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Exhibit 10.20(c)
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT (this "Amendment") is entered into on April 21, 2000
but is effective as of February 1, 2000, 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 by the First Amendment dated as of December 31, 1999, and as
amended, restated or supplemented from time to time, the "Credit Agreement");
and
WHEREAS, Borrower wishes to amend the Credit Agreement to permit the
inclusion of a portion of the Restricted Companies' EBITDA related to real
estate activities in the calculation of financial covenants under the Credit
Agreement;
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. Definitions.
(a) Effective with the fiscal quarter commencing February 1, 2000, the
definition of "Resort EBITDA" in Section 1.1 of the Credit Agreement is
hereby amended by adding the underlined language shown below:
Resort EBITDA means the sum of:
(a) 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);
plus
(b) EBITDA of the Restricted Companies related to real estate
activities in an amount not greater than 10% of the total under
paragraph (a) above.
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(b) The definition of "Unrestricted Subsidiary" is hereby amended to
delete the references to "Vail Associates Investments, Inc." and "Vail
Resorts Holdings, Inc. (f/k/a VREJV, Inc.)", which are hereby designated by
Borrower as Restricted Subsidiaries, so that such definition shall read in
its entirety as follows:
Unrestricted Subsidiary means Eagle Park Reservoir Company, SSI
Venture LLC, 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., 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.
2. Compliance Certificate. Exhibit D of the Credit Agreement is hereby
deleted and replaced in its entirety by Exhibit D attached to this Amendment.
3. 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 Guaranty executed by
Vail Associates Investments, Inc. and Vail Resorts Holdings, Inc., (c) such
other documents as Agent may reasonably request, and (d) payment by Borrower to
Agent for the Pro Rata benefit of the Lenders who execute and deliver this
Amendment on or before April 21, 2000, of an amendment fee in the amount of
$225,000.
4. 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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5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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., as Agent and a Lender
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
FLEET NATIONAL BANK
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: _________________________________________
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BANKERS TRUST COMPANY
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
CIBC INC.
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
GENERAL ELECTRIC CAPITAL
CORPORATION
By: __________________________________________
Name: __________________________________________
Title: __________________________________________
HARRIS TRUST AND SAVINGS BANK
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
KEYBANK NATIONAL ASSOCIATION
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
Vail Associates Investments, Inc.
Vail Resorts Holdings, Inc.
By: ________________________________________
Name: ________________________________________
Senior Vice President of each of the above
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EXHIBIT D
---------
COMPLIANCE CERTIFICATE
FOR _____________ ENDED__________
Bank of America, N.A., as Agent
Corporate Finance Group
901 Main Street, 67th Floor
Dallas, Texas 75202
Attn: Natalie E. Hebert
Fax: (214) 209-0980
Reference is made to the Amended and Restated Credit Agreement dated as of
May 1, 1999 (as amended, supplemented or restated, the "Credit Agreement"),
among THE VAIL CORPORATION, the Lenders named therein, Bank of America N.A., as
Agent, and Banc of America Securities LLC. Unless otherwise defined herein, all
capitalized terms have the meanings given to such terms in the Credit Agreement.
This certificate is delivered pursuant to Section 8.1 of the Credit
Agreement.
I certify to Agent that I am the Chief Financial Officer of Borrower on the
date hereof and that:
1. The financial statements attached hereto were prepared in accordance
with GAAP (except for the omission of footnotes from financial statements
delivered pursuant to Section 8.1(b)) and present fairly, in all material
respects, the consolidated financial condition and results of operations of the
Companies as of, and for the _____________ ending on ________________ (the
"Subject Period").
2. During the Subject Period, no Default or Potential Default has occurred
which has not been cured or waived (except for any Defaults set forth on the
attached schedule).
3. Evidence of compliance by Borrower with the financial covenants of
Section 10 of the Credit Agreement as of the last day of the Subject Period is
set forth on the attached calculation worksheet.
Very truly yours,
________________________________________
Name: _________________________________
Chief Financial Officer
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Annex A to Exhibit D
--------------------
CREDIT FACILITY COVENANTS CALCULATIONS
___________________, ________
_____ Months
Ended - -
--------------
10.1(a) FUNDED DEBT TO RESORT EBITDA RATIO:
(i) FUNDED DEBT OF THE RESTRICTED COMPANIES:
(A) Funded Debt of the Companies per the
Financial Statements $
(B) Minus the following items of Funded Debt for
the following Unrestricted Subsidiaries:
(1) SSI Venture LLC (48.1% non-membership
interest) ( )
(2) Eagle Park Reservoir Company ( )
(3) _________________________ ( )
(C) Plus the principal portion of all Capital
Lease obligations of the Companies per the
Financial Statements $
(D) Minus the principal portion of the following
Capital Lease obligations for the following
Unrestricted Subsidiaries:
(1) SSI Venture LLC ( )
(2) Eagle Park Reservoir Company ( )
(3) _________________________ ( )
TOTAL FUNDED DEBT OF THE RESTRICTED COMPANIES $
============
(ii) RESORT EBITDA:
Paragraph (a) of the definition of Resort EBITDA
equals the sum of:
(A) EBITDA of the Companies for the last four
fiscal quarters per the Financial Statements $
(B) Plus pro forma EBITDA for assets acquired during
such period $
(C) Minus pro forma EBITDA for assets disposed of
during such period
( )
(D) Minus EBITDA for such period related to real
estate activities ( )
(E) Minus the following EBITDA for such period
attributable to the following Unrestricted
Subsidiaries:
(1) SSI Venture LLC (48.1% non-membership
interest) ( )
(2) Eagle Park Reservoir Company ( )
(3) ________________________ ( )
Resort EBITDA of the Restricted Companies under
Paragraph (a) $
Paragraph (b) of the definition of Resort EBITDA
equals:
EBITDA for the period related to real estate
activities of the Restricted Companies in an
amount not greater than 10% of the total under
Paragraph (a) of the definition of Resort
EBITDA $
TOTAL RESORT EBITDA OF THE RESTRICTED COMPANIES
(equals the sum
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_____ Months
Ended - -
------------
of Paragraph (a) plus Paragraph (b)) $
Ratio
Maximum Ratio
10.1(b) SENIOR DEBT TO RESORT EBITDA RATIO:
(i) SENIOR DEBT OF THE RESTRICTED COMPANIES:
(A) Total Funded Debt of the Restricted Companies
(from Part 10.1(a)(i) above) $
(B) Minus Subordinated Debt of the Restricted Companies ( )
TOTAL SENIOR DEBT OF THE RESTRICTED COMPANIES $
(ii) TOTAL RESORT EBITDA OF THE RESTRICTED COMPANIES (from
Part 10.1(a)(ii) above) $
===========
Ratio
===========
Maximum Ratio
===========
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10.2 MINIMUM FIXED CHARGE COVERAGE RATIO:
(a) COVERAGE
(i) Resort EBITDA for the last four fiscal
quarters (from 10.1(b) above)
$
(ii) Minus "Adjusted Capital Expenditures" (as
defined in (S) 10.2 of the Agreement) for
such period ( )
-----------
$
===========
(b) FIXED CHARGES
(i) Interest on the Obligation for the last four
fiscal quarters $
(ii) Plus scheduled principal and interest payments
on all other Funded Debt during such period $
(iii) Plus Distributions by VRI during such period $
$
===========
Ratio ===========
Minimum required ratio ===========
10.3 INTEREST COVERAGE RATIO
(a) Resort EBITDA for the last four fiscal quarters (from
10.1(b) above) $
(b) Payments of interest on Funded Debt of the Restricted
Companies in the last four fiscal quarters $
Ratio ===========
Minimum required ratio ===========
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