SIXTH AMENDMENT AGREEMENT
THIS SIXTH AMENDMENT AGREEMENT (this "Sixth Amendment Agreement"), dated
as of August 29, 2002 among GRAND SUMMIT RESORT PROPERTIES, INC., a Maine
corporation, (herein referred to as "GSRP"), the lenders listed on the signature
pages hereof (each individually referred to herein as a "Lender" and,
collectively, as the "Lenders"), TEXTRON FINANCIAL CORPORATION, a Delaware
corporation, as agent for the Lenders (in such capacity herein referred to as
the "Administrative Agent").
W I T N E S S E T H:
A. WHEREAS, GSRP entered into that certain Loan and Security Agreement with
Textron Financial Corporation, Green Tree Financial Services Corporation and the
Administrative Agent dated as of September 1, 1998 (as amended to but excluding
the date hereof, the "Existing LSA"), pursuant to which the Lenders agreed to
make loans to GSRP in accordance with the terms of the Existing LSA;
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing LSA and in Section 1 of this Sixth Amendment Agreement;
and
C. WHEREAS, the parties to the Existing LSA have agreed to certain amendments
to the Existing LSA as described and set forth below;
NOW, THEREFORE, in consideration of the Administrative Agent's, the
Lenders,' and GSRP's agreements hereunder, and in consideration of other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Administrative Agent, the Lenders and GSRP hereby agree as
follows:
1. Amendments to Definitions. The parties hereto agree that Section 1.1
of the Existing LSA is, and shall be deemed to be, amended and modified as
follows:
1.1 The following new definitions are hereby added to Section 1.1 of
the Existing LSA:
Excess Projects' Cash Proceeds - as defined in Paragraph 6 of
the Sixth Amendment Agreement.
$15MM Sales Date - as defined in the definition of "Release
Price."
Obligation-Servicing Projects' Cash Proceeds - as defined in
Paragraph 5 of the Sixth Amendment Agreement.
Operating Cash Flow Budget - as defined in Paragraph 7(a) of
the Sixth Amendment Agreement.
Projects' Cash Proceeds - as defined in Paragraph 4 of the
Sixth Amendment Agreement.
Percentage Sales Fee - as defined in Paragraph 10 of the Sixth
Amendment Agreement.
Schedule of Expenses - as defined in Paragraph 7(b) of the
Sixth Amendment Agreement.
SOI - means that certain Statement of Intention and Special
Additional Financing Agreement, dated as of July 25, 2000 between
GSRP and Textron Financial Corporation, in its capacity as the
lender thereunder (the "Subordinated Lender"), as amended.
Sixth Amendment Agreement -- means that certain Sixth
Amendment Agreement dated as of August 29, 2002 among the GSRP, the
Administrative Agent and the Lenders.
Sixth Amendment Effective Date -- as defined in the Sixth
Amendment Agreement.
Sixth Amendment Fees - as defined in Paragraph 10 of the Sixth
Amendment Agreement.
Subordinated Lender - as defined in the definition of SOI.
Subordinated Loan Tranche - as defined in the SOI.
Subordinated Loan Tranche Advance - as defined in the SOI.
Subordinated Loan Tranche Obligations - as defined in the SOI.
1.2 The following existing definitions in the Existing LSA are
hereby amended and restated in their entirety as follows:
Canyons Construction Project Advances Maturity Date - means
March 31, 2003.
Obligations -- means all of the Steamboat Obligations, the
Canyons 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 (including, without
limitation or duplication, the Sixth Amendment Fees), 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, 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.
Release Price -- means,
(a) in the case of any Steamboat Quartershare Interests as
follows:
(i) in the case of any Steamboat Non-Penthouse
Quartershare Interest,
(A) for so long as both Steamboat Obligations and
Colorado First/PCL Obligations shall be outstanding
and GSRP is obligated to pay, and actually does pay,
a "release price" to Colorado First/PCL in respect
of any sale of a Steamboat Non-Penthouse
Quartershare Interest, $0 (to the extent of any sale
of a Steamboat Non-Penthouse Quartershare Interest
that results in a "release price" being paid to
Colorado First/PCL and thereby causing the Colorado
First/PCL Obligations to be paid in full, a Release
Price shall be payable hereunder in respect of such
Steamboat Non-Penthouse Quartershare Interest that
would otherwise be payable under subclause (B) below
after reducing said Release Price on a dollar-for-
dollar basis for any payment of the final "release
price" so paid to Colorado First/PCL);
(B) for so long as any Steamboat Obligations are
outstanding but after all of the Colorado First/PCL
Obligations shall have been paid in full, the
greater of (x) through and until the earlier of
February 28, 2003 or the date ("$15MM Sales Date")
on which gross proceeds from the sale of Steamboat
Quartershare Interests consummated after the Sixth
Amendment Effective Date first exceeds, in the
aggregate, $15,000,000, 50% of the minimum release
dollar amount set forth on Schedule 3 hereto that
corresponds to the particular type of Quartershare
Interest listed thereon that is being sold (subject
to the proviso set forth at the end of this
subclause(a)) and after the earlier of February 28,
2003 or the $15MM Sales Date, 100% of the aforesaid
minimum release dollar amounts and (y) through and
until the earlier of February 28, 2003 or the $15MM
Sales Date, 40% of the gross sales proceeds in
respect of the Steamboat Quartershare Interest that
is being sold, and after the earlier of February 28,
2003 or the $15MM Sales Date, 80% of the gross sales
proceeds in respect of the Steamboat Quartershare
Interest that is being sold and
(C) after the Steamboat Obligations and the
Colorado First/PCL Obligations have been fully and
finally paid, the greater of (x) 100% of the minimum
release dollar amount set forth on Schedule 3 hereto
that corresponds to the particular type of
Quartershare Interest listed thereon that is being
sold (subject to the proviso set forth at the end of
this subclause(a)) and (y) 70% of the gross sales
proceeds in respect the Steamboat Non-Penthouse
Quartershare Interest that is being sold,
(ii) in the case of any Steamboat Penthouse Quartershare
Interest,
(A) for so long as any Steamboat Obligation is
outstanding, the greater of (x) through and until
the earlier of February 28, 2003 or the $15MM Sales
Date, 50% of the minimum release dollar amount set
forth on Schedule 3 hereto that corresponds to the
particular type of Quartershare Interest listed
thereon that is being sold (subject to the proviso
set forth at the end of this subclause(a)) and after
the earlier of February 28, 2003 or the $15MM Sales
Date, 100% of the aforesaid minimum release dollar
amounts and (y) through and until the earlier of
February 28, 2003 or the $15MM Sales Date, 40% of
the gross sales proceeds in respect of the Steamboat
Penthouse Quartershare Interest that is being sold,
and after the earlier of February 28, 2003 or the
$15MM Sales Date, 80% of the gross sales proceeds in
respect of the Steamboat Penthouse Quartershare
Interest that is being sold;
(B) after the Steamboat Obligations have been
fully and finally paid, the greater of (x) 100% of
the minimum release dollar amount set forth on
Schedule 3 hereto that corresponds to the particular
type of Quartershare Interest listed thereon that is
being sold (subject to the proviso set forth at the
end of this subclause(a)) and (y) 70% of the gross
sales proceeds in respect of the Steamboat Penthouse
Quartershare Interest that is being sold, and
(iii) with respect to any sale of 50% of a Steamboat
Quartershare Interest (a so-called "1/8th Steamboat
Quartershare Interest"), the Release Price otherwise to be
paid to the Administrative Agent shall be whatever the Release
Price would have been for the full Steamboat Quartershare
Interest in respect thereof except that any such "Release
Price" based on Schedule 3 hereto (subject to the proviso set
forth at the end of this subclause(a)) shall be reduced by
50%;
provided that
(I) with respect to the "minimum release dollar amounts"
set forth on Schedule 3 hereto pertaining to unsold Steamboat
Quartershare Interests, such "minimum release dollar amounts"
shall be, if requested by Borrower when no Default or Event of
Default shall exist, subject to adjustment on a monthly basis
as of the date on which interest is scheduled to be paid on
the Steamboat Notes (the "Monthly Adjustment Date") such that
the aggregate amount of such "minimum release dollar amounts,"
after giving effect to such adjustments on such Monthly
Adjustment Date, shall not be less than the sum of the
principal amount of the Steamboat Loan outstanding as of such
Monthly Adjustment Date, plus the outstanding principal amount
of the Colorado First/PCL Obligations as of such Monthly
Adjustment Date; the individual adjustments to each of the
"minimum release dollar amounts" relating to each of the
unsold Steamboat Quartershare Interests shall be determined by
GSRP using a reasonable methodology and shall be subject to
the approval of the Administrative Agent (which approval shall
not be unreasonably withheld or delayed); the "minimum release
dollar amount" applicable in subclauses (i), (ii) and (iii) of
this clause (a) and as otherwise referred to in this clause
(a) as being set forth on Schedule 3 hereto shall be the then
current "minimum release dollar amounts" as adjusted under
this subclause (I);
(II) if unsold Steamboat Quartershare Interests shall be
sold by GSRP other than in the ordinary course of its business
(including, without limitation, any bulk sales of such
Steamboat Quartershare Interests), the "minimum release dollar
amounts" then in effect in respect of such sold Steamboat
Quartershare Interests shall be supplemented by adding thereto
(x) in the case in which all of the remaining unsold Steamboat
Quartershare Interests shall have been sold, all of the
remaining unpaid Steamboat Obligations, the Sixth Amendment
Fees and the Percentage Sales Fee that would otherwise be
payable in respect of such Steamboat Quartershare Interests
and (y) in any other case, an amount equal to the remainder
(if positive) of (x) the principal amount of the Steamboat
Loan outstanding after applying such "minimum release dollar
amounts" as provided in Section 2.5(d)(i) hereof less (y) the
product of the remaining unsold Steamboat Quartershare
Interests (after giving effect to such sale) times the then
current "minimum release dollar amounts;" and
(III) nothing in this clause (a) shall apply to or
otherwise affect any other Release Price determination in this
definition,
(b) in the case of any Canyons Quartershare Interest, (i) for
so long as any Canyons Obligations are outstanding, 100% of the
dollar amount set forth on Schedule 3 hereto that corresponds to the
particular type of Quartershare Interest listed thereon and (ii)
after the Canyons Obligations have been fully and finally paid, 70%
of the dollar amount set forth on Schedule 3 hereto that corresponds
to the particular type of Quartershare Interest listed thereon,
(c) intentionally omitted,
(d) intentionally omitted,
(e) intentionally omitted, and
(f) intentionally omitted.
With respect to the sale of any Commercial Unit, the release
price shall be such amount as shall have been agreed between GSRP
and the Administrative Agent and approved by the appropriate Project
Required Lenders, provided that no release price shall be payable in
connection with the release of the "Northeastern Commercial Core
Assets" provided for in, and as defined in, the Fifth Amendment
Agreement.
Anything contained to the contrary in this definition of
"Release Price," at such time as all of the Colorado First/PCL
Obligations, the Canyons Obligations, the Steamboat Obligations, the
Subordinated Loan Tranche Obligations and all other Obligations
(other than the Percentage Sales Fee) shall have been paid in full,
(aaa) "Release Price" for a Quartershare Interest or Commercial Unit
shall be equal to the Percentage Sales Fee due in respect thereof
and (bbb) to the extent that any Quartershare Interest or Commercial
Unit suffers a casualty for which there is insurance proceeds or is
condemned for which there is condemnation proceeds distributable, in
each case, to GSRP (without giving effect to Section 3.5 and 3.6 of
the Existing LSA, as amended hereby), such insurance or condemnation
proceeds shall be deemed sales proceeds and the Percentage Sales Fee
shall be payable in respect thereof (after which such remaining
insurance or condemnation proceeds shall be payable to, and retained
by, GSRP free and clear of any Liens, security interests or claims
hereunder or under any other Security Document).
The Release Price for the so-called "Parking Unit" at the Steamboat
Project shall be (1) the payment to the Administrative Agent of any
cash payment paid to GSRP by the Steamboat Association in respect
thereof, (2) the collateral assignment to the Administrative Agent
of the promissory note from the Steamboat Association in respect
thereof, (3) the collateral assignment to the Administrative Agent
of the beneficial interest in the deed of trust securing said
promissory note and (4) the payment of all proceeds in respect
thereof (including, without limitation, all payments of principal
and interest) to the Administrative Agent. The payments of such
proceeds (including, without limitation, all payments of principal
and interest) shall be treated as the payment of a Release Price in
respect of a "Steamboat Commercial Unit" for purposes of Section
2.5(b)(iii) and Section 2.5(d) hereof.
Steamboat Construction Project Advances Maturity Date - means
May 31, 2004.
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
also including the Subordinated Loan Tranche Obligations), 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.
2. Termination of Commitments. For the avoidance of doubt, to the
extent that any Commitment shall have not been terminated prior to the Sixth
Amendment Effective Date, all Commitments are terminated as of the Sixth
Amendment Effective Date.
3. Waiver. Upon this Sixth Amendment Agreement becoming effective on
the Sixth Amendment Effective Date and subject to the proviso to this sentence,
each Default and/or Event of Default existing on the Sixth Amendment Effective
Date and arising from or otherwise in respect of (a) the default or defaults
occurring or arising under or in respect of the Fleet/ASCRP Loan Documents prior
to the Sixth Amendment Effective Date, (b) the acceleration of the loans under
the Fleet/ASCRP Loan Documents that occurred prior to the Sixth Amendment
Effective Date (such defaults under the Fleet/ASCRP Loan Documents and such
acceleration of the loans thereunder are referred to herein as the "Fleet/ASCRP
Loan Defaults/Acceleration") and/or (c) the obligations under the Colorado
First/PCL Promissory Note not having been paid in full by May 17, 2002 are, in
each case, hereby waived, provided that (i) if there shall be a material
undertaking or action on the part of any one or more of the lenders or any agent
on their behalf under the Fleet/ASCRP Loan Documents to enforce the same or any
agreement or instrument thereunder or to realize upon any collateral therefor
(other than in respect of that certain notice of default dated July 3, 2002
given to the Parent by the agent under the Fleet/ASCRP Loan Documents in respect
of certain real property of the Parent located in Utah and that certain amended
notice of default dated July 18, 2002 given to the Parent by the agent under the
Fleet/ASCRP Loan Documents in respect of certain real property of the Parent
located in Utah referred to in the aforesaid July 3, 2002 notice and certain
additional real property of the Parent located in Utah), in each case in respect
of the Fleet/ASCRP Loan Defaults/Acceleration, the Lenders, after the expiration
of a period of sixty (60) days after the commencement of any such undertaking or
action, may elect, in their sole and absolute discretion, to treat the
Fleet/ASCRP Loan Defaults/Acceleration as having come immediately back into
existence and the same shall immediately constitute an Event of Default under
the Amended LSA upon written notice of such election being sent to GSRP by the
Administrative Agent and (ii) if there shall be a material undertaking or action
on the part of Colorado First/PCL to enforce the Colorado First/PCL Promissory
Note, the Colorado First/PCL Deed of Trust or any of the other Colorado
First/PCL Obligations, the Lenders may elect, in their sole and absolute
discretion, to treat the default in respect of the obligations under the
Colorado First/PCL Promissory Note not having been paid in full by May 17, 2002
(as provided for in the Existing LSA) as having come immediately back into
existence and the same shall immediately constitute an Event of Default under
the Amended LSA upon written notice of such election being sent to GSRP by the
Administrative Agent. No other Default or Event of Default (whether occurring
prior to the date hereof or hereafter) shall be deemed waived, and the
Administrative Agent on behalf of itself and the Lenders hereby reserves all of
its and their respective rights and remedies under the Existing LSA, as amended
hereby, the other Security Documents, at law and in equity with respect thereto.
4. Amendment to Section 2.5(b) of the Existing LSA. Notwithstanding
Section 2.5(b) of the Existing LSA, GSRP shall, with respect to each sale of a
Quartershare Interest, deliver, or cause to be delivered, promptly to the
Administrative Agent 100% of all cash downpayments and all other cash payments
received by GSRP and paid by the Purchaser in respect of such sale. GSRP agrees
that all sales of Quartershare Interests shall be for cash only unless the
Lenders and the Administrative Agent have otherwise agreed in writing.
Notwithstanding Section 2.5(b) of the Existing LSA, GSRP shall, with
respect to each sale of a Commercial Unit, deliver, or cause to be delivered,
promptly to the Administrative Agent 100% of all cash downpayments and all other
cash payments received by GSRP and paid by the purchaser in respect of such
sale. GSRP agrees that all sales of Commercial Units shall be for cash only
unless the Lenders and Administrative Agent have otherwise agreed in writing.
In addition to the provisions of Section 2.5(b) of the Existing LSA and
anything to the contrary set forth in any Security Document notwithstanding,
GSRP shall, with respect to each of the Projects, deliver, or cause to be
delivered, promptly to the Administrative Agent all rents, issues, profits and
other payments in respect thereof. The Administrative Agent and GSRP may
establish the process and the mechanics by which such rents, issues and profits
are paid to the Administrative Agent but such processes and mechanics shall be
subject to modification in the sole discretion of the Administrative Agent.
In addition to the provisions of Section 2.5(b) of the Existing LSA and
anything to the contrary set forth in any Security Document notwithstanding,
GSRP shall, with respect to each of the Projects, deliver, or cause to be
delivered, promptly to the Administrative Agent all payments received by GSRP
from or in respect of the "Assigned Agreements" under, and as defined in, each
of the Assignment of Property-Related Contracts. The Administrative Agent and
GSRP may establish the process and the mechanics by which such payments are paid
to the Administrative Agent but such processes and mechanics shall be subject to
modification in the sole discretion of the Administrative Agent.
In addition to the provisions of Section 2.5(b) of the Existing LSA and
anything to the contrary set forth in any Security Document, GSRP agrees to
deliver, or cause to be delivered, promptly to the Administrative Agent any
funds or cash proceeds received by GSRP in respect of all or any part of the
Collateral. The Administrative Agent and GSRP may establish the process and the
mechanics by which such funds or cash proceeds are paid to the Administrative
Agent but such processes and mechanics shall be subject to modification in the
sole discretion of the Administrative Agent.
The funds to be paid to the Administrative Agent, as provided above, are
referred to herein as the "Projects' Cash Proceeds." To the extent that any of
the Projects' Cash Proceeds are held by, or are in the possession of, GSRP, GSRP
agrees and is hereby instructed by the Administrative Agent and Lenders to hold
the same in trust for the sole benefit of the Administrative Agent and the
Lenders, not to commingle the same and to promptly pay the same over to the
Administrative Agent. Projects' Cash Proceeds delivered to the Administrative
Agent shall be held by the Administrative Agent in the Cash Collateral Account
or such other of its operating accounts as it may elect. GSRP agrees that it
shall not have the right to select Eligible Investments or any other investments
in respect of any balance in the Cash Collateral Account. Administrative Agent
and GSRP may agree, in their respective sole discretion, on the type of
investment, if any, with respect to moneys in the Cash Collateral Account.
If after the full and final payment of the Canyons Obligations, the
Steamboat Obligations, the Subordinated Loan Tranche Obligations and all other
Obligations except for the Sales Percentage Fee, then Section 2.5(a) and 2.5(b)
of the Existing LSA, as amended hereby, shall be suspended so long as the Sale
Percentage Fee is paid to Textron Financial Corporation as provided for herein.
5. Amendment of Section 2.5(d) of the Existing LSA. The portion of
Projects' Cash Proceeds which consists of Release Prices in respect of sales of
Quartershare Interests, Release Prices in respect of sales of Commercial Units,
funds in respect of the Steamboat Host Company Lease, and funds in respect of
the Canyons Host Company Lease are referred to herein as the
"Obligation-Servicing Projects' Cash Proceeds." Anything contained in Section
2.5(d) of the Existing LSA notwithstanding, for so long as no Default or Event
of Default exists, only the Obligation-Servicing Projects' Cash Proceeds
(together with payments under Section 2.5(c)(iii), Section 3.5 and Section 3.6
of the Existing LSA, as amended hereby) shall be applied as provided for in
Section 2.5(d) of the Existing LSA. If a Default or Event of Default shall
occur, then all Projects' Cash Proceeds (together with payments under Section
2.5(c)(iii), Section 3.5 and Section 3.6 of the Existing LSA, as amended hereby)
may be applied, at the election of the Lenders and the Administrative Agent, as
provided for in Section 2.5(d) of the Existing LSA, as amended hereby, as
provided for in Section 8.2(c) of the Existing LSA, as amended hereby, or as
otherwise determined by the Lenders and Administrative Agent. For the avoidance
of doubt, GSRP hereby represents to the Administrative Agent and the Lenders
that the Beneficial Improvements Agreements have been fully paid and no further
payments are due to GSRP thereunder and that all of the Host Company Lease
Agreements will expire in accordance with their terms on August 31, 2003 (for
the avoidance of doubt, payments owing from the Steamboat Association to GSRP
under the so-called "Parking Unit" promissory note shall continue until said
"Parking Unit" note is paid in full; all of such payments have been collaterally
assigned to, and are directly paid to, the Administrative Agent and are treated
as "Release Price" payments for a Steamboat Commercial Unit). Anything contained
in Section 2.4(c), Section 2.5(d) or otherwise in the Existing LSA, as amended
hereby, or other Security Documents notwithstanding and if no Default or Event
of Default shall exist, Obligation-Servicing Projects' Cash Proceeds received by
the Administrative Agent shall be applied to the Obligations, when received, as
provided for in Section 2.5(d) hereof; this shall include, without limitation,
paying any accrued and unpaid interest even if such accrued and unpaid interest
shall have not become payable pursuant to the terms of Section 2.4(c) of the
Existing LSA; GSRP hereby irrevocably authorizes and instructs the payment of
such accrued and unpaid interest at the time of the receipt of any
Obligation-Servicing Projects' Cash Proceeds; in connection with any such
application of Obligation-Servicing Projects' Cash Proceeds, GSRP hereby
irrevocably authorizes the Administrative Agent and Lenders to reallocate and/or
reapply any prior applications of Obligation-Servicing Projects' Cash Proceeds
made during any calendar month in order to give effect to the overall
application ordering of Section 2.5(d) of the Existing LSA. To the extent, in
accordance with the foregoing, any accrued interest shall remain unpaid after
the 10th day of the month following the month in which it shall have accrued,
such unpaid interest shall itself bear interest at the applicable Default Rate.
All applications or reallocations of applications of Obligation-Servicing
Projects' Cash Proceeds in this Paragraph 5 shall give full effect to the
Projects which generated such proceeds and the consequent application of such
Cash Proceeds as provided for in Section 2.5(d) of the Existing LSA.
All Obligation-Servicing Projects' Cash Proceeds (together with payments
under Section 2.5(c)(iii), Section 3.5 and Section 3.6 of the Existing LSA, as
amended hereby) used by the Administrative Agent to make the payments
contemplated under Section 2.5(d) of the Existing LSA, as amended hereby, shall
be free and clear of any security interest or Lien created by the Existing LSA,
as amended hereby, or any of the other Security Documents or the SOI. All
Obligation-Servicing Projects' Cash Proceeds (together with payments under
Section 2.5(c)(iii), Section 3.5 and Section 3.6 of the Existing LSA, as amended
hereby) used to pay "cash" interest under the SOI at a fixed rate per annum of
10% shall be free and clear of any security interest or lien created by the
Existing LSA, as amended hereby, or any of the other Security Documents or the
SOI.
GSRP acknowledges that after the full and final payment of the Obligations
(other than the Subordinated Loan Tranche Obligations and the Percentage Sales
Fee), the Obligation-Servicing Projects' Cash Proceeds (together with payments
under Section 2.5(c)(iii), Section 3.5 and Section 3.6 of the Existing LSA, as
amended hereby) shall be used by the Administrative Agent to make payments of
the Subordinated Loan Tranche Obligations under Section 2.5(d) of the Existing
LSA, as amended hereby, and such payments shall be free and clear of any
security interest or Lien created by the Existing LSA, as amended hereby, or any
of the other Security Documents or the SOI.
Provided no Default or Event of Default shall exist and after the full and
final payment of the Canyons Obligations, the Steamboat Obligations, the
Subordinated Loan Tranche Obligations and all other Obligations except for the
Sales Percentage Fee, Section 2.5(d) of the Existing LSA, as amended hereby
shall be suspended so long as the Sale Percentage Fee is paid to Textron
Financial Corporation as provided for herein.
6. Excess Projects' Cash Proceeds. Projects' Cash Proceeds received by
the Administrative Agent which are not Obligation-Servicing Project Cash
Proceeds, which are not payments under Section 2.5(c)(iii), Section 3.5 and
Section 3.6 of the Existing LSA, as amended hereby, and which are not required
or otherwise used to pay "cash" interest under the SOI at a fixed rate per annum
of 10% are referred to herein as "Excess Projects' Cash Proceeds." For so long
as no Default or Event of Default exists, the Administrative Agent and the
Lenders agree, subject to the terms and conditions of this Paragraph 6, that the
Excess Projects' Cash Proceeds shall be returned to GSRP to be used, but only to
be used, for payment of costs and expenses in respect of the Projects and GSRP.
Anything contained in the Existing LSA or the other Security Documents to the
contrary notwithstanding, in no case shall any of such Excess Projects' Cash
Proceeds be paid to the Parent or to any other Person who is not a bona fide
creditor of GSRP. The payment of any Excess Projects' Cash Proceeds to the
Parent or to any other Person who is not a bona fide creditor of GSRP shall be
an immediate Event of Default under the Amended LSA and the other Security
Documents.
The following procedures shall apply in order for GSRP to be able to
obtain a payment from the Administrative Agent of all or part of the Excess
Projects' Cash Proceeds then held by the Administrative Agent in respect of a
withdrawal request submitted by GSRP to the Administrative Agent:
(a) GSRP shall have submitted to the Administrative Agent, the
Lenders and the Subordinated Lender a Schedule of Expenses, as provided in
Paragraph 7(b) of this Sixth Amendment Agreement, for the calendar month
in respect of which such withdrawal request is submitted and such Schedule
of Expenses shall not be materially different than the expenses shown on
the then current Operating Cash Flow Budget for such month; no Lender
shall have notified the Administrative Agent in writing of its
dissatisfaction with any then current Operating Cash Flow Budget under
Paragraph 7(a) of this Sixth Amendment Agreement, notified Administrative
Agent of a material variance (greater than 10%) from such Operating Cash
Flow Budget pursuant to Paragraph 7(c) of this Sixth Amendment Agreement
or notified Administrative Agent of a material variance from any prior
month's Schedule of Expenses as provided for in Paragraph 7(c) of this
Sixth Amendment Agreement;
(b) Not more frequently than once a week, GSRP may submit to the
Administrative Agent a withdrawal request, which shall be in form and
substance satisfactory to the Administrative Agent, pursuant to which GSRP
may request payment to it of an amount of the Excess Projects' Cash
Proceeds then on hand with the Administrative Agent equal to the lesser of
(1) the actual amount of such Excess Projects' Cash Proceeds then on hand
with the Administrative Agent and (2) the amount of expenses of GSRP
falling due for payment on or about or prior to the date of such
withdrawal request and appropriately reflected on the then current
Schedule of Expenses (after giving effect to any Subordinated Loan Tranche
Advance under the SOI to be obtained in conjunction with such withdrawal
request); subject to Administrative Agent's having approved such
withdrawal request, the existence of no Default or Event of Default, and
the satisfaction of the other requirements in respect thereof under this
Paragraph 6, the Administrative Agent will promptly wire transfer the
amount set forth above with respect to such withdrawal request to an
account of GSRP that has been approved by GSRP and the Administrative
Agent; and
(c) In such withdrawal request, GSRP shall certify to the
Administrative Agent, the Lenders and the Subordinated Lender that (1) all
of the Projects' Cash Proceeds required to be delivered to the
Administrative Agent under the Sixth Amendment Agreement are being paid
and delivered to the Administrative Agent, (2) no Excess Projects' Cash
Proceeds subject to such withdrawal request and none of any prior releases
of Excess Projects' Cash Proceeds to GSRP by the Administrative Agent are
being or have been paid or distributed to the Parent or any other Person
other than a bona fide creditor of GSRP (and then only in satisfaction of
the bona fide obligation owing from GSRP to such creditor); and (3) all
prior requested withdrawals of Excess Projects' Cash Proceeds and
Subordinated Loan Tranche Advances made on or after the Sixth Amendment
Effective Date have been used by GSRP solely to pay the expenses set forth
on the Schedules of Expenses applicable thereto.
Nothing herein shall be construed as the Administrative Agent's or any
Lender's or the Subordinated Lender's requiring GSRP to use any of the Excess
Projects' Cash Proceeds for the payment of a specific expense or cost. GSRP
shall be solely responsible for preparing all Schedules of Expenses and for
determining how to use, and actually using, Excess Projects' Cash Proceeds
released to it by the Administrative Agent to pay its costs and expenses.
All Excess Projects' Cash Proceeds released by Administrative Agent to
GSRP under this Paragraph 6 for its use thereof as provided for herein shall be
free and clear of any security interest or Lien created by the Existing LSA, as
amended hereby, or any of the other Security Documents or the SOI.
Subject to the use and release provisions of the immediately two preceding
paragraphs, the use and release provisions of the penultimate paragraph of
Section 5 of this Sixth Amendment Agreement, and the penultimate paragraph of
this Section 6, all Projects' Cash Proceeds, all Obligation-Servicing Projects'
Cash Proceeds and all Excess Projects' Cash Proceeds shall constitute, and shall
continue to constitute, Collateral.
Provided no Default or Event of Default shall exist and after the full and
final payment of the Canyons Obligations, the Steamboat Obligations, the
Subordinated Loan Tranche Obligations and all other Obligations except for the
Sales Percentage Fee and provided further that Section 2.5(a), (b) and (c) of
the Existing LSA, as amended hereby, shall have been and remain suspended, as
provided in Sections 4 and 5 of this Sixth Amendment Agreement, then this
Section 6 shall likewise be suspended so long as the Sale Percentage Fee is paid
to Textron Financial Corporation as provided for herein and GSRP shall be
entitled to use of the all Excess Projects' Cash Proceeds, all
Obligation-Servicing Projects' Cash Proceeds and all other Projects' Cash
Proceeds free and clear of any security interest or Lien created by the Existing
LSA, as amended hereby, or any of the other Security Documents or the SOI and
without any restrictions in respect thereof under Section 3.5, Section 3.6 or
Section 7.7 of the Existing LSA, as amended hereby.
The Administrative Agent and the Lenders have been informed by GSRP that
there is on hand in its operating bank account approximately $100,000 in
immediately available funds. The Administrative Agent and the Lenders agree that
GSRP may retain such funds provided that they are used from time to time solely
to pay expenses that are listed on a Schedule of Expenses, that any such use
conforms to the requirements of this Paragraph 6, that any such use be reported
to the Administrative Agent and the Lenders as contemplated in Paragraph 7 below
and that any remaining balance of such funds shall be delivered to the
Administrative Agent at any time that the Administrative Agent shall demand such
delivery in writing.
7. Sixth Amendment Agreement Reporting and Delivery Covenants. In
addition to the reporting requirements and other covenants under the Existing
LSA, GSRP agrees as follows:
(a) GSRP shall submit to the Administrative Agent, the Lenders and
the Subordinated Lender on the Sixth Amendment Effective Date a cash flow
monthly budget for the balance of its then current fiscal year commencing
on July 29, 2002. GSRP shall submit to the Administrative Agent, the
Lenders and the Subordinated Lender on or prior to April 1, 2003, a cash
flow monthly budget for its fiscal year commencing in July, 2003 and (iii)
GSRP shall submit to the Administrative Agent, the Lenders and the
Subordinated Lender on or prior to April 1, 2004, a cash flow monthly
budget for its fiscal year commencing in July, 2004. Such budgets
(collectively, the "Operating Cash Flow Budgets") shall reflect, in
reasonable detail, all projections for sales of Quartershare Interests on
a month-by-month basis and all other sources of cash for GSRP as well as
all uses of cash by GSRP on a month-by-month basis during the time periods
for which they are prepared (and shall also include all assumptions used
by GSRP in preparing such projections). All Schedules of Expenses
submitted to the Administrative Agent shall be consistent with the
Operating Cash Flow Budgets in respect thereof. If any Operating Cash Flow
Budget shall be unsatisfactory to any Lender, in its reasonable
determination, then such Lender may inform the Administrative Agent of its
dissatisfaction with such Operating Cash Flow Budget within 30 days of the
delivery of same to such Lender and, until the Administrative Agent shall
have received a written withdrawal of such notice of dissatisfaction, the
Administrative Agent shall not fund any withdrawal requests for Excess
Projects' Cash Proceeds.
(b) GSRP shall submit to the Administrative Agent, the Lenders and
the Subordinated Lender at the beginning of each monthly period a schedule
of expenses (a "Schedule of Expenses") anticipated by GSRP as falling due
and payable for such monthly period. GSRP shall cause the Schedule of
Expenses not to be materially different from the Operating Cash Flow
Budget applicable to such monthly period.
(c) GSRP shall provide to the Administrative Agent, the Lenders and
the Subordinated Lender on or before the 10th day of each monthly period a
report showing each requested withdrawal of Excess Projects' Cash Proceeds
and each Subordinated Loan Tranche Advance in respect of the immediately
preceding monthly period and the applications of the proceeds of the same
to expenses of GSRP, and GSRP shall further deliver to the Administrative
Agent, the Lenders and the Subordinated Lender a reconciliation of the
expenses so paid with such Excess Projects' Cash Proceeds and Subordinated
Loan Tranche Advances with the expenses listed on the Schedule of Expenses
for such monthly period. If any such report shall show that the
application of Excess Projects' Cash Proceeds and proceeds of Subordinated
Loan Tranche Advances have not been materially as set forth in such
Schedule of Expenses, then, at the written request of any Lender, no
further withdrawal requests for Excess Projects' Cash Proceeds shall be
funded by the Administrative Agent and an immediate Event of Default shall
be deemed to have occurred.
At the end of each quarterly fiscal period of GSRP commencing with
the fiscal quarterly period of GSRP ending on October 27, 2002, GSRP shall
provide to the Administrative Agent, the Lenders and the Subordinated
Lender a reconciliation of actual sources of cash and actual uses of cash
for the fiscal quarter then ending to the projected sources and uses of
cash set forth in the Operating Cash Flow Budget applicable to such fiscal
quarter. Such reconciliation shall be accompanied by a reasonably detailed
written explanation prepared by GSRP of any material variances in the
actual sources and uses of cash from the projected sources and uses of
cash. To the extent that the aggregate amount of expenses incurred by GSRP
and paid or payable by GSRP during such quarterly fiscal period exceed by
more than 10% the projected aggregate amount of expenses to be incurred
and paid by GSRP during such quarterly fiscal period on the applicable
Operating Cash Flow Budget, then, at the written request of any Lender, no
further withdrawal requests for Excess Projects' Cash Proceeds shall be
funded by the Administrative Agent and an immediate Event of Default shall
be deemed to have occurred, provided, however, (i) if no such variance
would exist if all fiscal quarters during the then current fiscal year of
GSRP were included in such determination or (ii) if during such quarterly
fiscal period, the aggregate amount of actual sources of cash exceeded by
10% the projected aggregate amount of sources of cash during such
quarterly fiscal period on the applicable Operating Cash Flow Budget, then
additional withdrawal requests for Excess Projects' Cash Proceeds shall be
funded by the Administrative Agent limited to the outstanding balance of
the cash proceeds in the Cash Collections Account or other escrow account
being used by the Administrative Agent to hold Projects' Cash Proceeds and
an Event of Default shall not be deemed to have occurred upon Lenders'
giving to the Administrative Agent their written approval of the same,
which written approval shall not be unreasonably withheld.
(d) GSRP shall pay for and otherwise reimburse the Lenders for all
of the cost and expense of a written appraisal of the current market value
of the unsold Steamboat Quartershare Interests, the Steamboat Commercial
Unit, the unsold Canyons Quartershare Interests and the Canyons Commercial
Unit to be initiated and procured by the Lenders. Such appraisal and the
appraiser preparing the same will comply with all requirements of Title XI
of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, and the regulations implementing said Title XI . The
appraiser of the unsold Steamboat Quartershare Interests and the Steamboat
Commercial Unit shall be a certified Colorado appraiser and a MAI member
of the Appraisal Institute. The appraiser of the unsold Canyons
Quartershare Interests and the Canyons Commercial Unit shall be a
certified Utah appraiser and a MAI member of the Appraisal Institute.
8. SOI. The Lenders agree that GSRP, in accordance with the SOI, shall
pay to the Subordinated Lender, in cash, interest accruing from time to time on
the outstanding principal balance of the Subordinated Loan Tranche at a fixed
rate per annum of 10% (it being acknowledged that interest accrues under the SOI
at a per annum rate of 20% and that the remaining unpaid portion of said rate of
interest would not be paid until all Canyons Obligations, all Steamboat
Obligations and all other Obligations (other than the Percentage Sales Fee and
the Subordinated Loan Tranche Obligations) shall have been fully and finally
paid). Such "cash interest" shall be payable, and shall be paid, by GSRP
irrespective of whether a Default or Event of Default shall exist and shall rank
pari passu with the obligation of GSRP to pay interest to the Lenders in respect
of the Steamboat Obligations. The Lenders acknowledge that the Subordinated
Lender shall be entitled to receive such "cash interest payment" at the same
time as the Lenders for the Steamboat Project receive interest payments from the
Obligation-Servicing Projects' Cash Proceeds as provided for herein or otherwise
from other Projects' Cash Proceeds payable to such Lenders for the Steamboat
Project, and, if such Obligation-Servicing Projects' Cash Proceeds or other
Projects' Cash Proceeds paid or payable to the Lenders for the Steamboat Project
are insufficient to pay in full all of such "cash interest" and the other
interest payable to the Lenders for the Steamboat Project, then such
Obligation-Servicing Projects' Cash Proceeds or other Projects' Cash Proceeds
shall be shared ratably among the Lenders for the Steamboat Project and the
Subordinated Lender based on the amount of accrued and unpaid interest owing to
them. For the avoidance of doubt, until the Canyons Obligations are fully and
finally paid, the Subordinated Lender shall have no claim on any
Obligation-Servicing Projects' Cash Proceeds or other Projects' Cash Proceeds
payable to Lenders for the Canyons Project. Unless and until all Obligations
(other than the Subordinated Loan Tranche Obligations and the Percentage Sales
Fee) shall have been paid in full, no other payments shall be made by GSRP to
the Subordinated Lender under the SOI. The Lenders acknowledge that the
Subordinated Lender's security interest and Lien under, and as defined in, the
SOI will continue to exist in and to the Excess Projects' Cash Proceeds held as
Collateral hereunder (subject to being used and released as provided in Section
6 hereof), in and to the Obligation-Servicing Projects' Cash Proceeds (together
with payments under Section 2.5(c)(ii), Section 3.5 and Section 3.6 of the
Existing LSA, as amended hereby)(subject to being used and released as provided
for in Section 5 hereof) and in and to all other Projects' Cash Proceeds,
provided that such security interest and Lien in and to such Collateral is and
shall be and remain junior and subordinate in priority to the security interests
and Liens therein under the Existing LSA, as amended hereby, and other Security
Documents.
The Lenders acknowledge that GSRP and the Subordinated Lender are agreeing
to extend the period during which Subordinated Loan Tranche Advances may be
obtained by GSRP under the SOI until February 28, 2003 and are agreeing that up
to an aggregate of $4,490,392 of additional Subordinated Loan Tranche Advances
will be available under the SOI for working capital purposes subject to the
satisfaction of the conditions precedent set forth therein with respect thereto
and subject to the aggregate outstanding principal amount of all Subordinated
Loan Tranche Advances outstanding at any one time never exceeding $10,000,000.
The Lenders acknowledge that the Subordinated Lender may elect not to make
Subordinated Loan Tranche Advances to GSRP under the SOI in order for GSRP to
pay inventory holding costs in respect of unsold Quartershare Interests
(including, without limitation, real estate taxes and/or special assessments in
respect of the Canyons Project or the Steamboat Project) if there is no
resolution of the Fleet/ASCRP Loan Defaults/Acceleration under the Fleet/ASCRP
Loan Documents that is reasonably satisfactory to the Subordinated Lender, and
the Lenders further acknowledge that approximately $2,500,000 of availability
may be reserved from the aforesaid $4,490,392 in respect of such inventory
holding costs. The Lenders acknowledge the benefits GSRP is deriving from the
SOI and the Subordinated Loan Tranche Advances thereunder and consent to the
same. The Lenders agree and consent to the amending of the SOI as provided for
in that certain "Second Amendment Agreement" of even date herewith, copies of
which have been delivered to each of the Lenders by GSRP.
GSRP agrees that the aggregate outstanding principal amount of
Subordinated Loan Tranche Advances obtained by it on and after the Sixth
Amendment Effective Date shall not exceed the following amounts at the following
dates:
--------------------------------------------------------------------------------
Aggregate Outstanding Principal Amount of Subordinated Date
Loan Tranche Advances Made On or After Sixth Amendment
Effective Date
------------------------------------------------------------ -------------------
$3,800,000 October 31, 2002
------------------------------------------------------------ -------------------
$4,490,392 February 28, 2003
------------------------------------------------------------ -------------------
9. Maximum Permitted Outstanding Principal Amount. GSRP, the
Administrative Agent and the Lenders agree that, as of the date hereof, the
aggregate outstanding principal amount of the Loan is $36,677,265.30. Section
2.5(c)(iii) of the Existing LSA is hereby amended and restated in its entirety
as follows:
(iii) If on each of the following test dates the aggregate
outstanding principal amount of all Advances (for the avoidance of
doubt, such Advances shall not include any Subordinated Loan Tranche
Advances) exceeds the maximum outstanding principal amount of
Advances set forth below, GSRP shall immediately pay the amount of
such excess to the Administrative Agent together with interest
accrued thereon to (but not including) the date of such payment and
such amounts shall be applied by the Administrative Agent when
received in good, collected funds as set forth in Section 2.5(d)
hereof ratably to all Advances:
================================= ==============================================
Test Date Maximum Outstanding Principal Amount
of Advances
--------------------------------- ----------------------------------------------
September 30, 2002 $39,000,000
--------------------------------- ----------------------------------------------
December 31, 2002 $35,000,000
--------------------------------- ----------------------------------------------
March 31, 2003 $30,000,000
--------------------------------- ----------------------------------------------
June 30, 2003 $25,000,000
--------------------------------- ----------------------------------------------
September 30, 2003 $20,000,000
--------------------------------- ----------------------------------------------
December 31, 2003 $10,000,000
--------------------------------- ----------------------------------------------
March 31, 2004 $5,000,000
--------------------------------- ----------------------------------------------
May 31, 2004 $0
================================= ==============================================
10. Fees. In consideration of the Lenders agreeing to enter into this
Sixth Amendment Agreement, waiving certain Events of Default, and extending the
Maturity Dates as provided for herein, GSRP agrees to pay the following fees on
the following dates to the following Lenders:
------------------------------------------- ----------------------------------- --------------------------------------
Lender Fee Payment Date
------------------------------------------- ----------------------------------- --------------------------------------
FINOVA Capital Corporation $28,000 Sixth Amendment Effective Date
------------------------------------------- ----------------------------------- --------------------------------------
Foothill Capital Corporation $125,000 On the earlier of (1) March 31, 2003
or (2) the date on which all Canyons
Obligations are paid in full
------------------------------------------- ----------------------------------- --------------------------------------
Litchfield Financial Corporation $50,000 On the earlier of (1) March 31, 2003
or (2) the date on which all Canyons
Obligations are paid in full
------------------------------------------- ----------------------------------- --------------------------------------
Textron Financial Corporation $200,000 $50,000 payable on the first
Business Day of each consecutive
month commencing with the month
following the month in which the
above payment to Litchfield
Financial Corporation is made
25% of all gross proceeds of sales Payable on the date on which
of Quartershare Interests and each sale of a Quartershare
Commercial Units (exclusive of Interest or Commercial Unit
commissions, closing costs, legal subject to such Percentage Sales
fees and sales incentives that in Fee is consummated*
the aggregate do not exceed 20%
of such gross proceeds)consummated
after the date on which all Canyons
Obligations, all Steamboat
Obligations, all Subordinated Loan
Tranche Obligations and all other
Obligations (other than this fee)
shall have been paid in full (the
"Percentage Sales Fee")*
------------------------------------------- ----------------------------------- --------------------------------------
*A casualty or condemnation of Quartershare Interests or Commercial Units that
result in insurance proceeds or condemnation proceeds being payable to GSRP
(without giving effect to Sections 3.5 or 3.6 of the Existing LSA, as amended
hereby) shall be treated as a sale of the relevant Quartershare Interest or
Commercial Unit for purposes of the determination of this fee; payment of such
fee shall release the remaining insurance or condemnation proceeds from any Lien
or security interest under the Existing LSA, as amended hereby, any of the other
Security Documents, and the SOI as well as from any claims under Section 3.5 and
Section 3.6 of the Existing LSA, as amended hereby.
The fees set forth above are referred to herein as the "Sixth Amendment Fees."
Each of the Sixth Amendment Fees shall be deemed earned as of the date hereof,
shall be part of the Obligations, shall not bear interest, shall be secured by
the Collateral, and shall be payable as set forth above. Payment of the Sixth
Amendment Fees to Foothill Capital Corporation, Litchfield Capital Corporation
and the $200,000 fee to Textron Financial Corporation shall be included in the
so-called "waterfall" in Section 2.5(d)(i) first as Steamboat Obligations; and
payment of the Sixth Amendment Fees to FINOVA Capital Corporation shall be
included in the so-called "waterfall" in Section 2.5(d)(ii) first as Canyons
Obligations..
11. Schedule 3 to the Existing LSA; Section 7.2(h) and Section 7.7
of the Existing LSA.
11.1 Schedule 3 to the Existing LSA, to the extent it pertains
to Grand Summit Resort Hotel at The Canyons, is hereby amended and
restated in its entirety as set forth in Schedule A attached hereto.
The following references to Steamboat Quartershare Interests are
hereby deemed added to Schedule 3 and the minimum release dollar
amounts (as amended) that originally applied thereto shall also be
deemed reinstated and any future sale of any such Steamboat
Quartershare Interests shall be subject to Section 3.15 of the
Existing LSA:
Quarter Share Estate III Residential ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ II Residential ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ II Residential ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ I and II Residential ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
11.2 Section 7.2(h) is amended and restated in its entirety as
follows:
(h) Indebtedness - not incur any liability for any
indebtedness (other than the Loan inclusive of the
Subordinated Loan Tranche and the Colorado/First PCL
Obligations and any intercompany indebtedness existing
on the Sixth Amendment Effective Date), 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;
11.3 Section 7.7 of the Existing LSA is amended and restated
in its entirety as follows:
GSRP shall not after the Sixth Amendment Effective Date
declare, make or pay any dividend or other distribution or
redeem any of its capital stock (in cash or Property) or
otherwise transfer any of its assets or property to or for the
benefit of the Parent.
12. Miscellaneous; Events of Defaults. The covenants and
undertakings of GSRP set forth in this Sixth Amendment Agreement shall be
incorporated into and made a part of the Existing LSA. All of the other
Security Documents are hereby automatically amended and modified to give
effect to this Sixth Amendment Agreement. Each of the holders of Canyons
Construction Project Advance Notes and Steamboat Construction Project
Advance Notes shall attach a copy of this Sixth Amendment Agreement to
each of said Notes. GSRP and the Lenders agree that, anything contained in
the Existing LSA to the contrary notwithstanding, (a) different Interest
Rates shall apply to the Steamboat Obligations and the Canyons
Obligations, as provided in the Fifth Amendment Agreement, (b) the Sixth
Amendment Fees shall be payable solely to the Lenders identified in
Paragraph 10 hereof entitled to such Fees, (c) different Maturity Dates
apply to the Canyons Loan and the Steamboat Loan, and (d) the Steamboat
Cash Pledge Agreement and the pledged rights of GSRP under the Steamboat
Settlement Agreement, while constituting Collateral, shall inure solely to
the benefit of the Steamboat Lenders and shall solely secure the Steamboat
Obligations. The terms and provisions of the Steamboat Collateral Sharing
Agreement shall, with respect to the Steamboat Non-Penthouse Quartershare
Interests, take precedence over the application of proceeds provisions of
Section 8.2(c)(i) of the Existing LSA. Section 2.5(d)(xiii) of the
Existing LSA together with any references in the waterfalls in clauses (i)
through (viii) of Section 2.5(d) of the Existing LSA to the "Cash
Collateral Account" are hereby suspended, provided that any payments that
would have otherwise been directed to the Cash Collateral Account if such
section and clauses had been operating shall be instead redirected to the
Steamboat Obligations (other than the Subordinated Loan Tranche
Obligations and the Percentage Sales Fee) and the Canyons Obligations
(other than the Percentage Sales Fee) ratably in accordance with the
outstanding amounts thereof and, after one of those Obligations is paid in
full, such amounts shall be directed entirely to the remaining such
Obligations and after all of such obligations have been paid in full, such
amounts shall be redirected to the Subordinated Loan Tranche Obligations.
The Administrative Agent is hereby instructed to disburse to the Lenders
(on a ratable basis based on their respective holdings of Steamboat
Obligations and the Canyons Obligations) on the Sixth Amendment Effective
Date any amounts that have been previously deposited into the Cash
Collateral Account under any of the aforesaid suspended clauses and not
previously distributed.
13. Cash Instruction Letter. GSRP, the Lenders and the
Administrative Agent agree that the terms and provisions of this Sixth
Amendment Agreement shall take precedence over any inconsistent terms in
that certain Instructions Regarding Cash Flow Proceeds of Collateral dated
June 3, 2002. The Lenders hereby confirm their instructions to the
Administrative Agent to enter into and establish the cash flow procedures
(which are being continued in this Sixth Amendment Agreement) in the
aforesaid Instructions Regarding Cash Flow Proceeds of Collateral dated
June 3, 2002.
14. Representations and Warranties. GSRP hereby represents and
warrants as of the date hereof as follows, which representations and
warranties are hereby incorporated into and made part of the Amended LSA:
14.1 Except as otherwise disclosed on Schedule 1 attached
hereto, each of the representations and warranties contained in
Section 3 of the Existing LSA (other than Section 4.4 thereof, and
other than with respect to matters set forth on the schedules to the
Existing LSA which GSRP warrants were true and correct as of the
date of such schedules) is true and correct as of the date hereof.
14.2 Except with respect to the Permitted Exceptions (as
defined herein) and liens for taxes and association dues in respect
of unsold Quartershare Interests at the Canyons Project and/or the
Steamboat Project, all Liens granted to the Administrative Agent
under the Existing LSA and the other Security Documents are duly
granted, valid, perfected and prior in right to all other Liens that
now or hereafter may be granted to or held by any other Person.
14.3 The execution and delivery of this Sixth Amendment
Agreement, the Modification Documents and the other documents and
instruments contemplated herein, and compliance by GSRP with all of
the provisions of this Sixth Amendment Agreement, the Existing LSA,
as amended hereby, and each of the other documents set forth above
are:
(i) within the corporate powers of GSRP; and
(ii) valid and legal acts and will not conflict with, or
result in any breach in any of the provisions of, or
constitute a default under, or result in the creation of any
Lien upon any Property of GSRP under the provisions of, any
agreement, charter instrument, bylaw or other instrument to
which GSRP is a party or by which its Property may be bound.
14.4 Neither the nature of GSRP, nor of any of its businesses
or Properties, nor any relationship between GSRP and any other
Person, nor any circumstance in connection with the execution or
delivery of this Sixth Amendment Agreement and the other documents
contemplated in connection herewith, nor the operation of any
Project and the sale, or offering for sale, of any Quartershare
Interest of any of the Projects by GSRP, is such as to require a
consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of GSRP,
as a condition of the execution, delivery or performance of this
Sixth Amendment Agreement and the other documents contemplated in
connection herewith.
14.5 GSRP will not be, on or after the date hereof, a party to
any contract or agreement which restricts its right or ability to
incur indebtedness under, or prohibits the execution of, or
compliance with, this Sixth Amendment Agreement by GSRP. GSRP has
not agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its Property
constituting the Collateral, whether now owned or hereafter
acquired, to be subject to a Lien other than Permitted Exceptions
and all Liens in favor of the Administrative Agent in respect of
such Collateral remain in full force and effect.
14.6 GSRP is not entering into this Sixth Amendment Agreement
and the transactions contemplated hereby, and does not intend to
incur any obligations hereunder or otherwise make any transfers in
connection herewith, with the actual intent to hinder, delay or
defraud either present or future creditors. After giving effect to
the consummation of the transactions contemplated by this Sixth
Amendment Agreement, the Second Amendment Agrement and the full
availability of the advances contemplated thereunder, (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 14.6 means
any liability on a claim, and "claim" means (i) any right to
payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, or
(ii) any right to an equitable remedy for 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.
14.7 After giving effect to this Sixth Amendment Agreement, no
Default or Event of Default has occurred or is continuing, nor does
any event or condition exist that would constitute a Default or an
Event of Default. No material adverse change has occurred in or in
respect of the Collateral or any one or more of the Projects that
has not been disclosed to the Administrative Agent and Lenders in
writing. The Obligations continue to be Senior Debt under, and as
defined in, the ASC Indenture and no default or event of default
exists under such Indenture and, no defaults or events of default
exist under any other agreement for indebtedness for borrowed money,
any financing lease or any guaranty of any of the foregoing to which
GSRP is a party. GSRP has not issued and is not otherwise obligated
in respect of any obligation of the Parent, American Skiing Company
or any subsidiary of American Skiing Company for borrowed-money
indebtedness, any financing lease, any guaranty or any other
obligation, other than its guaranty of the Indenture, which by its
own terms is junior and subordinated to the Obligations.
14.8 Temporary certificates of occupancy have been issued for
each of the Steamboat Residential Units in the penthouse at the
Steamboat Project and all construction in respect thereof has been
completed other than the Mount Werner Circle improvements. Finally,
the Steamboat Settlement Agreement provides for Colorado First/PCL
to have completed the so-called swimming pool punchlist work by
November 30, 2001. Colorado First/PCL has completed all swimming
pool work and all other construction work required to be completed
pursuant to the Steamboat Settlement Agreement.
14.9 All of the Killington Quartershare Interests that were
originally subject to the Killington Blanket Mortgage and the
Killington Commercial Unit have been released from the Lien of the
Killington Blanket Mortgage and all applicable Release Prices in
respect thereof have been paid. All of the Mt. Snow Quartershare
Interests that were originally subject to the Mt. Snow Blanket
Mortgage and the Mt. Snow Commercial Unit have been released from
the Lien of the Mt. Snow Blanket Mortgage and all applicable Release
Prices in respect thereof have been paid. All of the Attitash
Quartershare Interests that were originally subject to the Attitash
Blanket Mortgage and the Attitash Commercial Unit have been released
from the Lien of the Attitash Blanket Mortgage and all applicable
Release Prices in respect thereof have been paid. All Jordan Bowl
Quartershare Interests that were originally subject to the Lien of
the Jordan Bowl Blanket Mortgage and the Jordan Bowl Commercial Unit
have been released from the Lien of the Jordan Bowl Blanket Mortgage
and all applicable Release Prices in respect thereof have been paid.
15. This Sixth Amendment Agreement shall become effective on the
date (the "Sixth Amendment Effective Date") on which the parties hereto
shall have executed this Sixth Amendment Agreement and each of the
following conditions shall have been satisfied:
15.1 Warranties and Representations True as of Sixth Amendment
Effective Date. The warranties and representations contained or
referred to in this Sixth Amendment Agreement shall be true in all
material respects on the Sixth Amendment Effective Date with the
same effect as though made on and as of that date. The
Administrative Agent shall have received a certificate, in form and
substance satisfactory to the Administrative Agent, dated as of the
Sixth Amendment Effective Date, signed by an Executive
Vice-President or Vice President of GSRP and certifying that the
warranties and representations of GSRP contained in this Sixth
Amendment Agreement are true in all material respects on the Sixth
Amendment Effective Date.
15.2 Secretary's Certificates.
The Administrative Agent shall have received a certificate of
the Secretary or any Assistant Secretary of GSRP, in form and
substance reasonably satisfactory to the Administrative Agent, dated
as of the Sixth Amendment Effective Date, certifying
(i) the adoption by the Board of Directors of GSRP of a
resolution authorizing GSRP to enter into this Sixth Amendment
Agreement and the transactions and instruments contemplated
hereby, and
(ii) the incumbency and authority of, and verifying the
specimen signatures of, the officers of GSRP authorized to
execute and deliver this Sixth Amendment Agreement, the
Modification Agreements (referred to below) and the other
documents contemplated hereunder.
15.3 Legal Opinion. GSRP shall have delivered to
Administrative Agent and the Lenders a legal opinion from its
General Counsel in form and substance reasonably satisfactory to the
Lenders and Administrative Agent.
15.4 Expenses. GSRP shall have paid all fees and expenses
required to be paid by it pursuant to Section 11.2 of Existing LSA
pursuant to invoices or other bills submitted to GSRP.
15.5 Consent. Each Lender shall have consented to this Sixth
Amendment Agreement. Textron Financial Corporation, in its
individual lending capacity, shall have executed and delivered to
GSRP an amendment to the SOI that, among other things, provides for
Textron Financial Corporation, in its individual subordinated
lending capacity, to extend up to an additional $4,490,392 in
advances to GSRP and a copy of such amendment shall have been
delivered to each of the Lenders.
15.6 Other Documents.
(a) GSRP shall have executed a modification agreement
(individually, a "Modification Agreement" and, collectively,
the "Modification Agreements") to each of the Blanket
Mortgages, each in form and substance satisfactory to the
Administrative Agent, and shall have delivered the same to the
Administrative Agent and shall have delivered to the
Administrative Agent title insurance endorsements to the Title
Insurance Policy {Blanket} in respect of the Canyons and
Steamboat Projects in form and substance satisfactory to the
Administrative Agent. All premiums in respect of such
endorsement to such Title Insurance Policy {Blanket} shall
have been paid in full and evidence thereof shall have been
delivered to the Administrative Agent.
(b) Each of the other Persons that shall have delivered
subordination agreements to the Administrative Agent in
connection with the original closing of the Existing LSA shall
have executed this Sixth Amendment Agreement to show its
consent to the same.
(c) That certain "Second Amendment Agreement" to the SOI
shall have been executed and delivered by the parties thereto
and the same shall be in full force and effect except for any
condition therein requiring this Sixth Amendment Agreement to
be in full force and effect.
15.7 Proceedings. All actions taken in connection with the
execution of this Sixth Amendment Agreement and all documents and
papers relating thereto shall be satisfactory to the Administrative
Agent and its counsel. The Administrative Agent and its counsel
shall have received copies of such documents and papers as it or
such counsel may reasonably request in connection therewith, all in
form and substance satisfactory to the Administrative Agent and its
counsel.
16. Miscellaneous.
16.1 This Sixth Amendment Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
16.2 This Sixth Amendment Agreement shall be governed by the
internal laws of the State of Maine. To the extent any provision of
this Sixth Amendment Agreement is not enforceable under applicable
law, such provision shall be deemed null and void and shall have no
effect on the remaining portions of this Agreement.
16.3 The titles of the Sections appear as a matter of
convenience only, do not constitute a part hereof and shall not
affect the construction hereof. The words "herein," "hereof,"
"hereunder" and "hereto" refer to this Sixth Amendment Agreement as
a whole and not to any particular Section or other subdivision.
16.4 All warranties, representations and covenants made by
GSRP herein or in the Existing LSA or in any certificate or other
instrument delivered by it or on its behalf under this Sixth
Amendment Agreement or in the Existing LSA, as amended hereby, shall
be considered to have been relied upon by the Lenders and shall
survive the execution and delivery of this Sixth Amendment
Agreement.
16.5 Except as explicitly amended by, or otherwise provided
for in, this Sixth Amendment Agreement , the Existing LSA, the Notes
and the other Security Documents remain in full force and effect
under their respective terms as in effect immediately prior to the
effectiveness of this Agreement, and GSRP hereby affirms all of its
obligations thereunder.
16.6 This Sixth Amendment Agreement may be executed in any
number of counterparts, each of which shall be an original but all
of which together shall constitute one instrument. Each counterpart
may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto. This Sixth
Amendment Agreement may be executed in counterpart by facsimile
signature, which signatures shall be treated as, and shall have the
effect of original and manually executed signatures.
16.7 If requested by the Lenders, the Administrative Agent and
the Subordinated Lender, GSRP and the Lenders and Administrative
Agent will use their best efforts to enter into an escrow agreement
pursuant to which appropriate deed-in-lieu documentation in respect
of the Existing LSA, as amended hereby, and the SOI shall be
executed by GSRP, the Lenders, the Administrative Agent and the
Subordinated Lender and placed in escrow. The terms and conditions
of the escrow agreement and the terms and conditions of the
deed-in-lieu documentation shall be in form and substance
satisfactory to the GSRP, the Lenders, the Administrative Agent and
the Subordinated Lender.
16.8 The Administrative Agent shall deliver to Foothill
Capital Corporation, Litchfield Financial Corporation and FINOVA
Capital Corporation, within five (5) Business Days after the end of
each calendar week, a report styled "Inventory Control Summary"
(which shall be prepared using an Excel spreadsheet program and
format and which shall be delivered in both an electronic format as
a spreadsheet and in hard copy format) showing for each day of such
week the following information as reported to the Adminisstrative
Agent by the Borrower and/or its title insurance companies or
agencies: all closings of Quartershare Interests, the identification
of the Quartershare Interest so sold, the purchase price obtained
from such sale and the remaining unsold Quartershare Interests in
each Project and the valuation of the same based on the most recent
pricing information received by the Administrative Agent from GSRP.
16.9. GSRP hereby releases, remises, acquits and forever
discharges the Administrative Agent and each of the Lenders and
their respective employees, agents, representatives, consultants,
attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations,
parent corporations, and related corporate divisions (all of the
foregoing hereinafter called the "Released Parties"), from any and
all actions and causes of action, judgments, executions, suits,
debts, claims, demands, liabilities, obligations, damages and
expenses of any and every character, whether known or unknown, fixed
or contingent, asserted or unasserted, direct or indirect, at law or
in equity, of whatsoever kind or nature, whether heretofore or
hereafter arising for or because of any matter or things done,
omitted or suffered to be done by any of the Released Parties prior
to and including the date of execution hereof, arising out of or in
any way connected with (a) the LSA, the Notes or the Security
Documents, as amended from time to time (including, without
limitation, this Sixth Amendment Agreement), (b) the Loan, or (c)
the Instructions Regarding Cash Flow Proceeds of Collateral dated
June 3, 2002 (all of the foregoing hereinafter called the "Released
Matters"). GSRP hereby acknowledges that the agreements set forth in
this Sixth Amendment Agreement are intended to be in full
satisfaction of all or any alleged injuries or damages arising in
connection with the Released Matters. GSRP hereby represents and
warrants to Administrative Agent and the Lenders that GSRP has not
purported to transfer, assign or otherwise convey any of its right,
title or interest in any Released Matter to any other person and
that the foregoing constitutes a full and complete release of all
Released Matters.
16.10 The parties hereto agree that the Existing LSA, as
amended hereby, and the SOI, as amended by the Second Amendment
Agreement thereto of even date herewith, are intended to be one
instrument and agreement, subject to the terms and conditions hereof
and thereof.
[Remainder of page intentionally left blank. Next page is signature page.]
IN WITNESS WHEREOF, the parties have executed this Sixth Amendment
Agreement as of the day and year first above written.
GSRP: Canyons, Steamboat and Special
Subordinated Lender:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By:/s/▇▇▇▇▇▇▇ ▇. Fair By:/s/A.A.J. ▇▇▇▇▇▇▇▇▇
------------------------ ----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair Name: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:CEO/President Title:AVP-Loan Manager
Steamboat Lender:
FOOTHILL CAPITAL CORPORATION
By:/s/▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:Assistant Vice President
Canyons Lender:
FINOVA CAPITAL CORPORATION
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Vice President
Steamboat and Canyons Lender:
LITCHFIELD FINANCIAL CORPORATION
By:/s/A.A.J. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:AVP-Loan Manager
Administrative Agent:
TEXTRON FINANCIAL CORPORATION
By:/s/A.A.J. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:AVP-Loan Manager
AGREED AND CONSENTED TO:
MOUNT SNOW, LTD.
By:/s/▇▇▇▇▇▇▇ ▇. Fair
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
KILLINGTON, LTD.
By:/s/▇▇▇▇▇▇▇ ▇. Fair
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
SUNDAY RIVER SKIWAY CORPORATION
By:/s/▇▇▇▇▇▇▇ ▇. Fair
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
L.B.O. HOLDING, INC.
By:/s/▇▇▇▇▇▇▇ ▇. Fair
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
ASC UTAH, INC.
By:/s/▇▇▇▇▇▇▇ ▇. Fair
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
STEAMBOAT SKI & RESORT CORPORATION
By:/s/▇▇▇▇▇▇▇ ▇. Fair
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By:/s/▇▇▇▇▇▇▇ ▇. Fair
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Fair
Title:CEO/President
Schedule 1
Exceptions to Representation and Warranties
1. With respect to Section 4.12 of the Existing LSA, GSRP is in default of
payment of taxes for unsold inventory of at the Canyons Project and the
Steamboat Project.
2. With respect to section 4.15 of the Existing LSA, GSRP is subject to
restrictions on the incurrence of indebtedness pursuant to the ASC Indenture
terms. GSRP reconfirms the second paragraph of section 4.15 of the Existing LSA.
3. With respect to section 4.20 of the Existing LSA, the liens of the Lenders
are subject to actual or potential liens (i) in favor of PCL, (ii) to secure the
payment of taxes in respect of unsold Quartershare Interests at the Steamboat
Project and Canyons Project, and (iii) to secure assessments in respect of
unsold Quartershare Interests at the Steamboat Project and Canyons Project.
Schedule A
Minimum Release Prices for Canyons Project
