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Exhibit 10.20(b)
FIRST AMENDMENT AND CONSENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT AND CONSENT (this "Amendment") is entered into as of
December 31, 1999, among The Vail Corporation, a Colorado corporation doing
business as "Vail Associates, Inc." ("Borrower"), the Lenders (defined below),
and Bank of America, N.A., successor by merger to NationsBank, N.A., as Agent
for itself and the other Lenders. Capitalized terms used but not defined herein
shall have the meanings given such terms in the Credit Agreement (defined
below).
Recitals
WHEREAS, Borrower, the Lenders named therein ("Lenders"), and Agent are
parties to that certain Amended and Restated Credit Agreement dated as of May 1,
1999 (as amended, restated or supplemented from time to time, the "Credit
Agreement");
WHEREAS, Borrower is the record and beneficial owner of 51.9% of the
membership interests of SSI Venture LLC, a Colorado limited liability company
("SSI");
WHEREAS, SSI is designated by Borrower as an Unrestricted Subsidiary under
the Credit Agreement;
WHEREAS, Borrower proposes to (i) pledge its membership interests in SSI to
the Lenders, and (ii) include SSI's financial performance (to the extent of
Borrower's membership interests in SSI) in the calculation of Borrower's
compliance with financial covenants under the Credit Agreement;
WHEREAS, Borrower, Lenders and Agent have agreed to amend the Credit
Agreement and the Loan Papers to (i) provide for the pledge by Borrower of its
membership interests in SSI, (ii) permit the inclusion of SSI's financial
performance (to the extent of Borrower's membership interests in SSI) in the
calculation of financial covenants under the Credit Agreement, and (iii) make
such other modifications as are acceptable to the parties, subject to the terms
and conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Credit Agreement is hereby amended as follows:
1. Merger of NationsBank, N.A. and Bank of America, N.A. All references in
the Loan Papers to NationsBank, N.A., and NationsBanc Montgomery Securities LLC
are hereby replaced with references to Bank of America, N.A., and Banc of
America Securities LLC, respectively.
2. Consent to Pledge by Borrower. Notwithstanding any other provision in any
Loan Paper, the Loan Papers are hereby amended in their entirety to permit the
pledge by Borrower of its membership interests in SSI to Bank of America, N.A.,
as Agent for the Lenders, and Section 5 of the Credit Agreement is hereby
amended to read in its entirety as follows:
SECTION 5 SECURITY. All obligations of Borrower under the Loan Papers shall be
(a) guaranteed in accordance with a Guaranty executed by each other Restricted
Company, and (b) effective as of December 31, 1999, secured by a pledge by
Borrower of its membership interests in SSI.
3. Definitions. The following definitions in Section 1.1 of the Credit
Agreement are hereby amended by adding the underlined language shown below:
Funded Debt means the following, calculated on a consolidated basis for
the Restricted Companies and SSI (to the extent of Borrower's membership
interests in SSI) in accordance with GAAP: (i) all obligations for borrowed
money (whether as a direct obligation on a promissory note, bond, zero coupon
bond, debenture or other similar instrument, or as an unfulfilled
reimbursement obligation on a drawn letter of credit or similar instrument,
or otherwise), plus (but without duplication) (ii) all Capital Lease
obligations (other than the interest component of such obligations) of SSI or
any Restricted Company.
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Permitted Debt means:
(a) the Obligation;
(b) Debt which existed on the date of the Original Agreement and
which is listed on Part B of
Schedule 2.3;
(c) Debt arising from endorsing negotiable instruments for collection
in the ordinary course of business;
(d) Subordinated Debt (and guarantees by Restricted Companies of
Subordinated Debt of other Restricted Companies, if such guarantees are
subordinated, upon terms satisfactory to Agent, to the payment and
collection of the Obligation);
(e) in addition to the foregoing, (i) Debt of Unrestricted
Subsidiaries which is non-recourse to the Restricted Companies and their
assets, (ii) fees and other amounts payable under the Forest Service
Permits in the ordinary course of business, and (iii) inter-Company Debt
between Restricted Companies;
(f) up to $12,975,000 of Debt arising under the guaranty by Borrower
of amounts owed by SSI under its Credit Agreement dated as of December
30, 1998, as amended, restated or supplemented from time to time (with
any remaining Debt under such guaranty included in clause (g) below);
and
(g) in addition to the foregoing, up to $100,000,000 of additional
Debt of the Companies in the aggregate at any point in time.
Resort EBITDA means EBITDA, plus insurance proceeds (up to a maximum of
$10,000,000 in the aggregate in any fiscal year) received by the Restricted
Companies under policies of business interruption insurance, minus EBITDA
related to real estate activities and minus any portion of EBITDA
attributable to Unrestricted Subsidiaries other than SSI (to the extent of
Borrower's membership interests in SSI).
Unrestricted Subsidiary means Eagle Park Reservoir Company, SSI Venture
LLC, Vail Associates Investments, Inc., Boulder/Beaver, LLC, Colter Bay
Corporation, Gros Venture Utility Company, Jackson Hole Golf & Tennis Club,
Jackson Lake Lodge Corporation, Jenny Lake Lodge, Inc., Forest Ridge
Holdings, Inc., Vail Resorts Holdings, Inc. (f/k/a "VREJV, Inc."), and any
existing Subsidiary or newly-formed Subsidiary created by Borrower pursuant
to Section 8.11 (which may be a partnership, joint venture, corporation,
limited liability company or other entity) (a) which does not own any Forest
Service Permit or the stock of any Restricted Company or any of the assets
described on Schedule 2, (b) which has (and whose other partners, joint
venturers, members or shareholders have) no Debt or other material obligation
which is recourse to any Restricted Company or to the assets of any
Restricted Company (other than with respect to limited guarantees or other
recourse agreements of the Companies which are permitted to be incurred
hereunder within the $100,000,000 of recourse Debt allowed under clause (f)
of the definition of "Permitted Debt"), and (c) which has been designated by
Borrower as an Unrestricted Subsidiary by notice to Agent. Subject to Section
14.10(b)(v), Agent shall execute documentation reasonably required to release
any Restricted Subsidiary which is redesignated by Borrower as an
Unrestricted Subsidiary from its Guaranty.
4. New Definition. Section 1.1 of the Credit Agreement is hereby further
amended by adding the following new definition:
SSI means SSI Venture LLC, a Colorado limited liability company doing
business as Specialty Sports Venture and an Unrestricted Subsidiary of
Borrower.
5. Conditions. This Amendment shall not be effective until each of the
following have been delivered to Agent: (a) this Amendment signed by Borrower,
the other Restricted Companies and Required Lenders, (b) a Pledge Agreement duly
executed by Borrower with respect to its membership interest in SSI, and (c)
such other documents as Agent may reasonably request.
6. Fees and Expenses. Borrower agrees to pay the reasonable fees and expenses
of counsel to Agent for services rendered in connection with the preparation,
negotiation and execution of this Amendment.
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7. Representations and Warranties. Each Restricted Company represents and
warrants to Lenders that it possesses all requisite power and authority to
execute, deliver and comply with the terms of this Amendment, which has been
duly authorized and approved by all requisite corporate action on the part of
each Restricted Company, for which no consent of any Person is required, and
which will not violate their respective organizational documents, and agree to
furnish Agent with evidence of such authorization and approval upon request.
Each Restricted Company further represents and warrants to Lenders that (a) the
representations and warranties in each Loan Paper to which it is a party are
true and correct in all material respects on and as of the date of this
Amendment as though made on the date of this Amendment (except to the extent
that (i) such representations and warranties speak to a specific date or (ii)
the facts on which such representations and warranties are based have been
changed by transactions contemplated by the Credit Agreement), (b) it is in full
compliance with all covenants and agreements contained in each Loan Paper to
which it is a party, and (c) no Default or Potential Default has occurred and is
continuing.
8. Miscellaneous. This Amendment is a Loan Paper and is subject to the
applicable provisions of Section 14 of the Credit Agreement, each of which is
incorporated into this Amendment by this reference. Except as affected by this
Amendment, the Loan Papers are unchanged and continue in full force and effect.
However, in the event of any inconsistency between the terms of the Credit
Agreement as hereby amended and any other Loan Paper, the terms of the Credit
Agreement shall control and such other document shall be deemed to be amended
hereby to conform to the terms of the Credit Agreement. All references to the
Credit Agreement shall refer to the Credit Agreement as amended by this
Amendment. Each Restricted Company agrees that all Loan Papers to which it is a
party remain in full force and effect and continue to evidence its legal, valid
and binding obligations enforceable in accordance with their terms (as the same
are affected by this Amendment). Each Restricted Company hereby releases Agent
and Lenders from any liability for actions or failures to act in connection with
the Loan Papers prior to the date hereof. This Amendment shall be binding upon
and inure to the benefit of each of the undersigned and their respective
successors and permitted assigns.
9. No Waiver of Defaults. This instrument does not constitute a waiver of,
or a consent to any present or future violation of or default under, any
provision of the Loan Papers, or a waiver of Lenders' right to insist upon
future compliance with each term, covenant, condition and provision of the Loan
Papers, and the Loan Papers shall continue to be binding upon, and inure to the
benefit of, the Restricted Companies, Agent and Lenders and their respective
successors and assigns.
10. Form. Each agreement, document, instrument or other writing to be
furnished Agent or Lenders under any provision of this instrument must be in
form and substance satisfactory to Agent and its counsel.
11. Multiple Counterparts. This instrument may be executed in more than one
counterpart, each of which shall be deemed an original, and all of which
constitute, collectively, one instrument; but, in making proof of this
instrument, it shall not be necessary to produce or account for more than one
such counterpart. It shall not be necessary for each Restricted Company, Agent
and all Lenders to execute the same counterpart hereof so long as each
Restricted Company, Agent and each Lender execute a counterpart hereof.
12. Entirety. The Loan Papers Represent the Final Agreement Between Borrower,
Agent And Lenders And May Not Be Contradicted By Evidence Of Prior,
Contemporaneous, Or Subsequent Oral Agreements By The Parties. There Are No
Unwritten Oral Agreements Among The Parties.
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EXECUTED as of the day and year first mentioned.
THE VAIL CORPORATION
By: __________________________________
Name: __________________________________
Title: __________________________________
BANK OF AMERICA, N.A.
By: __________________________________
Natalie E. Hebert
Vice President
BANKBOSTON, N.A.
By: __________________________________
Name: __________________________________
Title: __________________________________
U.S. BANK NATIONAL ASSOCIATION
By: __________________________________
Name: __________________________________
Title: __________________________________
THE BANK OF NOVA SCOTIA
By: __________________________________
Name: __________________________________
Title: __________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: __________________________________
Name: __________________________________
Title: __________________________________
FIRST SECURITY BANK, N.A.
By: __________________________________
Name: __________________________________
Title: __________________________________
BANKERS TRUST COMPANY
By: __________________________________
Name: __________________________________
Title: __________________________________
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CIBC INC.
By: __________________________________
Name: __________________________________
Title: __________________________________
FLEET NATIONAL BANK
By: __________________________________
Name: __________________________________
Title: __________________________________
HARRIS TRUST AND SAVINGS BANK
By: __________________________________
Name: __________________________________
Title: __________________________________
KEYBANK NATIONAL ASSOCIATION
By: __________________________________
Name: __________________________________
Title: __________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: __________________________________
Name: __________________________________
Title: __________________________________
NORWEST BANK COLORADO, NATIONAL ASSOCIATION
By: __________________________________
Name: __________________________________
Title: __________________________________
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GUARANTORS' CONSENT AND AGREEMENT
---------------------------------
As an inducement to Agent and Lenders to execute, and in consideration of
Agent's and Lenders' execution of the foregoing, the undersigned hereby consent
thereto and agree that the same shall in no way release, diminish, impair,
reduce or otherwise adversely affect the respective obligations and liabilities
of each of the undersigned under the Guaranty described in the Credit Agreement,
or any agreements, documents or instruments executed by any of the undersigned
to create liens, security interests or charges to secure any of the indebtedness
under the Loan Papers, all of which obligations and liabilities are, and shall
continue to be, in full force and effect. This consent and agreement shall be
binding upon the undersigned, and the respective successors and assigns of each,
and shall inure to the benefit of Agent and Lenders, and respective successors
and assigns of each.
Vail Resorts, Inc.
Vail Holdings, Inc.
Vail Trademarks, Inc.
Vail Resorts Development Company
Beaver Creek Consultants, Inc.
Beaver Creek Associates, Inc.
Vail/Beaver Creek Resort Properties, Inc.
Vail Food Services, Inc.
Piney River Ranch, Inc.
Vail/Arrowhead, Inc.
Beaver Creek Food Services, Inc.
Vail Associates Holdings, Ltd.
Vail Associates Real Estate, Inc.
Vail Associates Consultants, Inc.
Vail Associates Management Company
Vail/Battle Mountain, Inc.
Gillett Group Management, Inc.
GHTV, Inc.
Gillett Broadcasting, Inc.
Gillett Broadcasting of Maryland, Inc.
Vail Summit Resorts, Inc.
Keystone Conference Services, Inc.
Keystone Development Sales, Inc.
Keystone Resort Property Management Company
Keystone Food & Beverage Company
Lodge Properties, Inc.
Lodge Realty, Inc.
The Village at Breckenridge Acquisition Corp., Inc.
Property Management Acquisition Corp., Inc.
Grand Teton Lodge Company
Larkspur Restaurant & Bar, LLC
By: ____________________________________________
Name: ____________________________________________
Senior Vice President of each of the above
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