, engineers, contractors and
subcontractors to complete the development and construction of the
Construction Projects;
(h) Indebtedness -- not incur any liability for any
indebtedness for borrowed money (other than the Loan and other than
certain purchase money financing in respect of the acquisition of the
land at the Canyons having an original stated principal amount not in
excess of $6,600,000), whether such indebtedness is secured or
unsecured, and whether such liability is direct or indirect or
contingent or noncontingent, and not, as Declarant, permit any
Association to incur any liability for any indebtedness for borrowed
money, whether secured or unsecured, other than in the ordinary course
of the operation and maintenance of the Projects, provided that GSRP
may incur borrowed money indebtedness owing to the Parent or any other
Affiliate of GSRP if (i) such indebtedness is incurred in the ordinary
course of business of GSRP, (ii) at the time of the incurrence of such
indebtedness (and after giving effect thereto), no Default or Event of
Default shall exist, (iii) such indebtedness is unsecured and (iv) such
indebtedness is subordinated to the Loan as provided for in Section
7.11 hereof;
(i) Liens -- (i) not allow any Liens or encumbrances
whatsoever to attach to the Collateral other than the Liens and
security interests of the Administrative Agent created by the Security
Documents, any Liens in favor of the Associations under the
Declarations and the other Liens set forth on Schedule 4 hereto and
(ii) cause the Liens and security interests of the Administrative Agent
created by the Security Documents in and to the Collateral to continue
to be valid, enforceable, perfected Liens and security interests
subject to no other Liens except as set forth in this Agreement or in
any other Security Document and in Schedule 4 hereto;
(j) Business -- have as its sole business activity the
ownership of the Projects and the sale of Quartershare Interests and
Commercial Units in respect thereof and not pursue any other business
activities or own any other Property, provided that GSRP may own,
construct, develop, operate and/or manage, and sell quartershare
interests or condominium units in, other hotel projects if such other
hotel projects are part of the "Projects" hereunder, become additional
"Projects" hereunder or are otherwise financed by the Lenders;
(k) Material Adverse Effect -- not undertake any action that
would have a material adverse effect on the operation of the Projects
or the Collateral; and
(l) Notification of Claims -- promptly notify the
Administrative Agent of any claim, action or proceeding affecting title
to the Collateral, or any part thereof, or any of the security
interests granted hereunder, and, at the request of the Administrative
Agent, appear in and defend, at GSRP's expense, any such claim, action
or proceeding.
<PAGE>
7.3 PAYMENT OF NOTES AND MAINTENANCE OF OFFICE
7.3 Payment of Notes and Maintenance of Office.
GSRP shall punctually pay or cause to be paid the principal and
interest to become due in respect of each of the Notes according to the terms
thereof (all of which are incorporated herein by reference) and shall make all
other payments required hereunder and under any other Security Documents. All
payments hereunder or under the Notes shall be to the Administrative Agent on
behalf of the Lenders and shall be made in accordance with the payment
instructions set forth in Schedule 7 to this Agreement or such other payment
instructions that the Administrative Agent shall deliver, in writing, to GSRP
not less than 2 Business Days prior to any date on which a payment is to be made
hereunder or under the Notes.
GSRP shall maintain an office at Sunday River Road, P.O. Box 450,
Bethel, Maine, where notices, presentations and demands in respect of this
Agreement, the Notes or any other Security Document may be made upon GSRP. Such
offices shall be maintained at said address of GSRP until such time as GSRP
shall so notify the Administrative Agent, in writing, of any change of location
of such offices. The Books and Records of GSRP shall be maintained at said
address. GSRP shall not change its name without 30-day prior written notice to
the Administrative Agent.
<PAGE>
7.4 SALE OF PROPERTIES
7.4 Sale of Properties.
Without the prior written consent of the Administrative Agent, GSRP
shall not sell, lease, transfer or otherwise dispose of any of the Collateral,
provided that GSRP
(a) may sell the unsold Quartershare Interests and the
Commercial Units in the ordinary course of its business to unaffiliated
consumers or, if consented to by Lender, to Affiliates or affiliated
consumers,
(b) may sell and dispose of (and receive the proceeds thereof)
in the ordinary course of its business, free from any Lien created or
contemplated by this Agreement, items of Collateral consisting of
inventory, and
(c) may remove and dispose of (and receive the proceeds
thereof) in the ordinary course of its business, free from any Liens
created or contemplated by this Agreement, items of Collateral
consisting of fixtures, fittings, machinery, appliances, equipment,
apparatus, furnishings and other personal Property which shall have
become worn out or obsolete
and provided further that GSRP may sell Quartershare Notes pursuant to the Note
Purchase Agreement on the condition that all cash proceeds thereof not withheld
or reserved under such Note Purchase Agreement be delivered to the
Administrative Agent and applied to the payment of the Loan to the extent
required in this Agreement.
<PAGE>
7.5 CONSOLIDATION AND MERGER
7.5 Consolidation and Merger.
GSRP shall not consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into it. GSRP shall not
permit a Change in Management to occur.
<PAGE>
7.6 GUARANTIES
7.6 Guaranties.
GSRP shall not become or be liable in respect of any guaranty except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection.
<PAGE>
? DISTRIBUTIONS
7.7 Distributions.
GSRP shall not after the Closing Date declare, make or pay any dividend
or other distribution or redeem any of its capital stock (in cash or Property)
if (a) after giving effect thereto a Default or Event of Default would exist,
(b) if after giving effect thereto, it would be rendered insolvent, made unable
to pay its debts as they come due or be left without adequate capital to pursue
its business or (c) if after giving effect thereto, GSRP would not have on hand
free, unencumbered and unrestricted cash (except for the Liens and restrictions
of the Security Documents and LSA I) in an amount of not less than $2,000,000.
<PAGE>
7.8 COMPLIANCE WITH ENVIRONMENTAL LAWS
7.8 Compliance with Environmental Laws.
GSRP shall comply, and shall cause each Project to be in
compliance, with
(a) all Environmental Protection Laws (including, without
limitation, all federal, state and local environmental or
pollution-control laws, regulations, orders and decrees governing the
emission of waste water effluent, the treatment, transportation,
disposal, generation and storage of solid and hazardous waste,
hazardous and toxic substances and air pollution, and/or setting forth
general environmental conditions),
(b) any other applicable requirements for conducting, on a
timely basis, periodic tests and monitoring for contamination of ground
water, surface water, air and/or land, and for biological toxicity of
the aforesaid, and
(c) the regulations of each relevant federal, state or local
authority administering environmental laws, ordinances or regulations,
to the extent that the failure to so comply could have a material and adverse
effect on the business, prospects, profits, Property or condition (financial or
otherwise) of GSRP or any one or more of the Projects.
Without limiting the generality of the foregoing, GSRP shall not
release or otherwise dispose of any Hazardous Substance or any other substance
regulated, controlled or described as hazardous under any Environmental
Protection Law on or beneath any real Property owned, leased or otherwise used
by GSRP or allow the same to occur with any of the Projects in violation of any
Environmental Protection Law; and no asbestos, urea formaldehyde foam,
polychlorinated biphenyls, aluminum wire or lead-containing paint shall be
installed or used on any such Property or any Project. GSRP shall not take or
suffer to be taken any act or omission that would subject it or any Project to
liability under any Environmental Protection Law which liability could have a
material and adverse effect on the business, prospects, profits, Property or
condition (financial or otherwise) of GSRP or any one or more of the Projects.
The Administrative Agent shall have the right, but shall not be
obligated, to notify any state, federal or local governmental authority of
information which may come to its attention with respect to Hazardous Substances
on or emanating from any Project and GSRP irrevocably releases the
Administrative Agent and the Lenders from any claims of loss, damage, liability,
expense or injury relating to or arising from, directly or indirectly, any such
disclosure. the Administrative Agent will notify GSRP prior to or
contemporaneously with any action taken by the Administrative Agent pursuant to
this paragraph, provided that the failure by the Administrative Agent to provide
such notification shall not affect any action so taken.
Without limiting the scope and the effectiveness of the foregoing
undertakings in this Section 7.8, GSRP agrees to indemnify and hold the
Administrative Agent and the Lenders harmless from and against any losses,
liabilities, damages, claims, causes of action, costs or expenses (including,
without limitation, attorneys' fees and disbursements), arising from, incurred
by, or asserted against, any one or more of the Administrative Agent or the
Lenders in connection with any cleanup, removal or similar protective or
remedial action that may be required or undertaken by any governmental authority
as a result of the presence of any Hazardous Substances at any Project, the
release of any other Hazardous Substance on or from any Project or the
generation, treatment, storage, handling or disposal of any Hazardous Substances
on or from any Project (unless such presence, release, generation, treatment,
storage, handling or disposal is directly caused by the Administrative Agent
and/or the Lenders or by any agent of the Administrative Agent or the Lenders
acting under the Administrative Agent's or the Lenders' direct orders). The
liability of GSRP to the Administrative Agent or any Lender under this paragraph
shall survive any assignment, transfer, discharge or foreclosure of the Blanket
Mortgages or any transfer of any Project (or any portion thereof) by deed in
lieu of foreclosure or otherwise, and any one or more transfers of any Project
(or any portion thereof) by deed or otherwise, by whosoever made.
If GSRP fails to diligently take any action required under this Section
7.8 or by any governmental entity with respect to the cleanup, control or
reporting of any Hazardous Substances, materials or wastes in, on, from or under
any Project, the Administrative Agent, at the instruction of the Required
Parties, may enter upon such Project, retain such experts and consultants at the
expense of GSRP and take such action as the Administrative Agent deems
advisable, and the Administrative Agent may, in its sole discretion, advance
such sums of money as it deems necessary, with respect to the cleanup, control
or reporting of any such substances, materials or wastes in, on or under such
Project. GSRP shall pay to the Administrative Agent immediately and upon demand,
all sums of money so advanced or expended by the Administrative Agent pursuant
to this paragraph, together with interest on each such advance at the Default
Rate, and all such sums, and the interest thereon, shall be secured by the
Collateral. the Administrative Agent will notify GSRP prior to or
contemporaneously with any action taken by the Administrative Agent pursuant to
this paragraph, provided that the failure by the Administrative Agent to provide
such notification shall not affect any action so taken.
<PAGE>
7.9 TRANSACTIONS WITH AFFILIATES; PRINCIPAL PROPERTIES
7.9 Transactions with Affiliates; Principal Properties.
GSRP shall not enter into any transaction including, without
limitation, the purchase, sale or exchange of Property or the rendering of any
service with any Affiliate except in the ordinary course of, and pursuant to the
reasonable requirements of, GSRP's business and upon fair and reasonable terms
no less favorable to GSRP than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate. GSRP shall have no investments in
any Voting Equities. Anything contained in this Section 7.9 shall not prohibit
or affect any of the Host Company Lease Agreements.
<PAGE>
7.10 USE OF THE LENDER NAME
7.10 Use of the Lender Name.
GSRP shall not, nor shall it permit any Affiliate to, without the prior
written consent of the Administrative Agent, use the name of the Administrative
Agent or any Lender or the name of any affiliate of any Lender in connection
with any of its respective businesses or activities, except in connection with
internal business matters and as required in dealings with governmental agencies
or as may be required by law.
<PAGE>
7.11 SUBORDINATED OBLIGATIONS
7.11 Subordinated Obligations.
GSRP shall not, directly or indirectly, (a) permit any payment to be
made in respect of any indebtedness, liabilities or obligations, direct or
contingent, which are subordinated by the terms thereof or by separate
instrument to the payment of principal of, and interest and premium on, the
Notes except in accordance with the terms of such subordination, (b) permit the
amendment, rescission or other modification of any such subordination provisions
of any of GSRP's subordinated obligations in such a manner as to affect
adversely the Administrative Agent's Lien or the prior position of the Notes, or
(c) permit the unscheduled prepayment or redemption of all or any part of any
subordinated obligations of GSRP except in accordance with the terms of such
subordination. GSRP shall cause each of the Parent and the Host Companies to
subordinate all of its indebtedness, liabilities or obligations, direct or
contingent, owing to it from GSRP to the payment of the Obligations. GSRP shall
cause each of its other Affiliates to subordinate all indebtedness, liabilities
or obligations, direct or contingent, owing to it from GSRP to the payment of
the Obligations. The terms of such subordination shall be satisfactory to the
Administrative Agent. Such subordination may permit payments by GSRP in respect
of such subordinated indebtedness, liabilities or obligations if (i) no Default
or Event of Default then exists or, after giving effect to such payment, would
exist and (ii) GSRP would not be rendered insolvent, made unable to pay its
debts as they come due or be left without adequate capital to pursue its
business after giving effect to such payment.
<PAGE>
7.12 NOTICE OF LEGAL PROCEEDINGS
7.12 Notice of Legal Proceedings.
Promptly upon becoming aware of the existence thereof, GSRP shall
deliver to the Administrative Agent written notification of the institution of
any litigation, legal proceeding or dispute with any Person, entity or
governmental authority in any way involving GSRP, any Project, the Collateral or
any of GSRP's other assets as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, would materially
adversely affect GSRP, any Project, the Collateral or any of GSRP's other
assets.
<PAGE>
7.13 FURTHER ASSURANCES
7.13 Further Assurances.
GSRP shall from time to time execute and deliver to the Administrative
Agent such other instruments, certificates and documents and shall take such
other action and do all other things as may from time to time be reasonably
requested by the Administrative Agent or the Required Parties in order to
implement or effectuate the provisions of, or more fully perfect the rights
granted or intended to be granted by GSRP to the Administrative Agent or the
Lenders pursuant to the terms of, this Agreement, the Notes or any other
Security Document. GSRP agrees, in its capacity as Declarant (to the extent
permitted by applicable law), to cause each Association to take such action and
to do all other things as may from time to time be reasonably requested by the
Administrative Agent or the Required Parties in order to implement or effectuate
the provisions of this Agreement and the other Security Documents.
<PAGE>
7.14 FINANCIAL STATEMENTS
7.14 Financial Statements.
GSRP shall submit to the Lender the following:
(a) Annual Statements -- As soon as practicable after the end
of each fiscal year of GSRP, and in any event no later than 90 days
thereafter, duplicate copies of:
(i) a balance sheet of GSRP as at the end of such
fiscal year, and
(ii) a statement of income of GSRP for such fiscal
year, and
(iii) a statement of changes in cash flows of GSRP
during such fiscal year,
(iv) a statement of material changes of accounting
policies, presentations or principles during such fiscal year,
and
(v) notes to such financial statements.
Each of the above shall have been prepared (as an unaudited
compilation) by an independent certified public accounting firm,
selected by GSRP and acceptable to the Administrative Agent, in
reasonable detail and shall set forth, in each case, in comparative
form the figures for the previous fiscal year, and shall be certified
as complete and correct by the chief financial officer of GSRP. GSRP
shall also deliver to the Administrative Agent with the above financial
statements a report, certified as complete and correct by the chief
financial officer of GSRP, showing all sales and cancellations made in
respect of Quartershare Interests and Commercial Units at each of the
Projects for the fiscal year of GSRP then most recently ended and in
respect of which said financial statements shall have been prepared.
The above financial statements shall be accompanied by a certificate of
the chief financial officer of GSRP, which certificate shall be
acceptable to the Administrative Agent and shall, without
qualification, state that such financial statements fairly present the
financial condition of GSRP and have been prepared consistently with
past practices.
In the event that the aforesaid annual financial statements
are not in form and content satisfactory to the Required Parties, in
their sole determination, GSRP shall, within 90 days of the receipt of
the Administrative Agent's written request therefor, deliver to the
Administrative Agent duplicate copies of the aforesaid financial
statements together with an unqualified opinion thereon of an
independent certified public accounting firm, selected by GSRP and
satisfactory to the Administrative Agent, which opinion shall state
that such financial statements present fairly the financial condition
of GSRP, have been prepared in accordance with generally accepted
accounting principles, procedures and practices consistently applied
(except for changes in application in which such accountants concur)
and that the examination of such financial statements by such
accountants has been made in accordance with generally accepted
auditing standards, and accordingly included such tests of the
accounting records and such other auditing procedures as were
considered necessary in the circumstances. The aforesaid audited
financial statements shall be in form and content satisfactory to the
Administrative Agent.
If the amount shown on GSRP's aforesaid unaudited statement of
income for "total operating income," as such term is defined in
accordance with generally accepted accounting principles, does not vary
by more than 5% from the amount shown on GSRP's aforesaid unqualified
audited statement of income for "total operating income" and if the
amount shown on GSRP's aforesaid unaudited statement of income for "net
operating income," as such term is defined in accordance with generally
accepted accounting principles, does not vary by more than 5% from the
amount shown on GSRP's aforesaid unqualified audited statement of
income for "net operating income," the Lenders shall bear, in
accordance with their Pro Rata Shares (as defined in clause (i) of the
definition of such term), the cost and expense of the certified public
accounting firm utilized to deliver the aforesaid audited financial
statements and accountancy opinion; otherwise, GSRP shall bear all such
costs and expenses.
(b) Quarterly Statements -- As soon as practicable after the
end of each fiscal quarter of GSRP, and in any event no later than 60
days thereafter, duplicate copies of:
(i) a balance sheet of GSRP as at the end of such
fiscal quarter,
(ii) a statement of income of GSRP for such quarter
and (in the case of the second and third quarters) for the
portion of the fiscal year ending with such quarter,
(iii) a statement of changes in cash flows of GSRP
during such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with such
quarter, and
(iv) a statement of material changes of accounting
policies, presentations or principles during such quarter.
Each of the above shall have been prepared in reasonable
detail and in accordance with generally accepted accounting principles,
procedures and practices consistently applied (other than the
preparation of notes to such financial statements), subject to changes
resulting from year-end adjustments, and shall set forth in each case
in comparative form the figures for the corresponding periods in the
immediately preceding fiscal year, and shall be certified as complete
and correct by the chief financial officer of GSRP.
(c) Notice of Default or Event of Default -- Promptly upon
becoming aware of the existence of any condition or event which
constitutes a Default or an Event of Default, a written notice
specifying the nature and period of existence thereof and what action
GSRP is taking or proposes to take with respect thereto.
(d) Notice of Claimed Default -- Immediately upon becoming
aware that the holder of any obligation or of any evidence of
indebtedness or other Security of GSRP has given notice or taken any
other action with respect to a claimed default or event of default
thereunder, a written notice specifying the notice given or action
taken by such holder and the nature of the claimed default or event of
default and what action GSRP is taking or proposes to take with respect
thereto.
(e) Material Adverse Developments -- Immediately upon becoming
aware of any development or other information which may materially and
adversely affect the Property, business, prospects, profits or
condition (financial or otherwise) of GSRP or the ability of GSRP to
perform its obligations under this Agreement, the Notes or the other
Security Documents, telephonic, telefax or telegraphic notice
specifying the nature of such development or information and the
anticipated effect.
(f) Financial Information -- As promptly as possible after the
receipt thereof, all financial statements, budgets and other
information distributed by the Associations. GSRP, as Declarant or
otherwise, shall cause each Association to prepare annual financial
statements and an annual budget, and shall deliver each to the
Administrative Agent within 90 days of the end of each of each
Association's fiscal years.
(g) Sales Information -- On or before the 15th day of each
month, a report showing (by Purchaser and in the aggregate) the
previous month's sales of, and cancellations of sales of, Quartershare
Interests and Commercial units with respect to each of the Projects.
(h) Requested Information -- With reasonable promptness, such
other data and information as from time to time may be reasonably
requested by the Administrative Agent or the Required Parties.
<PAGE>
7.15 OFFICERS' CERTIFICATE
7.15 Officers' Certificate.
The financial statements delivered to the Administrative Agent pursuant
to Section 7.14(a) and Section 7.14(b) of this Agreement shall be accompanied by
a certificate of the chief financial officer of GSRP setting forth:
(a) Covenant Compliance -- the information required in order
to establish whether GSRP was in compliance with all financial
covenants contained in Section 7 of this Agreement during the period
covered by the financial statements or reports then being furnished;
and
(b) Event of Default -- a statement that the signers have
reviewed the relevant terms of this Agreement (and all other agreements
and exhibits between the parties) and have made, or caused to be made,
under their supervision, a review of the transactions and conditions of
GSRP from the beginning of the period covered by the financial
statements or reports being delivered therewith to the date of the
certificate and that such review has not disclosed the existence during
such period of any condition or event which constitutes a Default or
Event of Default or, if any such condition or event existed or exists
or will exist, specifying the nature and period of existence thereof
and what action GSRP has taken or proposes to take with respect
thereto.
<PAGE>
5.9, 7.16 INSPECTION
7.16 Inspection.
GSRP shall permit the Administrative Agent or its representatives to
make such inspections/audits of its books, accounts, records, orders, original
correspondence and such other papers as it may desire and of its premises, the
Projects and the other Collateral, from time to time, as the Administrative
Agent may in its sole discretion determine. GSRP shall supply copies of such
records and papers as the Administrative Agent may reasonably request, and shall
permit the Administrative Agent to discuss GSRP's affairs, finances and accounts
with GSRP's managers, officers, employees and independent public accountants
(and by this provision GSRP hereby authorizes said accountants to discuss with
the Administrative Agent the finances and affairs of GSRP), all at reasonable
times and as often as may be desired by the Administrative Agent. GSRP further
agrees to supply the Administrative Agent with such other reasonable information
relating to GSRP and the Collateral as the Administrative Agent may request.
With respect to any inspections and/or audits referred to in this Section 7.16,
GSRP shall pay for all out-of-pocket costs and expenses incurred by the
Administrative Agent (including, without limitation, travel expenses, but
excluding salaries of employees of the Administrative Agent) and shall promptly
reimburse the Administrative Agent therefor upon receipt by GSRP of a written
demand therefor from the Administrative Agent, provided that, for so long as no
Default or Event of Default shall exist, GSRP shall not be obligated to
reimburse the Administrative Agent for such costs and expenses in excess of
$20,000 during any calendar year. Any inspections by any Lender shall be at such
time or times and shall have such scope as may be agreed upon by such Lender and
GSRP and shall be at the sole expense of such Lender.
8. EVENTS OF DEFAULT
<PAGE>
8.1 DEFAULT
8.1 Default.
GSRP hereby covenants, agrees and acknowledges that an Event of Default
shall exist under this Agreement if any of the following events or conditions
(each, an "Event of Default") shall occur and be continuing:
(a) Payments -- (i) failure to make any payment of interest on
any Note on or before 5 days after the due date thereof; (ii) failure
to make any payment of principal of any Note on or before 5 days after
the due date thereof; or (iii) failure to make any other payment
required pursuant to the terms of this Agreement, the Notes or any
other Security Document on or before 10 days after the due date
thereof; or
(b) Warranties or Representations -- any warranty,
representation or other statement made or furnished to the
Administrative Agent or the Lenders by or on behalf of GSRP, the Parent
or any Host Company in this Agreement or any other Security Document
proves to have been false or misleading in any material respect when
made or furnished; or
(c) Other Covenants -- the failure by GSRP, the Parent or any
Host Company to comply with any covenant relating to such Person
contained in any Security Document to which such Person is a party, and
the continuance of such failure for more than 30 days after such
failure shall have first become known to any manager, officer or
director of GSRP, the Parent or such Host Company; or
(d) Material Adverse Change -- any material adverse change in
or in respect of the Collateral or any one or more of the Projects
(including, without limitation, the termination of any applicable
quartershare interest or condominium regimen {whether by consent of the
condominium owners or quartershare interest owners or otherwise} with
respect to any Project, any modification or amendment to the
Declarations of any of the Projects which is reasonably likely to
adversely affect the Collateral or the operations or prospects of any
of the Projects, or the substantial destruction of any Project, if not
fully insured) or in the financial condition of GSRP; or
(e) Insolvency -- (i) a receiver, liquidator, custodian or
trustee of GSRP, the Parent or any Host Company of all or any of the
Property of any of them shall be appointed by court order and such
order remains in effect for more than 60 days; or an order for relief
shall be entered with respect to GSRP, the Parent or any Host Company,
or GSRP, the Parent or any Host Company shall be adjudicated a bankrupt
or insolvent; or any of the Property of any of them shall be
sequestered by court order and such order remains in effect for more
than 60 days; or a petition shall be filed against GSRP, the Parent or
any Host Company under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, and shall not be
dismissed within 60 days after such filing; or (ii) GSRP, the Parent or
any Host Company shall file a petition in voluntary bankruptcy or
seeking relief under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in
effect, or shall consent to the filing of any petition against it under
any such law; or (iii) GSRP, the Parent or any Host Company shall make
an assignment for the benefit of its creditors, or shall admit in
writing its inability, or shall fail, to pay its debts generally as
they become due, or shall consent to the appointment of a receiver,
liquidator or trustee of GSRP, the Parent or any Host Company, or of
all or any part of the Property of any of them; or
(f) Judgment -- final judgment or judgments for the payment of
money, the aggregate of which exceeds $500,000, shall be outstanding
against GSRP, the Parent or any Host Company and any of such judgments
shall have been outstanding for more than 30 days from the date of its
entry and shall not have been discharged in full or stayed; or
(g) Default in Lender Agreements -- (i) any default (after
giving effect to the expiration of any applicable grace periods) under,
and as defined in, any other agreement, now existing or hereafter
entered into, between GSRP and any one or more of the Lenders or any
affiliate of any Lender, including, without limitation, any default
under the Note Purchase Agreement or (ii) any default (after giving
effect to the expiration of any applicable grace periods) under, and as
defined in, any other agreement, now existing or hereafter entered
into, between GSRP or GSRP and any one or more of the Lenders or any
affiliate of any Lender, including, without limitation, any default
under the Note Purchase Agreement or LSA I.
(h) Default by GSRP in Other Agreements -- any default by GSRP
in the payment of material indebtedness for borrowed money or any
guarantee issued by GSRP in respect of borrowed money; any other
default under such indebtedness which accelerates or permits the
acceleration (after the giving of notice or passage of time, or both)
of the maturity of such indebtedness, whether or not such default has
been waived by the holder of such indebtedness; or
(i) Suspension of Sales -- the issuance of any stay order,
cease and desist order or similar judicial or nonjudicial sanction
limiting or otherwise affecting the sale of Quartershare Interests and
any such order or sanction shall have been outstanding for more than 30
days from the date of its entry and shall not have been discharged in
full or stayed by appeal, bond or otherwise; or
(j) Host Companies -- any Host Company shall cease to be in
business or to operate the ski facilities adjacent to its respective
Project; any Host Company shall be in default (after the elapse of all
applicable grace or cure periods) under its Host Company Lease
Agreement or Beneficial Improvements Agreement, as the case may be; or
any Host Company shall not allow Quartershare Interest owners at its
respective Project to have access and use of its ski facilities (except
if such owners do not comply with the rules or regulations of such
facilities or fail to comply with the payment terms or other conditions
of use of such facilities that are generally applicable to users of
such facilities).
<PAGE>
8.2 DEFAULT REMEDIES
8.2 Default Remedies.
(a) Acceleration of Obligations; Right To Dispose of Collateral.
(i) If an Event of Default under Section 8.1(e) of
this Agreement shall occur, then the Obligations shall,
automatically and without notice or demand by the
Administrative Agent or the Lenders, become at once due and
payable and all Commitments shall at once terminate, and GSRP
will forthwith pay to the Lenders, in addition to any and all
sums and charges otherwise due in respect of the Obligations,
the entire principal of and interest accrued on the Notes
together with, to the extent permitted by law, a Prepayment
Premium in respect thereof (other than in respect of the
Jordan Bowl Obligations, the Attitash Obligations, the
Killington Obligations and the Mt. Snow Obligation in respect
of which no Prepayment Premium shall be payable). If any other
Event of Default shall occur, (A) all of the Steamboat
Obligations shall, at the option of the Steamboat Required
Lenders, and without notice or demand by the Administrative
Agent or the Steamboat Lenders, become at once due and payable
and all Steamboat Construction Project Advance Commitments and
Steamboat Inventory Advance Commitments shall at once
terminate, and GSRP will forthwith pay to the Steamboat
Construction Project Advance Lenders or Steamboat Inventory
Advance Lenders, as the case may be, in addition to any and
all sums and charges otherwise due in respect of the Steamboat
Obligations, the entire principal of and interest accrued on
the Steamboat Construction Project Advance Notes or Steamboat
Inventory Advance Notes, as the case may be, together with, to
the extent permitted by law, a Prepayment Premium in respect
of the Steamboat Obligations; (B) all of the Canyons
Obligations shall, at the option of the Canyons Required
Lenders, and without notice or demand by the Administrative
Agent or the Canyons Lenders, become at once due and payable
and all Canyons Construction Project Advance Commitments and
Canyons Inventory Advance Commitments shall at once terminate,
and GSRP will forthwith pay to the Canyons Construction
Project Advance Lenders or Canyons Inventory Advance Lenders,
as the case may be, in addition to any and all sums and
charges otherwise due in respect of the Canyons Obligations,
the entire principal of and interest accrued on the Canyons
Construction Project Advance Notes or Canyons Inventory
Advance Notes, as the case may be, together with, to the
extent permitted by law, a Prepayment Premium in respect of
the Canyons Obligations; (C) all of the *Sugarbush Obligations
shall, at the option of the *Sugarbush Required Lenders, and
without notice or demand by the Administrative Agent or the
*Sugarbush Lenders, become at once due and payable and all
*Sugarbush Construction Project Advance Commitments and
*Sugarbush Inventory Advance Commitments shall at once
terminate, and GSRP will forthwith pay to the *Sugarbush
Construction Project Advance Lenders or *Sugarbush Inventory
Advance Lenders, as the case may be, in addition to any and
all sums and charges otherwise due in respect of the
*Sugarbush Obligations, the entire principal of and interest
accrued on the *Sugarbush Construction Project Advance Notes
or *Sugarbush Inventory Advance Notes, as the case may be,
together with, to the extent permitted by law, a Prepayment
Premium in respect of the *Sugarbush Obligations; (D) all of
the *Sugarloaf Obligations shall, at the option of the
*Sugarloaf Required Lenders, and without notice or demand by
the Administrative Agent or the *Sugarloaf Lenders, become at
once due and payable and all *Sugarloaf Construction Project
Advance Commitments and *Sugarloaf Inventory Advance
Commitments shall at once terminate, and GSRP will forthwith
pay to the *Sugarloaf Construction Project Advance Lenders or
*Sugarloaf Inventory Advance Lenders, as the case may be, in
addition to any and all sums and charges otherwise due in
respect of the *Sugarloaf Obligations, the entire principal of
and interest accrued on the *Sugarloaf Construction Project
Advance Notes or *Sugarloaf Inventory Advance Notes, as the
case may be, together with, to the extent permitted by law, a
Prepayment Premium in respect of the *Sugarloaf Obligations;
(E) all of the Jordan Bowl Obligations shall, at the option of
the Jordan Bowl Required Lenders, and without notice or demand
by the Administrative Agent or the Jordan Bowl Lenders, become
at once due and payable and the Jordan Bowl Inventory Advance
Commitments shall at once terminate, and GSRP will forthwith
pay to the Jordan Bowl Inventory Advance Lenders, in addition
to any and all sums and charges otherwise due in respect of
the Jordan Bowl Obligations, the entire principal of and
interest accrued on the Jordan Bowl Inventory Advance Notes,
(F) all of the Attitash Obligations shall, at the option of
the Attitash Required Lenders, and without notice or demand by
the Administrative Agent or the Attitash Lenders, become at
once due and payable and the Attitash Inventory Advance
Commitments shall at once terminate, and GSRP will forthwith
pay to the Attitash Inventory Advance Lenders, in addition to
any and all sums and charges otherwise due in respect of the
Attitash Obligations, the entire principal of and interest
accrued on the Attitash Inventory Advance Notes, (G) all of
the Killington Obligations shall, at the option of the
Killington Required Lenders, and without notice or demand by
the Administrative Agent or the Killington Lenders, become at
once due and payable and the Killington Inventory Advance
Commitments shall at once terminate, and GSRP will forthwith
pay to the Killington Inventory Advance Lenders, in addition
to any and all sums and charges otherwise due in respect of
the Killington Obligations, the entire principal of and
interest accrued on the Killington Inventory Advance Notes,
(H) all of the Mt. Snow Obligations shall, at the option of
the Mt. Snow Required Lenders, and without notice or demand by
the Administrative Agent or the Mt. Snow Lenders, become at
once due and payable and the Mt. Snow Inventory Advance
Commitments shall at once terminate, and GSRP will forthwith
pay to the Mt. Snow Inventory Advance Lenders, in addition to
any and all sums and charges otherwise due in respect of the
Mt. Snow Obligations, the entire principal of and interest
accrued on the Mt. Snow Inventory Advance Notes, and/or (I)
all of the Obligations shall, at the option of the Required
Parties, and without notice or demand by the Administrative
Agent or the Lenders, become at once due and payable and all
Commitments shall at once terminate, and GSRP will forthwith
pay to the Lenders, in addition to any and all sums and
charges otherwise due in respect of the Obligations, the
entire principal of and interest accrued on the Notes together
with, to the extent permitted by law, a Prepayment Premium in
respect thereof (other than in respect of the Jordan Bowl
Obligations, the Attitash Obligations, the Killington
Obligations and the Mt. Snow Obligation in respect of which no
Prepayment Premium shall be payable). The Administrative Agent
on behalf of the Lenders shall have all the rights and
remedies of a secured party under the Uniform Commercial Code,
all the rights and remedies under the Blanket Mortgages and
the Assignment of Rents and all other legal and equitable
rights to which it may be entitled, including, without
limitation and without further notice to GSRP, the right to
collect and/or continue to collect all payments being made or
to be made on the Contracts and to apply such payments to the
Obligations, as provided for herein, and to sue in its own
name (or the name of GSRP) the Purchaser under any Contract.
The Administrative Agent shall also have the right to require
GSRP to assemble the Collateral or any portion thereof, at
GSRP's expense, and make it available to the Administrative
Agent at a place to be designated by the Administrative Agent,
which is reasonably convenient to both parties, and the
Administrative Agent shall have the right to take immediate
possession of the Collateral or such portion and may enter any
of the premises of GSRP or wherever the Collateral or such
portion shall be located, in accordance with applicable law,
and to keep and store the same on said premises until sold
(and if said premises be the Property of GSRP, GSRP agrees not
to charge the Administrative Agent or any one or more of the
Lenders for storage thereof for a period of at least 90 days
after sale or disposition of such Collateral). The
Administrative Agent shall have the right to sell the
Collateral or any part thereof in one or more parcels at
public or private sale for cash, on credit or for future
delivery, at such time or times and at such price or prices
and upon such other terms as the Steamboat Required Lenders,
in the case of Collateral in respect of the Steamboat Project
and acceleration of the Steamboat Obligations, the Canyons
Required Lenders, in the case of Collateral in respect of the
Canyons Project and acceleration of the Canyons Obligations,
the *Sugarbush Required Lenders, in the case of Collateral in
respect of the *Sugarbush Project and acceleration of the
*Sugarbush Obligations, *Sugarloaf Required Lenders, in the
case of Collateral in respect of the *Sugarloaf Project and
acceleration of the *Sugarloaf Obligations or the Required
Parties, the Jordan Bowl Required Lenders, in the case of
Collateral in respect of the Jordan Bowl Project and
acceleration of the Jordan Bowl Obligations, the Attitash
Required Lenders, in the case of Collateral in respect of the
Attitash Project and acceleration of the Attitash Obligations,
the Killington Required Lenders, in the case of Collateral in
respect of the Killington Project and acceleration of the
Killington Obligations, the Mt. Snow Required Lenders, in the
case of Collateral in respect of the Mt. Snow Project and
acceleration of the Mt. Snow Obligations or the Required
Parties, in the case of acceleration of all Obligations by
order of the Required Parties, may deem commercially
reasonable. GSRP, the Administrative Agent and the Lenders
agree that 10 days' notice to GSRP of any public or private
sale or other disposition of Collateral or any portion shall
be reasonable notice thereof and such sale shall be at such
location(s) as the Administrative Agent shall designate in
said notice. The Administrative Agent shall have the right to
bid at any such sale on behalf of the Lenders and each Lender
shall have the right to bid at any such sale on its own behalf
and, in connection with any such bid, such Person shall be
entitled, for the purpose of making settlement or payment in
respect of any such accepted bid, to use and apply any amounts
to be paid to it under Section 8.2(c) hereof as a credit
against the purchase price payable by it in respect of such
accepted bid. Each purchaser at any such sale shall hold the
Property so sold absolutely free from any claim or right on
the part of GSRP, and GSRP hereby waives (to the extent
permitted by applicable law) all rights of redemption, stay
and appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or
hereafter enacted. The Administrative Agent shall not be
obligated to make any sale of Collateral regardless of notice
of sale having been given. The Administrative Agent may
adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned.
After the payment in full of the Loan and all other
Obligations in respect thereof, Required Parties under the
Note Purchase Agreement shall have the exclusive right to
exercise the rights and remedies in favor of the
Administrative Agent herein and in the other Security
Documents. Prior to the payment in full of the Loan, the
Required Parties under the Note Purchase Agreement shall not
have any right to direct the Administrative Agent in respect
of any of its rights and remedies herein or in the other
Security Documents and such Required Parties under the Note
Purchase Agreement shall not be entitled to receive any
notice, right or benefit in respect of such rights or remedies
or otherwise in respect of the Collateral.
(ii) In view of the fact that federal and state
securities laws may impose certain restrictions on the methods
by which a sale of Collateral, if comprised of Securities, may
be effected after an Event of Default, GSRP agrees that, upon
the occurrence and continuance or existence of an Event of
Default, the Administrative Agent may, from time to time,
attempt to sell all or any part of such Collateral by means of
a private placement restricting the bidding and prospective
purchasers to those who will represent and agree that they are
purchasing for investment only and not for, or with a view to,
distribution. In so doing, and without limiting any other
means of private placement, the Administrative Agent may
solicit offers to buy such Collateral, or any part of it for
cash, from a limited number of investors deemed by the
Administrative Agent, in its reasonable judgment, to be
responsible parties who might be interested in purchasing the
Collateral, and if the Administrative Agent solicits such
offers from not less than 4 such investors (and otherwise acts
in good faith), then the acceptance by the Administrative
Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposition of such
Collateral.
(iii) At any time after all or part of the
Obligations have become accelerated and due and payable at the
option of one or more groups of Project Required Lenders
pursuant to clause (i) above, each such group of Project
Required Lenders, by written notice to GSRP, may rescind and
annul such acceleration and its consequences if (1) GSRP has
paid all overdue interest on the Notes of the type held by
such group of Project Required Lenders, all principal due and
payable on any such Notes other than by reason of such
declaration, and all interest on such overdue principal, if
any, and all other costs and expenses then due and payable
hereunder or under any of the other Security Documents, (2)
all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to
Section 11.5 and (3) no judgment or decree has been entered
against GSRP for the payment of any monies due pursuant hereto
or to the Notes. No rescission and annulment under this clause
(iii) will extend to or affect any subsequent Event of Default
or Default or impair any right consequent thereon.
(b) Application of Collateral; Termination of Agreements. Upon
the occurrence of any Event of Default, any group of Project Required
Lenders may, with or without the Administrative Agent's proceeding with
any aforesaid sale or foreclosure or such Project Required Lenders'
demanding acceleration of the payment of their respective Obligations,
without notice to GSRP but with notice to the Administrative Agent,
terminate the relevant Commitment of each Lender that is a member of
the group of such Project Required Lenders, without further liability
or obligation by such Lender. Upon the occurrence of any Event of
Default, but otherwise subject to subclause (c) below and Section 11.8
hereof, each Lender may, at any time, appropriate and apply (as
provided below) to any Obligations owing to such Lender any and all
Collateral in its possession and any and all balances, credits,
deposits, accounts, reserves, indebtedness or other monies due or owing
to GSRP held by such Lender, whether accrued or not. Neither the
termination of any Commitments, nor the termination of this Agreement
by lapse of time, the giving of notice or otherwise, shall absolve,
release or otherwise affect the liability of GSRP in respect of
transactions prior to such termination, or affect any of the Liens,
security interests, rights, powers and remedies of the Administrative
Agent or the Lenders hereunder or under any other Security Document,
but they shall, in all events, continue until all of the Obligations
are satisfied.
(c) Application of Proceeds.
(i) The proceeds of any exercise of rights with respect to
Collateral arising directly from the Steamboat Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the Steamboat Project)
provided for in the Steamboat Assignment of Rents,
the Steamboat Blanket Mortgage or any other Steamboat
Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Steamboat
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the Steamboat Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the
Steamboat Loan,
Third, to the payment of any Prepayment Premium
then due and payable in respect of the Steamboat Loan,
Fourth, to the payment of the principal amount of
the Steamboat Loan,
Fifth, to the payment of any other Steamboat
Obligations remaining outstanding, and
Sixth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Steamboat Obligations after application of such
proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Steamboat
Obligations in respect thereof shall be shared ratably by Steamboat
Construction Project Advance Lenders or Steamboat Inventory Advance
Lenders, as the case may be, in accordance with the relevant amounts
owing to each of them.
(ii) The proceeds of any exercise of rights with respect to
Collateral arising directly from the Canyons Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the Canyons Project)
provided for in the Canyons Assignment of Rents, the
Canyons Blanket Mortgage or any other Canyons
Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Canyons
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the Canyons Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the
Canyons Loan,
Third, to the payment of any Prepayment Premium
then due and payable in respect of the Canyons Loan,
Fourth, to the payment of the principal amount of
the Canyons Loan,
Fifth, to the payment of any other Canyons
Obligations remaining outstanding, and
Sixth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Canyons Obligations after application of such
proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Canyons
Obligations in respect thereof shall be shared ratably by Canyons
Construction Project Advance Lenders or Canyons Inventory Advance
Lenders, as the case may be, in accordance with the relevant amounts
owing to each of them.
(iii) The proceeds of any exercise of rights with respect to
Collateral arising directly from the *Sugarbush Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the *Sugarbush Project)
provided for in the *Sugarbush Assignment of Rents,
the *Sugarbush Blanket Mortgage or any other
*Sugarbush Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other *Sugarbush
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the *Sugarbush Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the
*Sugarbush Loan,
Third, to the payment of any Prepayment Premium
then due and payable in respect of the *Sugarbush Loan,
Fourth, to the payment of the principal amount of
the *Sugarbush Loan,
Fifth, to the payment of any other *Sugarbush
Obligations remaining outstanding, and
Sixth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the *Sugarbush Obligations after application of
such proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the *Sugarbush
Obligations in respect thereof shall be shared ratably by *Sugarbush
Project Advance Lenders or *Sugarbush Inventory Advance Lenders, as the
case may be, in accordance with the relevant amounts owing to each of
them.
(iv) The proceeds of any exercise of rights with respect to
Collateral arising directly from the *Sugarloaf Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the *Sugarloaf Project)
provided for in the *Sugarloaf Assignment of Rents,
the *Sugarloaf Blanket Mortgage or any other
*Sugarloaf Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other *Sugarloaf
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the *Sugarloaf Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the
*Sugarloaf Loan,
Third, to the payment of any Prepayment Premium
then due and payable in respect of the *Sugarloaf Loan,
Fourth, to the payment of the principal amount of
the *Sugarloaf Loan,
Fifth, to the payment of any other *Sugarloaf
Obligations remaining outstanding, and
Sixth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the *Sugarloaf Obligations after application of
such proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the *Sugarloaf
Obligations in respect thereof shall be shared ratably by *Sugarloaf
Construction Project Advance Lenders or *Sugarloaf Inventory Advance
Lenders, as the case may be, in accordance with the relevant amounts
owing to each of them.
(v) The proceeds of any exercise of rights with respect to
Collateral arising directly from the Jordan Bowl Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the Jordan Bowl Project)
provided for in the Jordan Bowl Assignment of Rents,
the Jordan Bowl Blanket Mortgage or any other Jordan
Bowl Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Jordan
Bowl Security Documents in and to such Collateral,
except any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the Jordan Bowl Project;
Second, towards the payment of all accrued and unpaid
interest then due and payable in respect of the Jordan Bowl
Loan,
Third, to the payment of the principal amount of
the Jordan Bowl Loan,
Fourth, to the payment of any other Jordan Bowl
Obligations remaining outstanding, and
Fifth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Jordan Bowl Obligations after application of
such proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Jordan Bowl
Obligations in respect thereof shall be shared ratably by the Jordan
Bowl Inventory Advance Lenders in accordance with the relevant amounts
owing to each of them.
(vi) The proceeds of any exercise of rights with respect to
Collateral arising directly from the Attitash Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the Attitash Project)
provided for in the Attitash Assignment of Rents, the
Attitash Blanket Mortgage or any other Attitash
Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Attitash
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the Attitash Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the
Attitash Loan,
Third, to the payment of the principal amount of
the Attitash Loan,
Fourth, to the payment of any other Attitash
Obligations remaining outstanding, and
Fifth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Attitash Obligations after application of such
proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Attitash
Obligations in respect thereof shall be shared ratably by the Attitash
Inventory Advance Lenders in accordance with the relevant amounts owing
to each of them.
(vii) The proceeds of any exercise of rights with respect to
Collateral arising directly from the Killington Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the Killington Project)
provided for in the Killington Assignment of Rents,
the Killington Blanket Mortgage or any other
Killington Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Killington
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof) reasonably attributable to
such Collateral or the Killington Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the
Killington Loan,
Third, to the payment of the principal amount of
the Killington Loan,
Fourth, to the payment of any other Killington
Obligations remaining outstanding, and
Fifth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Killington Obligations after application of
such proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Killington
Obligations in respect thereof shall be shared ratably by the
Killington Inventory Advance Lenders in accordance with the relevant
amounts owing to each of them.
(viii) The proceeds of any exercise of rights with respect to
Collateral arising directly from the Mt. Snow Project or any part
thereof shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection with
such exercise of rights with respect to such
Collateral, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses (including,
without limitation, costs and expenses in the
management and operation of the Mt. Snow Project)
provided for in the Mt. Snow Assignment of Rents, the
Mt. Snow Blanket Mortgage or any other Mt. Snow
Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Mt. Snow
Security Documents in and to such Collateral, except
any taxes, assessments or other superior Liens
subject to which any sale of such Collateral may have
been made, and
(C) all Loan Costs (including, without limitation,
any fees due the Administrative Agent under Section 10.9
hereof) reasonably attributable to such Collateral or the
Mt. Snow Project;
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the Mt.
Snow Loan,
Third, to the payment of the principal amount of
the Mt. Snow Loan,
Fourth, to the payment of any other Mt. Snow
Obligations remaining outstanding, and
Fifth, any amounts remaining after the foregoing
applications shall be deposited into the Cash Collateral
Account.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Mt. Snow Obligations after application of such
proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Mt. Snow
Obligations in respect thereof shall be shared ratably by the Mt. Snow
Inventory Advance Lenders in accordance with the relevant amounts owing
to each of them.
(ix) After giving effect to the exercise of the rights of the
Administrative Agent in respect of the Collateral referred to in
clauses (i) through (viii) above and the application of the proceeds
realized in respect thereof, as provided for in clauses (i) through
(viii) above, the proceeds of any exercise of rights of the
Administrative Agent with respect to Collateral that are not covered by
such clauses (i) through (viii) above and all moneys in the Cash
Collateral Account shall be paid to and applied as follows:
First, to the payment of
(A) all costs and charges in connection
therewith, including, without limitation, (1)
attorneys' fees for advice, counsel or other legal
services, (2) costs and expenses incurred as a result
of pursuing, reclaiming, seeking to reclaim, taking,
keeping, removing, storing, advertising for sale,
selling and foreclosing on such Collateral and any
and all other charges and expenses in connection
therewith, and (3) any costs and expenses provided
for in any of the Assignment of Rents, the Blanket
Mortgages or the other Security Document,
(B) all taxes, assessments or Liens superior
to the Lien of this Agreement or the other Security
Documents, except any taxes, assessments or other
superior Liens subject to which any sale of such
Collateral may have been made, and
(C) all Loan Costs (including, without
limitation, any fees due the Administrative Agent
under Section 10.9 hereof);
Second, towards the payment of all accrued and
unpaid interest then due and payable in respect of the Loan,
Third, to the payment of any Prepayment Premium
then due and payable,
Fourth, to the payment of the principal amount of
the Loan,
Fifth, to the payment of any other Obligations
remaining outstanding other than Obligations in respect of the
Note Purchase Agreement,
Seventh, to the payment of the Obligations in
respect of the Note Purchase Agreement, and
Eighth, to the payment of the surplus, if any, to
GSRP, its successors and assigns, or to whomsoever may be
lawfully entitled to receive the same, provided that if any
Obligations shall not have been paid in full, any such surplus
shall continue to be held as Collateral hereunder and shall
continue to be subject to the terms and conditions hereof
until such Obligations shall have been paid in full.
GSRP shall remain liable hereunder for payment of any
deficiency owing on the Obligations after application of the aforesaid
proceeds. Any amounts being distributed pursuant to any clause set
forth above that are insufficient to pay in full all of the Obligations
in respect thereof shall be shared ratably by the holders of such
Obligations in accordance with the relevant amounts owing to each of
such holders.
For the avoidance of doubt, it is the intention of the parties hereto
that under this Section 8
(I) the Collateral and the proceeds thereof in respect of the
Steamboat Project shall be used first to satisfy the Steamboat
Obligations prior to being used to satisfy any other Obligations, the
Collateral and the proceeds thereof in respect of the Canyons Project
shall be used first to satisfy the Canyons Obligations prior to being
used to satisfy any other Obligations, the Collateral and the proceeds
thereof in respect of the *Sugarbush Project shall be used first to
satisfy the *Sugarbush Obligations prior to being used to satisfy any
other Obligations, the Collateral and the proceeds thereof in respect
of the *Sugarloaf Project shall be used first to satisfy the *Sugarloaf
Obligations prior to being used to satisfy any other Obligations, the
Collateral and the proceeds thereof in respect of the Jordan Bowl
Project shall be used first to satisfy the Jordan Bowl Obligations
prior to being used to satisfy any other Obligations, the Collateral
and the proceeds thereof in respect of the Attitash Project shall be
used first to satisfy the Attitash Obligations prior to being used to
satisfy any other Obligations, the Collateral and the proceeds thereof
in respect of the Killington Project shall be used first to satisfy the
Killington Obligations prior to being used to satisfy any other
Obligations and the Collateral and the proceeds thereof in respect of
the Mt. Snow Project shall be used first to satisfy the Mt. Snow
Obligations prior to being used to satisfy any other Obligations,
(II) until the Steamboat Obligations shall have been paid in
full, the rights and remedies of the Administrative Agent in respect of
the Steamboat Security Documents shall be exercised only at the written
instruction of the Steamboat Required Lenders, until the Canyons
Obligations shall have been paid in full, the rights and remedies of
the Administrative Agent in respect of the Canyons Security Documents
shall be exercised only at the written instruction of the Canyons
Required Lenders, until the *Sugarbush Obligations shall have been paid
in full, the rights and remedies of the Administrative Agent in respect
of the *Sugarbush Security Documents shall be exercised only at the
instruction of the *Sugarbush Required Lenders, until the *Sugarloaf
Obligations shall have been paid in full, the rights and remedies of
the Administrative Agent in respect of the *Sugarloaf Security
Documents shall be exercised only at the instruction of the *Sugarloaf
Required Lenders, until the Jordan Bowl Obligations shall have been
paid in full, the rights and remedies of the Administrative Agent in
respect of the Jordan Bowl Security Documents shall be exercised only
at the written instruction of the Jordan Bowl Required Lenders, until
the Attitash Obligations shall have been paid in full, the rights and
remedies of the Administrative Agent in respect of the Attitash
Security Documents shall be exercised only at the written instruction
of the Attitash Required Lenders, until the Killington Obligations
shall have been paid in full, the rights and remedies of the
Administrative Agent in respect of the Killington Security Documents
shall be exercised only at the written instruction of the Killington
Required Lenders and until the Mt. Snow Obligations shall have been
paid in full, the rights and remedies of the Administrative Agent in
respect of the Mt. Snow Security Documents shall be exercised only at
the written instruction of the Mt. Snow Required Lenders,
(III) after the Steamboat Obligations shall have been paid in
full, the Required Parties shall be entitled to give written
instructions to the Administrative Agent with respect to the exercise
of any rights and remedies under the Steamboat Security Documents in
respect of Collateral relating to the Steamboat Project, after the
Canyons Obligations shall have been paid in full, the Required Parties
shall be entitled to give written instructions to the Administrative
Agent with respect to the exercise of any rights and remedies under the
Canyons Security Documents in respect of Collateral relating to the
Canyons Project, after the *Sugarbush Obligations shall have been paid
in full, the Required Parties shall be entitled to give written
instructions to the Administrative Agent with respect to the exercise
of any rights and remedies under the *Sugarbush Security Documents in
respect of Collateral relating to the *Sugarbush Project, and after the
*Sugarloaf Obligations shall have been paid in full, the Required
Parties shall be entitled to give written instructions to the
Administrative Agent with respect to the exercise of any rights and
remedies under the *Sugarloaf Security Documents in respect of
Collateral relating to the *Sugarloaf Project.
(IV) after the Jordan Bowl Obligations shall have been paid in
full, the Required Parties shall be entitled to give written
instructions to the Administrative Agent with respect to the exercise
of any rights and remedies under the Jordan Bowl Security Documents in
respect of Collateral relating to the Jordan Bowl Project, after the
Attitash Obligations shall have been paid in full, the Required Parties
shall be entitled to give written instructions to the Administrative
Agent with respect to the exercise of any rights and remedies under the
Attitash Security Documents in respect of Collateral relating to the
Attitash Project, after the Killington Obligations shall have been paid
in full, the Required Parties shall be entitled to give written
instructions to the Administrative Agent with respect to the exercise
of any rights and remedies under the Killington Security Documents in
respect of Collateral relating to the Killington Project and after the
Mt. Snow Obligations shall have been paid in full, the Required Parties
shall be entitled to give written instructions to the Administrative
Agent with respect to the exercise of any rights and remedies under the
Mt. Snow Security Documents in respect of Collateral relating to the
Mt. Snow Project.
(V) Collateral in the Cash Collateral Account shall be paid
out to the holders of Obligations only after (aa) the Steamboat
Obligations have been satisfied or the Collateral in respect of the
Steamboat Project shall have been exhausted or shall have been deemed
exhausted by the Administrative Agent (using its reasonable judgment),
(bb) the Canyons Obligations have been satisfied or the Collateral in
respect of the Canyons Project shall have been exhausted or shall have
been deemed exhausted by the Administrative Agent (using its reasonable
judgment), (cc) the *Sugarbush Obligations have been satisfied or the
Collateral in respect of the *Sugarbush Project shall have been
exhausted or shall have been deemed exhausted by the Administrative
Agent (using its reasonable judgment),(dd) the *Sugarloaf Obligations
have been satisfied or the Collateral in respect of the *Sugarloaf
Project shall have been exhausted or shall have been deemed exhausted
by the Administrative Agent (using its reasonable judgment), (ee) the
Jordan Bowl Obligations have been satisfied or the Collateral in
respect of the Jordan Bowl Project shall have been exhausted or shall
have been deemed exhausted by the Administrative Agent (using its
reasonable judgment), (ff) the Attitash Obligations have been satisfied
or the Collateral in respect of the Attitash Project shall have been
exhausted or shall have been deemed exhausted by the Administrative
Agent (using its reasonable judgment), (gg) the Killington Obligations
have been satisfied or the Collateral in respect of the Killington
Project shall have been exhausted or shall have been deemed exhausted
by the Administrative Agent (using its reasonable judgment) and (hh)
the Mt. Snow Obligations have been satisfied or the Collateral in
respect of the Mt. Snow Project shall have been exhausted or shall have
been deemed exhausted by the Administrative Agent (using its reasonable
judgment).
(VI) To the extent that the Administrative Agent cannot
determine whether to use the proceeds of any Collateral to pay, on a
preference basis, the Steamboat Obligations, the Canyons Obligations,
the *Sugarbush Obligations, the *Sugarloaf Obligations, Jordan Bowl
Obligations, Attitash Obligations, Killington Obligations or Mt. Snow
Obligations because of the nature or origination of the Collateral or
otherwise, the Administrative Agent shall deposit such proceeds in the
Cash Collateral Account and no liability shall accrue with respect to
the Administrative Agent with respect thereto so long as it acts in
good faith.
(d) Remedies Cumulative; No Waivers. All covenants,
conditions, provisions, warranties, guaranties, indemnities and other
undertakings of GSRP, the Parent and/or any Host Company contained in
this Agreement, or in any document referred to herein or contained in
any agreement supplementary hereto or in any schedule given to any one
or more of the Administrative Agent and/or the Lenders or contained in
any other agreement among any one or more of the Lenders, GSRP, the
Parent, the Host Companies and/or the Administrative Agent, heretofore,
concurrently or hereafter entered into, including, without limitation,
the Blanket Mortgages or any other Security Document, shall be deemed
cumulative to and not in derogation or substitution of any of the
terms, covenants, conditions or agreements of GSRP herein contained.
The failure or delay of the Administrative Agent or any Lender to
exercise or enforce any rights, Liens, powers or remedies hereunder or
under any of the aforesaid agreements or other documents or security or
Collateral shall not operate as a waiver of such Liens, rights, powers
and remedies, but all such Liens, rights, powers and remedies shall
continue in full force and effect until the Loan and all other
Obligations shall have been fully satisfied. All Liens, rights, powers
and remedies herein provided for are cumulative and none are exclusive.
The acceptance by the Administrative Agent or any Lender at
any time and from time to time of partial payments of the Obligations
shall not be deemed to be a waiver of any Event of Default then
existing. No waiver by the Administrative Agent or any Lender of any
Event of Default shall be deemed to be a waiver of any other or
subsequent Event of Default. No delay or omission by the Administrative
Agent or any Lender in exercising any right or remedy under the
Security Documents shall impair such right or remedy or be construed as
a waiver thereof or an acquiescence therein, nor shall any single or
partial exercise of any such right or remedy preclude other or further
exercise thereof, or the exercise of any other right or remedy under
the Security Documents or otherwise.
<PAGE>
9. REVIVAL OF OBLIGATIONS AND LIENS
9. REVIVAL OF OBLIGATIONS AND LIENS
Neither the Administrative Agent nor any Lender shall be under any
obligation to marshall any assets in favor of GSRP, the Parent, any Host Company
or any other party hereto or to any other Security Document or against or in
payment of any or all of the Obligations. GSRP expressly agrees that if GSRP
makes a payment to the Administrative Agent or any Lender, which payment or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise required to be repaid to a trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such repayment, the Obligations or any
part thereof intended to be satisfied and the Liens provided for hereunder
securing the same shall be revived and continued in full force and effect as if
said payment had not been made.
10. THE ADMINISTRATIVE AGENT
<PAGE>
10.1 APPOINTMENT
10.1 Appointment.
Textron Financial Corporation is hereby appointed the Administrative
Agent hereunder and under the other Security Documents and each Lender hereby
authorizes the Administrative Agent to act as its agent in accordance with the
terms of this Agreement and the other Security Documents. the Administrative
Agent agrees to act upon the express conditions contained in this Agreement and
the other Security Documents, as applicable. The provisions of this Section 10
are solely for the benefit of the Administrative Agent and the Lenders, and GSRP
agrees it shall have no rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties under this Agreement
and the other Security Documents, the Administrative Agent shall act solely as
an agent of the Lenders and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
GSRP, the Parent, any Host Company or any Affiliate.
<PAGE>
10.2 POWERS; GENERAL IMMUNITY
10.2 Powers; General Immunity.
(a) Duties Specified. Each Lender irrevocably authorizes the
Administrative Agent to take such action on such Lender's behalf and to
exercise such powers hereunder and under the other Security Documents
as are specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have only those
duties and responsibilities that are expressly specified in this
Agreement and the other Security Documents and it may perform such
duties by or through its agents or employees. The Administrative Agent
shall not have, by reason of this Agreement or any of the other
Security Documents, a fiduciary relationship in respect of any Lender;
and nothing in this Agreement or any of the other Security Documents,
expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or any of the other Security Documents except as expressly
set forth herein or therein. It is expressly understood that the
Administrative Agent's role hereunder and under the other Security
Documents will be primarily administrative in nature. To the extent
that any provision hereof or any other Security Document requires the
Administrative Agent to make disbursements or payments to any Lender of
amounts received by the Administrative Agent, such disbursements or
payments shall be subject to the Administrative Agent's having received
good, collected, immediately available funds prior to 12:00 p.m. on the
Business Day prior to the date on which such disbursement or payment is
to be made.
(b) No Responsibility for Certain Matters. The Administrative
Agent shall not be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any other Security Document or for any
representations, warranties, recitals or statements made herein or
therein or made in any written or oral statements or in any financial
or other statements, instruments, reports or certificates or any other
documents furnished or made by the Administrative Agent to any one or
more of the Lenders or by or on behalf of GSRP, the Parent or any Host
Company to the Administrative Agent or any Lender in connection with
the Security Documents and the transactions contemplated thereby or for
the financial condition or business affairs of GSRP, the Parent, any
Host Company or any other Person liable for the payment of any
Obligations, nor shall the Administrative Agent be required to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained in any
of the Security Documents or as to the use of the proceeds of the Loan
or as to the existence or possible existence of any Default or Event of
Default.
(c) Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees or agents shall be liable
to any one or more of the Lenders for any action taken or omitted by
the Administrative Agent under or in connection with this Agreement or
any of the other Security Documents except to the extent caused by the
Administrative Agent's gross negligence or willful misconduct. If the
Administrative Agent shall request instructions from the Lenders, the
Required Parties or any Project Required Lenders with respect to any
act or action (including the failure to take an action) in connection
with this Agreement or any of the other Security Documents, the
Administrative Agent shall be entitled to refrain from such act or
taking such action unless and until the Administrative Agent shall have
received instructions from the Lenders, the Required Parties or the
Project Required Lenders, as may be required hereunder. Without
prejudice to the generality of the foregoing, (i) the Administrative
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it
to be genuine and correct and to have been signed or sent by the proper
Person or Persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys
for GSRP, the Parent, any Host Company or any Affiliate), accountants,
experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent's acting
or refraining from acting under this Agreement or any of the other
Security Documents in accordance with the instructions of the Lenders,
the Required Parties or the Project Required Lenders, as may be
required hereunder. The Administrative Agent shall be entitled to
refrain from exercising any power, discretion or authority vested in it
under this Agreement or any of the other Security Documents unless and
until it has obtained the instructions of the Lenders, the Required
Parties or the Project Required Lenders, as the case may be, and such
indemnification and/or reimbursement of costs, expenses and fees as it
may reasonably request. The Administrative Agent shall not be liable to
any Lender with respect to its failure to take any action under any
Security Document directed by the Lenders, the Required Parties or the
Project Required Lenders, as may be required hereunder, if such action
would, in the good faith opinion of the Administrative Agent, be
unlawful or contrary to the terms and provisions of this Agreement or
any other Security Document, or would subject the Administrative Agent
to liability under any Environmental Protection Law. With respect to
any action or actions required under LSA I, the parties hereto agree
that, anything to the contrary herein notwithstanding, only the
Required Parties shall be competent to direct the same. For the
avoidance of doubt, unless otherwise expressly provided for herein or
in any Security Document, the Administrative Agent may rely upon
instructions given to it by the Required Parties and/or the Project
Required Lenders.
(d) the Administrative Agent Entitled to Act as Lender. The
agency hereby created shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon, the
Administrative Agent in its individual capacity as a Lender hereunder.
With respect to its participating in the Loan, the Administrative Agent
shall have the same rights and powers hereunder as any other lender and
may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders"
or any similar term shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity.
the Administrative Agent and its affiliates may lend money to, have the
rights of first refusal set forth in Section 2.8 hereof and generally
engage in any kind of financial or other business with GSRP, the
Parent, any Host Company or any of the Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from GSRP, the Parent, any Host Company and the
Affiliates for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
(e) Advancing of Own Funds. The Administrative Agent shall not
be required to advance, expend or risk its own funds or otherwise incur
personal liability in the performance of its duties or in the exercise
of any rights or remedies hereunder or under the other Security
Documents.
<PAGE>
10.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL
OF CREDITWORTHINESS
. 10.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of GSRP, the
Parent, each Host Company, the Projects and any Affiliate in connection with
entering into this Agreement and the making of the Advances hereunder and that
it has made and shall continue to make its own appraisal of the creditworthiness
of GSRP, the Parent, each Host Company, the Projects and any Affiliate. The
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of the Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Advances or at any time or times thereafter, and the
Administrative Agent shall not have any responsibility with respect to the
accuracy of or the completeness of any information provided, directly or
indirectly, to the Lenders by GSRP, the Parent, any Host Company, any Affiliate
or any employee, officer, director or agent thereof.
<PAGE>
10.4 RIGHT TO INDEMNITY
10.4 Right to Indemnity.
Subject to the next sentence of this paragraph, each Lender, in
proportion to its Pro Rata Share (as defined in clause (i) of the definition of
such term), severally agrees to indemnify the Administrative Agent, to the
extent that the Administrative Agent shall not have been reimbursed by GSRP, for
and against any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in performing its duties hereunder or under the other
Security Documents or otherwise in its capacity as the Administrative Agent in
any way relating to or arising out of this Agreement or the other Security
Documents, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. With respect to
any liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements which may be imposed on,
incurred by or asserted against the Administrative Agent in performing its
duties under the Steamboat Security Documents at the instructions of the
Steamboat Required Lenders, under the Canyons Security Documents at the
instructions of the Canyons Required Lenders, under the *Sugarbush Security
Documents at the instructions of the *Sugarbush Required Lenders, under the
*Sugarloaf Security Documents at the instructions of the *Sugarloaf Required
Lenders, under the Jordan Bowl Security Documents at the instructions of the
Jordan Bowl Required Lenders, under the Attitash Security Documents at the
instructions of the Attitash Required Lenders, under the Killington Security
Documents at the instructions of the Killington Required Lenders and/or under
the Mt. Snow Security Documents at the instructions of the Mt. Snow Required
Lenders, each Lender that is a member of a group of the aforesaid Project
Required Lenders severally agrees to indemnify the Administrative Agent, to the
extent that the Administrative Agent shall not have been reimbursed by GSRP and
in proportion to its Pro Rata Share, for and against any and all liabilities,
obligations, losses, claims, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in performing its
duties under any of the aforesaid Security Documents or otherwise in its
capacity as the Administrative Agent in any way relating to or arising out of
any of the aforesaid Security Documents, provided that no such Lender shall be
liable for any portion of such liabilities, obligations, losses, claims,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. If any indemnity furnished to the Administrative Agent for any
purpose in connection with its performance of its duties hereunder or under any
other Security Document shall, in the opinion of the Administrative Agent, be
insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
<PAGE>
10.5 SUCCESSOR THE ADMINISTRATIVE AGENT
10.5 Successor the Administrative Agent.
The Administrative Agent may resign at any time by giving 30 days'
prior written notice thereof to the Lenders and GSRP, and the Administrative
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to GSRP and the Administrative Agent
and signed by the Required Parties. Upon any such notice of resignation or any
such removal, the Required Parties shall have the right, upon 5 Business Days'
notice to GSRP, to appoint a successor the Administrative Agent. Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor the Administrative Agent, that successor the Administrative Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed the Administrative Agent and
the retiring or removed the Administrative Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring or removed the
Administrative Agent's resignation or removal hereunder as the Administrative
Agent, the provisions of this Section 10 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement and the other Security Documents.
<PAGE>
10.6 COLLATERAL DOCUMENTS
10.6 Collateral Documents.
Each Lender hereby approves the forms of the Security Documents
attached as Exhibits to this Agreement and further authorizes the Administrative
Agent to accept from GSRP, the Parent and each Host Company and to execute and
deliver as the Administrative Agent the Security Documents, as secured party on
behalf of and for the benefit of the Lenders, and agrees to be bound by the
terms of the Security Documents, in each case substantially in the form of such
Exhibits with such changes, additions or deletions as the Administrative Agent,
in its sole discretion, may approve as necessary or appropriate to accomplish
the purposes of such Security Documents. Anything contained in any of the
Security Documents to the contrary notwithstanding, each Lender agrees that no
Lender shall have any right individually to realize upon any of the Collateral
under the Security Documents, it being understood and agreed that all rights and
remedies under the Security Documents may be exercised solely by the
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof.
<PAGE>
10.7 DESIGNATION OF ADDITIONAL ADMINISTRATIVE AGENT
10.7 Designation of Additional Administrative Agent.
Whenever the Administrative Agent shall deem it necessary or prudent in
order either to conform to any law of any jurisdiction in which all or any part
of the Collateral shall be situated or to make any claim or bring any suit with
respect to the Collateral or the Security Documents, or in the event that the
Administrative Agent shall have been requested to do so by the Required Parties
or any Project Required Lenders, the Administrative Agent and, to the extent
necessary, GSRP, the Parent and the Host Companies shall execute and deliver a
supplemental agreement and all other instruments and agreements necessary or
proper to constitute a bank or trust company or one or more other Persons
approved by the Administrative Agent, either to act as the Administrative Agent
or agents with respect to all or any part of the Collateral, in any such case
with such powers of the Administrative Agent as may be provided in such
supplemental agreement, and to vest in such bank, trust company or other Person
as such the Administrative Agent or separate trustee, as the case may be, any
property, title, right, or power of the Administrative Agent deemed necessary or
advisable by the Administrative Agent.
<PAGE>
10.8 PAYMENTS
10.8 Payments.
(a) Notification of Advance Request. When GSRP gives the
Administrative Agent notice that it desires an Advance hereunder, the
Administrative Agent shall promptly notify each of the Lenders of the
notice for an Advance from such Lender, which notice shall specify the
amount of the Advance desired from such Lender and the amount of such
Lender's Pro Rata Share of the requested advance (based upon the
Project to which such Advance relates).
(b) Distributions to Lenders. The Administrative Agent shall
distribute to each Lender, such Lender's Pro Rata Share of all amounts
representing collections in reference to the Steamboat Loan, the
Canyons Loan, the *Sugarbush Loan, the *Sugarloaf Loan, the Jordan Bowl
Loan, the Attitash Loan, the Killington Loan and/or the Mt. Snow Loan,
as the case may be, by 11:00 a.m. on the second Business Day after
good, collected funds in respect thereof shall have been received or
collected if such funds are received or collected prior to 12:00 p.m.
(the Administrative Agent's time). If such funds shall be received or
collected after 12:00 p.m. (the Administrative Agent's time), the
Administrative Agent shall promptly distribute such funds to Lender by
11:00 a.m. on the third Business Day after such funds shall have been
received or collected.
(c) Delay in Disbursing. If funds required for an Advance from
a Lender or for payment by the Administrative Agent are not distributed
to GSRP or the applicable Lender, as the case may be, within the time
set forth herein for such distribution for any reason other than an
"Act of God" or the nonoperation of the Federal Reserve Bank wire
transfer system, the party entitled to such funds shall be entitled to
interest on such funds from the Person obligated to disburse the same
at the rate of the prevailing Federal Funds rate from and including the
date such funds were received or to be disbursed, but excluding the
date such funds are received by the recipient thereof.
<PAGE>
10.9 AGENT'S FEE
10.9 Agent's Fee.
In consideration of the Administrative Agent's entering into and
performing its obligations hereunder and under the other Security Documents, the
Lenders agrees to pay to the Administrative Agent, on a monthly basis, on the
same date in such month on which interest is scheduled to be paid under the
Notes (whether or not any such interest is actually payable), such fees as may
be agreed to, in writing, by and among the Administrative Agent and the Lenders
(such fees may include sharing of interest paid hereunder or other fees provided
for herein). Each of the Lenders hereby irrevocably authorizes the
Administrative Agent to deduct the fee due to the Administrative Agent from such
Lender out of any and all amounts payable to such Lender by the Administrative
Agent hereunder.
<PAGE>
10.10 OTHER AGENCIES
10.10 Project Required Lenders.
The Lenders hereby further acknowledge that (i) the Required Parties
and the Project Required Lenders are competent to instruct the Administrative
Agent with respect to certain actions to be taken in respect of all or part of
the Collateral, as specifically provided for herein and in the Security
Documents, and (ii) neither the Required Parties nor any other Project Required
Lenders shall be entitled or authorized to countermand or change any written
instruction given to the Administrative Agent by the Project Required Lenders of
a particular Project in respect of such Project's Security Documents and the
Collateral that directly relates to such Project. Any dispute among or between
the Required Parties and any one or more of the Project Required Lenders shall
be sufficient grounds for the Administrative Agent to refrain from acting
hereunder or under any other Security Document or pursuant to any instruction
from any Lender. This Section shall be in addition to the rights of the
Administrative Agent under Section 10.2(c) hereof.
<PAGE>
10.11 CASH COLLATERAL ACCOUNT
10.11 Cash Collateral Account.
Immediately prior to the making of the first deposit into the Cash
Collateral Account, the Administrative Agent shall open and maintain the Cash
Collateral Account. The Cash Collateral Account shall be a segregated, blocked
account to which only the Administrative Agent generally shall have access, and
moneys deposited into the Cash Collateral Account shall not be commingled with
moneys other than proceeds of Collateral and proceeds from the investments of
such moneys, as provided for herein. The Cash Collateral Account shall be styled
"Cash Collateral Account of Textron Financial Corporation, as administrative
agent." Textron Financial Corporation, other than in its capacity as the
Administrative Agent, shall have no right of set-off with respect to the Cash
Collateral Account. So long as no Event of Default shall exist, all or a portion
of the amounts in the Cash Collateral shall be invested and reinvested by the
Administrative Agent in one or more Eligible Investments, as may be directed, in
writing, by GSRP. GSRP agrees that such Eligible Investments and the proceeds
and earnings thereof shall be Collateral and such proceeds and earnings shall
remain in the Cash Collateral Account. GSRP agrees to report as income for
financial reporting and tax purposes (to the extent reportable) all investment
earnings on amounts in the Cash Collateral Account. The Administrative Agent
shall be under no obligation to invest any of the moneys in the Cash Collateral
Account for so long as any Event of Default shall exist or if it shall have not
received a written instruction from GSRP to make such investments.
GSRP, the Administrative Agent and the Lenders agree to use their best
efforts to reach agreement as to the application of any cash in the Cash
Collateral Account if no Default or Event of Default shall then exist. GSRP, the
Administrative Agent and the Lenders acknowledge that it is their intention to
apply such moneys to the Obligations at least quarterly for so long as no
Default or Event of Default shall exist in such order and in such amount or
amounts as may be reasonably agreed upon by GSRP, the Administrative Agent and
the Lenders. If no such agreement is reached at any point in time when such a
quarterly application is to be made, then all moneys in the Cash Collateral
Account shall remain therein until such an agreement is so reached. Subject to
rights, remedies and priority distribution provisions for Collateral proceeds
during the existence of an Event of Default, it is the intention of the parties
hereto to apply amounts in the Cash Collateral Account towards Obligations
rather than leaving it in the Cash Collateral Account.
11. MISCELLANEOUS
<PAGE>
11.1 GOVERNING LAW
11.1 Governing Law.
This Agreement and all transactions, assignments and transfers
hereunder, and all the rights of the parties hereto shall be governed as to the
validity, construction, enforcement and in all other respects by the internal
laws of the State of Maine. To the extent any provision of this Agreement is not
enforceable under applicable law, such provision shall be deemed null and void
and shall have no effect on the remaining portions of this Agreement.
<PAGE>
11.2 EXPENSES AND CLOSING FEES
11.2 Expenses and Closing Fees.
Whether or not the transactions contemplated hereunder are completed,
GSRP shall pay all expenses of any one or more of the Lenders and/or the
Administrative Agent relating to negotiating, preparing, documenting, closing
and enforcing this Agreement, relating to the making by any one or more of the
Lenders of any Advances hereunder to GSRP and/or relating to the performance of
the duties of the Administrative Agent hereunder and under the other Security
Documents, including, but not limited to:
(a) the cost of reproducing this Agreement, the Notes and
the other Security Documents;
(b) the fees and disbursements of each of the Lender's
counsel and the Administrative Agent's counsel;
(c) each of the Lender's and the Administrative Agent's
out-of-pocket expenses in connection with any audits in respect of GSRP
and/or the Collateral conducted by such Lender or the Administrative
Agent prior to the date hereof per Schedule 18 hereto;
(d) all fees and expenses (including fees and expenses of
counsel to each of the Lenders and counsel to the Administrative Agent)
relating to any amendments, waivers, consents or review of documents in
connection with this Agreement or relating to the funding of any
Advance hereunder;
(e) all costs, outlays, attorneys' fees and expenses of every
kind and character had or incurred in (i) the enforcement of any of the
provisions of, or rights and remedies under, this Agreement, any
assignment agreement, or any other Security Document and (ii) the
preparation for, negotiations regarding, consultations concerning, or
the defense of legal proceedings involving, any claim or claims made or
threatened against any one or more of the Lenders and/or the
Administrative Agent arising out of this transaction or the protection
of the Collateral securing the Obligations, expressly including,
without limitation, the defense by any Lender or the Administrative
Agent of any legal proceedings instituted or threatened by any Person
to seek to recover or set aside any payment or setoff theretofore
received or applied by such Lender or the Administrative Agent with
respect to the Obligations;
(f) all expenses relating to the Approved Escrow Accounts;
(g) all expenses relating to the safekeeping of the Contracts
by the Administrative Agent (including, without limitation, the
retention by the Administrative Agent of any custodian or trust
department to safekeep such Contracts);
(h) all filing and recording fees, costs and expenses which
may be incurred by any one or more of the Lenders and/or the
Administrative Agent with respect to the filing or recording of any
document or instrument relating to the transactions described in this
Agreement or the other Security Documents;
(i) the Administrative Agent's advances (together with
interest thereon as provided for herein) in respect of any of GSRP's
expenses or undertakings to make payments set forth herein or in any
other Security Document for which the Administrative Agent shall have
paid such expenses or made such payments in accordance with the terms
and conditions hereof or such other Security Documents, and
(j) all fees, costs and expenses owing to the Disbursement
Agent under the Loan Disbursement Agreement, provided that the
aggregate amount of such fees shall not exceed $40,000 (in addition to
all costs and expenses in respect thereof) and all fees owing to the
Administrative Agent under Section 10.9 hereof,
(all of the foregoing in this Section 11.2 being referred to herein as, the
"Loan Costs").
<PAGE>
11.3 PARTIES, SUCCESSORS AND ASSIGNS
11.3 Parties, Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns (except that GSRP may
not assign any of its rights hereunder), and all representations, covenants,
provisions and agreements by or on behalf of GSRP which are contained in this
Agreement shall inure to the benefit of the successors and assigns of the
Lenders and the Administrative Agent. Except as provided in this Section 11.3,
this Agreement shall not create and shall not be construed as creating any
rights enforceable by, or benefits in favor of, any Person not a party hereto.
<PAGE>
11.4 NOTICES
11.4 Notices.
All notices or demands by any Person hereunder to any other Person
hereunder relating to this Agreement or any other Security Document shall,
except as otherwise provided herein, be in writing and sent by certified or
registered United States mail, first class postage prepaid and return receipt
requested, or by a nationally recognized overnight courier service with all
delivery fees prepaid. Notices shall be deemed received
(a) on the 3rd succeeding Business Day following deposit in
the United States mail, certified or registered and first class postage
prepaid and return receipt requested, provided that notices to the
Administrative Agent shall not be effective until received or
(b) upon delivery if sent by nationally recognized overnight
courier with all delivery fees prepaid.
Notices and demands shall be addressed, if to GSRP, at the mailing address set
forth on Schedule 19 to this Agreement or to such other address as GSRP may from
time to time specify in writing or, if to a Lender, at the mailing address of
such Lender set forth on Schedule 19 hereto or to such other address as such
Lender may from time to time specify in writing to GSRP or, if to the
Administrative Agent, at the mailing address of the Administrative Agent set
forth on Schedule 19 hereto or to such other address as the Administrative Agent
may from time to time specify in writing to GSRP and the Lenders.
<PAGE>
11.5 TOTAL AGREEMENT
11.5 Total Agreement.
This Agreement, including the Exhibits, the Schedules and the other
agreements referred to herein, is the entire agreement between the parties
hereto relating to the subject matter hereof, incorporates or rescinds all prior
agreements and understandings between the parties hereto relating to the subject
matter hereof, and may not be changed or terminated orally or by course of
conduct. Any provision of this Agreement may be modified, changed or waived only
in a writing executed by the Required Parties and GSRP, provided that
(a) any such modification, change or waiver which (i)
increases the amount of any of the Commitments or reduces the principal
amount of the Loan (or any component defined term thereof), (ii)
changes any Lender's Pro Rata Share or the Loan Exposure, (iii) changes
the defined term "Required Parties," "Project Required Lenders" (or any
component defined term thereof), "Maturity Date" (or any component
defined term thereof), or "Note" (or any component defined term
thereof), (iv) decreases the Interest Rate or the Default Rate, (v)
postpones the date on which any interest or any fees are payable or how
proceeds from the sale of Quartershare Interests or Commercial Units
are collected and distributed to the Lenders, (vi) releases all,
substantially all, or any material portion of the Collateral (other
than as expressly contemplated herein and in the other Security
Documents) or (vii) changes any provision of this Section 11.5, shall
become effective only after having been consented to in writing by all
of the Lenders,
(b) any such modification, change or waiver in respect of any
provision of any Note (other than a provision incorporated by reference
therein to which another clause of this Section 11.5 is applicable)
shall become effective only after having been consented to in writing
by the Lender holding such Note and
(c) any such modification, change or waiver which affects any
of the rights, duties or obligations of the Administrative Agent
hereunder or under any other Security Document (including, without
limitation, any modification or change in Section 10 hereof) shall
become effective only after being consented to, in writing, by the
Administrative Agent.
The failure or delay of any Lender or the Administrative Agent to exercise or
enforce any rights, Liens, powers, remedies, conditions or other terms hereunder
or under any other agreement or instrument executed in connection herewith shall
not operate as a waiver of any such rights, Liens, powers, remedies, conditions
or other terms.
<PAGE>
11.6 SURVIVAL
11.6 Survival.
All warranties, representations and covenants made by GSRP herein or in
any certificate or other instrument delivered by it or on its behalf under this
Agreement shall be considered to have been relied upon by the Lenders and shall
survive the delivery to the Lenders of the Notes regardless of any investigation
made by the Lenders or on its behalf. All statements in any such certificate or
other instrument shall constitute warranties and representations by GSRP
hereunder.
<PAGE>
11.7 SET-OFF
11.7 Set-Off.
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by GSRP at any time or from
time to time, without notice to GSRP or any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other indebtedness at any time held or owing
by such Lender to or for the creditor or the account of GSRP against and on
account of the obligations and liabilities of GSRP to such Lender under this
Agreement and participations therein and the other Security Documents,
including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement or any other Security Document,
irrespective of whether or not (a) such Lender shall have made any demand
hereunder or (b) the principal of or the interest on the Loan or any other
amounts due hereunder shall have become due and payable pursuant to Section 8
hereof and although said obligations and liabilities, or any of them, may be
contingent or unmatured.
<PAGE>
11.8 RATABLE SHARING
11.8 Ratable Sharing.
To the extent that any Lender holding all or part of the Loan shall
receive payments (whether by voluntary payment, by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Security Documents
or otherwise) of the Loan which is greater proportionally than other similarly
situated Lenders, such Lender receiving such proportionately greater payment
(the "purchasing Lender") shall (a) notify the Administrative Agent and each
other similarly situated Lender (a "selling Lender") of the receipt of such
payment and (b) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from such selling Lenders
simultaneously upon the receipt by such selling Lenders of their ratable portion
of such payment) from such selling Lenders such that such payment shall be
shared ratably among the purchasing Lender and the selling Lenders; provided
that if all or part of such payment received by such purchasing Lender is
thereafter recovered from such purchasing Lender upon the bankruptcy or
reorganization of GSRP or otherwise, the participations therein acquired from
the selling Lenders shall be rescinded and the purchase prices paid for such
participations shall be returned to such selling Lenders to the extent of such
recovery, but without interest. GSRP expressly consents to the foregoing
arrangement and agrees that any holder of a participation so purchased may
exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by GSRP to that holder with respect thereto
as fully as if that holder were owed the amount of the participation held by
that holder. For the avoidance of doubt, a similarly situated Lender shall be
(a) a holder of a portion of the Steamboat Loan when the other Lender is also a
holder of a portion of the Steamboat Loan and the payment is in respect of
Steamboat Obligations, (b) a holder of a portion of the Canyons Loan when the
other Lender is also a holder of a portion of the Canyons Loan and the payment
is in respect of Canyons Obligations, (c) a holder of a portion of the
*Sugarbush Loan when the other Lender is also a holder of a portion of the
*Sugarbush Loan and the payment is in respect of *Sugarbush Obligations, (d) a
holder of a portion of the *Sugarloaf Loan when the other Lender is also a
holder of a portion of the *Sugarloaf Loan and the payment is in respect of
*Sugarloaf Obligations, (e) a holder of a portion of the Loan when the payment
involved is to be shared by all Lenders ratably hereunder, (f) a holder of a
portion of the Jordan Bowl Loan when the other Lender is also a holder of a
portion of the Jordan Bowl Loan and the payment is in respect of Jordan Bowl
Obligations, (g) a holder of a portion of the Attitash Loan when the other
Lender is also a holder of a portion of the Attitash Loan and the payment is in
respect of Attitash Obligations, (h) a holder of a portion of the Killington
Loan when the other Lender is also a holder of a portion of the Killington Loan
and the payment is in respect of Killington Obligations and/or (i) a holder of a
portion of the Mt. Snow Loan when the other Lender is also a holder of a portion
of the Mt. Snow Loan and the payment is in respect of Mt. Snow Obligations.
<PAGE>
11.9 LITIGATION 226
11.9 Litigation.
GSRP HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED ARISING OUT OF
THIS AGREEMENT, THE NOTES, ANY OTHER SECURITY DOCUMENT, THE COLLATERAL OR ANY
ASSIGNMENT THEREOF OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER AMONG
GSRP, THE LENDERS AND/OR THE ADMINISTRATIVE AGENT OF ANY KIND OR NATURE.
GSRP, EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREBY AGREE
THAT THE FOLLOWING COURTS:
STATE COURT: (1) SUPERIOR COURT OF THE STATE OF MAINE FOR OXFORD
COUNTY SITTING AT SOUTH PARIS or (2) THE SUPERIOR COURT OF THE STATE OF RHODE
ISLAND SITTING AT PROVIDENCE;
FEDERAL COURT: (1) UNITED STATES DISTRICT COURT FOR MAINE SITTING AT
PORTLAND, or (2) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
SITTING AT PROVIDENCE,
SHALL HAVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG GSRP, THE LENDERS AND/OR THE
ADMINISTRATIVE AGENT PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, ANY
OTHER SECURITY DOCUMENT OR ANY MATTER ARISING HEREFROM OR THEREFROM. GSRP, EACH
OF THE LENDERS AND THE ADMINISTRATIVE AGENT EXPRESSLY SUBMIT AND CONSENT IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY SUCH
COURT.
THE STIPULATIONS OF GSRP IN THIS SECTION 11.9 SHALL SURVIVE THE FINAL
PAYMENT OF ALL OF THE OBLIGATIONS OF GSRP AND THE RESULTING TERMINATION OF THIS
AGREEMENT.
NEITHER THE LENDERS NOR THE ADMINISTRATIVE AGENT SHALL BE RESPONSIBLE
FOR ANY LOST PROFITS OF GSRP ARISING FROM ANY BREACH OF CONTRACT, TORT
(EXCLUDING ANY LENDER'S OR the Administrative Agent'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT) FOR ANY OTHER WRONG ARISING FROM THE ESTABLISHMENT,
ADMINISTRATION, FAILURE TO FUND OR COLLECTION OF THE CREDIT EXTENDED UNDER THIS
AGREEMENT.
<PAGE>
11.10 POWER OF ATTORNEY
11.10 Power of Attorney.
GSRP hereby makes, constitutes and appoints the Administrative Agent
the true and lawful agent and attorney-in-fact of GSRP, with full power of
substitution, (a) during the existence of any Event of Default, to receive, open
and dispose of all mail addressed to GSRP relating to the Contracts; (b) during
the existence of any Event of Default, to open all such mail and remove
therefrom any notes, checks, acceptances, drafts, money orders or other
instruments constituting Collateral, with full power to endorse the name of GSRP
upon any such notes, checks, acceptances, drafts, money orders, instruments or
other documents, and to effect the deposit and collection thereof, and the
Administrative Agent shall have the further right and power to endorse the name
of GSRP on any documents relating to the Collateral; (c) to execute on behalf of
GSRP assignments, notices of assignment, financing statements and other public
records and notices in respect of the Contracts; (d) during the existence of any
Event of Default, to notify Purchasers of the Contracts to make all payments
thereunder directly to the Administrative Agent at an address to be designated
by the Administrative Agent and to execute and send other notices to such
Purchasers and obligors as the Administrative Agent may deem necessary in order
to protect and/or collect the same; and (e) to do any and all things necessary
or take action in the name and on behalf of GSRP to carry out the intent of this
Agreement, including, without limitation, the grant of the security interest
provided herein and to perfect and protect the security interest granted to the
Administrative Agent with respect to the Collateral and the Administrative
Agent's rights created under this Agreement, to act on behalf of GSRP in
connection with obtaining funds from any Approved Escrow Account and to endorse
any checks or other instruments of payment in respect of any payment,
performance or other surety bond made payable to GSRP or to GSRP and the
Administrative Agent jointly. GSRP agrees that neither the Administrative Agent
nor any of its agents, designees or attorneys-in-fact will be liable for any
acts of commission or omission, or for any error of judgment or mistake of fact
or law with respect to the exercise of the power of attorney granted under this
Section 11.10 except for its own gross negligence or willful misconduct. The
power of attorney granted under this Section 11.10 is coupled with an interest
and shall be irrevocable during the term of this Agreement.
<PAGE>
11.11 SURVIVAL OF INDEMNITIES
11.11 Survival of Indemnities.
All indemnities set forth in this Agreement shall survive the execution
and delivery of this Agreement and the execution and delivery of the Notes as
well as the payment in full of the Notes and the otherwise full performance of
this Agreement.
<PAGE>
11.12 CONFLICTING OBLIGATIONS; RIGHTS AND REMEDIES
11.12 Conflicting Obligations; Rights and Remedies.
To the extent that the terms of any of the Security Documents contain
conflicting obligations, the terms set forth in this Agreement shall be deemed
to be the controlling terms, provided that all rights and remedies of the
Administrative Agent under the Security Documents are cumulative and in addition
to every other right or remedy, and no right or remedy is intended to be
exclusive of any other right or remedy.
<PAGE>
11.13 INDEPENDENT NATURE OF LENDERS' RIGHTS
11.13 Independent Nature of Lenders' Rights.
Nothing contained herein or in any other Security Document, and no
action taken by the Lenders pursuant hereto or thereto, shall be deemed to
constitute the Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement, and it shall not
be necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
<PAGE>
11.14 SEVERABILITY
11.14 Severability.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
<PAGE>
11.15 DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART
11.15 Duplicate Originals, Execution in Counterpart.
Two or more duplicate originals of this Agreement may be signed by the
parties hereto, each of which shall be an original but all of which together
shall constitute one and the same instrument. This Agreement may be executed in
one or more counterparts and shall be effective when at least one counterpart
shall have been executed by each party hereto, and each set of counterparts
which, collectively, show execution by each party hereto shall constitute one
duplicate original.
<PAGE>
11.16 CONSENT
11.16 Consent.
For the avoidance of doubt, the Lenders and the Administrative Agent
hereby agree and consent to GSRP's having entered into, and performing under,
Note Purchase Agreement.
<PAGE>
11.17 SUBORDINATION OF NOTE PURCHASE AGREEMENT
11.17 Subordination of Note Purchase Agreement.
The following terms shall have the following definitions for purposes
of this Section 11.17:
Senior Loan Debt -- all of GSRP's loan indebtedness, loan
liabilities and loan obligations, whether now existing or hereafter
arising, under the this Agreement and the Notes and the other
obligations in respect of the Loan.
Subordinated Debt -- all of the indebtedness, liabilities and
obligations of the Assignor whether now existing or hereafter arising,
under the Note Purchase Agreement and all other instruments and
documents executed and delivered in connection therewith.
No holder of Subordinated Debt or any administrative agent in respect
thereof shall have any right to exercise or issue a direction to exercise any
remedy under the Security Documents or to receive any proceeds of any collateral
provided for herein or therein unless and until all Senior Loan Debt shall have
been fully and finally paid.
[Remainder of page intentionally left blank. Next page is signature page.]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GSRP: Lender:
GRAND SUMMIT RESORT TEXTRON FINANCIAL CORPORATION
PROPERTIES, INC.
By_______________________ By__________________________
Name: Name:
Title: Title:
Type of Commitment/Amount
of Commitment: Jordan Bowl
Inventory Advance
Commitment ($5,124,657.98),
Attitash Inventory Advance
Commitment ($1,022,717.86),
Killington Inventory
Advance Commitment
($4,401,944.80), Mt. Snow
Inventory Advance
Commitment ($6,417,142.95),
Steamboat Construction
Project Advance Commitment
($6,516,768.21 + {50% of
each dollar of principal
repaid in respect of the
Jordan Bowl Inventory
Advance Note, the Attitash
Inventory Advance Note, the
Killington Inventory
Advance Note and the Mt.
Snow Inventory Advance Note
held by Textron Financial
Corporation up to a maximum
of $8,483,231.79} -- the
total possible amount of
Steamboat Construction
Project Advance Commitment
shall not exceed
$15,000,000), Steamboat
Inventory Advance
Commitment ($6,516,768.21 +
{50% of each dollar of
principal repaid in respect
of the Jordan Bowl
Inventory Advance Note, the
Attitash Inventory Advance
Note, the Killington
Inventory Advance Note and
the Mt. Snow Inventory
Advance Note held by
Textron Financial
Corporation up to a maximum
of $8,483,231.79} -- the
total possible amount of
Steamboat Inventory Advance
Commitment shall not exceed
$15,000,000), Canyons
Construction Project
Advance Commitment
($6,516,768.21 + {50% of
each dollar of principal
repaid in respect of the
Jordan Bowl Inventory
Advance Note, the Attitash
Inventory Advance Note, the
Killington Inventory
Advance Note and the Mt.
Snow Inventory Advance Note
held by Textron Financial
Corporation up to a maximum
of $8,483,231.79} -- the
total possible amount of
Canyons Construction
Project Advance Commitment
shall not exceed
$15,000,000) and Canyons
Inventory Advance
Commitment ($6,516,768.21 +
{50% of each dollar of
principal repaid in respect
of the Jordan Bowl
Inventory Advance Note, the
Attitash Inventory Advance
Note, the Killington
Inventory Advance Note and
the Mt. Snow Inventory
Advance Note held by
Textron Financial
Corporation up to a maximum
of $8,483,231.79} -- the
total possible amount of
Steamboat Inventory Advance
Commitment shall not exceed
$15,000,000)
<PAGE>
Lender:
GREEN TREE FINANCIAL SERVICING
CORPORATION
By_____________________________
Name:
Title:
Type of Commitment/Amount
of Commitment: Jordan Bowl
Inventory Advance
Commitment ($4,950,532.96),
Attitash Inventory Advance
Commitment ($987,968.08),
Killington Inventory
Advance Commitment
($4,252,376.04), Mt. Snow
Inventory Advance
Commitment ($6,199,102.03),
Steamboat Construction
Project Advance Commitment
($6,805,010.45 + {50% of
each dollar of principal
repaid in respect of the
Jordan Bowl Inventory
Advance Note, the Attitash
Inventory Advance Note, the
Killington Inventory
Advance Note and the Mt.
Snow Inventory Advance Note
held by Green Tree
Financial Servicing
Corporation up to a maximum
of $8,194,989.55} -- the
total possible amount of
Steamboat Construction
Project Advance Commitment
shall not exceed
$15,000,000), Steamboat
Inventory Advance
Commitment ($6,805,010.45 +
{50% of each dollar of
principal repaid in respect
of the Jordan Bowl
Inventory Advance Note, the
Attitash Inventory Advance
Note, the Killington
Inventory Advance Note and
the Mt. Snow Inventory
Advance Note held by Green
Tree Financial Servicing
Corporation up to a maximum
of $8,194,989.55} -- the
total possible amount of
Steamboat Inventory Advance
Commitment shall not exceed
$15,000,000), Canyons
Construction Project
Advance Commitment
($6,805,010.45 + {50% of
each dollar of principal
repaid in respect of the
Jordan Bowl Inventory
Advance Note, the Attitash
Inventory Advance Note, the
Killington Inventory
Advance Note and the Mt.
Snow Inventory Advance Note
held by Green Tree
Financial Corporation up to
a maximum of $8,194,989.55}
-- the total possible
amount of Canyons
Construction Project
Advance Commitment shall
not exceed $15,000,000))
and Canyons Inventory
Advance Commitment
($6,805,010.45 + {50% of
each dollar of principal
repaid in respect of the
Jordan Bowl Inventory
Advance Note, the Attitash
Inventory Advance Note, the
Killington Inventory
Advance Note and the Mt.
Snow Inventory Advance Note
held by Green Tree
Financial Servicing
Corporation up to a maximum
of $8,194,989.55} -- the
total possible amount of
Steamboat Inventory Advance
Commitment shall not exceed
$15,000,000)
<PAGE>
ADMINISTRATIVE AGENT:
TEXTRON FINANCIAL CORPORATION
By______________________
Name:
Title:
<PAGE>
Schedule 1
List of certain Costs and Expenses or Approval of Lenders
<PAGE>
Schedule 2-A
Description of Canyons Project
<PAGE>
Schedule 2-B
Description of Steamboat Project
<PAGE>
Schedule 2-C
Description of Sugarbush Project
Intentionally omitted.
<PAGE>
Schedule 2-D
Description of Sugarloaf Project
Intentionally omitted.
<PAGE>
Schedule 2-E
Description of Jordan Bowl Project
<PAGE>
Schedule 2-F
Description of Attitash Project
<PAGE>
Schedule 2-G
Description of Killington Project
<PAGE>
Schedule 2-H
Description of Mt. Snow Project
<PAGE>
Schedule 3
Schedule of Minimum Release Prices
<PAGE>
Schedule 4
Permitted Exceptions
See Schedule B to Lawyers Title Policy issued under LSA I, as endorsed in
connection with the Inventory Advances in respect of the 1997 Projects, Schedule
B to the Transnation Title Insurance Policy in connection with the Construction
Project Advances for the Steamboat Project and Schedule B to the First American
Title Insurance Policy issued in connection with the Construction Project
Advances for the Canyons Project.
<PAGE>
Schedule 5
Intentionally Omitted
<PAGE>
Schedule 6
Textron Financial Corporation Purchase Facility
<PAGE>
Schedule 7
Payment Instructions
Payments from GSRP to the Administrative Agent:
Name: Textron Financial Corporation
Bank: The First National Bank of Chicago, Chicago, Illinois
ABA #: 071-000-013
Account #: 5535921
Ref: Grand Summit Resort Properties, Inc. Loan/[Type of Loan][Type of Payment]
Payments from any Lender to the Administrative Agent:
Name: Textron Financial Corporation
Bank: The First National Bank of Chicago, Chicago, Illinois
ABA #: 071-000-013
Account #: 5535921
Ref: Grand Summit Resort Properties, Inc. Loan
<PAGE>
Schedule 8
Property-Related Contracts
<PAGE>
Schedule 9
Names of Affiliates and Nature of Affiliation
<PAGE>
Schedule 10
General Business Description
Grand Summit Resort Properties, Inc. is a Maine corporation
established for the limited purpose of developing and operating hotel properties
with residential quartershare interests and conference facilities. Grand Summit
Resort Properties, Inc. owns no other properties other than the Projects.
<PAGE>
Schedule 11
Financial Statements of GSRP and Host Companies
<PAGE>
Schedule 12
Litigation
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Schedule 13
Permitted Leases
<PAGE>
Schedule 14
Hazardous Substances
<PAGE>
Schedule 15
Licenses, Permits, etc. not obtained
None
<PAGE>
Schedule 16
Intentionally Omitted
<PAGE>
Schedule 17
Deferred Compensation Plans
GSRP does not have any employees and, therefore, does not have any deferred
compensation plans.
<PAGE>
Schedule 18
List of Fees
None
<PAGE>
Schedule 19
Addresses for Notices and Demands
Grand Summit Resort Properties, Inc.
PO Box 450
Sunday River Road Bethel, ME 04217
Attn: Chris Howard
Textron Financial Corporation
Resort Receivables Finance Division
333 East River Drive
Suite 305
East Hartford, CT 06108
Attn: Nicolas Mecca
with a copy to:
Textron Financial Corporation
P.O. Box 6687
Providence, Rhode Island 02940-6687
Attn: Division Counsel - RRD
Green Tree Financial Servicing Corporation
100 North Point Center, East
Suite 200
Alpharette, GA 30022
Attn: Christopher Gouskos
Senior Vice President
CREDIT AGREEMENT
Dated as of September 4, 1998
Among
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
as Borrower,
THE LENDERS PARTY HERETO,
and
BANKBOSTON, N.A.
as Agent for the Lenders
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of September 4,1998 by and
among AMERICAN SKIING COMPANY RESORT PROPERTIES, INC., a Maine corporation
("Borrower"), the lenders from time to time party hereto, and BANKBOSTON, N.A.,
a national banking association, as Agent for the lenders from time to time party
hereto (the "Agent").
RECITALS
Borrower desires to arrange for a credit facility in the amount of $30,
000, 000, on the terms and conditions set forth herein, the proceeds of which
will be used (a) to fund certain capital expenditures and (b) to provide for
on-going working capital and other specified needs. The Lenders are willing to
provide such additional financing on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Agent and the
Lenders agree hereby as follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 DEFINITIONS. In addition to the terms defined elsewhere in
this Agreement, unless otherwise specifically provided herein, the following
terms shall have the following meanings for all purposes when used in this
Agreement, and in any note, agreement, certificate, report or other document
made or delivered in connection with this Agreement:
"AFFILIATE" shall mean (a) any director or executive officer of American
Ski or any of its Subsidiaries or any Person owning more than 5% of the
outstanding common stock of American Ski or any of its Subsidiaries and (b) any
Person that controls, is controlled by or is under common control with such a
Person or any Affiliate of such Person. For purposes of this definition,
"control" of a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.
"AGENT" shall mean BankBoston, N.A., in its capacity as agent for the
Lenders, and its successors in that capacity.
"AGREEMENT" shall mean this Credit Agreement, as amended or supplemented
from time to time. References to Articles, Sections, Exhibits, Schedules and the
like refer to the Articles, Sections, Exhibits, Schedules and the like of this
Agreement, unless otherwise indicated, as amended and supplemented from time to
time.
"AMERICAN SKI" shall mean American Skiing Company, a Maine corporation.
<PAGE>
"APPRAISAL" shall mean an appraisal of the fair market value of property
and business, accepted and approved by the Agent, performed by an independent
appraiser selected by the Agent who is not employed by American Ski, any of its
Subsidiaries or the Agent, the form of such appraisal and the identity of the
appraiser to be acceptable to the Agent.
"APPRAISED VALUE" shall mean the fair market value of the subject
property determined by the most recent Appraisal.
"APPROVED FUND" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed by the same investment advisor as such Lender or by an affiliate of
such investment advisor.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" See Section 14.2 hereof.
"BORROWERS SUBSIDIARIES" Canyon Resort, Grand Summit, and Heavenly
Resort.
"BUDGET" shall mean the budget attached hereto as Exhibit C.
"BUSINESS DAY" shall mean for all purposes, any day other than a
Saturday, Sunday or legal holiday on which banks in Boston, Massachusetts are
open for the conduct of a substantial part of their commercial banking business.
"CANYONS" shall mean the recreational and resort facilities operated by
American Ski or a Subsidiary located in Summit County, Utah.
"CANYONS RESORT" shall mean Canyons Resort Properties, Inc., a Maine
corporation.
"CAPITAL ASSETS" shall mean fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such as patents,
copyrights, trademarks, franchises and goodwill); PROVIDED, HOWEVER, that
Capital Assets shall not include any item customarily charged directly as an
expense or depreciated over a useful life of twelve (12) months or less in
accordance with generally accepted accounting principles.
"CAPITAL EXPENDITURES" shall mean amounts paid or incurred, including
indebtedness incurred, by Borrower or any of its Subsidiaries in connection with
the purchase or lease by Borrower or any of its Subsidiaries of Capital Assets
that would be required to be or are capitalized and shown on the balance sheet
of Borrower and its Subsidiaries in accordance with generally accepted
accounting principles.
<PAGE>
"CAPITALIZED LEASE" shall mean any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with generally
accepted accounting principles and Statement of Financial Accounting Standards
No. 13.
"CAPITALIZED LEASE OBLIGATIONS" shall mean the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with generally accepted accounting
principles and Statement of Financial Accounting Standards No. 13.
"CASH INSURANCE PROCEEDS" shall mean the proceeds received by Borrower
and its Subsidiaries under any key man life insurance or property and casualty
insurance policy carried by Borrower and it Subsidiaries.
"CASH PROCEEDS" shall mean, with respect to any Permitted Disposition,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Permitted
Disposition, but only as and when received) received by Borrower or any of its
Subsidiaries from such Permitted Disposition.
"CLOSING DATE" shall mean the date on which all of the conditions set
forth in Section 3.1 have been satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COLLATERAL" shall mean all of the property, rights and interests of
Borrower and its Subsidiaries that are subject to the security interests,
pledges, and mortgages created by the Security Agreements.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMITMENT PERCENTAGE" shall mean as to each Lender, the sum of its
Term Loan Commitment Percentage as set forth on SCHEDULE I hereto.
"COMPLIANCE CERTIFICATE" shall mean a certificate in a form acceptable
to Agent.
"CONSOLIDATED" and "CONSOLIDATING," when used with reference to any
term, mean that term (or the terms "combined" and "combining," as the case may
be, in the case of partnerships, joint ventures and Affiliates that are not
Subsidiaries) as applied to the accounts of American Ski (or other specified
Person) and all of its Subsidiaries (or other specified Persons), or such of its
Subsidiaries as may be specified, consolidated (or combined) in accordance with
generally accepted accounting principles and with appropriate deductions for
minority interests in Subsidiaries, as required by generally accepted accounting
principles.
<PAGE>
"DEFAULT" shall mean an event or condition which with the passage of
time or giving of notice, or both, would become an Event of Default.
"DESIGNATED PROPERTIES" shall mean the real properties and interests
therein owned by Borrower and described on Exhibit B.
"DISTRIBUTION" shall mean: (a) the declaration or payment of any
dividend on or in respect of any shares of any class of capital stock of
Borrower, (b) the purchase, redemption, or other acquisition or retirement of
any shares of any class of capital stock of Borrower, (c) any other
distribution on or in respect of any shares of any class of capital stock of
Borrower, (d) any setting apart or allocating any sum. for the payment of any
dividend or distribution or for the purchase, redemption or retirement of any
shares of capital stock of Borrower and (e) any' payment of principal on or
any retirement or defeasance of Subordinated Indebtedness.
"ELIGIBLE ASSIGNEE(S)" shall mean any entity approved by the Agent.
"ENVIRONMENT" means soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air, and any environmental
medium.
"ENVIRONMENTAL LAW" means any judgment, decree, order, common law rule,
statute, act law, code, ordinance, permit, license, rule or regulation
pertaining to environmental matters, or any federal, state, county or local
statute, regulation, code, ordinance, order or decree relating to public
health, welfare,, the Environment, or to the storage, handling, treatment,
transportation, use or generation of Hazardous Materials in or at the
workplace, or to worker health or safety, whether now existing or hereafter
enacted.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EVENT OF DEFAULT" See Section 12.1 hereof.
"FEE LETTER" See Section 2.5 hereof.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean generally
accepted accounting principles as defined by controlling pronouncements of the
Financial Accounting Standards Board, as from time to time supplemented and
amended.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GRAND SUMMIT" shall mean Grand Summit Resort Properties, Inc., a Maine
corporation.
<PAGE>
"GUARANTY" or "GUARANTEE" or "GUARANTIES" shall include any arrangement
whereby a Person is or becomes liable in respect of any Indebtedness or other
obligation of another and any other arrangement whereby credit is extended to
another obligor on the basis of any promise of a guarantor, whether that
promise is expressed in terms of an obligation to pay the Indebtedness of such
obligor, or to purchase or lease assets under circumstances that would enable
such obligor to discharge one or more of its obligations, or to maintain the
capital, the working capital, solvency or general financial condition of such
obligor, whether or not such arrangement is listed in the balance sheet of the
guarantor or referred to in a footnote thereto.
"HAZARDOUS MATERIAL" means any pollutant, contaminant, toxic substance,
chemical substance or mixture, hazardous waste, hazardous material, or hazardous
substance, or any oil, petroleum, or petroleum product, as defined in or
pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, the Superfund Amendment and Reauthorization Act, as amended, the
Federal Clean Water Act, as amended, the Hazardous Materials Transportation Act,
as amended, the Toxic Substances Control Act, as amended, any regulations
promulgated under these Acts, or any other Environmental Law.
"HEAVENLY RESORT" shall mean Heavenly Resort Properties, LLC, a Nevada
limited liability company.
"INDEBTEDNESS" shall mean, as to any Person, without duplication: (a)
all obligations of such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments) (b) all obligations of such Person for
the deferred purchase price of property or services (including without
limitation deferred payment obligations which are part of the consideration
provided for in agreements not to compete), except trade accounts payable and
accrued liabilities arising in the ordinary course of business which are not
overdue by more than 60 days or which are being contested in good faith by
appropriate proceedings; (c) all capital lease obligations of such Person; (d)
all Indebtedness of others secured by a lien on any properties, assets or
revenues of such person (e) all Indebtedness of others guaranteed by such Person
(except completion Guaranties under which such person has not yet been required
to perform); (f) all net obligations of such Person under interest rate,
commodity, foreign currency and financial markets swaps, options, futures and
other hedging obligations) and (g) all obligations of such Person, contingent or
otherwise, in respect of letters of credit or bankers' acceptances or similar
instruments.
"INDEMNITY AGREEMENTS" shall mean the Hazardous Materials
Indemnification Agreements of even date herewith from Borrower to the Agent.
"INTERCOMPANY DEBT" shall mean the indebtedness by Borrower to American
Ski in the maximum principal amount of $20,289,000.00.
"INVESTMENT" shall mean (a) any stock, evidence of Indebtedness or other
security of another Person, (b) any loan, advance, contribution to capital,
extension of
<PAGE>
credit (except for current trade and customer accounts receivable for
inventory sold or services rendered in the ordinary course of business and
payable in accordance with customary trade terms) to another Person, (c) any
purchase of (i) stock or other securities of another Person or (ii) any
business or undertaking of another Person (whether by purchase of assets or
securities), any commitment or option to make any such purchase if, in the
case of an option, the aggregate consideration paid for such option was in
excess of $I 00 or (d) any other investment, in all cases whether existing on
the date of this Agreement or thereafter made.
"LEASES" shall mean all leases and other agreements under which the
Borrower have rights to use or occupy any real property.
"LENDER AGREEMENTS' shall mean this Agreement, the Term Notes, the
Indemnity Agreements, the Security Agreements, and any other present or future
agreement from time to time entered into between Borrower or any of its
Subsidiaries and the Agent or any Lender, each as from time to time amended or
supplemented, and all statements, reports and certificates delivered by
Borrower or any of its Subsidiaries to the Agent or any Lender in connection
therewith.
"LENDER OBLIGATIONS" shall mean all present and future obligations and
Indebtedness of Borrower or any of its Subsidiaries owing to the Agent or the
Lenders under this Agreement or any other Lender Agreement, including, without
limitation, the obligations to pay the Indebtedness from time to time
evidenced by the Term Notes, and obligations to pay interest, commitment fees,
balance deficiency fees, charges, expenses and indemnification from time to
time owed under any Lender Agreement.
"LENDERS" shall mean (a) initially, each lender listed on the signature
pages hereof and designated on Schedule 1, (b) any other Person who becomes a
Successor Lender hereunder in accordance with the terms of Section 14.2 hereof
and (c) the successors and assigns of the Persons described in clauses (a) and
(b).
"LIEN' -- See Section 9.2 hereof.
"LOAN" shall mean all or a portion of the Loans outstanding hereunder
or made to the Borrower by the Lenders pursuant to Article 2 of this
Agreement, and "Loans" means all of such loans, collectively.
"MAJORITY LENDERS" shall mean, at any time, any two or more Lenders
holding at least 51% of the sum of the outstanding principal amount of the
Loans.
"MARRIOTT JOINT VENTURE" shall mean the Purchase and Development
Agreement among American Ski, Marriott Ownership Resorts, Inc. and Borrower
dated July 22, 1998.
"MATERIAL ADVERSE EFFECT" shall mean any adverse change (or occurrence
or condition reasonably likely to produce an adverse change) in the financial
<PAGE>
condition, properties, business, operations or prospects which is material to
Borrower and its subsidiaries.
"MORTGAGED PROPERTIES" shall mean all real properties and interests
therein owned by Borrower or any of its Subsidiaries which are subject to
mortgage liens in favor of the Agent.
"MORTGAGES" shall mean the various deeds of trust, mortgages and similar
security instruments executed by the Borrower on even date.
"NET CASH PROCEEDS" shall mean the Cash Proceeds (with respect to any
Permitted Disposition) or Cash Insurance Proceeds (with respect to any casualty)
net of the sum of (a) the amount of such proceeds required to be applied to
repay Indebtedness (other than the Loans) incurred or secured by a lien on any
asset disposed of in connection with such Permitted Disposition; (b) brokerage
commissions, legal fees, accounting fees, investment banking fees, trustee's
fees, finder's fees and other similar fees and commissions, all of which amounts
under this clause (b) shall be reasonable and customary; (c) taxes payable
within one year in connection with or as a result of such transaction; (d)
amounts held in escrow in connection with any such Permitted Disposition (prior
to the release thereof); and (e) other reasonable and customary out-of-pocket
costs incurred in connection therewith.
"NOTES" shall mean the Term Loan Notes.
"PAUL HASTINGS" shall mean Paul, Hastings, Janofsky & Walker, LLP.
"PENSION PLAN" shall mean an employee benefit plan or other plan
maintained for the employees of Borrower or any Subsidiary as described in
Section 4021 (a) of ERISA.
"PERFECTION EVENT" shall mean the occurrence of an Event of Default
hereunder or the failure of Borrower to pay in full all amounts owing to the
Lenders hereunder and under the Term Loan Notes on or before the Maturity Date.
"PERFECTION REQUIREMENT" shall mean the requirement to file and record
the Security Agreements or other documents in order to perfect the security
interest created thereby.
"PERMITTED CAPITAL EXPENDITURES" shall mean Capital Expenditures of
Borrower and its Subsidiaries permitted under Section hereto.
"PERMITTED FINANCIAL FACILITIES" See Section 9. 1 (e).
"PERMITTED LIENS" See Section 9.2 hereof.
<PAGE>
"PERMITTED CONSTRUCTION PROJECTS" shall mean the following hotel
projects: (i) Grand Summit at the Canyons; (ii) Grand Summit at Steamboat; and
(iii) the Sundial Lodge at the Canyons.
"PERSON" shall mean an individual, corporation, partnership, joint
venture, association, estate, joint stock company, trust, organization,
business, or a government or agency or political subdivision thereof.
"PURCHASE MONEY MORTGAGE" shall mean the Purchase Money Mortgages
described in SCHEDULE 2 attached hereto.
"PURCHASE MONEY INDEBTEDNESS" shall mean indebtedness affecting real
property known as Parcel A-2 at the Canyons being more particularly set forth
as:
1 . $300,000 mortgage loan from IRJ Enterprises, Inc.
2. $1,000,000 mortgage loan from Songbird Enterprises
3. $500,000 mortgage loan from Michael J. Maier
4. $1,720,000 mortgage loan from Wolf Mountain Resorts, L.C.
"PURCHASE OPTION" shall mean the Option to Purchase in that certain
Ground Lease Agreement dated July 3, 1997 between Wolf Mountain Resorts, L.C.
and NSC Utah, Inc., as assigned to Borrower pursuant to that certain
Assignment of Purchase Option Interest dated September 4, 1998 between ASC
Utah, Inc. and Borrower with respect to the real property commonly known as
the Canyons located in Utah.
"REPORTABLE EVENT" shall mean an event reportable to the Pension
Benefit Guaranty Corporation under Section 4043 of Title IV of ERISA.
"SECURITY AGREEMENTS" shall mean:
(a) The Mortgages;
(b) The Assignment of Trademarks ("Trademark Security
Agreements") from Borrower to the Agent;
(c) The Assignments of Licenses, Contracts and Permits
("Assignments of Licenses") from Borrower to the Agent; and
(d) All other security agreements, pledge agreements, mortgages, assignments
and other instruments by which Borrower grants or pledges to the Agent a lien
on, security interest in, or pledge or mortgage or assignment of any of its
assets.
"SENIOR FACILITY" The senior secured credit facility in favor of
American Ski and related entities by BankBoston, N.A., as Agent se set forth
in the Amended and Restated Credit Agreement dated as of November 12, 1997.
<PAGE>
"SOLVENT" or "SOLVENCY" shall mean, as to any Person, that such Person
(a) has assets having a fair value in excess of its liabilities, (b) has
assets having a fair value in excess of the amount required to pay its
liabilities on existing debts as such debts become absolute and matured and
(c) has, and expects to continue to have, access to adequate capital for the
conduct of its business and the ability to pay its debts from time to time
incurred in connection with the operation of its business as such debts
mature.
"STATUS MEMORANDUM" shall mean memorandum as to the status of certain
aspects of the Mortgaged Properties set forth on Exhibit D.
"SUBORDINATION AGREEMENT" shall mean the Subordination Agreement
between American Ski, Borrower and Agent dated as of even date.
"SUBSIDIARY" shall mean any Person of which Borrower shall now or
hereafter at the time own, directly or indirectly through one or more
Subsidiaries or otherwise, sufficient voting stock (or other beneficial
interest) to entitle it to elect at least a majority of the board of directors
or trustees or similar managing body.
"TANGIBLE NET WORTH" shall mean the excess of Total Assets over Total
Liabilities.
"TERM LOAN COMMITMENT PERCENTAGE" shall mean as to each Term Loan
Lender, its percentage interest in the Term Loans as set forth on SCHEDULE I
hereto.
,,TERM LOAN LENDERS" shall mean those Lenders so identified on SCHEDULE
I hereto.
"TERM LOAN MATURITY DATE" shall mean December 4,1998.
"TERM LOAN NOTES" shall mean the Term Loan Notes substantially in the
form of EXHIBIT A hereto executed by Borrower in favor of each Term Loan
Lender to evidence the Term Loans.
"TERM LOANS" shall mean the term loans made by the Term Loan Lenders to
Borrower pursuant to Section 2.1 hereof.
"TEXTRON FACILITY" shall mean the existing Construction Loan Facility
provided to Grand Summit from Textron Financial Corporation, as agent and
co-lender and Green Tree Financial Servicing Corporation, as co-lender.
"TITLE COMPANY" shall mean Land America National Title Services, Inc.
or other nationally recognized title insurance company approved by Agent.
"TOTAL ASSETS" shall mean all assets of the Borrower excluding
intangible assets such as goodwill, all determined in accordance with
generally accepted accounting principles.
<PAGE>
"TOTAL LIABILITIES" shall mean all liabilities of the Borrower which are
properly accounted for as such in accordance with generally accepted accounting
principles excluding the Intercompany Debt.
"UCC" shall mean the Uniform Commercial Code in effect in the applicable
jurisdiction, as amended from time to time.
"WHOLLY-OWNED SUBSIDIARY" shall mean any Person of which Borrower shall
now or hereafter at the time own, directly or indirectly through one or more
Subsidiaries or otherwise, one hundred percent (I 00%) of such Person's capital
stock or other beneficial interest.
Section 1.2 ACCOUNTING TERMS. All accounting terms used and not defined
in this Agreement shall be construed in accordance with generally accepted
accounting principles consistently applied, and all financial data required to
be delivered hereunder shall be prepared in accordance with such principles.
ARTICLE 2. THE CREDIT
Section 2.1 THE TERM LOANS. Subject to the terms and conditions of this
Agreement, on the date hereof, the Term Loan Lenders, severally and not jointly,
shall make term loans (the "Term Loans") to Borrower in an amount equal to each
Term Loan Lender's Ten-n Loan Commitment Percentage of $30,000,000 as set forth
on SCHEDULE I hereto and Borrower shall execute and deliver to each Term Loan
Lender a Term Loan Note to evidence the Term Loan made by such Term Loan Lender
to Borrower hereunder. Advances of the Term Loans shall be made by the Lenders
upon the application by the Borrower setting for the purpose and amounts
provided herein. The Borrower shall be entitled to three Advances including the
Advance at Closing.
Section 2.2 INTEREST ON THE TERM LOANS AND INTEREST RESERVE. (a) The
Borrower shall pay interest on the unpaid, outstanding balance of the Term Loans
at a per annum rate equal to fourteen percent (I 4%). Interest on the Term Loans
shall be payable monthly in arrears on the last day of each month, commencing
September 30, 1998, and continuing until all of the Indebtedness of the Borrower
to the Term Loan Lenders under the Term Loans shall have been paid in full,
(b) Borrower hereby agrees that the Lenders shall reserve the
proceeds of the Loan the sum of $1,500,000.00 ("Interest Reserve"). The Interest
Reserve shall be disbursed by the Lenders to pay: (i) regularly scheduled
installments of accrued and unpaid interest under the Notes prior to the
Maturity Date; or (ii) from and after the Maturity Date, for accrued and unpaid
interest under the Notes at the discretion of the Lenders. The Interest Reserve
may be disbursed for purposes other than the foregoing only with the consent of
the Lenders and upon notification of the Advance to the Borrower.
<PAGE>
Section 2.3 ADDITIONAL PAYMENTS. Upon the occurrence and during the
continuance of any Event of Default, the Borrower shall, on demand, pay to the
Agent, for the account of the Lenders, interest on the unpaid principal
balance of the Term Loans, and, to the extent permitted by law, on any overdue
installments of interest, at a rate per annum equal to twenty percent (20%)
per annum.
Section 2.4 COMPUTATION OF INTEREST, ETC. Interest hereunder and under
the Loans shall be computed on the basis of a 360-day year for the number of
days actually elapsed. No interest payment or interest rate charged hereunder
shall exceed the maximum rate authorized from time to time by applicable law.
The outstanding balance of the Term Notes as reflected on the Agent's records
from time to time shall be considered correct and binding on the Borrower and
the Lenders (absent manifest error).
Section 2.5 FEES. Borrower shall pay to the Agent, for the Agent's own
account, such applicable agency fees and, for the account of the Lenders, such
applicable closing fees as are provided in a letter agreement dated as of
September 4, 1998 between Borrower and the Agent (as such letter agreement may
from time to time be amended or supplemented, the "Fee Letter").
Section 2.6 SET-OFF. To the extent not prohibited by applicable law,
the Borrower hereby authorizes the Agent and each Lender, without prior notice
to the Borrower, if and to the extent payment is not promptly made when due
pursuant to the Term Loan Notes or pursuant to any provision hereof or of any
other Lender Agreement, to charge against any account of any Borrower with the
Agent or such Lender, an amount equal to the accrued interest and principal
and other amounts from time to time then due and payable to the Agent and the
Lenders hereunder and under all other Lender Agreements, provided that the
Agent shall notify the Borrower of any such set-off promptly thereafter.
Section 2.7 INCREASED COSTS, ETC.
(a) Anything herein to the contrary notwithstanding, if any changes in
present or future applicable law (which term "applicable law," as used in this
Agreement, includes statutes and rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at
any time or from time to time heretofore or hereafter made upon or otherwise
issued to any Lender by any central bank or other fiscal, monetary or other
authority, whether or not having the force of law), including without
limitation any change according to a prescribed schedule of increasing
requirements, whether or not known or in effect as of the date hereof, shall
(i) subject such Lender to any tax, levy, impost, duty, charge, fee, deduction
or withholding of any nature with respect to this Agreement or the payment to
such Lender of any amounts due to it hereunder, or (ii) materially change the
basis of taxation of payments to such Lender of the principal of or the
interest on the Loans or any other amounts payable to such Lender hereunder,
or (iii) impose or increase or render applicable any special or supplemental
deposit or reserve or similar requirements or assessment against assets held
by, or deposits in or for the account of, or
<PAGE>
any liabilities of, or loans by a ' n office of such Lender in respect of the
transactions contemplated herein, or (iv) impose on such Lender any other
condition or requirement with respect to this Agreement or the Term Loans, and
the result of any of the foregoing is (A) to increase the cost to such Lender
of making, funding or maintaining a] I or any part of the Loans or its
commitment hereunder, or (B) to reduce the amount of principal, interest or
other amount payable to such Lender hereunder, or (C) to require such Lender
to make any payment or to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed received by such
Lender from Borrower hereunder, then, and in each such case not otherwise
provided for -hereunder, Borrower will upon demand made by such Lender
promptly following such Lender's receipt of notice pertaining to such matters
accompanied by calculations thereof in reasonable detail, pay to such Lender
such additional amounts as will be sufficient to compensate such Lender for
such additional cost, reduction, payment or foregone interest or other sum;
PROVIDED that the foregoing provisions of this sentence shall not apply in the
case of any additional cost, reduction, payment or foregone interest or other
sum resulting from any taxes charged upon or by reference to the overall net
income, profits or gains of any Lender. In determining the additional amounts
payable hereunder, the Lenders may use any reasonable method of averaging,
allocating or attributing such additional costs, reductions, payments,
foregone interest or other sums among their respective customers.
(b) Anything herein to the contrary notwithstanding, if, after the date
hereof, any Lender shall have determined that any present or future applicable
law, rule, regulation, guideline, directive or request (whether or not having
force of law), including without limitation any change according to a
prescribed schedule of increasing requirements, whether or not known or in
effect as of the date hereof, regarding capital requirements for banks or bank
holding companies generally, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by such Lender with any of the foregoing, either imposes a
requirement upon such Lender to allocate additional capital resources or
increases such Lender's requirement to allocate capital resources or such
Lender's commitment to make, or to such Lender's maintenance of the Term
Loans, which has or would have the effect of reducing the return on such
Lender's capital to a level below that which such Lender could have achieved
(taking into consideration such Lender's then existing policies with respect
to capital adequacy and assuming full utilization of such Lender's capital)
but for such applicability, change, interpretation, administration or
compliance, by any amount deemed by such Lender to be material, such Lender
shall promptly after its determination of such occurrence give notice thereof
to the Borrower accompanied by an opinion of counsel to such Lender with
respect to such matters, the cost of which opinion shall be paid by Borrower.
Borrower and such Lender shall thereafter attempt to negotiate in good faith
an adjustment to the compensation payable hereunder which will adequately
compensate such Lender for such reduction. If Borrower and such Lender are
unable to agree on such adjustment within thirty (30) days of the date on
which Borrower receives such notice, then commencing on the date of such
notice (but not earlier than the effective date of any such applicability,
change, interpretation, administration or compliance), the
<PAGE>
fees payable hereunder shall increase by an amount which will, in such Lender's
reasonable determination, evidenced by calculations in reasonable detail
furnished to Borrower, compensate such Lender for such reduction, such Lender's
determination of such amount to be conclusive and binding upon Borrower, absent
manifest error. In determining such amount, such Lender may use any reasonable
methods of averaging, allocating or attributing such reduction among its
customers.
Section 2.8 USE OF PROCEEDS. The proceeds of the Term Loans hereunder
shall be advanced to the Borrower pursuant to the terms of the Agreement and
used by Borrower: (a) to pay the fees and expenses associated with the
transactions contemplated hereby, (b) Permitted Capital Expenditures, (c) to the
extent (a) and (b) are fully reserved for, amounts shown on the Budget; and (d)
such other amounts and payees as the Agent shall approve. Borrower will not,
directly, or indirectly, use any part of such proceeds for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System or to extend credit to any
Person for the purpose of purchasing or carrying any such margin stock. Borrower
may draw up to $2,000,000.00 for the purpose of payment to American Ski in
connection with the capitalization of the Borrower. This payment shall be
permitted as the only Distribution permitted by the Borrower other than
reimbursements to American Ski for payroll expenses of the Borrower and the
Borrower Subsidiaries.. This provision shall control over the provisions of
Section 9.6.
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES
Section 3.1 CONDITIONS TO THE TERM LOANS. The Lenders' obligations to
make the Term Loans shall be subject to compliance by Borrower with its
agreements contained in this Agreement, and to the condition precedent that the
Lenders shall have received each of the following, in form and substance
satisfactory to the Agent and its counsel or in the form attached hereto as an
Exhibit, as the case may be:
(a) NOTES. The Term Loan Notes duly executed by the Borrower.
(b) RESOLUTIONS. Copies of the resolutions of the Board of Directors of
Borrower authorizing the execution, delivery and performance of this Agreement,
the Term Loan Notes, the Security Agreements and the other Lender Agreements to
which the Borrower or any Subsidiary is a party, certified by the Secretary or
an Assistant Secretary (or Clerk or Assistant Clerk) of Borrower and each of its
Subsidiaries (which certificate shall state that such resolutions are in full
force and effect).
(c) INCUMBENCY. A certificate of the Secretary or an Assistant Secretary
(or Clerk or Assistant Clerk) of Borrower certifying the name and signatures of
the officers of Borrower authorized to sign this Agreement, the Term Loan Notes,
the Security Agreements, the other Lender Agreements to which Borrower or any
Subsidiary is a party and the other documents to be delivered by Borrower
hereunder.
(d) CERTIFICATES OF EXISTENCE. Certificates of legal existence,
corporate or partnership good standing and foreign qualification for Borrower of
recent
<PAGE>
date issued by the appropriate California, Colorado, Delaware, Maine, Nevada,
New Hampshire, Utah and Vermont Governmental Authorities.
(e) CERTIFICATES OF TAX GOOD STANDING. Certificate of tax good standing
for Borrower, each Borrower and each other Subsidiary of Borrower of recent date
issued by the appropriate California, Colorado, Delaware, Maine, Nevada, Utah
and Vermont Governmental Authorities.
(f) LEGAL OPINIONS. The opinions of counsel to the Borrower, dated the
date of execution of this Agreement, in form acceptable to counsel for the
Lenders.
(g) SATISFACTION OF CONDITIONS. A certificate of the chief operating
officer or chief financial officer of Borrower, dated the Closing Date, to the
effect that all conditions precedent on the part of the Borrower to the
execution and delivery hereof and the making of the Term Loans have been
satisfied.
(h) GOVERNMENTAL APPROVALS. Evidence of the receipt of all necessary
governmental authorizations, consents and approvals for the execution, delivery
and performance by Borrower and its Subsidiaries party thereto of this
Agreement, the Term Loan Notes, the Security Agreements and the other Lender
Agreements.
(i) CLOSING FEE. Receipt by the Agent for the account of the Lenders of
the closing fees due to it pursuant to the Fee Letter.
TITLE. The Designated Properties have been conveyed to Borrower
and Borrower owns fee simple title or other title acceptable to the Lenders with
respect to the Designated Properties.
(k) PURCHASE OPTION. Borrower is the owner, without encumbrance or
other interest, of the Purchase Option.
(1) MARRIOTT. Borrower has assigned a first in priority security
interest (subject to perfection) in the distribution interest of Borrower in the
Marriott Joint Venture.
(in) SECURITY AGREEMENTS. Each of the Security Agreements shall have
been duly and properly authorized, executed and delivered by the parties thereto
and shall be in full force and effect, subject to perfection as provided herein,
and pursuant to the Security Agreements the Borrower shall have granted to the
Agent first valid and binding security interests, liens and encumbrances on all
of the assets of Borrower (other than de minimis or non core assets of the
Borrower and restricted cash balances and investments of the disbursed loan
proceeds) in favor of the Agent (subject only to permitted Liens including
without limitation:
<PAGE>
(i) all fee simple and leasehold interests in and to all real
property owned or leased by Borrower, and all buildings and improvements now
located or to be constructed thereon, whether now owned or hereafter acquired;
(ii) all tangible and intangible assets of Borrower, whether now
owned or hereafter acquired, including without limitation all
machinery, equipment, furniture, furnishings, inventory, appliances,
contract rights, deposit accounts, cash collateral, hotel and motel
revenues, instruments, general intangibles, etc., whether now owned or
hereafter acquired, but excluding leasehold personal property interests
which Borrower is prohibited by the lessor from assigning and any
interest in any personal property lease agreement which Borrower is
prohibited from assigning;
(iii) all leases, tenancies, purchase and sale agreements for
the sale of condominium units or other property, operating agreements,
contract and rental agreements for the lease, sale (as permitted
hereunder), rental, occupancy, hire or use of any of Borrower's assets,
including without limitation the Mortgaged Properties, or any portion
thereof together with all income, profits, revenues, cash collateral
and other proceeds thereof, and
(iv) all licenses, permits, trade names, patents, trademarks,
approvals and contracts..
(n) INSURANCE. The Agent shall have received (i) certificates of
insurance as to the liability, hazard and other insurance maintained by Borrower
on the Collateral in conformity with the insurance requirements contained herein
(including flood insurance if necessary) from the insurer or an independent
insurance broker dated as of the Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms all in accordance with the
provisions of the Security Agreements; (ii) certified copies of all policies
evidencing such insurance (or certificates therefor signed by the insurer or an
agent authorized to bind the insurer); and (iii) such further information and
certificates from Borrower, its insurers and insurance brokers as the Agent may
request.
(o) LEASES/SERVICE CONTRACTS The Agent shall have received copies of all
material service contracts and leases affecting any portion of the Mortgaged
Properties.
(p) SUBORDINATION AGREEMENT. The Agent shall have received the executed
Subordination Agreement.
(q) MISCELLANEOUS. The Agent shall have received such other documents,
certificates and opinions as the Agent or the Lenders may reasonably request.
<PAGE>
ARTICLE 4. PAYMENT AND REPAYMENT
Section 4.1 MANDATORY REPAYMENTS AND PREPAYMENTS.
Borrower shall repay the Term Loans in full on the Term Loan
Maturity Date.
Section 4.2 VOLUNTARY PREPAYMENTS.
Borrower may make prepayments to the Agent for the
ratable-accounts of the Term Loan Lenders, of any outstanding principal amount
of the Term Loans, at any time.
Section 4.3 PAYMENT OR OTHER ACTIONS ON NON-BUSINESS DAYS. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be. In the case of any other action
the last day for performance of which shall be a day other than a Business Day,
the date for performance shall be extended to the next succeeding Business Day.
Section 4.4 METHOD AND TIMING OF PAYMENTS. Borrower shall make each
payment to be made by Borrower hereunder not later than 3:00 noon (Boston time)
on the day when due in lawful money of the United States to the Agent at its
address set forth in Section 16.1 in immediately available funds. The Agent
will, after its receipt thereof, distribute like funds relating to the payment
of principal, interest or any other amounts payable hereunder ratably to the
Lenders in accordance with their respective Commitment Percentages. Any payment
made by Borrower to the Agent under this Agreement or under the Notes in the
manner provided in this Agreement shall be deemed to be a payment to each of the
respective Lenders, unless the provisions of this Agreement expressly provide
that any such payment shall be solely for the account of the Agent or any
specific Lender.
Section 4.5 CURRENCY. All payments and prepayments provided for under
this Agreement shall be made in lawful currency of the United States of America
in immediately available funds,
Section 4.6 FOREIGN LENDERS. Each Lender (including any Successor
Lender) that is not a citizen or resident of the United, States of America, a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless of the
source of its income (a "Non-U.S. Lender") shall deliver to Borrower and the
Agent (or, in the case of a Credit Participant, to the Lender from which the
related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form I 00 I or Form 4224, or, in the case of a Non-U.
S. Lender claiming exemption from U.S. federal withholding tax under Section 871
(h) or 881 (c) of the Code with respect to payments of "portfolio interest," a
Form W-8, or any subsequent
<PAGE>
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, an annual certificate representing that such Non-U.S. Lender is not a
"bank" for purposes of Section 881 (c) of the Code, is not a 10% shareholder
(within the meaning of Section 871 (h)(3)(B) of the Code) of Borrower and is not
a controlled foreign corporation related to Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by Borrower under this Agreement and the
other Lender Agreements. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement (or, in the case of
any Credit Participant, on or before the date such Credit Participant purchases
the related participation), In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 4.6, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this Section 4.6 that such
Non-U.S. Lender is not legally able to deliver.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make the Loans as contemplated hereby,
Borrower hereby makes the following representations and warranties:
Section 5.1 EXISTENCE, CHARTER AND FORMATION DOCUMENTS, ETC. Borrower is
a corporation, and is validly organized, legally existing and in good standing
under the laws of the jurisdiction in which it is organized and has corporate
power to own its properties and conduct its business as now conducted and as
proposed to be conducted by it. Certified copies of the charter documents and
By-Laws of Borrower have been delivered to the Lenders and are true, accurate
and complete as of the date hereof.
Section 5.2 PRINCIPAL PLACE OF BUSINESS: LOCATION OF RECORDS. Borrower's
and each Subsidiary's principal place of business is as described on SCHEDULE
5.2. All of the books and records or true and complete copies thereof relating
to the accounts and contracts of Borrower are and will be kept at such location
and at the other locations designated on SCHEDULE 5.2.
Section 5.3 QUALIFICATION. Borrower and each Subsidiary is duly
qualified, licensed and authorized to do business and is in good standing as a
foreign corporation or partnership in each jurisdiction where its ownership or
leasing of properties or the conduct of its business requires it to be so
qualified except to the extent that any failure to be so qualified would not
have a Material Adverse Effect.
<PAGE>
Section 5.4 SUBSIDIARIES.
(a) Borrower has no Subsidiaries except for THE Borrower Subsidiaries.
(b) There are no transactions or relationships between Borrower and
American Ski or its Subsidiaries except for the Intercompany Debt, except as
disclosed on SCHEDULE 5.4.
Section 5.5 POWER. The execution, delivery and performance of this
Agreement, the Term Notes, the Security Agreements and all other Lender
Agreements and other documents delivered or to be delivered by Borrower to the
Agent or the Lenders, and the incurrence of Indebtedness to the Lenders
hereunder or thereunder, now or hereafter owing:
(a) are within the powers of Borrower, having been duly authorized by
its Board of Directors or other similar governing body, and, if required by
law, by its charter documents or by its By-Laws, by its stockholders or
partners;
(b) do not require any approval or consent of, or filing with, any
governmental agency or other Person (except for such approvals and consents
that have been obtained and delivered to the Lenders) and are not in
contravention of law or the terms of the charter documents or By-Laws of
Borrower or any amendment thereof,
(c) do not and will not
(i) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which Borrower or any Subsidiary or American Ski is a
party or by which Borrower or any Subsidiary or American Ski or any of
their respective properties are bound or affected, except for those
breaches or defaults which have been waived or consented to in writing
or which will not in the aggregate result in a Material Adverse Effect,
(ii) result in a violation of or default under any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award having applicability to Borrower or any Subsidiary, or to any of
their respective properties.
Section 5.6 VALID AND BINDING OBLIGATIONS. This Agreement, the Term
Loan Notes, the Security Agreements and all the other Lender Agreements
executed in connection herewith and therewith constitute, or will constitute
when delivered, the valid and binding obligations of Borrower, enforceable in
accordance with their respective terms, except as the enforceability thereof
may be subject to bankruptcy, insolvency, moratorium and other laws affecting
the rights and remedies of creditors and secured parties and to the exercise
of judicial discretion in accordance with general equitable principles,
subject to perfection as provided herein.
<PAGE>
Section 5.7 OTHER AGREEMENTS. Borrower is not a party to any indenture,
loan or credit agreement, or any lease or other agreement or instrument, or
subject to any charter or corporate restriction or any judgment, decree, order,
rule or regulation, which is likely to have a Material Adverse Effect, or which
restricts the ability of Borrower to carry out any of the provisions of this
Agreement, the Term Loan Notes, the Security Agreements or any of the Lender
Agreements executed in connection herewith and therewith except for the
compliance by Borrower with the provisions of Section 1 1.2.
Section 5.8 PAYMENT OF TAXES. Borrower has filed all tax--returns which
are required to be filed and has paid, or made adequate provision for the
payment of, all taxes which have or may become due pursuant to said returns or
to assessments received, except such as are being contested in good faith by
appropriate proceedings.
Section 5.9 FINANCIAL STATEMENTS.
(a) All balance sheets, statements and other financial information
furnished to the Agent and the Lenders in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, the pro forma
financial statement dated August 24, 1998, has been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved (except for normal year-end adjustments and for the absence of
footnotes with interim statements) and present fairly the consolidated financial
condition of Borrower and its Subsidiaries reported therein and all such
information so furnished was true, correct and complete as of the date thereof,
in all material respects.
(b) To the best knowledge of Borrower, no facts exist that (individually
or in the aggregate) would result in any material change in any of such
projections.
Section 5.10 OTHER MATERIALS FURNISHED. The written information,
exhibits. memoranda or reports furnished to the Agent or the Lenders by or on
behalf of Borrower in connection with the negotiation of this Agreement, taken
as a whole, does not contain any material misstatement of fact or omit to state
a material fact necessary to make the statements contained therein not
misleading.
Section 5.11 STOCK. As of the date hereof, the issued and outstanding
capital stock of Borrower is as set forth on SCHEDULE 5.4 hereto. There are
presently issued by Borrower and outstanding the shares of capital stock
indicated on SCHEDULE 5.4. Borrower has received the consideration for which
such stock was authorized to be issued and have otherwise complied with all
legal requirements relating to the authorization and issuance of shares of stock
and all such shares are validly issued, fully paid and non-assessable. Borrower
has no other capital stock of any class outstanding.
Section 5.12 CHANGES IN CONDITION. Since the date of formation, there
has been no material adverse change in the business or assets or in the
condition, financial or otherwise, of Borrower and its Subsidiaries taken as a
whole, and neither Borrower nor any Subsidiary have entered into any transaction
outside of the ordinary course of
<PAGE>
business which is material to Borrower and its Subsidiaries taken as a whole.
Neither Borrower nor any Subsidiary have, as of the date thereof, any
contingent liabilities of any material amount.
Section 5.13 ASSETS, LICENSES, PATENTS, TRADEMARKS, ETC.
(a) Borrower has good and marketable title to, or valid leasehold
interests in, all of their assets, real and personal, including the Designated
Properties and the Purchase Option, subject to no liens, charges or
encumbrances, except for liens, charges and encumbrances described in SCHEDULE
5.13 and permitted by Section 9.2 hereof.
(b) Borrower owns all material licenses, patents, patent applications,
copyrights, service marks, trademarks, trademark applications, and trade names
necessary to continue to conduct its business.
(c) Except as set forth on SCHEDULE 5.13(C) hereto, no leasehold
personal property interest which Borrower is prohibited by the lessor from
assigning and no interest in any personal property lease agreement which
Borrower is prohibited from assigning is material, or taken as a whole are
material, to the operations of Borrower.
Section 5.14 LITIGATION. There is no litigation, at law or in equity,
or any proceeding before any federal, state, provincial or municipal board or
other governmental or administrative agency pending or, to the knowledge of
Borrower, threatened, or any basis therefor, which involves a material risk of
any judgment or liability which could have a Material Adverse Effect, and no
judgment, decree, or order of any federal, state, provincial or municipal
board or other governmental or administrative agency has been issued against
Borrower or any of its Subsidiaries which has or may have a Material Adverse
Effect.
Section 5.15 PENSION PLANS. No employee benefit plan established or
maintained by Borrower or any of its Subsidiaries or any other Person a member
of the same "control group," as American Ski or any of its Subsidiaries (a
"Pension Affiliate"), within the meaning of Section 302(f)(6)(b) of ERISA,
(including any multi-employer plan to which American Ski or any of its
Subsidiaries contributes) which is subject to Part 3 of Subtitle B of Title I
of the ERISA, had a material accumulated funding deficiency (as such term is
defined in Section 302 of ERISA) as of the last day of the most recent fiscal
year of such plan ended prior to the date hereof, or would have had an
accumulated funding deficiency (as so defined) on such day if such year were
the first year of such plan to which Part 3 of Subtitle B of Title I of ERISA
applied, and no material liability under Title IV of ERISA has been, or is
expected by Borrower or any of its Subsidiaries to be, incurred with respect
to any such plan by Borrower or any of its Subsidiaries or any Pension
Affiliate. The execution, delivery and performance by American Ski and the
Borrower of this Agreement and the other Lender Agreements executed on the
date hereof will not involve any prohibited transaction within the meaning of
ERISA or Section 4975 of the Code. Borrower and its Subsidiaries have no
Pension Plan other than those described on SCHEDULE 5.15.
<PAGE>
Section 5.16 OUTSTANDING INDEBTEDNESS. After application of the
proceeds of the Term Loans, the outstanding amount of borrowed money of
Borrower and its Subsidiaries as of the date hereof is correctly set forth on
SCHEDULE 5.16 hereto, and said Schedule correctly describes the credit
agreements, guaranties, leases and other instruments pursuant to which such
Indebtedness has been incurred and all liens, charges and encumbrances
securing such Indebtedness. Said schedule also describes all agreements and
other arrangements pursuant to which Borrower or any of its Subsidiary may
borrow any money.
Section 5.17 ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE
5.17:
(a) Neither Borrower, any Subsidiaries, nor any operator of any of their
respective properties is in violation, or to Borrower's knowledge is in alleged
violation, of any Environmental Law, which violation would have a Material
Adverse Effect.
(b) Neither Borrower, nor any operator of any of their respective
properties has received notice from any third party, including without
limitation any federal, state, county, or local governmental authority, (i) that
it has been identified as a potentially responsible parry under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA") or any equivalent state law, with respect to any site or
location; (ii) that any Hazardous Materials which it has generated, transported
or disposed of, has been found at any site at which a federal, state, county, or
local agency or other third party has conducted or has ordered Borrower, or
another third party or parties (E.G. a committee of potentially responsible
parties) to conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a named party
to any claim, action, cause of action, complaint (contingent or otherwise) or
legal or administrative proceeding arising out of any actual or alleged release
or threatened release of Hazardous Materials. For purposes of this Agreement,
"release" means any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping of any Hazardous Material into the Environment, or the
uncontained presence of any Hazardous Material in the Environment.
(c) (i) Borrower, and each operator of any real property owned or
operated by Borrower is in compliance, in all material respects, with all
provisions of the Environmental Laws relating to the handling, manufacturing,
processing, generation, storage or disposal of any Hazardous Materials; (ii) to
the best of Borrower's knowledge, no portion of property owned, operated or
controlled by Borrower has been used for the handling, manufacturing,
processing, generation, storage or disposal of Hazardous Materials except in
accordance with applicable Environmental Laws; (iii) to the best of Borrower's
knowledge, there have been no releases or threatened releases of Hazardous
Materials on, upon, into or from any property owned, operated or controlled by
Borrower, which releases could have a Material Adverse Effect; (iv) to the best
of Borrower's knowledge, there have been no releases of Hazardous Materials on,
upon, from or into any real property in the vicinity of the real properties
owned, operated or controlled by Borrower which, through soil or groundwater
contamination, may have come to be
<PAGE>
located on the properties of Borrower; (v) to the best of Borrower's knowledge,
there have been no releases of Hazardous Materials on, upon, from or into any
real property formerly but no longer owned, operated or controlled by Borrower.
(d) None of the properties of Borrower is or shall be subject to any
applicable environmental cleanup responsibility law or environmental restrictive
transfer law or regulation by virtue of the transactions set forth herein and
contemplated hereby.
Section 5.18 FOREIGN TRADE REGULATIONS. Borrower is not (a) a person
included within the definition of "designated foreign country" or "national" of
a "designated foreign country" in Executive Order No. 8389, as amended, in
Executive Order No. 9193, as amended, in the Foreign Assets Control Regulations
(31 C.F.R., Chapter V, Part 500, as amended), in the Cuban Assets Control
Regulations of the United States Treasury Department (31 C.F.R., Chapter V, Part
515, as amended) or in the Regulations of the Office of Alien Property,
Department of Justice (8 C.F.R., Chapter 11, Part 507, as amended) or within the
meanings of any of the said Orders or Regulations, or of any regulations,
interpretations, or rulings issued thereunder, or in violation of said Orders or
Regulations or of any regulations, interpretations or rulings issued thereunder;
or (b) an entity listed in Section 520. 1 01 of the Foreign Funds Control
Regulations (31 C.F.R., Chapter V, Part 520, as amended).
Section 5.19 GOVERNMENTAL REGULATIONS. Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940, or is a common carrier under the
Interstate Commerce Act, or is engaged in a business or activity subject to any
statute or regulation which regulates the incurring by Borrower of Indebtedness
for borrowed money, including statutes or regulations relating to common or
contract carriers or to the sale of electricity, gas, steam, water, telephone or
telegraph or other public utility services.
Section 5.20 MARGIN STOCK. Borrower does not own any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, or any regulations, interpretations or rulings thereunder, nor
is Borrower engaged principally or as one of its important activities in
extending credit which is used for the purpose of purchasing or carrying margin
stock.
Section 5.21 SOLVENCY. Borrower, before and after giving effect to the
transactions contemplated by this Agreement and the other Lender Agreements is
Solvent.
Section 5.22 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS. EM.
(a) Borrower is not in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could result in a Material Adverse Effect.
<PAGE>
(b) Borrower has complied in all respects with the requirements of the
Hart-Scott-Rodino Anti-Trust Improvement Act of 1976, as amended (the "HSR
Act")
Section 5.23 ABSENCE OF FINANCING STATEMENTS, ETC. To the best
knowledge of Borrower and except with respect to Permitted Liens, there is no
financing statement, security agreement, chattel mortgage, real estate
mortgage or other document filed or recorded with any filing records, registry
or other public office, that purports to cover, effect or give notice of any
present or possible future lien on, or security interest in, any assets or
property of Borrower or any Subsidiary or any rights relating thereto.
Section 5.24 FISCAL YEAR ' Borrower has a fiscal year which is the
twelve-months ending on the last Sunday of July of each year.
Section 5.25 TAX STATUS. Borrower is a "C" corporation for all purposes
under the Code.
Section 5.26 PURCHASE OPTION. The Purchase Option is in full force and
effect and no event of default or default exists thereunder. No consent or
approval of the optionor is required for the pledge of the interest of the
Borrower to Lender thereunder.
Section 5.27 LEASES. The Leases are in full force and effect and no
event of default or default exists thereunder. No consent is required for the
pledge of the interest of the Borrower to the Lender thereunder.
Section 5.28 PENDING FINANCING. Grand Summit and Canyons Resort are
currently negotiating terms for financing of construction of the Permitted
Projects with KeyCorp and Textron Financial Corporation, Borrower has received
term sheets with respect to such financing and Borrower knows of no reason or
condition that would prevent the closing of the foregoing proposed facilities.
Section 5.29 STATUS MEMORANDUM. The information contained in the Status
Memorandum is true and correct in all material respects.
ARTICLE 6. REPORTS AND INFORMATION
Section 6.1 FINANCIAL INFORMATION. Borrower shall provide to Lender
such financial information as the Agent may request. Borrower shall provide to
Lender a monthly Budget variance report.
Section 6.2 NOTICE OF DEFAULTS. As soon as possible, and in any event
within five (5) days after the occurrence of each Default, Borrower shall
furnish to the Agent and each Lender the statement of their chief executive
officers or chief financial officers setting forth details of such Default and
the action which Borrower has taken or propose to take with respect thereto.
<PAGE>
Section 6.3 NOTICE OF LITIGATION. Promptly after the commencement
thereof, Borrower shall furnish to the Agent and each Lender written notice of
all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting Borrower, which, if adversely determined, would have a
Material Adverse Effect.
Section 6.4 REPORTABLE EVENTS. At any time that Borrower or any Pension
Affiliate has a Pension Plan, Borrower shall furnish to the Agent and each
Lender, as soon as possible, but in any event within thirty (30) days after
Borrower knows or has reason to know that any Reportable Event with respect to
any Pension- Plan has occurred, the statement of the chief executive officers
or chief financial officers of Borrower setting forth the details of such
Reportable Event and the action which Borrower or any Pension Affiliate h@
taken or proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event to the Pension Benefit Guaranty Corporation.
Section 6.5 COMMUNICATIONS WITH INDEPENDENT PUBLIC ACCOUNTANTS. At any
reasonable time and from time to time upon reasonable request, Borrower shall
provide the Agent and the Lenders and any agents or representatives of the
Agent and the Lenders access to the independent public accountants of Borrower
and its Subsidiaries to discuss their financial condition, including, without
limitation any recommendations of such independent public accountants
concerning the management, finances, financial controls or operations of
Borrower and its Subsidiaries.
Section 6.6 ENVIRONMENTAL REPORTS. In the event that and to the extent
that any of the following provides notice of circumstances, occurrences or
events that have or could reasonably be expected to have a material impact on
the operations of Borrower, the Borrower shall furnish to the Agent and each
Lender: (a) not later than seven (7) days after notice thereof, notice of any
enforcement actions, or, to the knowledge of Borrower, threatened enforcement
actions affecting Borrower or any Subsidiary by any Governmental Authority
related to Environmental Laws; (b) copies, promptly after they are received,
of all orders, notices of responsibility, notices of violation, notices of
enforcement actions, and assessments, and other written communications
pertaining to any such orders, notices, claims and assessments received by
Borrower or any Subsidiary from any Governmental Authority; (c) not later than
seven (7) days after notice thereof, notice of any civil claims or threatened
civil claims affecting Borrower or any Subsidiary by any third party alleging
any violation of Environmental Laws or harm to human health, safety or the
environment: (d) copies of all cleanup plans, site assessment reports,
response plans, remedial proposals, or other submissions of American Ski or
any Subsidiary, other third party (e.g., committee of potentially responsible
parties at a Superfund site), or any combination of same, submitted to a
Governmental Authority in response to any communication referenced in
subsections (a) and (b) herein simultaneously with their submission to such
Governmental Authority; and (e) from time to time, on reasonable request of
the Agent, evidence satisfactory to the Agent of Borrower and its
Subsidiaries' insurance coverage, if any, for any environmental liabilities.
<PAGE>
Section 6.7 MISCELLANEOUS. Borrower shall provide the Agent and the
Lenders with such other information as the Agent or the Lenders may from time to
time reasonably request respecting the business, properties, prospects,
condition or operations, financial or otherwise, of Borrower and its
Subsidiaries.
Section 6.8 PURCHASE OPTION AND LEASES. Borrower shall take all actions
necessary to cause the Leases and the Purchase Option to remain in full force
and effect and to cause no event of default to occur or exist thereunder or
under the Purchase Money Mortgage.. Borrower hereby authorizes the Lenders to
take such actions as the Lenders may deem necessary to cause this warranty to
remain true and correct. Lenders may advance sums pursuant to the foregoing in
the from and after the expiration of ten (10) days from the giving of notice to
the Borrower of the intent of the Lender to undertake such action unless either
a Lease or the Purchase Option would terminate without immediate action and
then, in such event, Lenders may take immediate action hereunder. All funds so
advances shall be secured by the Security Agreements, bear interest at the
Default Rate of interest specified in the Notes and shall be immediately due and
payable.
Section 6.9 PERMITS, ZONING AND OTHER DEVELOPMENT RIGHTS. Borrower and
the Lenders acknowledge and recognize that the Mortgaged Properties are in
various stages of permitting for ultimate commercial development. Borrower shall
take such actions as are necessary to cause such permits to be issued and vested
in the Borrower and to be included in the Security Agreements. Borrower shall
provide such additional information and periodic reports as the Lenders may
request concerning the business plan and issuance of the foregoing permits,
zoning and development rights.
Section 6.10 MARRIOTT JOINT VENTURE. Borrower shall cause the Marriott
Joint Venture to remain in full force and effect and to cause no default or
event of default thereunder.
ARTICLE 7. FINANCIAL COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, Borrower shall observe the following covenants:
Section 7.1 MINIMUM TANGIBLE NET WORTH.
Borrower shall maintain a minimum Tangible Net Worth at all
times of not less than the sum of $60,000,000.00.
<PAGE>
ARTICLE 8. AFFIRMATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, Borrower will, comply with the following covenants
and provisions:
Section 8.1 REPRESENTATIONS AND WARRANTIES. Borrower shall take all
actions necessary in order to cause the representations and warranties set forth
in this Agreement to be true, accurate and in full force and effect.
Section 8.2 TAXES AND OTHER OBLIGATIONS. Borrower (a) will duly pay and
discharge, or cause to be paid and discharged, before the same shall become in
arrears, all material taxes, assessments and other governmental charges, imposed
upon each of them and its properties, sales and activities, or upon the income
or profits therefrom, as well as the claims for labor, materials, or supplies
which if unpaid might by law result in a lien or charge upon any of its
properties; PROVIDED, HOWEVER, that Borrower may contest any such charges or
claims in good faith so long as (i) an adequate reserve therefor has been
established and is maintained if and as required by generally accepted
accounting principles and (ii) no action to foreclose any such lien has been
commenced and (b) will promptly pay or cause to be paid when due, or in
conformance with customary trade terms (but not later than 60 days from the due
date in the case of trade debt), all material lease obligations, trade debt and
all other Indebtedness incident to its operations. Borrower shall cause all
applicable tax returns and all amounts due thereunder to be filed and paid, as
the case may be, in order to maintain its good standing with the Internal
Revenue Service and state, local and foreign tax authorities.
Section 8.3 MAINTENANCE OF PROPERTIES AND LEASES. Borrower shall
maintain, keep and preserve all of its material properties (tangible and
intangible) including the Mortgaged Properties in good repair and working order,
ordinary wear and tear excepted. Borrower shall replace and improve its material
properties as necessary for the conduct of its business. Borrower and each
Subsidiary shall comply in all material respects with all leases naming it as
lessee.
Section 8.4 INSURANCE. The Borrower will maintain with financially sound
and reputable insurers insurance with respect to its properties and business
against such casualties and contingencies including windstorm and hurricane
insurance and as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas, and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent in accordance with sound business practices. With respect to the
Collateral, all such insurance shall be in such amount, such form, for such
periods and written by such companies as may be reasonably satisfactory to the
Agent and shall be payable to the Agent and to the Borrower, as the case may be,
as their interests may appear. If a Default then exists, the Agent may apply all
proceeds received by it to pay the Obligations hereunder in such order as it
shall determine in its discretion; but if no Default then exists, then the
Borrower shall have the right to determine whether to apply such proceeds
against the Obligations or against the costs of repairing or restoring the
damage to the Mortgaged Property. All policies of
<PAGE>
insurance shall provide for a minimum thirty (30) days prior written minimum
cancellation notice to the Agent and shall name the Agent as additional insured
party, and, in the case of the Collateral, shall name the Agent as mortgagee and
loss payee. Certificates of insurance (or, if requested by the Agent, certified
copies of policies) with respect to all renewals or replacements of such
insurance from time to time in force together with evidence of payment of
premiums thereon satisfactory to the Agent shall be delivered to the Agent at
least ten (10) days before the expiration date of then current insurance. No
settlement on account of any loss covered by such insurance shall be made
without the consent of the Agent. In the event of failure to provide and
maintain insurance as herein provided, the Agent may, at its option, after
giving notice to the Borrower, as applicable, provide such insurance and charge
the amount thereof to the Borrower (including by making an Advance therefor).
The Borrower shall furnish to the Agent certificates or other evidence
satisfactory to the Agent of compliance with the foregoing insurance provision.
Without limiting the foregoing, the Borrower will (i) keep all of its physical
property insured against fire and extended coverage risks in amounts and with
deductibles and endorsements acceptable to the Agent (ii) maintain all such
workers' compensation or similar insurance as may be required by law, and (iii)
maintain, in amounts, deductibles and endorsements acceptable to the Agent,
general public liability insurance against claims for bodily injury, death or
property damage occurring on, in or about the properties of the Borrower and
business interruption insurance, and (iv) in the event the Property or any
portion thereof is located in a flood hazard area identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968, as amended by the Flood Disaster Act of 1973 (and any successor Act
thereto), maintain a flood insurance policy as required by the Flood Disaster
Act of 1973. The Borrower shall at all times comply with and conform to all
provisions of each such insurance policy and to all requirements of the insurers
thereunder applicable to Borrower the Property or to the use, occupation,
possession, operation, maintenance or repair of all or any portion of the
Property.
Section 8.5 RECORDS, ACCOUNTS AND PLACES OF BUSINESS. Borrower shall
maintain comprehensive and accurate records and accounts in accordance with
generally accepted accounting principles consistently applied. Borrower shall
maintain adequate and proper reserves. Borrower shall promptly notify the Agent
of (a) any changes in the places of business of Borrower and (b) any additional
places of business which may arise hereafter.
Section 8.6 INSPECTION. At any reasonable time and from time to time,
Borrower shall permit the Agent and the Lenders and any of the Agent's and the
Lenders' agents or representatives to examine and make copies of and abstracts
from the records and books of account of., and visit the properties of, Borrower
and to discuss the affairs, finances and accounts of Borrower with any of their
officers or directors and with American Ski's and its Subsidiaries' independent
accountants. In addition, the Agent shall be entitled, and Borrower shall permit
the Agent, to conduct field examinations of Borrower, at Borrower's sole expense
and at any time or times in the Agent's sole discretion.
<PAGE>
Section 8.7 MAINTENANCE OF ACCOUNTS. Borrower shall maintain their
principal concentration and disbursement accounts with the Agent.
Section 8.8 OWNERSHIP OF SUBSIDIARIES. Borrower will maintain legal and
beneficial ownership, directly or indirectly, of I 00% of the equity interests
of each of the Subsidiaries, except for its interest in Heavenly Resort which is
a partial percentage interest.
Section 8.9 DUE DILIGENCE MATTERS. Borrower agrees to provide to the
Lender, upon request, such surveys, evidence of zoning, title insurance
policies, appraisals, copies of permits, environmental reports, evidence of
utilities, and consents of lessors and optionors as the Lenders may request, all
at the sole cost and expense of the Borrower.
ARTICLE 9. NEGATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, Borrower covenants that Borrower will not and
Borrower will take such actions as are necessary to cause the Borrower
Subsidiaries not to:
Section 9.1 RESTRICTIONS ON INDEBTEDNESS. Create, incur, suffer or
permit to exist, or assume or guarantee, either directly or indirectly, or
otherwise become or remain liable with respect to, any Indebtedness, except the
following:
(a) Indebtedness to the Lenders and the Agent under this Agreement,
the Term Loan Notes, and the other Lender Agreements;
(b) the InterCompany Debt;
(c) such other subordinated indebtedness provided that the holder
thereof executes and delivers to the Lenders a Subordination Agreement
acceptable to the Lenders;
(d) the Purchase Money Mortgage;
(e) as to the Subsidiaries of Borrower, the Textron Facility and the
proposed financing facilities for the Permitted Construction Projects, and
indebtedness of a Subsidiary of Borrower associated with the exercise of
Borrower's rights under the Purchase Option (collectively "Permitted Financial
Facilities"); and
(f) the existing indebtedness set forth on Schedule 5.16.
Section 9.2 RESTRICTION ON LIENS. Create or incur or suffer to be
created or incurred or pen-nit to exist any encumbrance, mortgage, pledge, lien,
charge or
<PAGE>
other security interest of any kind upon any of its property or assets of any
character, whether now owned or hereafter acquired, or transfer any of such
property or assets for the purposes of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors, or acquire or agree or have an option to acquire any
property or assets upon conditional sale or other title retention agreement,
device or arrangement (including Capitalized Leases) or suffer to exist for a
period of more than 30 days after the same shall have been incurred any
Indebtedness against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over the claims of
its general creditors, or sell, assign, pledge or otherwise transfer for
security any of its accounts, contract rights, general intangibles, or chattel
paper (as those terms are defined in the UCC) with or without recourse (each of
the foregoing, a "Lien"); PROVIDED, HOWEVER, that Borrower may create or incur
or suffer to be created or incurred or permit to exist the following (the
"Permitted Liens"):
(a) The Purchase Money Mortgages;
(b) Deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or other
social security and liens for taxes, assessments or governmental charges or
levies and liens to secure claims for labor, material or supplies and liens
securing obligations to carriers, warehousemen and mechanics to the extent that
payment thereof shall not at the time be required to be made in accordance with
Section 8.2;
(c) Encumbrances in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property which do not
materially detract from the value of such property or impair its use in the
business of the owner or lessee;
(d) Liens (other than judgments and awards) created by or resulting from
any litigation or legal proceeding which has not yet resulted in an Event of
Default; PROVIDED that the execution or other enforcement thereof is effectively
stayed and the claims secured thereby are being actively contested in good faith
by appropriate proceedings satisfactory to the Agent;
(e) Liens arising by operation of law to secure landlords, lessors or
renters under leases or rental agreements made in the ordinary course of
business and confined to the premises or property rented;
(f) Liens in favor of the Agent for the benefit of the Lenders securing
the Lender Obligations, as and when such Liens are established; and
(g) the liens created with respect to the indebtedness set forth at
Section 9. 1 (e).
Nothing contained in this Section 9.2 shall permit Borrower to incur any
Indebtedness or take any other action or permit to exist any other condition
which would be in contravention of any other provision of this Agreement.
<PAGE>
Section 9.3 INVESTMENTS. Have outstanding or hold or acquire or make or
commit itself to acquire or make any Investment except the following:
(a) Investments having a maturity of less than one year from the date
thereof by the Borrower or any Subsidiary in: (i) obligations of the Agent or
any of the Lenders; (ii) obligations of the United States of America or any
agency or instrumentality thereof, (iii) repurchase agreements involving
securities described in clauses (i) and (ii) with the Agent or any of the
Lenders; and (iv) commercial paper which is rated not less than prime-one or A-
I or their equivalents by Moody's Investor Service, Inc. or Standard & Poor's
Corporation, respectively, or their successors.
(b) Investments received as consideration from the sale of assets
other-wise permitted hereunder, which Investments are pledged to the Agent on
terms and conditions acceptable to the Agent.
(c) Investments consisting of advances to employees in the ordinary
course of business.
(d) Investments acquired in connection with the bankruptcy or workout of
account debtors.
(e) The conveyance of sites for the Permitted Construction Projects to
the Subsidiaries of the Borrower and the investments permitted under Section
9.7.
Section 9.4 MERGERS, ACQUISITIONS, ETC.- Enter into any merger or
consolidation with or acquire all or substantially all of the assets of any
Person, or sell. assign, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person.
Section 9.5 TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate, except that Borrower (a) may pay
reasonable salaries, fees and bonuses to their directors, officers and employees
as are usual and customary in Borrower's business, (b) may enter into
transactions among each other on terms that are not materially less favorable to
Borrower than those which could be obtained at the time from Persons who are not
Affiliates and which transactions (to the extent in excess of $250,000 for each
transaction or a series of related transactions) are disclosed to the Agent in
Compliance Certificates, and (c) Borrower may enter into and perform their
obligations under the Lender Agreements.
Section 9.6 DISTRIBUTIONS. Make any Distribution or make any other
payment on account of the purchase, acquisition, redemption, or other retirement
of any shares of stock, whether now or hereafter outstanding. The provisions of
this Section shall not apply to any Borrower Subsidiary.
<PAGE>
Section 9.7 CAPITAL EXPENDITURES. Make any Capital Expenditure, except
that Borrower may provide to Grand Summit and Canyons Resort a maximum of
fifteen percent (I 5%) equity on the Permitted Projects and except as provided
in the Budget.
Section 9.8 DISPOSITIONS OF ASSETS. Sell, lease or otherwise dispose of
any assets except for the sale, lease or other disposition of inventory,
including residential real property held for resale, in the ordinary course of
business and sales under the Marriott Joint Venture and dispositions permitted
under Section 9.3(e)..
Section 9.9 ASSUMPTIONS, GUARANTIES, ETC. OF INDEBTEDNESS OF OTHER
PERSONS. Assume, guarantee, endorse or otherwise be or become directly or
contingently liable (including, without limitation, by way of agreement,
contingent or otherwise, to purchase, provide funds for payment, supply funds to
or otherwise invest in any Person or otherwise assure the creditors of any such
Person against loss) in connection with any Indebtedness of any other, Person.
The Permitted Financial Facilities and the completion guaranty to be executed by
Borrower in connection with the proposed facility by KeyCorp as to the Permitted
Construction Project shall be permitted hereunder.
Section 9.10 ERISA. At any time while Borrower or any of its
Subsidiaries has a Pension Plan, permit any accumulated funding deficiency to
occur with respect to any Pension Plan or other employee benefit plans
established or maintained by American Ski or any of its Subsidiaries or to which
contributions are made by Borrower or any of its Subsidiaries (the "Plans"), and
which are subject to the "Pension Reform Act" and the rules and regulations
thereunder or to Section 412 of the Internal Revenue Code, and at all times
comply in all material respects with the provisions of the Act and Code which
are applicable to the Plans. Borrower will not permit the Pension Benefit
Guaranty Corporation to cause the termination of any Pension Plan under
circumstances which would cause the lien provided for in Section 4068 of the
Pension Reform Act to attach to the assets of Borrower or any of its
Subsidiaries.
Section 9.11 SALE AND LEASEBACK. Sell or transfer any of its properties
with the intention of taking back a lease of the same property or leasing other
property for substantially the same use as the property being sold or
transferred.
Section 9.12 RESTRICTIVE OR INCONSISTENT AGREEMENTS. Enter into any
agreement (a) other than the Lender Agreements which, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining or
otherwise imposes any materially adverse or burdensome condition upon, the
declaration or payment of dividends or distributions, the incurrence of
Indebtedness, the granting of liens, the making of loans or advances to Borrower
or the amendment or modification of any of the Lender Agreements or (b)
containing any provision that would be violated or breached by any Loan or the
performance by Borrower of its obligations hereunder or under any of the Lender
Agreements.
<PAGE>
Section 9.13 NO AMENDMENT OF MARRIOTT JOINT VENTURE,, INTER COMPANY
DEBT. PURCHASE OPTION AND LEASES. Borrower shall not modify or amend any of the
Marriott Joint Venture, InterCompany Debt, Purchase Money Option and the Leases.
Section 9.14 LIMITATION ON ISSUANCE OF CAPITAL STOCK. Borrower will not
issue any class of preferred stock or any class of redeemable common stock.
Section 9.17 PURCHASE MONEY MORTGAGES. Borrower shall not modify or
amend or permit a default or event of default to exist under any of the Purchase
Money Mortgages. Borrower will obtain the consent of the Mortgagees of each of
the Purchase Money Mortgages to this Agreement.
ARTICLE 10. PERFECTION OF SECURITY AGREEMENTS
Section 10.1 PERFECTION EVENT. Borrower has executed and delivered the
Security Agreements to Paul Hastings. Borrower hereby authorizes Paul Hastings
to establish an escrow with the Title Company whereby the Title Company agrees
to record the Security Agreements in the appropriate official records upon the
receipt by the Title Company of a notice by the Agent that a Perfection Event
has occurred. Borrower agrees that Paul Hastings shall have no obligation with
respect to the Security Agreements other than to deliver them to the Title
Company. Borrower agrees to execute such further documentation as the Title
Company may request in order to establish the procedure required hereunder.
Section 10.2 STATUS OF SECURITY DOCUMENTS. Borrower and the Lenders
acknowledge and recognize that the Security Agreements have been executed and
delivered but not perfected; the Security Agreements are valid and binding and
of full force and effect as of even date; and that the only remaining
requirement that exists with respect to the Security Agreements is the
Perfection Requirement.
ARTICLE 11. DESIGNATED PROPERTIES AND FURTHER ASSURANCES
Section 11.1 SELECTION OF MORTGAGED PROPERTIES. Borrower
and Lenders acknowledge and recognize that the Agent has relied upon certain
representations and warranties summarized in the memorandum attached as Schedule
I 1. I as to the Mortgaged Properties in order for the Agent to designate them
as Designated Properties. In the event any representations or warranties are
inaccurate or events contemplated therein as material to such property's value
as collateral do not materialize, Borrower and Agent shall exercise good faith
and due diligence to identify substitute properties owned by American Ski and
exchange the impaired parcel(s) for the identified parcels as newly Designated
Property, which shall become Mortgaged Property hereunder. Borrower and Agent
agree to undertake all such action as may be reasonably necessary to effect such
exchange.
<PAGE>
Section 11.2 FURTHER ASSURANCES. Borrower agrees that except as provided
herein the Mortgaged Properties are to be subject to a first in priority
security interest in favor of the Agent for the benefit of the Lenders. Borrower
shall take such actions as are necessary in order to cause the Security
Agreements to constitute a first in priority security interest on the Mortgaged
Property and related Development Fights and further to deliver to the Agent such
additional due diligence materials as the Lenders may request from time to time
with respect thereto. The provisions of this section shall include the
obligation to obtain within the number of days specified below following the
date hereof the following consents and approvals to the provisions of the Lender
Agreements as they affect the following:
(a) 45 days - assignment of the percentage interest of the Borrower in
and to Heavenly Resort consent of the other member of Heavenly Resort;
(b) 15 days - assignment of the Option to Purchase - consent of the
lessor under the Ground Lease Agreement between Wolf Mountain Resorts, L.C. and
ASC Utah, Inc. as assigned; it being the intent of the parties hereto that the
assignment of the Option to Purchase qualify as a leasehold mortgage permitted
under the foregoing Lease Agreement,
(c) 45 days - consent of the holders of the Purchase Money Mortgages.
ARTICLE 12. EVENTS OF DEFAULT AND REMEDIES
Section 12.1 EVENTS OF DEFAULT. Each of the following events shall be
deemed to be Events of Default hereunder:
(a) Borrower shall fail to make any payment in respect of (i) the
principal of any of the Lender Obligations as the same shall become due, whether
at the stated payment date, required prepayment or by acceleration, demand or
otherwise, or (ii) interest or commitment fees on or in respect of any of the
Lender Obligations as the same shall become due.
(b) Borrower shall fail to perform or observe any of the terms,
covenants, conditions or provisions hereof-, PROVIDED, HOWEVER, that with
respect to the terms, covenants, conditions and provisions of Article 6 only,
the Agent shall notify Borrower of Borrower's failure to provide the required
reports when due and the Agent shall allow Borrower five (5) days to comply with
the terms, covenants, conditions and provisions of Article 6.
(c) Borrower shall fail to perform or observe any other material term,
covenant, condition or provision to be performed or observed by Borrower under
this Agreement or any other Lender Agreement, and such failure shall not be
rectified or cured to the Agent's satisfaction within thirty (30) days after
written notice thereof to Borrower.
<PAGE>
(d) Any representation or warranty of Borrower or any Subsidiary herein
or in any other Lender Agreement or any amendment to any thereof shall have
been materially false or misleading at the time made or intended to be
effective.
(e) An event of default or termination shall occur under the Purchase
Money Mortgage, the Marriott Joint Venture, the Leases, or the Purchase
Option, a default under any of the Permitted Financial Facilities or should a
default occur under the Senior Facility.
(f) Borrower shall be involved in financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title 11 of
the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(ii) by its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed against it
commencing an involuntary case under said Title I 1, or seeking,
consenting to or acquiescing in the relief therein provided, or by its
failing to controvert timely the material allegations of any such
petition;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title I 1;
(iv) by its seeking relief as a debtor under any applicable law,
other than said Title I 1, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or by its consenting to or
acquiescing in such relief;
(v) by the entry of an order by a court of competent
Jurisdiction (1) finding it to be bankrupt or insolvent, (2) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors or (3) assuming custody of,
or appointing a receiver or other custodian for all or a substantial
part of its property and such order shall not be vacated or stayed on
appeal or otherwise stayed within 30 days;
(vi) by the filing of a petition against American Ski or any
Subsidiary under said Title 11 which shall not be vacated within 30
days; or
(vii) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for all
or a substantial part of its property.
(g) There shall have occurred a judgment against Borrower or any
Subsidiary in any court which constitutes a Material Adverse Effect.
<PAGE>
(h) American Ski shall cease to own, directly or indirectly, of record
and beneficially all of the issued and outstanding capital stock of Borrower.
(i) Any "Event of Default" under any other Lender Agreement.
0) Any of the Lender Agreements shall be canceled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Agent; or any Lender
Agreement, or any Lien granted thereunder, shall (except in accordance with its
terms or the terms of this Agreement), in whole or in part, terminate, cease to
be effective or cease to be the legally valid, binding and enforceable
obligation of any Borrower; or any Lien securing any Lender Obligation shall, in
whole or in part, cease to be a perfected first priority Lien, subject only to
those exceptions expressly permitted by a Lender Agreement or the terms of this
Agreement and except to the extent that any such Lien has ceased to be a
perfected first priority Lien solely due to an act or omission by the Agent or a
Lender; or any action at law suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Lender Agreements or the acquisition of all
or portions of the property affected by the Purchase Option.
(k) Borrower or any Subsidiary shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of Borrower or
such Subsidiary.
Section 12.2 REMEDIES. Upon the occurrence of an Event of Default, in
each and every case, the Agent may, and upon the request of the Majority Lenders
shall, proceed to protect and enforce the rights of the Agent and the Lenders by
suit in equity, action at law and/or other appropriate proceeding either for
specific performance of any covenant or condition contained in this Agreement or
any other Lender Agreement or in any instrument delivered to the Agent or the
Lenders pursuant hereto or thereto, or in aid of the exercise of any power
granted in this Agreement, any Lender Agreement or any such instrument, and
(unless there shall have occurred an Event of Default under Section 12.1 (f), in
which case the unpaid balance of the Lender Obligations shall automatically
become due and payable without notice or demand) by notice in writing to the
Borrower declare all or any part of the unpaid balance of the Lender Obligations
then outstanding to be forthwith due and payable, whereupon such unpaid balance
or part thereof shall become so due and payable without presentation, protest or
further demand or notice of any kind, all of which are hereby expressly waived,
and the Agent may proceed to enforce payment of such balance or part thereof in
such manner as the Agent may elect, and the Agent and each Lender may offset and
apply toward the payment of such balance or part thereof any Indebtedness of the
Agent or any Lender to any Borrower or to any Subsidiary, or to any obligor of
the Lender Obligations, including any Indebtedness represented by deposits in
any general or special account maintained with the Agent or any Lender or with
any other Person controlling, controlled by or under common control with the
Agent or any Lender.
Section 12.3 DISTRIBUTION OF PROCEEDS. Notwithstanding anything to the
contrary contained herein, in the event that following the occurrence or during
the
<PAGE>
continuance of any Event of Default, the Agent or any Lender receives any
monies on account of the Lender Obligations from the Borrower or otherwise,
such monies shall be distributed for application as follows:
(a) First, to the payment of or the reimbursement of, the Agent for or
in respect of all costs, expenses, disbursements and losses which shall have
been incurred or sustained by the Agent in connection with the collection of
such monies by the Agent, or in connection with the exercise, protection or
enforcement by the Agent of all or any of the rights, remedies, powers and
privileges of the Agent or the Lenders under this Agreement or any other
Lender Agreement;
(b) Second, to the payment of all interest, including interest on
overdue amounts, and late charges, then due and payable with respect to the
Loans, allocated among the Lenders in proportion to their respective
Commitment Percentages;
(c) Third, to the payment of the outstanding principal balance of the
Loans, allocated among the Lenders in proportion to their respective
Commitment Percentages;
(d) Fourth, to any other outstanding Lender Obligations, allocated
among the Lenders in proportion to their respective Commitment Percentages; and
(e) Fifth, the excess, if any, shall be returned to the Borrower or to
such other Persons as are entitled thereto.
ARTICLE 13. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES
Section 13.1 ACTIONS BY LENDERS. Except as otherwise expressly set
forth in any particular provision of this Agreement, any consent or approval
required or permitted by this Agreement to be given by the Lenders may be
given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance
by Borrower or any Subsidiary of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Borrower and
the Majority Lenders; PROVIDED, HOWEVER, that no amendment of Article 15 may
be made without the consent of the Agent without the written consent of all
Lenders:
(i) no reduction in the interest rates on or any fees
relating to the Loans shall be made;
(ii) no extension or postponement shall be made of the stated
time of payment of the principal amount of, interest on, or fees
payable to the Lenders relating to the Term Loans;
(iii) no change in the principal amount of the Term Loans and
extension of the Maturity Date shall be made;
<PAGE>
(iv) no release of all or substantially all of the collateral
security for, or any guarantor of, the Lender Obligations shall be
made; and
(v) no change in the definition of the term "Majority Lenders"
shall be made.
Section 13.2 ACTIONS BY BORROWER. No delay or omission on the Agent's or
the Lenders' part in exercising their rights and remedies against Borrower or
any other interested party shall constitute a waiver. A breach by Borrower of
its obligations under this Agreement may be waived only by a written waiver
executed by the Agent and the Lenders in accordance with Section 13. 1. The
Agent's and the Lenders' waiver of Borrower's breach in one or more instances
shall not constitute or otherwise be an implicit waiver of subsequent breaches.
To the extent permitted by applicable law, Borrower hereby agrees to waive, and
does hereby absolutely and irrevocably waive, (a) all presentments, demands for
performance, notices of protest and notices of dishonor in connection with any
of the Indebtedness evidenced by the Term Loan Notes (b) any requirement of
diligence or promptness on the Agent's or the Lenders' part in the enforcement
of their rights under the provisions of this Agreement or any Lender Agreement
and (c) any and all notices of every kind and description which may be required
to be given by any statute or rule of law with respect to its liability (i)
under this Agreement or m respect of the Indebtedness evidenced by the Term Loan
Notes or (ii) under any other Lender Agreement. No course of dealing between the
Borrower and the Lenders shall waive or modify the terms and conditions hereof.
This Agreement shall be amended only by a written instrument executed by the
Agent and the Lenders in accordance with Section 11.3 making explicit reference
to this Agreement. The Agent's and the Lenders' rights and remedies under this
Agreement and under all subsequent agreements between the Agent, the Lenders and
Borrower shall be cumulative and any rights and remedies expressly set forth
herein shall be in addition to, and not in limitation of, any other rights and
remedies which may be applicable to the Agent and the Lenders in law or at
equity.
ARTICLE 14. SUCCESSORS AND ASSIGNS
Section 14.1 GENERAL. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
(which shall include in the case of the Agent or any Lender any entity resulting
from a merger or consolidation) and assigns, except that (a) Borrower may not
assign its rights or obligations under this Agreement and (b) each Lender may
assign its rights in this Agreement only as set forth below in this Article 14.
Section 14.2 ASSIGNMENTS.
(a) CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same portion of the
Loan at the time
<PAGE>
owing to it, and the Notes held by it; provided that (a) the Agent shall have
given its prior written consent to such assignment, (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Agreement, (c) Agent may make partial
or non-voting assignments in amounts it deems appropriate (d) each Lender which
is a Lender on the date hereof shall retain, free of any such assignment, an
amount of its Commitment of not less than $5,000,000.00, and, as long as no
Default exists, Agent shall retain, free of any such assignment, of not less
than $I 5,000,000 provided that the Agent assign greater amounts of its
Commitment with the approval of the Borrower which shall not be unreasonably
withheld; and (e) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), an Assignment
and Acceptance, substantially in the form established by Administrative Agent
(an "Assignment and Acceptance"), together with any Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, but in no event prior to recording (i) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (ii) the assigning
Lender shall, to the extent provided in such assignment and upon payment to the
Agent of the registration fee referred to in Section 14.2.(c), be released from
its further obligations under this Agreement with respect to the interest
assigned.
Subject to the provisions of this Article 14, each Lender may at any
time assign or pledge its Loan or Note to a Federal Reserve Bank, and a Lender
which is a "fund" may at any time assign or pledge all or any portion of its
rights under this Agreement to secure such Lender's indebtedness, in each case
without the prior written consent of the Borrower, provided that each such
assignment shall be made in accordance with applicable law and shall be either
to a Federal Reserve Bank or Eligible Assignee, and no such assignment shall
release a Lender from any of its obligations hereunder. In order to facilitate
any such assignment, the Borrower shall, at the request of the assigning Lender,
duly execute a registered promissory note or notes evidencing the Lender
Obligations made or extended to the Borrower by the assigning Lender hereunder,
provided that the assignment is otherwise in compliance with the terms hereof
For avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this subsection concerning assignments do not prohibit assignments
creating security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law and the terms hereof.
(b) CERTAIN REPRESENTATIONS AND WARRANTIES;
LIMITATIONS; COVENANTS. By executing and delivering an Assignment and
Acceptance, the parties to the assignment thereunder confirm to and agree with
each other and the other parties hereto as follows: (a) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
the other Lender
<PAGE>
Agreements or any other instrument or document famished pursuant hereto; (b) the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Person primarily or secondarily liable in respect of any of the Lender
Obligations, or the performance or observance by the Borrower or any other
Person primarily or secondarily liable in respect of any of the Lender
Obligations or any of their obligations under this Agreement or any of the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; (c) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in ss. 8.7 and ss. I 1. 7 and such other documents and information as it has
deemed Appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (d) such assignee will, independently and
without reliance upon the assigning Lender, the Agent or any Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (e) such assignee represents and warrants that it is an Eligible
Assignee; (f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to the Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto; (g)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender; (h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and (i) such assignee
represents that it is acquiring the portion of the Loans assigned to it pursuant
to the Assignment and Acceptance for investment only and not with a view to or
with any intention to resell, distribute, subdivide or fractionalize such
portion in whole or in part, or grant any participation therein.
(c) REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment
Percentages and Commitments of, and principal amount of the Loans owing to the
Lenders from time to time as a condition to the effectiveness thereof. All
assignments of Loans or Commitment must be reported to the Agent to permit
registration in the Register. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and the Lenders at any reasonable time and from
time to time upon reasonable prior notice. Upon each such recordation, (i) the
assigning Lender agrees to pay to the Agent a registration fee in the sum of
$2,500.00; and (ii) the Agent will deliver a copy of the Register to the
Arranger and the Borrower.
(d) NEW NOTES. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (a) record the information contained therein in the
Register, and (b) give prompt notice thereof to the Borrower and the Lenders
(other than the assigning Lender). Within five (5) Business Days after receipt
of such notice, the Borrower, at its own expense, shall execute and deliver to
the Agent, in exchange for
<PAGE>
each surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has maintained some
portion of its obligations hereunder, a new Note to the order of the assigning
Lender in an 'amount equal to the amount retained by it hereunder. Such new
Notes shall provide that they are replacements for the surrendered Notes, shall
be in an aggregate principal amount equal to the aggregate principal amount of
the surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the Notes
delivered at the time of execution of this Agreement. Within five (5) Business
Days of issuance of any new Notes pursuant to this Article 14, the Borrower
shall deliver an opinion of counsel, addressed to the Lenders and the Agent,
relating to the due authorization, execution and delivery of such new Notes and
the legality, validity, enforceability and binding effect thereof. The
surrendered Notes shall be canceled and returned to the Borrower.
(e) NO ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Lenders.
(f) DISCLOSURE. Each Lender agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the Borrower and
provided to it by the Borrower, or by the Agent on Borrower's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Borrower, provided that such
source is not bound by a confidentiality agreement with the Borrower known to
the Lender; provided, however, that any Lender may disclose such information (A)
at the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
requirement of law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Lender or their respective
affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Lender's independent auditors and other professional advisors; (G) to
any participant or assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Lenders hereunder, and (H) as to any Lender, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Borrower is party or is deemed party with such
Lender.
(g) WITHHOLDING TAX.
<PAGE>
(i) If any Lender is a "foreign corporation, partnership or trust" within
the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the
Code, such Lender agrees with and in favor of the Agent, to deliver to
the Agent:
(1) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly
completed IRS Forms I 00 I and W-8 before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which
interest may be paid under this Agreement;
(2) if such Lender claims that interest paid under this Agreement is
exempt from United States withholding tax because it is
effectively connected with a United States trade or business of
such Lender, two properly completed and executed copies of IRS
Form 4224 before the payment of any interest is due in the first
taxable year of such Lender and in each succeeding taxable year
of such Lender during which interest may be paid under this
Agreement, and IRS Form W-9;
(3) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from,
or reduction of, United States withholding tax; and
(4) in the case of any Lender claiming exemption from U.S.
Withholding Tax under Section 871 (b) or 881 (c) of the Code,
with respect to payments of "Portfolio Interest", a Form W-8, or
any subsequent versions thereof or successors thereto and if the
Lender delivers a Form W-8, a certificate representing that such
Lender is not a bank for purposes of Section 881 (c) of the Code,
is not a ten percent (10%) shareholder (within the meaning of
Section 871 (h)(3)(b) of the Code) of the Borrower thereof, and
is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code). Each such
certificate and form shall be properly completed and duly
executed by such Lender claiming complete exemption from a
reduced rate of U.S. Withholding Tax on payments by the Borrower
under this Agreement and other Loan Documents.
<PAGE>
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(ii) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by
providing IRS Form I 00 I and such Lender sells,
assigns, grants a participation in, or otherwise
transfers all or part of the Lender Obligations of the
Borrower to such Lender, such Lender agrees to notify
the Agent of the percentage amount in which it is no
longer the beneficial owner of Lender Obligations of
the Borrower to such-Lender. To the extent of such
percentage amount, the Agent will treat such Lender's
IRS Form I 00 I as no longer valid.
(iii) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent,
sells, assigns, grants a participation in, or otherwise
transfers all or part of the Lender Obligations of the
Borrower to such Lender, such Lender agrees to
undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441
and 1442 of the Code.
(iv) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold.
from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or
other documentation required by subsection (a) of this
ss. 19.7 are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Lender
not providing such forms or other documentation an
amount equivalent to the applicable withholding tax.
(v) If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a
claim that the Agent did not properly withhold tax
from amounts paid to or for the account of any
Lender (because the appropriate form was not
delivered, was not properly executed, or because
such Lender failed to notify the Agent of a change
in circumstances which rendered the exemption
from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender
shall indemnify the Agent fully for all amounts
paid, directly or indirectly, by the Agent as tax
or otherwise, including penalties and interest,
and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent
under this Article 14 together with all costs and
expenses (including reasonable attorney's fees and
legal expenses). The obligation of the Lenders
under this subsection (e) shall survive the
payment of all Lender Obligations and the
resignation or replacement of the Agent.
<PAGE>
5. Borrower and the Lenders acknowledge and recognize that BankBoston, N.A. is
the agent under the Senior Facility and, in such capacity, may take actions
which may be in conflict with or detrimental to this facility, the Borrower and
the Lenders. Borrower and Lenders agree that such BankBoston, N.A. may serve in
both capacities and take such actions as it deems necessary as the agent of both
this facility and under the Senior Facility.
ARTICLE 15. THE AGENT
Section 15.1 AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Agent to take such action on its behalf and to exercise such
powers under this Agreement and the other Lender Agreements as are delegated to
the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement and the other Lender Agreements (including, without limitation,
enforcement or collection of the Term Loan Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders; PROVIDED, HOWEVER, that the
Agent shall not be required to take any action which exposes the Agent to
liability or which is contrary to this Agreement or the other Lender Agreements
or applicable law. Subject to the foregoing provisions and to the other
provisions of this Article 13, the Agent shall, on behalf of the Lenders: (a)
execute any documents on behalf of the Lenders providing collateral for or
guarantees of the Lender Obligations; (b) hold and apply any collateral for the
Lender Obligations, and the proceeds thereof, at any time received by it, in
accordance with the provisions of this Agreement and the other Lender
Agreements; (c) exercise any and all rights, powers and remedies of the Lenders
under this Agreement or any of the other Lender Agreements, including the giving
of any consent or waiver or the entering into of any amendment, subject to the
provisions of Section 13.1; (d) at the direction of the Lenders, execute,
deliver and file UCC financing statements, mortgages, deeds of trust, lease
assignments and such other agreements in respect of any collateral for the
Lender Obligations, and possess instruments included in the collateral on behalf
of the Lenders; and (e) in the event of acceleration of Borrower's Indebtedness
hereunder, act at the direction of the Lenders to exercise the rights of the
Lenders hereunder and under the other Lender Agreements.
Section 15.2 AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Lenders for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement or the other Lender Agreements, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent: (a) may treat the payee of any Term Loan Note as the
holder thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form required under Article 14
hereof-, (b) may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representations to any
Lender and shall
<PAGE>
not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement or the other Lender
Agreements; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Lender Agreements on the part of Borrower or any other
Person or to inspect the property (including the books and records) of Borrower
or any other Person; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or the other Lender Agreements or any other instrument or
document @shed pursuant hereto or thereto; and (f) shall incur no liability
under or in respect of this Agreement or the other Lender Agreements by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopy or telegram) believed by the Agent to be genuine and signed or
sent by the proper party or parties.
Section 15.3 AGENT AS A LENDER AND AGENT UNDER SENIOR FACILITY. With
respect to its interest in its Commitment Percentage of the Loans hereunder,
BankBoston, N.A. shall have the same rights and powers under this Agreement and
the other Lender Agreements as any other Lender and may exercise the same as
though it were not the Agent; and the term "Lender" or "Lender(s)" shall, unless
otherwise expressly indicated, include BankBoston, N.A. in its individual
capacity. BankBoston, N.A. and its affiliates may lend money to, and generally
engage in any kind of business with, Borrower, American Ski, any Affiliate of
American Ski and any Person who may do business with or own securities of
American Ski or any such Affiliate of American Ski, all as if BankBoston, N.A.
were not the Agent and without any duty to account therefor to the Lenders.
Borrower and Lenders hereby acknowledge that BankBoston, N.A. is the agent under
this facility and under the Senior Facility. Borrower and the Lenders agree that
BankBoston, N.A. as the agent under the Senior Facility may take actions adverse
to the Lenders and the Borrower under this facility.
Section 15.4 LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 5.9 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
Section 15.5 INDEMNIFICATION OF AGENT. Each Lender agrees to indemnify
the Agent and its directors, officers, employees and agents (to the extent that
the Agent is not reimbursed by Borrower), ratably according to each Lender's
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent or its directors, officers, employees or
agents in any way relating to or arising out of this Agreement or any other
Lender Agreement or any action taken or omitted by the Agent in such capacity
under this Agreement; PROVIDED that no Lender shall be liable
<PAGE>
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and each other Lender
Agreement, to the extent that the Agent is not reimbursed for such expenses by
Borrower.
Section 15.6 SUCCESSOR AGENT. Except as provided ' below, the Agent may
resign at any time by giving written notice thereof to the Lenders and Borrower.
Upon any such resignation, the Lenders shall have the right to appoint a
successor Agent which shall be reasonably acceptable to Borrower. If no
successor Agent shall have been so appointed by the Lenders (other than the
resigning Agent), and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank or financial institution organized under the laws of the United
States of America or of any state thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement and the other Lender Agreements. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
15 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement and the other Lender Agreements.
Section 15.7 AMENDMENT OF ARTICLE 15. Borrower hereby agrees that the
foregoing provisions of this Article 15 constitute an agreement among the Agent
and the Lenders (and the Agent and the Lenders acknowledge that except for the
provisions of Section 13.5, Borrower are not parties to or bound by such
foregoing provisions) and that any and all of the provisions of this Article 15
(excepting Section 15.6) may be amended at @y time by the Lenders and the Agent
without the consent or approval of, or notice to Borrower (other than the
requirement of notice to Borrower of the resignation of the Agent and the
appointment of a successor Agent).
ARTICLE 16. MISCELLANEOUS
Section 16.1 NOTICES. All notices and other communications made or
required to be given pursuant to this Agreement shall be in writing and shall be
mailed by United States mail, postage prepaid, or sent by hand, by telecopy or
by nationally-recognized overnight carrier service, addressed as follows:
(a) If to the Agent, BankBoston, N.A., II 5 Perimeter Center Place,
N.E., Suite 500, Atlanta, GA and Paul, Hastings, Janofsky & Walker LLP,, 600
Peachtree
<PAGE>
Street, N.E., Suite 2400, Atlanta, Georgia 30308-2222, Attention: Charles T.
Sharbaugh, or at such other address(es) or to the attention of such other
Person(s) as the Agent shall from time to time designate in writing to
Borrower and the Lenders.
(b) If to Borrower, c/o American Skiing Company, P.O. Box 450, Bethel,
ME 04217, or for overnight delivery service, Sunday River Road, Bethel, ME
04217, Telecopier No. 207/824-0192, Attention: Christopher E. Howard, Esq.,
Senior Vice President and Chief Administrative Officer and Thomas M.
Richardson, Chief Financial Officer, with a copy to: David J. Champoux, Esq.,
Pierce Atwood, One Monument Square, Portland, ME 041 01 or at such other
address(es) or to the attention of such other Person(s) as Borrower shall from
time to time designate in writing to the Agent and the Lenders.
(c) If to any Lender, at the address(es) and to the attention of the
Person(s) specified below such Lender's name on the execution page of this
Agreement (or in the case of a Successor Lender, at the address(es) and to the
attention of the Person(s) specified in the Assignment and Acceptance
Agreement executed by such Successor Lender), or at such other address(es) and
to the attention of such other Person(s) as any Lender shall from time to time
designate in writing to the Agent and Borrower.
Any notice so addressed and mailed by registered or certified mail
shall be deemed to have been given when mailed. Any notice so addressed and
sent by hand, by telecopy or by overnight carrier service shall be deemed to
have been given when received.
A notice from the Agent stating that it has been given on behalf of the
Lenders shall be relied upon by Borrower as having been given by the Lenders.
Section 16.2 MERGER. This Agreement and the other Lender Agreements and
documents contemplated hereby constitute the entire agreement of American Ski,
the Borrower, the Agent and the Lenders and express their entire understanding
with respect to credits advanced or to be advanced by the Lenders to the
Borrower.
Section 16.3 GOVERNING LAW, CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed and enforced under the laws of the State of
Georgia.
Section 16.4 COUNTERPARTS. This Agreement and all amendments to this
Agreement may be executed in several counterparts, each of which shall be an
original. The several counterparts shall constitute a single Agreement.
Section 16.5 EXPENSES AND INDEMNIFICATION.
(a) Borrower agrees to pay, on demand, all of the Agent's reasonable
expenses in preparing, executing, delivering and administering this Agreement,
the Lender Agreements, all related instruments and documents and any requested
amendment, waiver or consent relating hereto or thereto, including, without
limitation,
<PAGE>
the reasonable fees and out-of-pocket expenses of the Agent's third-party
consultants, special counsel, Paul, Hastings, Janofsky & Walker LLP, and local
counsel in each jurisdiction in which Borrower and or any Subsidiary has assets
and the Agent's and Lenders' reasonable expenses in connection with periodic
audits of Borrower and its Subsidiaries. Borrower also agrees to pay, on demand,
all reasonable out-of-pocket expenses incurred by the Agent and the Lenders,
including, without limitation, reasonable legal, accounting and third-party
consultant fees, in connection with the collection of amounts due hereunder and
under all other Lender Agreements upon the occurrence of a Default hereunder,
the revision, protection or enforcement of any of the Agent's or the Lenders'
rights against Borrower under this Agreement, the Notes, the Guaranty
Agreements, the Security Agreements, and all other Lender Agreements and the
administration of special problems that may arise under this Agreement or any
other Lender Agreement. Borrower also agrees to pay all stamp and other taxes in
connection with the execution and delivery of this Agreement and related
instruments and documents.
(b) Without limitation of any other obligation or liability of Borrower
or right or remedy of the Agent or the Lenders contained herein, Borrower hereby
covenants and agrees to indemnify and hold the Agent, the Lenders, and the
directors, officers, subsidiaries, shareholders, agents, affiliates and Persons
controlling the Agent and the Lenders, harmless from and against any and all
damages, losses, settlement payments, obligations, liabilities, claims,
including, without limitation, claims for finder's or broker's fees, actions or
causes of action, and reasonable costs and expenses incurred, suffered,
sustained or required to be paid by any such indemnified party in each case by
reason of or resulting from any claim, investigation, litigation or other
proceeding related to the entering into of this Agreement or any other Lender
Agreement, the use of the proceeds of any Loans, the consummation of the
transactions contemplated herein, the exercise by the Agent and the Lenders of
their rights and remedies, or otherwise relating to the transactions
contemplated hereby, other than any such claims which are determined by a final,
non-appealable judgment or order of a court of competent jurisdiction to be the
result of the gross negligence or willful misconduct of such indemnified party.
Promptly upon receipt by any indemnified party hereunder of notice of the
commencement of any action against such indemnified party for which a claim is
to be made against Borrower hereunder, such indemnified party shall notify
Borrower in writing of the commencement thereof, although the failure to provide
such notice shall not affect the indemnification rights of any such indemnified
party hereunder unless and only to the extent Borrower demonstrates to the
reasonable satisfaction of such party that such failure to provide notice
prejudiced Borrower in its defense of such claim. Borrower shall have the right,
at its option upon notice to the indemnified parties, to defend any such matter
at its own expense and with their own counsel, except as provided below, which
counsel must be reasonably acceptable to the indemnified parties. The
indemnified party shall cooperate with Borrower in the defense of such matter.
The indemnified party shall have the right to employ separate counsel and to
participate in the defense of such. matter at its own expense. In the event that
(a) the employment of separate counsel by an indemnified party has been
authorized in writing by Borrower, (b) Borrower has failed to assume the defense
of such matter within fifteen (I 5) days of notice thereof from the indemnified
party, or (c) the named parties to any such action (including impleaded parties)
include
<PAGE>
any indemnified party who has been advised by counsel that there may be one or
more legal defenses available to it or prospective bases for liability against
it, which are different from those available to or against Borrower, then
Borrower shall not have the right to assume the defense of such matter with
respect to such indemnified party. Borrower shall not compromise or settle any
such matter against an indemnified party without the written consent of the
indemnified party, which consent may not be unreasonably withheld or delayed.
Section 16.6 CONFIDENTIALITY. The Agent and the Lenders agree to use
commercially reasonable efforts to keep in confidence all financial data and
- -other information relative to the affairs of Borrower and its Subsidiaries
heretofore furnished or which may hereafter be furnished to them pursuant to the
provisions of this Agreement; PROVIDED, HOWEVER, that this Section 16.6 shall
not be applicable to information otherwise disseminated to the public by
Borrower or any of its Subsidiaries or any of their Affiliates; and PROVIDED
FURTHER, that such obligation of the Agent and the Lenders shall be subject to
the Agent's or the Lenders', as the case may be, (a) obligation to disclose such
information pursuant to a request or order under applicable laws and regulations
or pursuant to a subpoena or other legal process, (b) right to disclose any such
information to bank or other regulatory examiners, affiliates, auditors,
accountants and counsel or to any Person who evaluates, approves, structures or
administers the Loans on behalf of a Lender who agree to keep such information
confidential and (c) right to disclose any such information (i) in connection
with the transactions set forth herein including assignments, so long as such
potential assignees or participants shall agree in writing to be bound by the
terms of this Section 16.6 or (ii) in connection with any litigation or dispute
involving the Agent or any transfer or other disposition by the Agent or the
Lenders, as the case may be, of any of the Lender Obligations; PROVIDED that
information disclosed pursuant to this provision shall be so disclosed subject
to such procedures as are reasonably calculated to maintain the confidentiality
thereof.
Section 16.7 JOINT AND SEVERAL OBLIGATIONS. Borrower waives presentment,
demand, protest, notice of acceptance, notice of indebtedness incurred and all
other notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshaling of assets of Borrower and its Restricted
Subsidiaries, and all suretyship defenses generally.
Section 16.8 WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS, AND
BORROWER AGREE THAT NONE OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A) SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER ACTION
INVOLVING THE AGENT OR ANY LENDER AS A PARTY BASED UPON OR ARISING OUT OF, THIS
AGREEMENT, THE TERM LOAN NOTES, ANY LENDER AGREEMENT, ANY RELATED INSTRUMENTS,
ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM,
OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY DISCUSSED BY EACH OF THE AGENT,THE LENDERS AND BORROWER WITH THEIR
RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NONE
OF THE AGENT, THE LENDERS, OR BORROWER HAVE AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
<PAGE>
IN WITNESS WHEREOF, Borrower, the Agent and the Lenders have caused this
Agreement to be executed by their daily authorized officers as of the date set
forth above.
AMERICAN SKIING COMPANY RESORT
PROPERERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------
Name: Christopher E. Howard
Title: Senior Vice President
[EXECUTION CONTINUED ON FOLLOWING PAGES]
<PAGE>
BANKBOSTON N.A., as Agent
By: unable to read signature
-----------------------
[EXECUTION CONTINUED ON FOLLOWING PAGES]
<PAGE>
LIST OF SCHEDULES
Schedule I Commitment Percentages, Designated Lenders
Schedule 2 Purchase Money Mortgages
Schedule 5.2 Borrower and each Subsidiary's principal place of business
Schedule 5.4 Intercompany Debt Disclosure
Schedule 5.13 Liens, Charges, and Encumbrances
Schedule 5.15 ERISA
Schedule 5.16 Outstanding Indebtedness
Schedule 5.17 Envirorunental Matters
Schedule 8.8 Legal Ownership of Subsidiaries
<PAGE>
SCHEDULE I
Lenders: Commitment Percentage:
BankBoston, N.A. 50%
Morgan Stanley Senior Funding, Inc. 50%
<PAGE>
Schedule 2
1. Trust Deed With Assignment of Rents dated July _, 1996, between WMR
Investment Company, L.L.C., Old Republic Title Company of Utah and Wolf Mountain
Resorts, L.C., recorded in Book 977, Page 736, and Book 1029, Page 177, records
of Summit County, Utah;
2. Trust Deed With Assignment of Rents dated April 23, 199.7, by WMR
Investment Company, L.L.C. and Gary W. Neilsen in favor of Michael J. Maier
recorded in Book 1041, Page 852, aforesaid records, as assigned by Assignment of
Trust Deed dated January 13, 1998, from Michael J. Maier to Raymond 0. Klein
recorded in Book I I 10, Page 445, aforesaid records;
3. Trust Deed With Assignment of Rents dated July 8, 1996, between WNM
Investment Company, L.L.C., Thomas T. Billings, Esquire, and Songbird
Enterprises recorded in Book 977, Page 728, aforesaid records; and
4. Trust Deed With Assignment of Rents dated April 23, 1997, among WMR
Investment Company, L.L.C., Thomas T. Billings and LRJ Enterprises, Inc.,
recorded in Book 1041, Page 832, aforesaid records.
<PAGE>
SCHIEDULE 5.2
Borrower and each Subsidiary's principal place of business. The
principal place of business of the Borrower and each of its Subsidiaries is:
American Siding Company Resort Properties, Inc. Sunday River Road P.O. Box 450
Bethel, NE 04106 Attention: Christopher E. Howard, Chief Operating Officer
SCHEDULE 5.4(B)
Transactions among Borrower and its Subsidiaries
and American Ski and its Subsidiaries
1. Joint marketing and development efforts under the Marriott Joint
Venture..
2. Reciprocal obligations under Reciprocal Easement Agreement.
3. Leases between Grand Summit Resort Properties, Inc. and resort hosts
with respect to the commercial units at Grand Summit Hotels.
4. Beneficial Improvements Agreement between Grand Summit Resort
Properties, Inc. and Sunday River Skiway Corp. regarding Sunday
River's use of the access road to the Jordan Bowl Grand Summit Hotel.
5. Certain employees of American Ski perform some of their services for
Borrower. and its subsidiaries, for which American Ski is reimbursed
by Borrower and its Subsidiaries.
6. The Borrower and its Subsidiaries guaranty the $120 million Senior
Subordinated Notes due 2006 of the Borrower's parent, ASC East, Inc.,
payment of which is subordinated to the Lender.
<PAGE>
SCHEDULE5.13
Liens, Charges, Encumbrances
1. The Purchase Money Mortgage
<PAGE>
Schedule 5.1.5
pension plans
1. Massachusetts Financial Services 401(k) Plan, Adopted August 1, 1997
L.B.O. Holding. Inc.
ASC Utah Inc..
Killington Ltd.
Sugarbush Resort Holdings, Inc.
Pico Ski Area Management Company
Sunday River Skiway Corporation
Sugarloaf Mountain Corporation
Mount Snow, Ltd.
2. Welfare. Bcnefit Plan
A. Medical
(1) American Skiing Company Group Medical Expense Plan and Delta
Dental Plan:
L.B.O. Holding, Inc.
ASC Utah, Inc.
Killington, Ltd.
Pico Ski Area Management Company
Mount Snow, Ltd.
Sugarbush Resort Holdings, Inc.
(2) Blue Cross/Blue Shield:
Sugarloaf Mountain Corporation Sunday River Skiway Corporation
B. Life and AD&D
L.B.O. Holding, Inc.
ASC Utah Inc.
Killington, Ltd..
Pico Ski Area Management Company
Mount Snow, Ltd.
Sugarbush Resort Holdings, Inc.
Sugarloaf Mountain Corporation
Sunday River Skiway Corporation
3. Deferred Compensation Plans
American Skiing Company Stock Option Plan adopted August 1, i997
SCHIEDLTLE 5.16
Outstanding Indebtedness
1 $31,071,119.52 under Grand Summit Resort Properties, Inc.'s existing
facility with Textron Financial Corporation
2. The Purchase Money Mortgage
3. The InterCompany debt
4. The Borrower's and its Subsidiaries' guaranty of the $120 million
Senior Subordinated Notes due 2006 of ASC East, Inc., payment of which
is subordinated to the Lender.
<PAGE>
SCHEDULE 5.17
Environmental Matters
f None
SCHEDULE 8.8
Legal Ownership of Subsidiaries
Grand Summit Resort Properties, Inc. -, 100% of issued and outstanding common
stock Canyons Resort Properties, Inc. - 100% of issued and outstanding common
stock Heavenly Resort Properties, L.L.C. - Membership Interest in limited
liability company
LIST OF EXHIBITS
Exhibit A Form of Term Loan Notes
Exhibit B Designated Properties
Exhibit C Budget
Exhibit D Status Memorandum
<PAGE>
$15,000,000.00
Exhibit "A"
TERM LOAN NOTE
September 4, 1998
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned AMERICAN SKIING COMPANY RESORT PROPERTIES,
INC., a corporation organized and existing under the laws of the State of Maine,
with a business address at Sunday River Road, Bethel, Maine 04217(hereinafter
referred to as "Maker"), promises to pay to the order of BANKBOSTON, N.A., as
Agent, a national banking association (hereinafter referred to as "Payee", Payee
and any and all other holders of this Note being hereinafter collectively
referred to as "Holder"), at I 00 Federal Street, Boston, Boston 021 1 0 ("Head
Office") or such other place as Holder hereof may designate in writing, the
principal sun of FIFTEEN MILLION AND N01100 DOLLARS (U.S. $15,000,000.00),
pursuant to the Credit Agreement of even date between the Maker and Payee
("Note"), together with interest as provided in this Note, as follows:
I. Interest.
Except as otherwise provided herein, the principal balance outstanding
from time to time hereunder shall bear interest from the date hereof until
repaid in full at the rate of fourteen (14) percent per annum.
Interest shall be computed on the daily outstanding principal balance
hereunder on the basis of a 360 day year, but shall accrue and be payable for
the actual number of days during which funds are outstanding. Accrued but unpaid
interest shall be due and payable monthly in arrears on the first Business Day
of each month for the immediately preceding month, commencing on the thirtieth
day of September, 1998, with a final payment on December 4, 1998, or on such
earlier date on which the maturity hereof is accelerated pursuant to the
provisions of ss. 12.1 of the Credit Agreement (the "Maturity Date").
<PAGE>
II. Principal.
Principal shall be payable in the amount and at the time provided in the Credit
Agreement, with the outstanding principal balance hereunder becoming due and
payable in full on the Maturity Date.
This Note is one of several promissory notes that in the aggregate,
evidence a debt obligation in the maximum principal amount of $30,000,000.00,
all of which notes are made pursuant to the terms of the Credit Agreement and
are secured by the Lender Agreements (other than the Term Notes). A default on
any of such notes shall be deemed a default on all such notes.
Notwithstanding any provisions in this Note, or in any instrument
securing this Note, the total liability for payments legally regarded as
interest shall not exceed the maximum limits imposed by applicable law, and any
payment of same in excess of the amount allowed thereby shall, as of the date of
such payment, automatically be deemed to have been applied to the payment of the
principal indebtedness evidenced hereby, or, if same has been fully repaid,
shall be repaid to Maker upon demand. Any notation or record of Holder with
respect to such required application which is inconsistent with the provisions
of this paragraph shall be disregarded for all purposes and shall not be binding
upon either Maker or Holder.
All sums payable under this Note shall be paid not later than 3:00 P.M.
(Local Eastern time) on the day when due in immediately available funds in
lawful money of the United States of America. Whenever any payment to be made
under this Note shall be stated to be due on a day other than a Business Day (as
hereinafter defined), such payment shall be made on the next succeeding Business
Day and such extension of time shall in such case be included in the computation
of payment of interest. "Business Day" means a day (excluding Saturdays and
Sundays) on which Payee is open for the transaction of banking business in
Boston, Boston.
All payments under this Note shall be made to Holder without set-off or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or any taxing or other authority therein
unless Maker is compelled by law to make such deduction or withholding. If any
such obligation to deduct or withhold is imposed upon Maker with respect to any
amount payable by it hereunder, Maker will pay to Holder, on the date on which
such amount becomes due and payable hereunder, such additional amount as shall
be necessary to enable Holder to receive the same amount which it would
<PAGE>
have received on such due date had no such obligation been imposed upon Maker.
Maker will deliver promptly to Holder certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments made
by Maker under this Note.
At the option of Holder, Holder may by notice to Maker declare the
entire principal amount outstanding under this Note, together with all accrued
interest thereon and all other sums due under this Note, to be immediately due
and payable in full, whereupon same shall become immediately due and payable
in full, without further notice or demand, if any payment due under this Note
is not paid when due, or if an Event of Default occurs. Failure to exercise
such option shall not constitute a waiver of the right to exercise such option
if Maker is in default hereunder. In the event of any default in the payment
of this Note, and if the same is referred to an attorney at law for collection
or suit is brought hereon, Maker shall pay Holder, in either case, all
expenses and costs of collection, including, but not limited to, court costs
and reasonable attorney's fees and disbursements. Time is of the essence of
this Note.
Any amount of principal of this Note which is not paid when due
(whether at stated maturity, acceleration or otherwise) and, to the extent
permitted by applicable law, any amount of interest under this Note which is
not paid when due, shall bear interest, from the date on which such overdue
amount shall have become due and payable by Maker until payment in full
(whether before or after judgment), payable on demand, at a rate per annum
equal to twenty percent (20%) per annum, plus the Base Rate, or if such
increased rate of interest may not be collected under applicable law, then at
the maximum rate of interest, if any, which may be collected from Maker under
applicable law.
III. Prepayment, Extension, Notices. etc.
Maker may prepay the outstanding principal amount of this Note, or a portion
thereof, only in accordance with the terms of the Credit Agreement.
From time to time, without affecting the obligation of Maker or any
sureties, guarantors, endorsers, accommodation parties or other persons liable
or to become liable on this note to pay the outstanding principal balance of
this Note and observe the covenants of Maker contained herein, without giving
notice to or obtaining the consent of Maker or any such sureties, guarantors,
endorsers, accommodation parties or other persons, and without liability on
the part of Holder, Holder may, at the option of Holder, grant extensions or
postponements of the time for payment of said outstanding principal balance,
interest or any part thereof, release anyone liable on any of said outstanding
principal balance, accept a renewal of this Note, release or accept a
substitution of all or any collateral given to secure this Note, join in any
extension or subordination agreement,
<PAGE>
agree in writing with Maker to modify the rate of interest or terms and time of
payment of said outstanding principal balance or period of amortization of this
Note or change the amount of the monthly installments payable hereunder, or
grant any other indulgence or forbearance whatsoever. No one or more of such
actions shall constitute a novation.
Presentment, notice of dishonor, protest and notice of protest and any
and all lack of diligence or delays in collection or enforcement of this Note
are hereby waived by Maker and all sureties, guarantors, endorsers and
accommodation parties hereof and all other persons liable or to become liable on
this Note. This Note shall be the joint and several obligation of Maker and all
sureties, guarantors, endorsers, accommodation parties and all other persons
liable or to become liable on this Note, and shall be binding upon them and
their heirs, legal representatives, successors and assigns.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Note must be in writing and shall be given in the manner
provided in the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, is a
"Term Loan Note" as defined in, and is subject to the provisions of the Credit
Agreement. Any capitalized term not defined herein shall have the defined
meaning set forth in the Credit Agreement. In the event of any conflict between
the terms of this Note and the Credit Agreement, the terms of the Credit
Agreement shall control.
Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, this Note may not be transferred except pursuant to and in
accordance with the registration and other provisions of Article 14 of the
Credit Agreement.
This Note and the obligations of Maker hereunder shall be governed by
and interpreted and determined in accordance with the laws of Georgia.
MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL
JURISDICTION IN GEORGIA OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS
OF ANY STATE 0) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO
JURISDICTION WITHIN GEORGIA OR VENUE IN ANY PARTICULAR FORUM WITHIN GEORGIA, AND
(III) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN ACTUAL DAMAGES. MAKER AGREES
THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR
<PAGE>
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO MAKER AT THE ADDRESS SET FORTH ABOVE, AND SERVICE SO MADE
SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING
CONTAINED HEREIN, HOWEVER, SHALL PREVENT HOLDER FROM BRINGING ANY SUIT, ACTION
OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST MAKER,
AND AGAINST ANY PROPERTY OF MAKER, IN ANY OTHER STATE. INITIATING SUCH SUIT,
ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF GEORGIA
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF MAKER AND HOLDER HEREUNDER OR THE
SUBMISSION HEREIN MADE BY MAKER TO PERSONAL JURISDICTION WITHIN GEORGIA.
This Note may not be amended, modified, or changed, nor shall any waiver
of any provision hereof be effective, except only by an instrument in writing
signed by the party against whom amendment, change, modification or discharge
enforcement of any waiver, is sought.
Whenever used herein, the words "Maker", "Payee" and "Holder" shall be
deemed to include their respective heirs, legal representatives, successors and
assigns.
[EXECUTION ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered under seal as of the date first above written.
AMERICAN SKIING COMPANY RESORT PROPERTIES,
INC., a Maine corporation
By:
---------------------------------------
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
<PAGE>
TERM LOAN NOTE
$15,000,000.00
FOR VALUE RECEIVED, the undersigned AMERICAN SKIING COMPANY RESORT PROPERTIES,
INC., a corporation organized and existing under the laws of the State of Maine,
with a business address at Sunday River Road, Bethel, Maine 04217(hereinafter
referred to as "Maker"), promises to pay to the order of MORGAN STANLEY SENIOR
FUNDING, INC. (hereinafter referred to as "Payee", Payee and any and all other
holders of this Note being hereinafter collectively referred to as "Holder"), in
care of BANKBOSTON, N.A., as Agent, a national banking association, at 100
Federal Street, Boston, Boston 021 1 0 ("Head Office") or such other place as
Holder hereof may designate in writing, the principal sum of FIFTEEN MILLION AND
NO/ I 00 DOLLARS (U.S. $15,000,000.00), pursuant to the Credit Agreement of even
date between the Maker and Payee ("Note"), together with interest as provided in
this Note, as follows:
I. Interest.
Except as otherwise provided herein, the principal balance outstanding from time
to time hereunder shall bear interest from the date hereof until repaid in full
at the rate of fourteen (I 4) percent per annum.
Interest shall be computed on the daily outstanding principal balance
hereunder on the basis of a 360 day year, but shall accrue and be payable for
the actual number of days during which funds are outstanding. Accrued but unpaid
interest shall be due and payable monthly in arrears on the first Business Day
of each month for the immediately preceding month, commencing on the thirtieth
day of September, 1998, with a final payment on December 4, 1998, or on such
earlier date on which the maturity hereof is accelerated pursuant to the
provisions of ss. 12.1 of the Credit Agreement (the "Maturity Date").
II. Principal.
Principal shall be payable in the amount and at the time provided in the Credit
Agreement, with the outstanding principal balance hereunder becoming due and
payable in full on the Maturity Date.
This Note is one of several promissory notes that, in the aggregate,
evidence a debt obligation in the maximum principal amount of $30,000,000.00,
all of which notes are made pursuant to the terms of the Credit Agreement and
are secured by the Lender
September 4, 1998
Atlanta, Georgia
Agreements (other than the Term Notes). A default on any of such notes shall be
deemed a default on all such notes.
Notwithstanding any provisions in this Note, or in any instrument
securing this Note, the total liability for payments legally regarded as
interest shall not exceed the maximum limits imposed by applicable law, and any
payment of same in excess of the amount allowed thereby shall, as of the date of
such payment, automatically be deemed to have been applied to the payment of the
principal indebtedness evidenced hereby, or, if same has been fully repaid,
shall be repaid to Maker upon demand. Any notation or record of Holder with
respect to such required application which is inconsistent with the provisions
of this paragraph shall be disregarded for all purposes and shall not be binding
upon either Maker or Holder.
All sums payable under this Note shall be paid not later than 3:00 P.M.
(Local Eastern time) on the day when due in immediately available funds in
lawful money of the United States of America. Whenever any payment to be made
under this Note shall be stated to be due on a day other than a Business Day (as
hereinafter defined), such payment shall be made on the next succeeding Business
Day and such extension of time shall in such case be included in the computation
of payment of interest. "Business Day" means a day (excluding Saturdays and
Sundays) on which Payee is open for the transaction of banking business in
Boston, Boston.
All payments under this Note shall be made to Holder without set-off or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or any taxing or other authority therein
unless Maker is compelled by law to make such deduction or withholding. If any
such obligation to deduct or withhold is imposed upon Maker with respect to any
amount payable by it hereunder, Maker will pay to Holder, on the date on which
such amount becomes due and payable hereunder, such additional amount as shall
be necessary to enable Holder to receive the same amount which it would have
received on such due date had no such obligation been imposed upon Maker. Maker
will deliver promptly to Holder certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made by
Maker under this Note.
At the option of Holder, Holder may by notice to Maker declare the
entire principal amount outstanding under this Note, together with all accrued
interest thereon and all other sums due under this Note, to be immediately due
and payable in full, whereupon same shall become immediately due and payable in
full, without further notice or demand, if any payment due under this Note is
not paid when due, or if an Event of Default occurs. Failure to exercise such
option shall not constitute a waiver of the right to exercise such option if
Maker is in default hereunder. In the event of any default in the payment of
this Note, and if the same is referred to an attorney at law for collection
<PAGE>
or suit is brought hereon, Maker shall pay Holder, in either case, all
expenses and costs of collection, including, but not limited to, court costs
and reasonable attorney's fees and disbursements. Time is of the essence of
this Note.
Any amount of principal of this Note which is not paid when due
(whether at stated maturity, acceleration or otherwise) and, to the extent
permitted by applicable law, any amount of interest under this Note which is
not paid when due, shall bear interest, from the date on which such overdue
amount shall have become due and payable by Maker until payment in full
(whether before or after judgment), payable on demand, at a rate per annum
equal to twenty percent (20%) per annum, plus the Base Rate, or if such
increased rate of interest may not be collected under applicable law, then at
the maximum rate of interest, if any, which may be collected from Maker under
applicable law.
III. Payment, Extension, Notices, etc.
Maker may prepay the outstanding principal amount of this Note, or a portion
thereof, only in accordance with the terms of the Credit Agreement.
From time to time, without affecting the obligation of Maker or any
sureties, guarantors, endorsers, accommodation parties or other persons liable
or to become liable on this note to pay the outstanding principal balance of
this Note and observe the covenants of Maker contained herein, without giving
notice to or obtaining the consent of Maker or any such sureties, guarantors,
endorsers, accommodation parties or other persons, and without liability on
the part of Holder, Holder may, at the option of Holder, grant extensions or
postponements of the time for payment of said outstanding principal balance,
interest or any part thereof, release anyone liable on any of said outstanding
principal balance, accept a renewal of this Note, release or accept a
substitution of all or any collateral given to secure this Note, join in any
extension or subordination agreement, agree in writing with Maker to modify
the rate of interest or terms and time of payment of said outstanding
principal balance or period of amortization of this Note or change the amount
of the monthly installments payable hereunder, or grant any other indulgence
or forbearance whatsoever. No one or more of such actions shall constitute a
novation.
Presentment, notice of dishonor, protest and notice of protest and any
and all lack of diligence or delays in collection or enforcement of this Note
are hereby waived by Maker and all sureties, guarantors, endorsers and
accommodation parties hereof and all other persons liable or to become liable
on this Note. This Note shall be the joint and several obligation of Maker and
all sureties, guarantors, endorsers, accommodation parties and all other
persons liable or to become liable on this Note, and shall be binding upon
them and their heirs, legal representatives, successors and assigns.
<PAGE>
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Note must be in writing and shall be given in the manner
provided in the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, is a
"Term Loan Note" as defined in, and is subject to the provisions of the Credit
Agreement. Any capitalized term not defined herein shall have the defined
meaning set forth in the Credit Agreement. In -the event of any conflict between
the terms of this Note and the Credit Agreement the terms of the Credit
Agreement shall control.
Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, this Note may not be transferred except pursuant to and in
accordance with the registration and other provisions of Article 14 of the
Credit Agreement.
This Note and the obligations of Maker hereunder shall be governed by
and interpreted and determined in accordance with the laws of Georgia.
MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL
JURISDICTION IN GEORGIA OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO TIES NOTE, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS
OF ANY STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO
JURISDICTION WITHIN GEORGIA OR VENUE IN ANY PARTICULAR FORUM WITHIN GEORGIA, AND
(III) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN ACTUAL DAMAGES. MAKER AGREES
THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER
APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING
MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED
TO MAKER AT THE ADDRESS SET FORTH ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE
FIVE (5) DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING CONTAINED HEREIN,
HOWEVER, SHALL PREVENT HOLDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR
EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST MAKER, AND AGAINST ANY
PROPERTY OF MAKER, IN ANY OTHER STATE. INITIATING SUCH SUIT, ACTION OR
PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A
WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF GEORGIA SHALL GOVERN
THE RIGHTS AND OBLIGATIONS OF MAKER AND HOLDER HEREUNDER OR THE SUBMISSION
HEREIN MADE BY MAKER TO PERSONAL JURISDICTION WITHIN GEORGIA.
This Note may not be amended, modified, or changed, nor shall any waiver
of any provision hereof be effective, except only by an instrument in writing
signed by the party against whom amendment, change, modification or discharge
enforcement of any waiver, is sought.
Whenever used herein, the words "Maker", "Payee" and "Holdee' shall be
deemed to include their respective heirs, legal representatives, successors and
assigns.
[EXECUTION ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered under seal as of the date first above written.
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC., a Maine corporation
By:
-------------------------------------
Name: Christopher E. Howard
Title: Senior Vice President
Attest:
----------------------------------
Name:
Title:
<PAGE>
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of September 4, 1998, among American Skiing Company Resort Properties, Inc.
(the "Guaranteeing Subsidiary"), a subsidiary of ASC East, Inc. (or its
permitted successor), a Maine corporation (the "Company"), the Company, the
other Guarantors (as defined in the Indenture referred to herein) and United
States Trust Company of New York, as trustee under the indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of June 28, 1996 providing
for the issuance of an aggregate principal amount of up to $120,000,000.00 of
12% Notes due 2006 (the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Guarantors named in the Indenture, to
jointly and severally Guarantee to each Holder of a
Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes
will be promptly paid in full when due,
whether at maturity, by acceleration,
redemption or otherwise, and interest on the
overdue principal of and interest on the
Notes, if any, if lawful, and all other
obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in
accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment
or renewal of any Notes or any of such other
obligations, that same will be promptly paid
in full when due or performed in accordance
with the terms of the extension or renewal,
whether at stated maturity, by acceleration
or otherwise. Failing payment when due of
any amount so guaranteed or any performance
so guaranteed for whatever reason, the
Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver
or consent by any Holder of the Notes with respect to
any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce
the same or any other circumstance which might
otherwise constitute a legal or equitable discharge
or defense of a guarantor.
(c) The following is hereby waived:diligence presentment,
demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by
complete performance of the obligations contained in
the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the
Guarantors, or any Custodian, Trustee, liquidator or
other similar official acting in relation to either
the Company or the Guarantors, any amount paid by
either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to
any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture
for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such
obligations as provided in Article 6 of the
Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by
the Guarantors for the purpose of this Note
Guarantee.
(h) The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights
of the Holders under the Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after
giving effect to any maximum amount and any other
contingent and fixed liabilities that are relevant
under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any
collections from, rights to receive contribution from
or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other
Guarantor under Article 10 of the Indenture shall
result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer
or conveyance.
3 EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Note Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain
Terms.
(a) The Guaranteeing Subsidiary may not consolidate with or merge
with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Guarantor unless:
(i) subject to Section 10.05 of the Indenture, the Person
formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note
Guarantee on the terms set forth herein or therein;
and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been issued at the date of
the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture,
and notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another Guarantor, or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the
capital stock of any Guarantor, then such Guarantor (in the
event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of
such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the
applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by
the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the
provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Note
Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal
of and interest on the Notes and for the other obligations of
any Guarantor under the Indenture as provided in Article 10 of
the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. COUNTERPARTS The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10 .THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: September 4, 1998
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
----------------------------------------------------------
Name: Christopher E. Howard
Title: Senior Vice President
ASC EAST, INC.
By: /s/ Christopher E. Howard
----------------------------------------------------------
Name: Christopher E. Howard
Title: Senior Vice President
[EXISTING GUARANTORS]
By: unable to read signature
______________________________
Name:
Title
[TRUSTEE]
as Trustee
By: unable to read signature
______________________________
Name:
Title:
