LIMITED WAIVER, RELEASE, AND THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.2
LIMITED
WAIVER, RELEASE, AND THIRD
AMENDMENT TO
FOURTH
AMENDED AND
RESTATED CREDIT AGREEMENT
THIS
LIMITED WAIVER, RELEASE, AND THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT (this “Limited
Waiver, Release, and Amendment”)
is
dated as of March 13, 2007, but effective as of the Effective Date (hereinafter
defined), among THE
VAIL CORPORATION,
a
Colorado corporation doing business as “Vail Associates, Inc.” (the
“Company”),
the
Lenders (as defined in the Credit Agreement referenced below) party hereto,
and
BANK
OF AMERICA, N.A.,
as
Administrative Agent (hereinafter defined).
R
E C I T A L S
A. The
Company has entered into that certain Fourth Amended and Restated Credit
Agreement dated as of January 28, 2005, with Bank of America, N.A., as
Administrative Agent (in such capacity, the “Administrative
Agent”),
and
certain other agents and lenders party thereto, as amended by that certain
First
Amendment to Fourth Amended and Restated Credit Agreement dated as of June
29,
2005, and that certain Second Amendment to Fourth Amended and Restated Credit
Agreement dated as of February 17, 2006 (as amended, the “Credit
Agreement”),
providing for revolving credit loans, letters of credit, and swing line loans
in
the aggregate principal amount of up to $400,000,000. Unless otherwise indicated
herein, all capitalized terms used herein shall have the meanings set forth
in
the Credit Agreement, and all Section references herein shall be references
to
sections in the Credit Agreement.
B. The
Company has notified the Administrative Agent of the formation of the following
new Unrestricted Subsidiaries: ▇▇▇▇▇▇ Bay Convenience Store, LLC, a
Wyoming
limited liability company, ▇▇▇▇▇▇
Bay General Store, LLC, a Wyoming limited liability company, ▇▇▇▇▇▇ Bay ▇▇▇▇▇▇,
LLC, a Wyoming limited liability company, ▇▇▇▇▇▇ Bay Cafe Court, LLC, a Wyoming
limited liability company, ▇▇▇▇▇ Lake Store, LLC, a Wyoming limited liability
company, ▇▇▇▇▇▇▇ Hole Golf & Tennis Club Snack Bar, LLC, a Wyoming limited
liability company, Stampede Canteen, LLC, a Wyoming limited liability company,
Crystal Peak Lodge of Breckenridge, Inc., a Colorado corporation, and Hunkidori
Land Company, LLC, a Colorado limited liability company (collectively, the
“New
Unrestricted Subsidiaries”).
The
Company did not deliver to the Administrative Agent an updated Schedule
8.2
to the
Credit Agreement within thirty (30) days after the formation of the New
Unrestricted Subsidiaries, as required by Section
9.10
of the
Credit Agreement, and has requested that the Lenders waive any Default or
Potential Default resulting from such failure.
C. The
Company has also notified the Administrative Agent that the Company intends
to
transfer 100% of the capital stock (the “Pledged
CTI Securities”)
of
Complete Telecommunications, Inc. (“CTI”)
as
part of the Company’s disposition of its equity interest in RTP, LLC, an
Unrestricted Subsidiary. In connection therewith, the Company has requested
that
the Administrative Agent, for the benefit of the Lenders, release its liens
on
the Pledged CTI Securities and release CTI from its obligations under the
Guaranty executed by CTI.
D. The
Company has also requested that the Lenders amend the Credit Agreement to,
among
other things, decrease the Total Commitment to $300,000,000, modify the interest
rates, and extend the Termination Date to February 1, 2012.
E. The
Lenders have agreed to the waiver, release, and amendments to the Credit
Agreement as set forth herein.
In
consideration of the foregoing and the mutual covenants contained herein, the
Company, the Lenders, the Guarantors (by execution of the attached Guarantors’
Consent and Agreement), and the Administrative Agent agree as
follows:
1. Limited
Waiver. The
Lenders hereby waive any Default or Potential Default resulting from the
Company’s failure to deliver an updated Schedule
8.2
to the
Administrative Agent within thirty (30) days after the formation of the New
Unrestricted Subsidiaries in accordance with Section
9.10
of the
Credit Agreement. Nothing herein shall, or shall be deemed to, waive any other
provision of the Credit Agreement, except as set forth herein.
2. Releases.
(a) The
Lenders hereby (i) discharge CTI as a “Guarantor”
under
the Credit Agreement and release CTI from any liability under the Credit
Agreement and its Guaranty, including, but not limited to, payment or
performance of the Guaranteed Debt (as defined in such Guaranty), and (ii)
release the Liens on and security interests in the Pledged CTI Securities,
and
accordingly release the Company from its pledge of the Pledged CTI Securities
pursuant to its Pledge Agreement, but only to the extent of its interests in
the
Pledged CTI Securities.
(b) The
Administrative Agent agrees to execute and deliver UCC financing statement
terminations and all further documents reasonably requested by the Company
in
order to effectuate the releases contemplated hereby.
(c) It
is
expressly agreed and understood that, except as set forth herein, this Limited
Waiver, Release, and Amendment shall in no manner release, affect or impair
the
Administrative Agent’s and the Lenders’ rights, titles, interests, and Liens
against the Restricted Companies’ interests, properties or assets.
3. Amendments.
(a) New
Definitions.
Section
1.1
(Definitions) is amended by inserting the following new definitions
alphabetically to read as follows:
(i) “Net
Funded Debt
means,
on any date of determination, an amount equal to (a) Funded Debt minus
(b) the
amount of Unrestricted Cash in excess of $10,000,000.”
(ii) “Temporary
Cash Investments
means
investments of the Restricted Companies permitted under clauses
(b) through
(g),
(p),
and
(q)
of
Section
10.8 hereof.”
(iii) “Unrestricted
Cash means,
on
any date of determination, the aggregate amount of all cash and Temporary Cash
Investments of the Restricted Companies not subject to any Lien or restriction
(except for Liens of depository institutions securing payment of customary
service charges, transfer fees, account maintenance fees, and charges for
returned or dishonored items).
(b) Modifications
of Existing Definitions.
Section
1.1
(Definitions) is further amended by modifying the following existing definitions
as follows:
(i) The
definition of “Adjusted
EBITDA”
is
amended in its entirety to read as follows:
“Adjusted
EBITDA means,
without duplication, on any date of determination, the sum
of (a)
EBITDA of the Restricted Companies (excluding non-recurring gains or losses),
plus
(b) a
percentage of the EBITDA of SSI (with such percentage being the weighted average
membership interest held directly or indirectly by Borrower in SSI (expressed
as
a percentage) during the applicable period of calculation), plus
(c)
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 (or under policies of insurance which cover losses or
claims of the same character or type).”
(ii) The
definition of “Applicable
Margin”
is
amended to cause the Applicable Margin to be calculated by reference to the
ratio of Net Funded Debt to Adjusted EBITDA and to modify the pricing grid,
as
set forth on Annex
A attached
hereto.
(iii) The
definition of “Applicable
Percentage”
is
amended to cause the Applicable Percentage to be calculated by reference to
the
ratio of Net Funded Debt to Adjusted EBITDA and to modify the commitment fee
grid, as set forth on Annex
B attached
hereto.
(iv) The
definitions of “Funded
Debt”
and
“Net
Income”
are
amended by replacing the phrase “held
by Borrower”
in
each
definition with the phrase “held
directly or indirectly by Borrower”.
(v) The
definitions of “Required
Capital Expenditures”
and
“Resort
EBITDA”
are
deleted.
(vi) The
definition of “SSI”
is
amended by removing the words “of
Borrower”
at
the
end thereof.
(vii) The
definition of “Termination
Date”
is
amended to extend such date by replacing the reference to “January
28, 2010”
therein
with “February
1, 2012”.
(c) Modification
of Accordion Provision.
Section
2.5 (Increase
in Total Commitment) is amended to modify the maximum Total Commitment to which
the facility may be increased by replacing the reference to “$500,000,000”
therein
with “$400,000,000”.
(d) Modification
of Permitted Investments.
Section
10.8 (Loans,
Advances and Investments) is amended by replacing the period at the end of
clause
(o) with
a
semi-colon and inserting the following thereafter:
“(p) short-term
repurchase agreements with major banks and authorized dealers, fully
collateralized to at least 100% of market value by marketable obligations issued
or unconditionally guaranteed by the U.S. or issued by any of its agencies
and
backed by the full faith and credit of the U.S.; and
(q) short-term
variable rate demand notes that invest in tax-free municipal bonds of domestic
issuers rated “A-2”
or
better by ▇▇▇▇▇’▇ or “A”
or
better by S&P that are supported by irrevocable letters of credit issued by
commercial banks organized under the laws of the U.S. or any of its states
having combined capital, surplus, and undivided profits of not less than
$100,000,000.”
(e) Modification
of Limits on Acquisitions.
The
qualifiers to clause
(c) of
Section
10.11 (Acquisitions,
Mergers, and Dissolutions) are amended as follows:
(i) Clause
(i)
is
amended in its entirety to read as follows:
“(i) the
Purchase Price for such transaction, when aggregated with the Purchase Price
of
all other acquisitions or mergers consummated by the Restricted Subsidiaries
after March 13, 2007, does not exceed an amount equal to the sum of (A)
$400,000,000, plus
(B) the
lesser of (1) the aggregate consideration paid by Borrower to purchase the
minority membership interest in SSI, and (2) $40,000,000.”
(ii) Clause
(iv)
is
amended to modify the threshold for delivery of documentation related to
permitted acquisitions by replacing the reference to “$25,000,000”
therein
with “50,000,000”.
(f) Modifications
of Financial Covenants.
Section
11
(Financial Covenants) is amended as follows:
(i) Section
11.1
(Maximum
Leverage Ratios) is amended in its entirety to read as follows:
“11.1 Maximum
Leverage Ratio.
As
calculated as of the last day of each fiscal quarter of the Restricted
Companies, the Restricted Companies shall not permit the ratio of (a) the unpaid
principal amount of Net Funded Debt existing as of such last day to (b) Adjusted
EBITDA for the four fiscal quarters ending on such last day to exceed 4.50
to
1.00.”
(ii) Section
11.2
(Minimum
Fixed Charge Coverage Ratio) is deleted in its entirety and substituted therefor
is the following reference:
“11.2 [Reserved]”.
(g) Modification
of Commitments.
The
Commitments of the Lenders are revised so that the Total Commitment equals
$300,000,000 as of the Effective Date.
(h) Modification
of Schedule
1.
Schedule
1 (Parties,
Addresses, Committed Sums and Wiring Information) is revised to (i) update
contact information for the Borrower, the Administrative Agent, L/C Issuer
and
Swing Line Lender, as applicable, and (ii) reflect the Lenders’ revised
Commitments and Commitment Percentages, as set forth on Annex
C attached
hereto.
(i) Modification
of Schedule
7.1.
Items
1
and
2
of
Schedule
7.1 (Post-Closing
Items and Conditions) are revised to reflect that, following approval by the
United States Department of the Interior, National Park Service, the Company
will transfer its equity interests in Grand Teton Lodge Company (“Grand
Teton”)
to
National Park Hospitality Company, a Colorado corporation (“NPHC”),
and
NPHC shall pledge such interests to the Administrative Agent, for the benefit
of
the Lenders, as set forth on Annex
D attached
hereto.
(j) Modification
of Schedule
8.2.
Schedule
8.2 (Corporate
Organization and Structure) is revised as set forth on Annex
E attached
hereto.
(k) Modification
of Compliance Certificate.
Annex
A to
the
Compliance Certificate is replaced with Annex
F attached
hereto.
4. Representations
and Warranties.
As a
material inducement to the Lenders and the Administrative Agent to execute
and
deliver this Limited Waiver, Release, and Amendment, the Company represents
and
warrants to the Lenders and the Administrative Agent (with the knowledge and
intent that Lenders are relying upon the same in entering into this Limited
Waiver, Release, and Amendment) that: (a) the Company
and the Guarantors have all requisite authority and power to execute, deliver,
and perform their respective obligations under this Limited Waiver, Release,
and
Amendment and the Guarantors’ Consent and Agreement, as the case may be, which
execution, delivery, and performance have been duly authorized by all necessary
action, require
no Governmental Approvals, and do not violate the respective certificates of
incorporation or organization, bylaws, or operating agreement, or other
organizational or formation documents of such Companies; (b) upon
execution and delivery by the Company, the Guarantors, the Administrative Agent,
and the Lenders, this Limited Waiver, Release, and Amendment will constitute
the
legal and binding obligation of the Company and each Guarantor, enforceable
against such entities in accordance with the terms of this Limited Waiver,
Release, and Amendment, except
as that
enforceability may be limited by general principles of equity or by bankruptcy
or insolvency laws or similar laws affecting creditors’ rights generally; (c)
all representations and warranties in the Loan Papers are true and correct
in
all material respects as though made on the date hereof, except
to the
extent that any of them speak to a specific date or the facts on which any
of
them are based have been changed by transactions contemplated or permitted
by
the Credit Agreement; and (d) no Default or Potential Default has occurred
and
is continuing.
5. Conditions
Precedent to Effectiveness.
This
Limited Waiver, Release, and Amendment shall be effective on the date (the
“Effective
Date”)
upon
which the Administrative Agent receives each of the following items
(other
than
the
items listed on Schedule
7.1,
as
revised hereby, which items or conditions are hereby permitted to be delivered
or satisfied after the Effective Date, but not later than the respective dates
for delivery or satisfaction specified on Schedule
7.1):
(a) counterparts
of this Limited Waiver, Release, and Amendment executed by the Company, the
Administrative Agent, and Lenders;
(b) the
Guarantors’ Consent and Agreement executed by each Guarantor;
(c) a
Revolver Note for each Lender requesting a Note, payable to the order of such
requesting Lender, reflecting such Lender’s revised Commitment;
(d) legal
opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of Vail Resorts, Inc., and ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Company and the other
Restricted Subsidiaries, each in form and substance satisfactory to the
Administrative Agent;
(e) an
Officers’ Certificate for the Restricted Companies (i) attaching resolutions
authorizing the transactions contemplated hereby, (ii) certifying that no
changes have been made to the Restricted Companies’ respective articles of
incorporation or organization, bylaws, or operating agreements since the date
such documents were previously provided to the Administrative Agent, as
applicable, (iii) listing the names and titles of the Responsible Officers,
and
(iv) providing specimen signatures for such Responsible Officers;
(f) a
certificate signed by a Responsible Officer certifying that (i) all of the
representations and warranties of the Companies in the Loan Papers are true
and
correct in all material respects (unless they speak to a specific date or are
based on facts which have changed by transactions contemplated or permitted
by
the Credit Agreement); (ii) no Default or Potential Default exists under the
Credit Agreement or would result from the execution and delivery of this Limited
Waiver, Release, and Amendment; (iii) there has been no event or circumstance
since July 31, 2006 that has had or could be reasonably expected to result
in,
either individually or in the aggregate, a Material Adverse Event; and (iv)
except as set forth on Schedule
8.7
of the
Credit Agreement, there is no action, suit, investigation, or proceeding pending
or, to the knowledge of Borrower, threatened, in any court or before any
arbitrator or Governmental Authority that could reasonably be expected to (A)
materially and adversely affect the Companies, or (B) adversely affect any
transaction contemplated by the Credit Agreement, the rights and remedies of
the
Administrative Agent, Lenders, and the L/C Issuers under the Credit Agreement,
or the ability of the Companies or any other obligor under any Guaranty to
perform their respective obligations under the Credit Agreement;
(g) evidence
(in form and substance satisfactory to the Administrative Agent) that the
Commitment Usage does not exceed the Total Commitment (as reduced
hereby);
(h) such
organizational documents, Guaranties, Pledge Agreements, financing statements,
and other documents as the Administrative Agent may deem reasonably necessary
to
reflect the changes to Schedule
8.2
(including, without limitation, the addition of NPHC as a Restricted
Subsidiary); and
(i) payment
of an extension fee for the benefit of the Lenders equal to the product of
(a)
five basis points (0.05%) times
(b)
the
Total Commitment as of the Effective Date (after giving effect to the reduction
in the Total Commitment contemplated by this Limited Waiver, Release, and
Amendment).
6. Expenses.
The
Company shall pay all reasonable out-of-pocket fees and expenses paid or
incurred by the Administrative Agent incident to this Limited Waiver, Release,
and Amendment, including, without limitation, the reasonable fees and expenses
of the Administrative Agent’s counsel in connection with the negotiation,
preparation, delivery, and execution of this Limited Waiver, Release, and
Amendment and any related documents.
7. Miscellaneous.
Unless
stated otherwise herein, (a) the singular number includes the plural, and
vice
versa,
and
words of any gender include each other gender, in each case, as appropriate,
(b)
headings and captions shall not be construed in interpreting provisions of
this
Limited Waiver, Release, and Amendment, (c) this Limited Waiver, Release, and
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York, (d) if any part of this Limited Waiver, Release, and
Amendment is for any reason found to be unenforceable, all other portions of
it
shall nevertheless remain enforceable, (e) this Limited Waiver, Release, and
Amendment may be executed in any number of counterparts with the same effect
as
if all signatories had signed the same document, and all of those counterparts
shall be construed together to constitute the same document, (f) this Limited
Waiver, Release, and Amendment is a “Loan
Paper”
referred to in the Credit Agreement, and the provisions relating to Loan Papers
in Section
14
of the
Credit Agreement are incorporated herein by reference, (g) this Limited Waiver,
Release, and Amendment, the Credit Agreement, as amended by this Limited Waiver,
Release, and Amendment, and the other Loan Papers constitute
the entire agreement and understanding among the parties hereto and supercede
any and all prior agreements and understandings, oral or written, relating
to
the subject matter hereof, and (h) except as provided in this Limited Waiver,
Release, and Amendment, the Credit Agreement, the Notes, and the other Loan
Papers are unchanged and are ratified and confirmed.
8. Parties.
This
Limited Waiver, Release, and Amendment binds and inures to the benefit of the
Company, the Guarantors, the Administrative Agent, the Lenders, and their
respective successors and assigns.
The
parties hereto have executed this Limited Waiver, Release, and Amendment in
multiple counterparts as of the date first above written.
Remainder
of Page Intentionally Blank.
Signature
Pages to Follow.
-16-
THE
VAIL CORPORATION (D/B/A “VAIL ASSOCIATES, INC.”), as
the
Company
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Senior
Executive Vice President & Chief Financial Officer
BANK
OF AMERICA, N.A.,
as
Administrative Agent
By: Illegible
Name: Illegible
Title: Illegible
BANK
OF AMERICA, N.A.,
as
an L/C
Issuer, a Swing Line Lender, and a Lender
By: /s/
▇▇▇▇▇
McCautey
Name: ▇▇▇▇▇
McCautey
Title: Principal
U.S.
BANK NATIONAL ASSOCIATION,
as
Co-Syndication Agent, a Swing Line Lender, and a Lender
By: /s/
▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Vice
President
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
as
Co-Syndication Agent, an L/C Issuer, and a Lender
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Vice
President
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Co-Documentation Agent and a Lender
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Managing
Director
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Director
LASALLE
BANK NATIONAL ASSOCIATION,
as
Co-Documentation Agent and a Lender
By: /s/
▇▇▇▇▇▇ Lemkaw
Name: ▇▇▇▇▇▇
Lemkaw
Title: SVP
JPMORGAN
CHASE BANK, NA,
as
a
Lender
By: /s/
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title: Senior
Vice President
COLORADO
STATE BANK & TRUST,
as
a
Lender
By: /s/
▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title: Senior
Vice President
COMPASS
BANK,
as
a
Lender
By: /s/
▇▇▇▇
▇. ▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇
Title: Senior
Vice President
COMERICA
WEST INCORPORATED,
as
a
Lender
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Corporate
Banking Officer
GUARANTORS’
CONSENT AND AGREEMENT
As
an
inducement to Administrative Agent and Lenders to execute, and in consideration
of Administrative Agent’s and Lenders’ execution of the foregoing Limited
Waiver, Release, and Third Amendment to Fourth Amended and Restated Credit
Agreement, 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 each
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 Administrative Agent and Lenders, and the respective
successors and assigns of each.
Vail
Resorts, Inc.
Vail
Holdings, Inc.
Beaver
Creek Associates, Inc.
Beaver
Creek Consultants, Inc.
Beaver
Creek Food Services, Inc.
Breckenridge
Resort Properties, Inc.
Complete
Telecommunications, Inc.
▇▇▇▇▇▇▇
Broadcasting, Inc.
Grand
Canyon Lodge Company North Rim
Grand
Teton Lodge Company
Heavenly
Valley, Limited Partnership
▇▇▇▇▇▇▇
Hole Golf and Tennis Club, Inc.
JHL&S
LLC
Keystone
Conference Services, Inc.
Keystone
Development Sales, Inc.
Keystone
Food and Beverage Company
Keystone
Resort Property Management Company
Larkspur
Restaurant & Bar, LLC
Lodge
Properties, Inc.
Lodge
Realty, Inc.
Mountain
Thunder, Inc.
National
Park Hospitality Company
Property
Management Acquisition Corp., Inc.
Rockresorts
Arrabelle, LLC
Rockresorts
International, LLC
Rockresorts
LLC
Rockresorts
Cheeca, LLC
Rockresorts
Eleven Biscayne, LLC
Rockresorts
Equinox, Inc.
Rockresorts
LaPosada, LLC
Rockresorts
Wyoming, LLC
Rockresorts
Casa Madrona, LLC
Rockresorts
Cordillera Lodge Company, LLC
Rockresorts
▇▇▇▇▇▇▇, LLC
SOHO
Development, LLC
SSV
Holdings, Inc.
Teton
Hospitality Services, Inc.
The
Village at Breckenridge Acquisition Corp., Inc.
Timber
Trail, Inc.
VA
Rancho
Mirage I, Inc.
VA
Rancho
Mirage II, Inc.
VA
Rancho
Mirage Resort, ▇.▇.
▇▇▇▇/Arrowhead,
Inc.
Vail
Hotel Management Company, LLC
Vail
Associates Holdings, Ltd.
Vail
Associates Investments, Inc.
Vail
Associates Real Estate, Inc.
Vail/Beaver
Creek Resort Properties, Inc.
Vail
Food
Services, Inc.
Vail
Resorts Development Company
▇▇▇▇
▇▇,
Inc.
Vail
Summit Resorts, Inc.
Vail
Trademarks, Inc.
VAMHC,
Inc.
VR
Heavenly I, Inc.
VR
Heavenly II, Inc.
VR
Holdings, Inc.
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Executive Vice President & Chief Financial Officer
ANNEX
A
Applicable
Margin means,
for any day, the margin of interest over the Base Rate or LIBOR, as the case
may
be, that is applicable when any interest rate is determined under this
Agreement. The Applicable Margin is subject to adjustment (upwards or downwards,
as appropriate) based on the ratio of Net Funded Debt to Adjusted EBITDA, as
follows:
|
Ratio
of Net Funded Debt to Adjusted EBITDA
|
Applicable
Margin for
LIBOR
Loans
|
Applicable
Margin
Base
Rate Loans
|
|
|
I
|
Less
than 1.50 to 1.00
|
0.50%
|
0.00%
|
|
II
|
Greater
than or equal to 1.50 to 1.00, but less than 2.00 to 1.00
|
0.75%
|
0.00%
|
|
III
|
Greater
than or equal to 2.00 to 1.00, but less than 2.50 to 1.00
|
1.00%
|
0.00%
|
|
IV
|
Greater
than or equal to 2.50 to 1.00, but less than 3.00 to 1.00
|
1.25%
|
0.00%
|
|
V
|
Greater
than or equal to 3.00 to 1.00, but less than 3.50 to 1.00
|
1.50%
|
0.25%
|
|
VI
|
Greater
than or equal to 3.50 to 1.00, but less than 4.00 to 1.00
|
1.75%
|
0.50%
|
|
VII
|
Greater
than or equal to 4.00 to 1.00
|
2.00%
|
1.00%
|
Prior
to
Administrative Agent’s receipt of the Companies’ consolidated Financial
Statements for the Companies’ fiscal quarter ended January 31, 2007, the ratio
of Net Funded Debt to Adjusted EBITDA shall be fixed at Level III. Thereafter,
the ratio of Net Funded Debt to Adjusted EBITDA shall be calculated on a
consolidated basis for the Companies in accordance with GAAP for the most
recently completed fiscal quarter of the Companies for which results are
available. The ratio shall be determined from the Current Financials and any
related Compliance Certificate and any change in the Applicable Margin resulting
from a change in such ratio shall be effective as of the date of delivery of
such Compliance Certificate. However, if Borrower fails to furnish to
Administrative Agent the Current Financials and any related Compliance
Certificate when required pursuant to Section
9.1,
then
the ratio shall be deemed to be at Level VII until Borrower furnishes the
required Current Financials and any related Compliance Certificate to
Administrative Agent. Furthermore, if the Companies’ audited Financial
Statements delivered to Administrative Agent for any fiscal year pursuant to
Section 9.1(a)
result
in a different ratio, such revised ratio (whether higher or lower) shall govern
effective as of the date of such delivery. For purposes of determining such
ratio, Adjusted EBITDA for any fiscal quarter shall include on a pro
forma
basis
all EBITDA of the Restricted Companies for such period relating to assets
acquired in accordance with this Agreement (including, without limitation,
Restricted Subsidiaries formed or acquired in accordance with Section
9.10 hereof,
and Unrestricted Subsidiaries re-designated as Restricted Subsidiaries in
accordance with Section
9.11(b)
hereof)
during such period, but shall exclude on a pro
forma
basis
all EBITDA of the Restricted Companies for such period relating to any such
assets disposed of in accordance with this Agreement during such period
(including, without limitation, Restricted Subsidiaries re-designated as
Unrestricted Subsidiaries in accordance with Section
9.11(a)
hereof).
ANNEX
B
Applicable
Percentage means,
for any day, the commitment fee percentage applicable under Section
5.4
when
commitment fees are determined under this Agreement. The Applicable Percentage
is subject to adjustment (upwards or downwards, as appropriate) based on the
ratio of Net Funded Debt to Adjusted EBITDA, as follows:
|
Ratio
of Net Funded Debt to Adjusted EBITDA
|
Applicable
Percentage
|
|
|
I
|
Less
than 1.50 to 1.00
|
0.100%
|
|
II
|
Greater
than or equal to 1.50 to 1.00, but less than 2.00 to 1.00
|
0.125%
|
|
III
|
Greater
than or equal to 2.00 to 1.00, but less than 2.50 to 1.00
|
0.150%
|
|
IV
|
Greater
than or equal to 2.50 to 1.00, but less than 3.00 to 1.00
|
0.200%
|
|
V
|
Greater
than or equal to 3.00 to 1.00, but less than 3.50 to 1.00
|
0.250%
|
|
VI
|
Greater
than or equal to 3.50 to 1.00, but less than 4.00 to 1.00
|
0.250%
|
|
VII
|
Greater
than or equal to 4.00 to 1.00
|
0.375%
|
Prior
to
Administrative Agent’s receipt of the Companies’ consolidated Financial
Statements for the Companies’ fiscal quarter ended January 31, 2007, the ratio
of Net Funded Debt to Adjusted EBITDA (which shall be determined as described
in
the definition of “Applicable
Margin”)
shall
be fixed at Level III.
ANNEX
C
Schedule
1
Borrower
and all other Companies
The
Vail
Corporation
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Contact:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Senior
Executive Vice President and Chief Financial Officer
Phone:
303/▇▇▇-▇▇▇▇
FAX:
303/404/6403
Wire
Instructions:
Location
of account: U.S. Bank National Association
ABA
No.:
City/State:
Denver, Colorado
Account
No.:
Copy
to:
▇▇▇▇▇
▇.
▇▇▇▇▇▇
Deputy
General Counsel
Phone:
303/▇▇▇-▇▇▇▇
FAX:
303/▇▇▇-▇▇▇▇
Administrative
Agent,
L/C
Issuer, and Swing Line Lender
Bank
of
America, N.A.
Mail
Code: TX1-492-64-01
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Credit
Contact:
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Mail
Code: TX1-492-64-01
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Phone:
214/▇▇▇-▇▇▇▇
FAX:
214/▇▇▇-▇▇▇▇
Agency
Contact:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇
▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone:
312/▇▇▇-▇▇▇▇
|
FAX:
877/▇▇▇-▇▇▇▇
|
Annex
C to
Limited
Waiver, Release, and Third Amendment
Swing
Line Contact:
▇▇▇▇▇▇
▇▇▇▇▇
Mail
Code: TX1-492-14-12
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Phone:
214/▇▇▇-▇▇▇▇
|
FAX:
214/▇▇▇-▇▇▇▇
|
Operations
Contact:
▇▇▇▇▇▇
▇▇▇▇▇
Mail
Code: TX1-492-14-12
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Phone:
214/▇▇▇-▇▇▇▇
FAX:
214/▇▇▇-▇▇▇▇
L/C
Contact:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Mail
Code: CA9-703-19-23
▇▇▇
▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone:
213/▇▇▇-▇▇▇▇
Fax:
213/▇▇▇-▇▇▇▇
Wire
Instructions:
Bank
of
America, N.A.
ABA
No.:
City/State:
Dallas, Texas
Account
No.:
Attn:
Credit Services
Ref:
The
Vail Corp
Copy
to:
▇▇▇▇▇▇
and ▇▇▇▇▇, LLP.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone:
214/▇▇▇-▇▇▇▇
FAX::
214/▇▇▇-▇▇▇▇
Swing
Line Lender
U.S.
Bank
National Association
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Credit
Contact:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
303/▇▇▇-▇▇▇▇
Fax:
303/▇▇▇-▇▇▇▇
Swing
Line Contact:
|
Hanny
Nawawi
|
▇▇▇
▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
503/▇▇▇-▇▇▇▇
Fax:
503/▇▇▇-▇▇▇▇
Wire
Instructions:
U.S.
Bank
National Association
ABA
No.:
BNF:
Commercial Loan Services - West
Account
No.:
Attn:
Hanny Nawawi
Ref:
The
Vail Corporation
L/C
Issuer
▇▇▇▇▇
Fargo Bank, National Association
Credit
Contact:
▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
303/▇▇▇-▇▇▇▇
Fax:
303/▇▇▇-▇▇▇▇
L/C
Contact:
▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
303/▇▇▇-▇▇▇▇
Fax:
303/▇▇▇-▇▇▇▇
Wire
Instructions:
▇▇▇▇▇
Fargo Bank, National Association
ABA
No.:
City/State:
Denver, Colorado
Account
No.:
Attn:
WLS
Denver
Ref:
Vail
Corporation
Lenders
and Commitments
|
LENDER
|
COMMITMENT
|
COMMITMENT
PERCENTAGE
|
|
Bank
of America, N.A.
|
$55,000,000
|
18.3%
|
|
U.S.
Bank National Association
|
$50,000,000
|
16.7%
|
|
▇▇▇▇▇
Fargo Bank,
National
Association
|
$50,000,000
|
16.7%
|
|
Deutsche
Bank Trust
Company
Americas
|
$40,000,000
|
13.3%
|
|
LaSalle
Bank
National
Association
|
$40,000,000
|
13.3%
|
|
JPMorgan
Chase Bank, NA
|
$20,000,000
|
6.7%
|
|
Colorado
State Bank & Trust
|
$15,000,000
|
5.0%
|
|
Compass
Bank
|
$15,000,000
|
5.0%
|
|
Comerica
West Incorporated
|
$15,000,000
|
5.0%
|
|
Totals
|
$300,000,000
|
100.0000000%
|
ANNEX
D
Schedule
7.1
|
ITEM
|
DATE
FOR COMPLIANCE
|
|
|
1. Borrower
shall seek written consent from the United States Department of the
Interior, National Park Service (“Park
Service”)
to the pledge by National Park Hospitality Company (“NPHC”)
to the Administrative Agent (for the benefit of the Lenders) of the
capital stock of Grand Teton Lodge Company, a Wyoming corporation
(“Grand
Teton”),
issued to NPHC (the “Park
Service Consent”).
|
Not
later than 30 days after the date upon which the Park Service consents
to
the transfer of ownership of Grand Teton from Borrower to
NPHC.
|
|
|
2. NPHC
shall execute and deliver to Administrative Agent a Pledge Agreement
pledging the capital stock issued by Grand Teton to NPHC, accompanied
by a
certificate (or other instrument evidencing the capital stock) and
a stock
power or similar instrument of transfer or assignment duly executed
in
blank, each in form and substance satisfactory to Administrative
Agent
|
On
or before the thirtieth (30th) day after the date NPHC receives the
Park
Service Consent
|
ANNEX
E
Schedule
8.2
(Attached)
ANNEX
F
Annex
A to Exhibit D
CREDIT
FACILITY COVENANTS CALCULATIONS
Subject
Period: ___________________, 200_
|
Months
Ended
- -
|
|
|
10.8(m)
INVESTMENTS IN PERSONS
|
|
|
(i) Investments
during Subject Period in Unrestricted Subsidiaries, Housing Districts
and
Metro Districts not otherwise permitted under Section
10.8(j)(ii),
and other Persons (other than Restricted Subsidiaries) involved in
Similar
Businesses:
|
$
|
|
(ii) Investments
during prior Subject Periods in Unrestricted Subsidiaries, Housing
Districts and Metro Districts not otherwise permitted under Section
10.8(j)(ii),
and other Persons (other than Restricted Subsidiaries) involved in
Similar
Businesses:
|
$
|
|
(iii)
Investments set forth on part
(b)
of
Schedule
10.8:
|
$
|
|
(iv) (10.8(m)(i)
plus 10.8(m)(ii) plus 10.8(m)(iii)):
|
$
|
|
(v)
$75,000,000:
|
$75,000,000
|
|
(vi) Book
value of Total Assets:
|
$
|
|
(vii)
10% of 10.8(m)(vi):
|
$
|
|
(viii) Investment
Limit (10.8(m)(v) plus 10.8(m)(vii)):
|
$
|
|
(ix)
Net reductions in investments permitted under Section
10.8(m)
in
an aggregate amount not to exceed 10.8(m)(viii):
|
$
|
|
(x) Maximum
permitted investments in Unrestricted Subsidiaries, Housing Districts
and
Metro Districts not otherwise permitted under Section
10.8(j)(ii),
and other Persons (other than Restricted Subsidiaries) involved in
Similar
Businesses permitted after the Closing Date, and investments set
forth on
part
(b) of
Schedule
10.8
(10.8(m)(viii) plus 10.8(m)(ix)):
|
$
|
|
(xi)
Fair market value of all assets owned by Restricted Subsidiaries
on the
Closing Date which have been contributed to Unrestricted
Subsidiaries:
|
$
|
|
(xii)
Is 10.8(m)(xi)
less than $75,000,000?
|
Yes/No
|
|
(xiii) Are
investments in Unrestricted Subsidiaries, Housing Districts and Metro
Districts not otherwise permitted under Section
10.8(j)(ii),
and other Persons (other than Restricted Subsidiaries) involved in
Similar
Businesses, and investments set forth on part
(b)
of
Schedule
10.8
(10.8(m)(iv)), less
than or equal to the maximum amount permitted (10.8(m)(x))?
|
Yes/No
|
|
10.9(d) DISTRIBUTIONS,
LOANS, ADVANCES, AND INVESTMENTS
|
|
|
(i) Distributions
under Section
10.9(d),
and loans, advances, and investments made, which are not otherwise
permitted under Section
10.8 during
Subject Period:
|
$
|
|
(ii) Distributions
under Section
10.9(d),
and loans, advances, and investments made, which are not otherwise
permitted under Section
10.8 during
prior Subject Periods:
|
$
|
|
(iii) Aggregate
Distributions under Section
10.9(d),
and loans, advances, and investments made, which are not otherwise
permitted under Section
10.8
(the sum of 10.9(d)(i) plus 10.9(d)(ii)):
|
$
|
|
(iv) Aggregate
amount of Restricted Payments (as defined in the VRI Indenture) that
VRI
and its Restricted Subsidiaries are permitted to make under, and
in
accordance with, Section
4.10 of
the VRI Indenture, as set forth in detail on Schedule
I attached
hereto:
|
$
|
|
(v)
Are aggregate Distributions under Section
10.9(d),
and loans, advances, and investments made, which are not otherwise
permitted under Section
10.8
(10.9(d)(iii))
less than the maximum amount of Restricted Payments permitted
(10.9(d)(iv))?
|
Yes/No
|
|
11.1 RATIO
OF NET FUNDED DEBT TO ADJUSTED EBITDA:
|
|
|
(i) All
obligations of the Companies for borrowed money:
|
$
|
|
(ii) Minus
all obligations of the Unrestricted Subsidiaries for borrowed money
(the
sum of items
11.1(ii)(A)
through 11.1(ii)(W)
below):
|
($_____________)
|
|
(A) SSI
Venture LLC (weighted average of the membership interest not held
by a
Company) (if SSI is not a Restricted Subsidiary)
|
($_____________)
|
|
(B) Eagle
Park Reservoir Company
|
($_____________)
|
|
(C) Boulder/Beaver,
LLC
|
($_____________)
|
|
(D) ▇▇▇▇▇▇
Bay Corporation
|
($_____________)
|
|
(E) Gros
Ventre Utility Company
|
($_____________)
|
|
(F) ▇▇▇▇▇▇▇
Lake Lodge Corporation
|
($_____________)
|
|
(G) ▇▇▇▇▇
Lake Lodge, Inc.
|
($_____________)
|
|
(H) Forest
Ridge Holdings, Inc.
|
($_____________)
|
|
(I) Resort
Technology Partners, LLC
|
($_____________)
|
|
(J) RT
Partners, Inc.
|
($_____________)
|
|
(K) Arrabelle
at Vail Square, LLC
|
($_____________)
|
|
(L) ▇▇▇▇
Creek Place, LLC
|
($_____________)
|
|
(M) The
Chalets at the Lodge at Vail, LLC
|
($_____________)
|
|
(N) RCR
Vail, LLC
|
($_____________)
|
|
(O) ▇▇▇▇▇▇
Bay Convenience Store, LLC
|
($_____________)
|
|
(P) ▇▇▇▇▇▇
Bay General Store, LLC
|
($_____________)
|
|
(Q) ▇▇▇▇▇▇
Bay ▇▇▇▇▇▇, LLC
|
($_____________)
|
|
(R) ▇▇▇▇▇▇
Bay Cafe Court, LLC
|
($_____________)
|
|
(S) ▇▇▇▇▇
Lake Store, LLC
|
($_____________)
|
|
(T) ▇▇▇▇▇▇▇
Hole Golf & Tennis Club Snack Bar, LLC
|
($_____________)
|
|
(U) Stampede
Canteen, LLC
|
($_____________)
|
|
(V) Crystal
Peak Lodge of Breckenridge, Inc.
|
($_____________)
|
|
(W) Hunkidori
Land Company, LLC
|
($_____________)
|
|
(iii) Plus
the principal portion of all Capital Lease obligations of the
Companies:
|
$_____________
|
|
(iv) Minus
the principal portion of the Capital Lease obligations for the following
Unrestricted Subsidiaries (the sum of items 11.1(iv)(A)
through 11.1(iv)(W)
below):
|
($____________)
|
|
(A) SSI
Venture LLC (weighted average of the membership interest not held
by a
Company) (if SSI is not a Restricted Subsidiary)
|
($_____________)
|
|
(B) Eagle
Park Reservoir Company
|
($_____________)
|
|
(C) Boulder/Beaver,
LLC
|
($_____________)
|
|
(D) ▇▇▇▇▇▇
Bay Corporation
|
($_____________)
|
|
(E) Gros
Ventre Utility Company
|
($_____________)
|
|
(F) ▇▇▇▇▇▇▇
Lake Lodge Corporation
|
($_____________)
|
|
(G) ▇▇▇▇▇
Lake Lodge, Inc.
|
($_____________)
|
|
(H) Forest
Ridge Holdings, Inc.
|
($_____________)
|
|
(I) Resort
Technology Partners, LLC
|
($_____________)
|
|
(J) RT
Partners, Inc.
|
($_____________)
|
|
(K) Arrabelle
at Vail Square, LLC
|
($_____________)
|
|
(L) ▇▇▇▇
Creek Place, LLC
|
($_____________)
|
|
(M) The
Chalets at the Lodge at Vail, LLC
|
($_____________)
|
|
(N) RCR
Vail, LLC
|
($_____________)
|
|
(O) ▇▇▇▇▇▇
Bay Convenience Store, LLC
|
($_____________)
|
|
(P) ▇▇▇▇▇▇
Bay General Store, LLC
|
($_____________)
|
|
(Q) ▇▇▇▇▇▇
Bay ▇▇▇▇▇▇, LLC
|
($_____________)
|
|
(R) ▇▇▇▇▇▇
Bay Cafe Court, LLC
|
($_____________)
|
|
(S) ▇▇▇▇▇
Lake Store, LLC
|
($_____________)
|
|
(T) ▇▇▇▇▇▇▇
Hole Golf & Tennis Club Snack Bar, LLC
|
($_____________)
|
|
(U) Stampede
Canteen, LLC
|
($_____________)
|
|
(V) Crystal
Peak Lodge of Breckenridge, Inc.
|
($_____________)
|
|
(W) Hunkidori
Land Company, LLC
|
($_____________)
|
|
(v)
Plus
reimbursement obligations and undrawn amounts under Bond
L/Cs
supporting Bonds (other than Existing Housing Bonds) issued
by
Unrestricted Subsidiaries:
|
$
|
|
(vi) Minus
Debt under Existing Housing Bonds:
|
$
|
|
(vii) Funded
Debt of the Restricted Companies (11.1(i) minus 11.1(ii) plus 11.1(iii) minus 11.1(iv)
plus 11.1(v) minus 11.1(vi)):
|
$
|
|
(viii) Cash
of the Companies:
|
$
|
|
(ix) Minus
cash of the Unrestricted Subsidiaries (the sum of items
11.1(ix)(A)
through 11.1(ix)(W)
below):
|
($_____________)
|
|
(A) SSI
Venture LLC (weighted average of the membership interest not held
by a
Company) (if SSI is not a Restricted Subsidiary)
|
($_____________)
|
|
(B) Eagle
Park Reservoir Company
|
($_____________)
|
|
(C) Boulder/Beaver,
LLC
|
($_____________)
|
|
(D) ▇▇▇▇▇▇
Bay Corporation
|
($_____________)
|
|
(E) Gros
Ventre Utility Company
|
($_____________)
|
|
(F) ▇▇▇▇▇▇▇
Lake Lodge Corporation
|
($_____________)
|
|
(G) ▇▇▇▇▇
Lake Lodge, Inc.
|
($_____________)
|
|
(H) Forest
Ridge Holdings, Inc.
|
($_____________)
|
|
(I) Resort
Technology Partners, LLC
|
($_____________)
|
|
(J) RT
Partners, Inc.
|
($_____________)
|
|
(K) Arrabelle
at Vail Square, LLC
|
($_____________)
|
|
(L) ▇▇▇▇
Creek Place, LLC
|
($_____________)
|
|
(M) The
Chalets at the Lodge at Vail, LLC
|
($_____________)
|
|
(N) RCR
Vail, LLC
|
($_____________)
|
|
(O) ▇▇▇▇▇▇
Bay Convenience Store, LLC
|
($_____________)
|
|
(P) ▇▇▇▇▇▇
Bay General Store, LLC
|
($_____________)
|
|
(Q) ▇▇▇▇▇▇
Bay ▇▇▇▇▇▇, LLC
|
($_____________)
|
|
(R) ▇▇▇▇▇▇
Bay Cafe Court, LLC
|
($_____________)
|
|
(S) ▇▇▇▇▇
Lake Store, LLC
|
($_____________)
|
|
(T) ▇▇▇▇▇▇▇
Hole Golf & Tennis Club Snack Bar, LLC
|
($_____________)
|
|
(U) Stampede
Canteen, LLC
|
($_____________)
|
|
(V) Crystal
Peak Lodge of Breckenridge, Inc.
|
($_____________)
|
|
(W) Hunkidori
Land Company, LLC
|
($_____________)
|
|
(x) Investments
of the Companies in marketable obligations issued or unconditionally
guaranteed by the U.S. or issued by any of its agencies and backed
by the
full faith and credit of the U.S., in each case maturing within one
year
from the date of acquisition:
|
$
|
|
(xi) Investments
of the Companies in short-term
investment grade domestic and eurodollar certificates of deposit
or time
deposits that are fully insured by the Federal Deposit Insurance
Corporation or are issued by commercial banks organized under the
Laws of
the U.S. or any of its states having combined capital, surplus, and
undivided profits of not less than $100,000,000 (as shown on its
most
recently published statement of condition):
|
$
|
|
(xii) Investments
of the Companies in commercial paper and similar obligations rated
“P-1”
by
▇▇▇▇▇’▇ or “A-1”
by
S&P:
|
$
|
|
(xiii) Investments
of the Companies in readily marketable Tax-free municipal bonds of
a
domestic issuer rated “A-2”
or
better by ▇▇▇▇▇’▇ or “A”
or
better by S&P, and maturing within one year from the date of
issuance:
|
$
|
|
(xiv) Investments
of the Companies in mutual funds or money market accounts
investing primarily in items described in items
11.1(x) through
(xiii)
above:
|
$
|
|
(xv)
Investments
of the Companies in demand deposit accounts maintained in the ordinary
course of business:
|
$
|
|
(xvi)
Investments
of the Companies in short-term repurchase agreements with major banks and
authorized dealers, fully collateralized to at least 100% of market
value
by marketable obligations issued or unconditionally guaranteed by
the U.S.
or issued by any of its agencies and backed by the full faith and
credit
of the U.S.:
|
$
|
|
(xvii)
Investments
of the Companies in short-term variable rate demand notes that invest
in
tax-free municipal bonds of domestic issuers rated “A-2”
or better by ▇▇▇▇▇’▇ or “A”
or better by S&P that are supported by irrevocable letters of credit
issued by commercial banks organized under the laws of the U.S. or
any of
its states having combined capital, surplus, and undivided profits
of not
less than $100,000,000:
|
$
|
|
(xviii) Temporary
Cash Investments of the Companies (11.1(x)
plus 11.1(xi)
plus 11.1(xii) plus 11.1(xiii)
plus 11.1(xiv)
plus 11.1(xv)
plus 11.1(xvi) plus 11.1(xvii)):
|
$
|
|
(xix) Minus
Temporary Cash Investments of the Unrestricted Subsidiaries
(the sum of items
11.1(xix)(A)
through 11.1(xix)(W) below):
|
($_____________)
|
|
(A) SSI
Venture LLC (weighted average of the membership interest not held
by a
Company) (if SSI is not a Restricted Subsidiary)
|
($_____________)
|
|
(B) Eagle
Park Reservoir Company
|
($_____________)
|
|
(C) Boulder/Beaver,
LLC
|
($_____________)
|
|
(D) ▇▇▇▇▇▇
Bay Corporation
|
($_____________)
|
|
(E) Gros
Ventre Utility Company
|
($_____________)
|
|
(F) ▇▇▇▇▇▇▇
Lake Lodge Corporation
|
($_____________)
|
|
(G) ▇▇▇▇▇
Lake Lodge, Inc.
|
($_____________)
|
|
(H) Forest
Ridge Holdings, Inc.
|
($_____________)
|
|
(I) Resort
Technology Partners, LLC
|
($_____________)
|
|
(J) RT
Partners, Inc.
|
($_____________)
|
|
(K) Arrabelle
at Vail Square, LLC
|
($_____________)
|
|
(L) ▇▇▇▇
Creek Place, LLC
|
($_____________)
|
|
(M) The
Chalets at the Lodge at Vail, LLC
|
($_____________)
|
|
(N) RCR
Vail, LLC
|
($_____________)
|
|
(O) ▇▇▇▇▇▇
Bay Convenience Store, LLC
|
($_____________)
|
|
(P) ▇▇▇▇▇▇
Bay General Store, LLC
|
($_____________)
|
|
(Q) ▇▇▇▇▇▇
Bay ▇▇▇▇▇▇, LLC
|
($_____________)
|
|
(R) ▇▇▇▇▇▇
Bay Cafe Court, LLC
|
($_____________)
|
|
(S) ▇▇▇▇▇
Lake Store, LLC
|
($_____________)
|
|
(T) ▇▇▇▇▇▇▇
Hole Golf & Tennis Club Snack Bar, LLC
|
($_____________)
|
|
(U) Stampede
Canteen, LLC
|
($_____________)
|
|
(V) Crystal
Peak Lodge of Breckenridge, Inc.
|
($_____________)
|
|
(W) Hunkidori
Land Company, LLC
|
($_____________)
|
|
(xx) Unrestricted
Cash of the Restricted Companies (11.1(viii)
minus 11.1(ix) plus 11.1(xviii)
minus 11.1(xix)):
|
$
|
|
(xxi) Unrestricted
Cash of the Restricted Companies in excess of $10,000,000:
|
$
|
|
(xxii) Net
Funded Debt (11.1(vii) minus
11.1(xxi)):
|
$
|
|
(xxiii) EBITDA
of the Companies for the last four fiscal quarters:
|
$
|
|
(xxiv) Plus
insurance proceeds (up to a maximum of $10,000,000 in the aggregate
for
any fiscal year) received by the Restricted Companies under policies
of
business interruption insurance (or under policies of insurance which
cover losses or claims of the same character or type):
|
$
|
|
(xxv) Plus pro
forma
EBITDA for assets acquired during such period:
|
$
|
|
(xxvi) Minus pro
forma EBITDA
for assets disposed of during such period:
|
($_____________)
|
|
(xxvii) Minus
EBITDA for such period attributable to the following Unrestricted
Subsidiaries (sum of items 11.1(xxvii)(A)
through 11.1(xxvii)(W)
below):
|
($_____________)
|
|
(A) SSI
Venture LLC (weighted average of the membership interest not held
by a
Company) (if SSI is not a Restricted Subsidiary)
|
($_____________)
|
|
(B) Eagle
Park Reservoir Company
|
($_____________)
|
|
(C) Boulder/Beaver,
LLC
|
($_____________)
|
|
(D) ▇▇▇▇▇▇
Bay Corporation
|
($_____________)
|
|
(E) Gros
Ventre Utility Company
|
($_____________)
|
|
(F) ▇▇▇▇▇▇▇
Lake Lodge Corporation
|
($_____________)
|
|
(G) ▇▇▇▇▇
Lake Lodge, Inc.
|
($_____________)
|
|
(H) Forest
Ridge Holdings, Inc.
|
($_____________)
|
|
(I) Resort
Technology Partners, LLC
|
($_____________)
|
|
(J) RT
Partners Inc.
|
($_____________)
|
|
(K) Arrabelle
at Vail Square, LLC
|
($_____________)
|
|
(L) ▇▇▇▇
Creek Place, LLC
|
($_____________)
|
|
(M) The
Chalets at the Lodge at Vail, LLC
|
($_____________)
|
|
(N) RCR
Vail, LLC
|
($_____________)
|
|
(O) ▇▇▇▇▇▇
Bay Convenience Store, LLC
|
($_____________)
|
|
(P) ▇▇▇▇▇▇
Bay General Store, LLC
|
($_____________)
|
|
(Q) ▇▇▇▇▇▇
Bay ▇▇▇▇▇▇, LLC
|
($_____________)
|
|
(R) ▇▇▇▇▇▇
Bay Cafe Court, LLC
|
($_____________)
|
|
(S) ▇▇▇▇▇
Lake Store, LLC
|
($_____________)
|
|
(T) ▇▇▇▇▇▇▇
Hole Golf & Tennis Club Snack Bar, LLC
|
($_____________)
|
|
(U) Stampede
Canteen, LLC
|
($_____________)
|
|
(V) Crystal
Peak Lodge of Breckenridge, Inc.
|
($_____________)
|
|
(W) Hunkidori
Land Company, LLC
|
($_____________)
|
|
(xxviii) Adjusted
EBITDA (11.1(xxiii) plus 11.1(xxiv)
plus
11.1(xxv) minus 11.1(xxvi)
minus 11.1(xxvii)):
|
$
|
|
(xxix) Ratio
of Net Funded Debt to Adjusted EBITDA
(Ratio
of 11.1(xxii)
to
11.1(xxviii)):
|
|
|
(xxx) Maximum
ratio of Net Funded Debt to Adjusted EBITDA permitted:
|
4.50
: 1.00
|
|
(xxxi) Is
the ratio of Net Funded Debt to Adjusted EBITDA less than the maximum
ratio permitted?
|
Yes/No
|
|
11.2 [RESERVED]
|
|
|
11.3 MINIMUM
NET WORTH:
|
|
|
(a) Shareholders’
Equity determined in accordance with GAAP:
|
$
|
|
(b) $414,505,800:
|
$414,505,800
|
|
(c) Restricted
Companies’ Net Income, if positive, for each fiscal year completed after
October 31, 2004:
|
$
|
|
(d) 75%
of the total from 11.3(c):
|
$
|
|
(e) Net
Proceeds received by any Restricted Company (other than from another
Company) from the offering, issuance, or sale of equity securities
of a
Restricted Company after October
31, 2004:
|
$
|
|
(f) Minimum
shareholders’ equity permitted
(11.3(b) plus 11.3(d) plus 11.3(e)):
|
$
|
|
(g) Does
Shareholders’ Equity exceed the minimum permitted?
|
Yes/No
|
|
11.4 INTEREST
COVERAGE RATIO
|
|
|
(a) Adjusted
EBITDA for the last four fiscal quarters (11.1(xxviii)):
|
$
|
|
(b) Interest
on Funded Debt for the last four fiscal quarters:
|
$
|
|
(c)
Amortization of deferred financing costs and original issue
discounts:
|
$
|
|
(d)
11.4(b) minus 11.4(c):
|
$
|
|
(e) Interest
Coverage Ratio (Ratio of 11.4(a)
to
11.4(d)):
|
|
|
(f) Minimum
Interest Coverage Ratio permitted:
|
2.50
: 1.00
|
|
(g) Does
the Interest Coverage Ratio exceed the minimum ratio
permitted?
|
Yes/No
|
|
11.5 CAPITAL
EXPENDITURES
|
|
|
(a) Aggregate
capital expenditures of the Restricted Companies in the ordinary
course of
the business (excluding (i) normal replacements and maintenance which
are
properly charged to current operations, and (ii) such expenditures
relating to real estate held for resale) during each fiscal
year:
|
$
|
|
(b) Total
Assets of the Restricted Companies as of the last day of the fiscal
year:
|
$
|
|
(c) Maximum
capital expenditures permitted (10% of Total Assets of the Restricted
Companies set forth in 11.5(b)):
|
$
|
|
(d) Are
aggregate capital expenditures less than the maximum amount
permitted?
|
Yes/No
|
|
LETTERS
OF CREDIT
|
|
|
Set
forth on Schedule
1
attached hereto is a list of all issued and outstanding letters of
credit
issued for the account of any of the Companies, and the drawn and
undrawn
amounts thereunder
|