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EXHIBIT 2.3
AMENDMENT NO. 4
TO CREDIT AGREEMENT
AS AMENDED AND RESTATED
As of February 23, 1998
BOOTH CREEK SKI HOLDINGS, INC., a Delaware corporation (together with
its successors and assigns, "BCS Holdings"), BOOTH CREEK SKI ACQUISITION CORP.,
a Delaware corporation (together with its successors and assigns, "BCS
Acquisition"), TRIMONT LAND COMPANY, a California corporation (together with
its successors and assigns, "Northstar-at-Tahoe"), SIERRA-AT-TAHOE, INC., a
Delaware corporation (together with its successors and assigns,
"Sierra-at-Tahoe"), BEAR MOUNTAIN, INC., a Delaware corporation (together with
its successors and assigns, "Bear Mountain"), WATERVILLE VALLEY SKI RESORT,
INC., a Delaware corporation (together with its successors and assigns,
"Waterville"), MOUNT CRANMORE SKI RESORT, INC., a Delaware corporation
(together with its successors and assigns, "Cranmore"), SKI LIFTS, INC., a
Washington corporation (together with its successors and assigns, "Ski Lifts"),
GRAND TARGHEE INCORPORATED, a Delaware corporation (together with its
successors and assigns, "Grand Targhee", and together with BCS Holdings, BCS
Acquisition, Northstar-at-Tahoe, Sierra-at-Tahoe, Bear Mountain, Waterville,
Cranmore and Ski Lifts, the "Existing Borrowers", and each an "Existing
Borrower"), LMRC HOLDING CORP., a Delaware corporation (together with its
successors and assigns, "LMRC Holding"), LOON MOUNTAIN RECREATION CORPORATION,
a New Hampshire corporation (together with its successors and assigns, "Loon"),
LOON REALTY CORP., a New Hampshire corporation (together with its successors
and assigns, "Loon Realty", and together with LMRC Holding and Loon, the "Loon
Borrowers", and the Loon Borrowers together with the Existing Borrowers, the
"Borrowers"), BANKBOSTON, N.A. (f/k/a The First National Bank of Boston), a
national banking association (together with its successors and assigns,
"BankBoston"), and BankBoston, as agent (the "Agent") for itself and any other
Lenders from time to time party to the Credit Agreement hereby agree as
follows:
1. Reference to Credit Agreement: Joinder; Definitions. Reference is
made to the Credit Agreement dated as of December 3, 1996, as amended and
restated as of March 18, 1997, as further amended and in effect on the date
hereof (the "Credit Agreement"), among the Borrowers, BankBoston and the Agent.
1.1. Definitions. The Credit Agreement as amended by this Amendment is
referred to herein as the "Amended Credit Agreement". Terms defined in the
Amended Credit Agreement and not otherwise defined herein are used herein with
the meanings so defined.
1.2. Joinder. On the Loon Joinder Date, each of the Loon Borrowers hereby
agrees to join in, jointly and severally be bound by and perform all of the
obligations of a Borrower
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under the Amended Credit Agreement, including without limitation for the
purposes of; (a) paying all Credit Obligations; (b) complying with the
covenants set forth in Section 7 of the Amended Credit Agreement; and (c)
making the representations and warranties contained in Section 8 of the Amended
Credit Agreement. The Existing Borrowers, the Agent and the Lenders hereby
agree that on such date the Loon Borrowers shall be joined as Borrowers under
the Amended Credit Agreement.
2. Amendments to the Credit Agreement. Subject to all the terms and
conditions hereof, effective as of the date the conditions set forth in Section
4 are satisfied (the "Loon Joinder Date"), the Credit Agreement is hereby
amended as set forth herein.
2.1. Amendment to Preamble. The Preamble of the Credit Agreement is hereby
amended by deleting therefrom, in the parenthetical following the words "GRAND
TARGHEE INCORPORATED", the definitions of the terms "Borrowers" and "Borrower".
2.2. Amendment to Section 1.2. Section 1.2 of the Credit Agreement is
hereby amended by deleting the definition of "Resorts Cash Flow" in its
entirety.
2.3. New Definitions. New definitions are hereby added to Section 1.2,
each to read in its entirety as follows:
""By-laws" means all written by-laws, rules, regulations and
all similar other documents relating to the management, governance or
internal regulations of any Person other than an individual, all as
from time to time in effect."
""Charter" means the articles of organization, certificate of
incorporation, articles of incorporation, statute, constitution, joint
venture agreement, partnership agreement, declaration of trust,
limited liability company agreement or other charter document of any
Person other than an individual, each as from time to time in effect."
""Interest Rate Protection Agreement" means any interest rate
swap, interest rate cap, interest rate hedge or other contractual
arrangement that converts variable interest rates into fixed interest
rates, fixed interest rates into variable interest rate, or other
similar arrangements."
""Joint Marketing Agreement" means the Marketing Agreement
dated as of December 1, 1997, among Loon, Loon Realty, BCS Holdings
and certain of the subsidiaries of BCS Holdings, as amended, restated,
supplemented or otherwise defined and in effect from time to time."
""LMRC Holding" means LMRC Holding Corp., a Delaware
corporation, together with its successors and assigns."
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""LMRC Holding Security Agreement" means the Security
Agreement dated as of the Loon Joinder Date between LMRC Holding and
the Agent, as amended, restated, supplemented and in effect from time
to time."
""Loon" means Loon Mountain Recreation Corporation, a New
Hampshire corporation, together with its successors and assigns."
""Loon Acquisition Agreement" means the Agreement and Plan of
Merger dated as of September 18, 1997, among BCS Group, LMRC
Acquisition Corp., a New Hampshire corporation, and Loon, as amended,
restated, supplemented, assigned or otherwise modified and in effect
from time to time."
""Loon Borrowers"" means, collectively, LMRC Holding, Loon
and Loon Realty.
""Loon Joinder Date" means the "Loon Joinder Date" as defined
in Amendment No. 4 to the Credit Agreement, dated as of February 23,
1998."
""Loon Mortgage" means the Mortgage, Security Agreement and
Assignment of Leases and Rents, dated as of the Loon Joinder Date,
executed by Loon in favor of the Agent, as amended, restated,
supplemented or otherwise modified and in effect from time to time."
""Loon Realty" means Loon Realty Corp., a New Hampshire
corporation, together with its successors and assigns."
""Loon Realty Security Agreement" means the Security
Agreement, dated as of the Loon Joinder Date, between Loon Realty and
the Agent, as amended, restated, supplemented or otherwise modified
and in effect from time to time."
""Loon Security Agreement" means the Security Agreement,
dated as of the Loon Joinder Date, between Loon and the Agent, as
amended, restated, supplemented or otherwise modified and in effect
from time to time."
""7.5% Subordinated Notes" means, collectively, the
Subordinated Notes made by Loon, each as listed on Exhibit 7.6.14
hereto."
2.4. Amendments to Definitions. Section 1.2 of the Credit Agreement is
hereby amended by amending and restating the following definitions, to
read in their entirety as follows:
""Acquisition Appraisals" means, collectively, the Original
Appraisals, the New Appraisals and the appraisal on the assets and
business of Loon performed by
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Resort North Valuation, Inc. and dated January 30, 1998, and the
updated appraisals to be obtained pursuant to Section 7.17."
""Agent" has the meaning provided in the preamble hereto."
""Applicable Margin" means
(i) during any fiscal quarter of the
Borrowers for which Trailing Four Fiscal Quarter
Cash Flow for the four fiscal quarters then most
recently ended is less than or equal to $20,000,000,
and during any Default Rate Period, 0.50% for any
Alternate Base Rate Loan and 3.00% for any LIBOR
Loan;
(ii) during any fiscal quarter of the
Borrowers for which Trailing Four Fiscal Quarter
Cash Flow for the four fiscal quarters then most
recently ended is greater than $20,000,000 and less
than or equal to $25,000,000, 0.25% for any
Alternate Base Rate Loan and 2.25% for any LIBOR
Loan; and
(iii) during any fiscal quarter of the
Borrowers for which Trailing Four Fiscal Quarter
Cash Flow for the four fiscal quarters then most
recently ended is greater than $25,000,000, 0.00%
for any Alternate Base Rate Loan and 2.00% for any
LIBOR Loan."
""Borrowers" means, collectively, the Original Borrowers, the
New Borrowers and the Loon Borrowers."
""Cash Flow" means, with respect to any Person, for any
period, on a Consolidated basis for such Person, the total of (a) Net
Income of such Person, plus (b) all amounts deducted in computing such
Net Income in respect of:
(i) depreciation and amortization; provided,
however, that when computing Cash Flow for any four fiscal
quarter period the maximum amount to be added to Net Income
pursuant to this clause (i) in respect of amortization of any
capitalized real estate development costs shall not exceed
$5,000,000;
(ii) Interest Expense of such Person; and
(iii) taxes based upon or measured by income of
such Person."
""Credit Security" means all assets now or from time to time
hereafter subjected to a security interest or charge (or intended or
required so to be pursuant to the Security Agreements, the Mortgages
or any other Credit Document) to secure the payment or performance of
any of the Credit Obligations, including the assets
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described in the Security Agreements, the Mortgages (excluding any
environmental indemnity agreements) and any three party agreements
with the USFS."
""Environmental Audits" means, collectively, the Original
Environmental Audits, the New Environmental Audits and the Phase I
Environmental Report dated as of July 1997 on Loon."
""Final Offering Memorandum" means the Offering Memorandum
dated February 23, 1998, of BCS Holdings, in respect of the Series C
Senior Unsecured Notes."
""Fixed Charges" means, for any four consecutive fiscal
quarters, the sum of:
(i) Interest Expense; plus
(ii) the aggregate amount of all mandatory scheduled
payments, prepayments and sinking fund payments, in each case
with respect to principal paid by the Borrowers in respect of
Financing Debt; plus
(iii) the aggregate amount of all mandatory payments
actually paid in cash in respect of leases of equipment,
excluding all payments (whether in the nature of interest or
principal) in respect of Capitalized Leases;
provided, however, that for any such period ending on or before March
18, 1998, Fixed Charges shall mean the sum of (x) actual Fixed
Charges, computed as provided in clauses (i) through (iii) hereof,
accrued or paid by the Original Borrowers plus (y) actual Fixed
Charges, computed as provided in clauses (i) through (iii) hereof,
accrued or paid by the New Borrowers since the Restatement Date
through the end of such period, annualized plus (z) actual Fixed
Charges, computed as provided in classes (i) through (iii) hereof,
accrued or paid by the Loon Borrowers since the Loon Joinder Date
through the end of such period, annualized; and, provided, further,
that for any such period ending after March 18, 1998 and on or before
the first anniversary of the Loon Joinder Date, Fixed Charges shall
mean the sum of (r) actual Fixed Charges, computed as provided in
clauses (i) through (iii) hereof, accrued or paid by the Old Borrowers
and the New Borrowers through the end of such period plus (s) actual
Fixed Charges, computed as provided in clauses (i) through (iii)
hereof, accrued or paid by the Loon Borrowers since the Loon Joinder
Date through the end of such period, annualized."
""▇▇▇▇▇▇▇ Bridge Note" means the Note dated as of February
26, 1998, in the principal amount of $1,107,692.31, made by BCS Group
payable to ▇▇▇▇▇▇▇.
""Interest Expense" means, for any period, the aggregate
amount of interest, including payments in the nature of interest under
Capitalized Leases, paid or accrued
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by the Borrowers (whether such interest is reflected as an item
of expense or capitalized) on Indebtedness; provided, however, that
for any such period ending on or before March 18, 1998, Interest
Expense shall mean the sum of (x) actual Interest Expense accrued or
paid by the Original Borrowers plus (y) actual Interest Expense
accrued or paid by the New Borrowers since the Restatement Date
through the end of such period, annualized plus (z) actual Interest
Expense accrued or paid by the Loon Borrowers since the Loon Joinder
Date through the end of such period, annualized; and provided, further
that for any such period ending after March 18, 1998 and on or before
the first anniversary of the Loon Joinder Date, Interest Expense shall
mean the sum of (r) actual Interest Expense accrued or paid by the
Original Borrowers and the New Borrowers plus (s) actual Interest
Expense accrued or paid by the Loon Borrowers since the Loon Joinder
Date through the end of such period, annualized."
""Material Adverse Change" means any materially adverse
change in the business, assets, financial condition, income or
prospects of any of the Borrowers or their Subsidiaries (on an
individual basis) or the Borrowers and their Subsidiaries (on a
Consolidated pro forma basis), since October 31, 1997."
""Mortgages" means, collectively, the Northstar-at-Tahoe
Mortgage, the Sierra-at-Tahoe Mortgage, the Bear Mountain Mortgage,
the Waterville Mortgage, the Cranmore Mortgage, the Ski Lifts
Mortgage, the Loon Mortgage and related assignments to the Agent of
leases of real property owned by any of the Borrowers."
""Net Income" means, with respect to any Person, for any
period, the net income (or loss) of the Borrowers determined in
accordance with GAAP; provided, however, that Net Income shall not
include:
(a) all amounts included in computing such net
income (or loss) in respect of the write-up (i) after the
Effective Date of any asset acquired in connection with the
acquisition of Waterville, Cranmore and the California
Resorts, (ii) after the Restatement Date of any asset
acquired in connection with the acquisition of the Washington
Resorts and the Wyoming Resort and (iii) after the Loon
Joinder Date of any asset acquired in connection with the
acquisition by merger of Loon; and
(b) extraordinary and nonrecurring gains."
""Net Worth" means, with respect to any Person, at any date,
the excess of the total assets of such Person over the total
Indebtedness of such Person, on a Consolidated basis. Total assets
shall be determined in accordance with GAAP, excluding, however:
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(i) all loans to any Subsidiary, employee, officer
or other Affiliate of such Person, and all amounts payable to
such Persons from any of such Affiliates,
(ii) minority interests in other Persons,
(iii) cash and securities segregated in a sinking or
other similar fund established for the purpose of redemption
or other retirement of capital stock or Financing Debt, and
(iv) current reserves on the date of calculation for
depreciation, depletion, obsolescence and amortization of
properties and all other reserves which, in accordance with
GAAP, should be established in connection with the business
conducted by such Person."
""New Hampshire Resorts" means, collectively, Waterville,
Cranmore, Loon, Loon Realty and LMRC Holding."
""Payment Date" means the first Banking Day of each calendar
quarter."
""Person" means any present or future natural person or any
corporation, association, partnership, limited liability company,
joint venture, company, trust, business trust, organization, business,
individual or government or any governmental agency or political
subdivision thereof."
""Security Agreements" means, collectively, the
Northstar-at-Tahoe Security Agreement, the Sierra-at-Tahoe Security
Agreement, the Bear Mountain Security Agreement, the Waterville
Security Agreement, the Cranmore Security Agreement, the Ski Lifts
Security Agreement, the Grand Targhee Security Agreement, the LMRC
Holding Security Agreement, the Loon Security Agreement, the Loon
Realty Security Agreement, the BCS Acquisition Security Agreement and
the BCS Holdings Security Agreement."
""Securities Purchase Agreements" means, collectively, the
Securities Purchase Agreement dated November 27, 1996 between ▇▇▇▇
▇▇▇▇▇▇▇ and BCS Group and the Securities Purchase Agreement dated
November 27, 1996 between the CIBC Securities Subsidiary and BCS
Group, each as amended, and restated as of the Loon Joinder Date, and
as further amended and in effect from time to time."
""Stated Maximum" means $25,000,000."
""Trailing Four Fiscal Quarter Cash Flow" means, for any four
consecutive fiscal quarters ending nearest the dates set forth in the
table below the amount set forth with respect to such four fiscal
quarters:
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Fiscal Quarter Ending Nearest Amount
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April 30, 1998 The sum of Cash Flow of the Borrowers for the
Period from the quarter beginning nearest January
31, 1998 to the end of the quarter ending nearest
April 30, 1998 plus $8,316,000
July 31, 1998 The sum of Cash Flow of the Borrowers for the
Period from the quarter beginning nearest January
31, 1998 to the end of the quarter ending nearest
July 31, 1998 plus $12,578,000
October 31, 1998 The sum of Cash Flow of the Borrowers for the
Period from the quarter beginning nearest January
31, 1998 to the end of the quarter ending nearest
October 31, 1998 plus $14,552,000
January 31, 1999 and thereafter Cash Flow of the Borrowers for the period of four
fiscal quarters most recently completed"
2.5. Amendment to Section 2.1.2. Section 2.1.2 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"2.1.2. Annual Clean-Up. For a period in each year from
February 15 through April 15 of such year (such period being the
"Designated Cleanup Period" for such year), the Revolving Loan shall
not exceed $6,000,000; provided, however, that on March 13, 1998 and
March 12, 1999, the Revolving Loan shall not exceed $0; and provided,
further that during the period from March 15, 1998 through April 15,
1998, the Revolving Loan may exceed $6,000,000 but shall not exceed
$7,500,000."
2.6. Amendment to Section 7.5.1. Section 7.5.1 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"7.5.1. Financing Debt to Cash Flow. At all times, the ratio
of the unpaid principal amount of Consolidated Financing Debt of the
Borrowers to Trailing Four Fiscal Quarter Cash Flow for such time
shall not exceed 7.0 to 1.0."
2.7. Amendment to Section 7.5.2. Section 7.5.2 of the Credit Agreement is
hereby amended to read in its entirety as follows:
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"7.5.2. Cash Flow to Fixed Charges. On the last day of each
fiscal quarter of the Borrowers, the sum of (a) Trailing Four Fiscal
Quarter Cash Flow measured on such date minus (b) Cash Flow
Adjustment for the four fiscal quarters then ending, shall equal or
exceed 110% of Consolidated Fixed Charges of the Borrowers for such
period."
2.8. Amendment to Section 7.5.3. Section 7.5.3 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"7.5.3. Minimum Net Worth. At all times, Consolidated Net
Worth of the Borrowers shall be in excess of the sum of the
proceeds of any equity offering by the Borrowers plus $40,000,000."
2.9. Deletion of Section 7.5.4. Section 7.5.4 of the Credit Agreement is
hereby deleted in its entirety.
2.10. Amendment to Section 7.6.13. Section 7.6.13 of the Credit Agreement
is hereby amended to read in its entirety as follows:
"7.6.13. Indebtedness in respect of the Senior Unsecured
Notes, not to exceed the sum of $133,500,000 in aggregate principal
amount."
2.11. New Sections 7.6.19 and 7.6.20. Two new Sections are hereby added to
the Credit Agreement, immediately following Section 7.6.18, to read in their
entirety as follows:
"7.6.19. Indebtedness in respect of the 7.5% Subordinated
Notes; provided, however, that such Indebtedness shall not exceed
$1,152,000 in aggregate principal amount; and provided, further, that
the Borrowers shall maintain a segregated account of cash or Cash
Equivalents, in an amount (and with matched maturities) sufficient to
pay the principal, interest and any prepayment fees as they accrue and
upon redemption; and provided, further, that the Borrowers shall not
undertake or enter into any amendment, refinancing or other
modification of the 7.5% Subordinated Notes.
"7.6.20. Indebtedness in respect of Interest Rate Protection
Agreements between BCS Holdings and the Agent."
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2.12. Amendment to Section 7.7. Section 7.7 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"7.7. Guarantees; Letters of Credit. None of the Borrowers or
their Subsidiaries will become or remain liable with respect to any
Guarantee, including reimbursement obligations under letters of credit
and other financing guarantees by third parties, except as
contemplated by (i) the Credit Documents, (ii) the Senior Indenture,
to the extent such Guarantees are of Indebtedness permitted by Section
7.6.13, (iii) the ASC Subordinated Note and (iv) a guarantee by BCS
Holdings of workers' compensation liabilities of Ski Lifts.
2.13. New Sections 7.9.12, 7.9.13, 7.9.14 and 7.9.15. Four new Sections
are hereby added to the Credit Agreement, immediately following Section 7.9.11,
to read in their entirety as follows:
"7.9.12. Investments, not to exceed $1,000,000 in aggregate,
(i) pursuant to terms of the Asset Purchase Agreement dated as of
August 21, 1997 by and between ▇▇▇▇▇▇▇ Wiper III, as shareholder, BCS
Holdings and First Tracks, Inc., an Oregon corporation, and (ii)
consisting of the "July Deposit" as defined therein.
"7.9.13. Investments consisting of a Promissory Note made by
Star Resorts, an Arizona limited liability company ("Star Resorts"),
not to exceed $700,000 in principal amount and the related Agreement
to Purchase and Sell Real Property between Star Resorts and
Northstar-at-Tahoe, dated as of October 27, 1997.
"7.9.14. Investments that comprise part of Interest Rate
Protection Agreements between BCS Holdings and the Agent.
"7.9.15. Investments consisting of the holdback under the
Loon Acquisition Agreement."
2.14. Amendment to Section 7.10.2. Section 7.10.2 of the Credit Agreement
is hereby amended to read in its entirety as follows:
"7.10.2. So long as before and after giving effect thereto no
Default exists, the Borrowers may make Distributions to BCS Group to
provide funds to service notes issued under the Securities Purchase
Agreements."
2.15. Amendment to Section 7.10.3. Section 7.10.3 of the Credit Agreement
is hereby amended to read in its entirety as follows:
"7.10.3. So long as before and after giving effect thereto
no Default exists, payments of principal and interest due under the
ASC Subordinated Note and the 7.5% Subordinated Notes."
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2.16. Amendment to Section 7.11. Section 7.11 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"7.11. Capital Expenditures. The Borrowers will not make
aggregate Capital Expenditures exceeding $10,000,000 during any fiscal
year; provided, however, that Capital Expenditures with respect to
real estate activities of the Borrowers shall not in the aggregate
exceed $3,000,000 during any fiscal year."
2.17. Deletion of Section 7.16. Section 7.16 of the Credit Agreement is
hereby deleted in its entirety.
2.18. Amendment to Section 7.22. Section 7.22 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"7.22. Use of Equipment. The Borrowers shall provide the
Agent with 30 days' prior written notice before (i) any of the
California Resorts, Ski Lifts or Grand Targhee removes, relocates or
maintains any tangible personal property outside the states of
California, Washington and Wyoming, and (ii) any of the New Hampshire
Resorts removes, relocates or maintains any tangible personal property
outside the state of New Hampshire."
2.19. Amendment to Section 8.1.1. Section 8.1.1 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"8.1.1. The Borrowers. Each of BCS Holdings, BCS Acquisition,
Sierra-at-Tahoe, Bear Mountain, Waterville, Cranmore, Grand Targhee
and LMRC Holding is a duly organized and validly existing corporation,
in good standing, under the laws of the State of Delaware,
Northstar-at-Tahoe is a duly organized and validly existing
corporation, in good standing, under the laws of the State of
California, Ski Lifts is a duly organized and validly existing
corporation, in good standing, under the laws of the State of
Washington, and each of Loon and Loon Realty is a duly organized and
validly existing corporation, in good standing, under the laws of the
State of New Hampshire, each with all power and authority, corporate
or otherwise, necessary to (i) enter into and perform each of this
Agreement and other Credit Documents to which it is party, (ii) grant
the Lenders the security interests in the Credit Security owned by it
to secure the Credit Obligations as applicable and (iii) own its
properties and carry on the business now conducted or proposed to be
conducted by it. Each of the Borrowers have taken all corporate or
other action required to execute, deliver and perform each of this
Agreement and other Credit Documents to which it is party. Certified
copies of the Charter and By-laws of each of the Borrowers have been
previously delivered to the Agent and are correct and complete.
Exhibit 8.1, as from time to time hereafter supplemented in accordance
with Section 7.4 or otherwise by written notice to the Lenders, sets
forth (a) the jurisdiction of incorporation or
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organization of each of the Borrowers, (b) the address of each
of the Borrowers' chief executive office and chief place of business
and (c) the name under which each of the Borrowers conducts its
business and the jurisdictions in which the name is used."
2.20. Amendment to Section 8.2.1. Section 8.2.1 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"8.2.1. Financial Statements and Other Information. The
Borrowers have previously furnished to the Lenders copies of the
Consolidated and Consolidating balance sheet of Loon and Loon Realty
as at April 30, 1997 and October 26, 1997, the Consolidated and
Consolidating statements of income and Consolidated and Consolidating
statement of changes in shareholders' equity and cash flows of Loon
and Loon Realty for the period then ending, the Consolidated and
Consolidating balance sheet of the New Borrowers and Old Borrowers as
at October 31, 1997 and January 31, 1998, and the Consolidated and
Consolidating statements of income and cash flows of the Old Borrowers
and the New Borrowers for the period then ending.
The Consolidated and Consolidating financial statements
(including the notes thereto, subject, in the case of any unaudited
financial statements, to the absence of footnote disclosure and normal
year-end and audit adjustments) referred to above were prepared in
accordance with GAAP and fairly present the financial position of the
Persons covered thereby at the respective dates thereof and the
results of their operations for the periods covered thereby. Neither
the Borrowers nor any of their Subsidiaries has any known material
contingent liability which is not reflected in the most recent balance
sheet referred to above or the notes thereto, or in the Final Offering
Memorandum."
2.21. Amendment to Section 8.2.1. Section 8.2.1 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"8.7. Litigation. Except as described on Exhibit 8.7, no
litigation, at law or in equity, or in any proceeding before any
court, board or other governmental or administrative agency or any
arbitrator is pending or, to the knowledge of the Borrowers or their
Subsidiaries, threatened which may involve any material risk of any
final judgment, order or liability which, after giving effect to any
applicable insurance, has resulted, or poses a material risk of
resulting, in any Material Adverse Change or which seeks to enjoin the
consummation, or which questions the validity, or any of the
transactions contemplated by this Agreement or any other Credit
Document. Except as described on Exhibit 8.7, no judgment, decree or
order of any court, board or other governmental or administrative
agency or any arbitrator has been issued or binds the Borrowers or any
Subsidiary which has resulted, or poses a material risk of resulting,
in any Material Adverse Change."
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2.22. Amendment to Section 11.1. Section 11.1 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"11.1. Interests in Credits. The percentage interest of
each Lender in the Revolving Loan and Letters of Credit shall be
computed based on the maximum principal amount for each Lender as
follows:
Lender Maximum Principal Amount Percentage Interest
------ ------------------------ -------------------
BankBoston, N.A. $25,000,000 100%
Total $25,000,000 100%
The foregoing percentage interests, as otherwise adjusted as the
Lenders may from time to time agree among themselves, are referred to
as the "Percentage Interests" with respect to all or any portion of
the Revolving Loan and Letters of Credit. References in any Credit
Document to the Lenders' respective Percentage Interests are to such
interests as from time to time in effect."
2.23. Amendments to Exhibits; New Exhibits. Exhibits 8.1, 8.4, 8.11.1 are
each amended to read in their entirety as attached to this Amendment. A new
Exhibit 8.7 is added to the Credit Agreement, to read in its entirety as
attached to this Amendment.
3. Representations and Warranties. In order to induce the Lenders to enter
into this Amendment, and to continue to extend credit to the Borrowers under
the Amended Credit Agreement, each of the Borrowers represents and warrants to
the Lenders that:
3.1. Organization and Qualification. Each of the Borrowers is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power necessary
to execute and deliver this Amendment and to perform its obligations thereunder
and under the Amended Credit Agreement.
3.2. Corporate Authority. The execution, delivery and performance of this
Amendment and the Amended Credit Agreement, and the borrowings and transactions
contemplated hereby and thereby, are within the corporate power and authority
of each of the Borrowers and have been authorized by proper corporate
proceedings, and do not and will not (a) require any consent or approval of the
stockholders of any of the Borrowers, (b) contravene any provision of the
Charter or By-laws of any of the Borrowers or any law, rule or regulation
applicable to any of the Borrowers, (c) contravene any provision of, or
constitute an event of default or event which, but for the requirement that
time elapse or notice be given, or both, would constitute an event of default
under, any other agreement, instrument or undertaking binding on any of the
Borrowers, or (d) result in or require the imposition of any Lien on any of the
properties of any of the Borrowers.
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3.3. No Default. No Default under the Credit Agreement now exists, and
after giving effect to this Amendment no Default under the Amended Credit
Agreement shall exist.
4. Conditions to Amendment. The effectiveness of Section 2 of this Amendment,
the amendment of the terms of the Credit Agreement contemplated thereby, and
the obligation of the Lender to extend credit up to a maximum amount of
$25,000,000, shall be subject to the conditions set forth in this Section 4.
4.1. Note. The Loon Borrowers shall have executed a Revolving Note,
substantially in the form of Exhibit 4.1 hereto, and delivered it to the Agent.
4.2. Collateral Documentation. Collateral Documentation.
4.2.1. Loon Borrowers. Loon shall have executed the Loon Security
Agreement and the Loon Mortgage, Loon Realty shall have executed the
Loon Realty Security Agreement and the Loon Mortgage and LMRC Holding
shall have executed the LMRC Holding Security Agreement.
4.2.2. Existing Borrower Mortgages. The Existing Borrowers shall
have executed amendments to, or memoranda relating to, the
Mortgages to which any of them are party, to evidence the increase in
the indebtedness secured by such Mortgages to $25,000,000, each in form
and substance satisfactory to the Agent and its counsel.
4.2.3. Forest Service Agreements. Loon shall have entered into
agreements with the USFS and the Agent (and amendments to any such
agreements in effect) all in form and substance satisfactory to the
Agent.
4.2.4. Perfection of Security. Each Obligor shall have duly
authorized, executed, acknowledged, delivered, filed, registered
and recorded such security agreements, notices, financing statements
and other instruments as the Agent may have requested in order to
perfect the security interests and encumbrances purported or required
pursuant to the Credit Documents to be created in the Credit Security.
4.3. Acquisition of Loon Report. BCS Group shall have contributed
LMRC Holding to BCS Holdings, and the transaction contemplated by the
Loon Acquisition Agreement shall have been consummated, to the effect that Loon
shall be a wholly-owned subsidiary of LMRC Holding, each of which shall be in
form and substance satisfactory to the Agent and its counsel.
4.4. Additional Unsecured Debt Financing. BCS Holdings shall have
consummated a sale of debt securities issued under the Senior Indenture, in
principal amount of $17,500,000,
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on terms and conditional satisfactory to the Agent; provided, however,
that the terms of the Final Offering Memorandum shall be deemed acceptable to
the Agent.
4.4.1. Amendment to Indenture. BCS Holdings shall have
consummated an amendment to the Senior Indenture, on terms and
conditions satisfactory to the Agent.
4.5. Additional Equity Capitalization.
4.5.1. BCS Group shall have entered into the Securities
Purchase Agreements and the ▇▇▇▇▇▇▇ Bridge Note, on terms and
conditions satisfactory to the Agent.
4.5.2. The Agent shall have received a certificate, in
substantially the form of Exhibit 4.5 hereto, signed by a Financial
Officer of BCS Holdings, LMRC Holding, Loon and Loon Realty, to the
following effect:
(i) Certifying that the value, determined in accordance
with GAAP, of the stockholders' equity contributed
to BCS Holdings on the Loon Joinder Date is not less
than $10,500,000; and
(ii) Certifying the solvency of the Borrowers, as of the
Loon Joinder Date.
4.6. Payment of Fees. The Borrowers shall have paid (i) a closing
fee of $50,000 to the Agent, (ii) the fees and expenses of the Agent's counsel,
Ropes & ▇▇▇▇, for which statements have been rendered on or before the Loon
Joinder Date, and (iii) the fees and expenses of local counsel to the Agent.
4.7. Reports and Other Documents. The Agent shall have received the
following, each in form and substance satisfactory to the Agent:
(i) the Phase I Environmental Report dated as of
July 1997 on Loon;
(ii) the audited Consolidated balance sheet of Loon
as at April 30, 1997, and Consolidated statements of income
and changes in shareholders' equity and cash flows of Loon
for the fiscal year of Loon then ended, accompanied by a
management letter prepared by independent certified public
accountants of recognized standing reasonably satisfactory to
the Agent;
(iii) The Consolidated and Consolidating balance
sheet of the Existing Borrowers as of January 31, 1998 and
the Consolidated and Consolidating statements of income and
cash flows for the fiscal quarter then ending; and
(iv) the Consolidated and Consolidating balance
sheet of the Borrowers, giving pro forma effect to the
transactions occurring as of the Loon Joinder Date, and
Consolidated and Consolidating statements of income
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and changes in shareholders' equity of the Borrowers for the
twelve-month period ending October 31, 1997, and projections
of the same as at October 31 for each year from 1998 through
2002 and for the fiscal years then ended on each such date.
4.8. Legal Opinions. The Lenders shall have received from Winston &
▇▇▇▇▇▇, special counsel for the Borrowers, its opinion with respect to the
transactions contemplated by this Amendment and the Loon Acquisition Agreement,
which opinion shall be in form and substance satisfactory to the Agent and its
counsel.
4.9. Representations and Warranties. The representations and warranties
of each of the Borrowers contained in this Amendment, the Amended Credit
Agreement, the Security Agreements and the Mortgages shall be true and correct
in all material respects on and as of the Loon Joinder Date with the same
force and effect as though originally made on and as of such date; no Default
shall exist on the Loon Joinder Date prior to or immediately after giving
effect to the requested extension of credit; no Material Adverse Change shall
have occurred; and the Borrowers shall have furnished to the Agent on the Loon
Joinder Date a certificate to these effects, in substantially the form of
Exhibit 4.9 hereto, signed by an Executive Officer or a Financial Officer.
4.10. Proper Proceedings. This Amendment, the Amended Credit Agreement,
each other Credit Document and the transactions contemplated hereby and thereby
shall have been authorized by all necessary proceedings of each Obligor and any
of their respective Affiliates party thereto. All necessary consents, approvals
and authorizations of any governmental or administrative agency or any other
Person of any of the transactions contemplated hereby or by any other Credit
Document shall have been obtained and shall be in full force and effect.
4.11. Legality, etc. The making of the requested extension of credit on
the Loon Joinder Date shall not (i) subject any Lender to any penalty or
special tax, (ii) be prohibited by any law or governmental order or regulation
applicable to any Lender or any Obligor or (iii) violate any voluntary credit
restraint program of the executive branch of the government of the United
States of America, the Board of Governors of the Federal Reserve System or any
other governmental or administrative agency so long as any Lender reasonably
believes that compliance therewith is in the best interests of such Lender.
4.12. General. All legal and corporate proceedings in connection with
the transactions contemplated by this Amendment, the Amended Credit Agreement
and each other Credit Document shall be satisfactory in form and substance to
the Agent, and the Lenders shall have received copies of all documents,
including records of corporate proceedings, appraisals and opinions of counsel,
which any Lender may have reasonably requested in connection therewith, such
documents where appropriate to be certified by proper corporate or governmental
authorities.
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5. Miscellaneous. Except to the extent specifically amended hereby, the
provisions of the Credit Agreement shall remain unmodified, and subject to the
conditions contained in this Amendment, the Amended Credit Agreement is hereby
confirmed as being in full force and effect. The Borrowers hereby affirm that,
after giving effect to this Amendment, the security interests contemplated by
the Credit Agreement and all other Credit Documents attach in favor of the
Agent so as to secure due and punctual performance of all Credit Obligations
contemplated by the Amended Credit Agreement. This Amendment is a Credit
Document.
This Amendment may be executed in any number of counterparts which
together shall constitute one instrument, shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without regard
to the conflict of laws rules of any jurisdictions, and shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns
pursuant to Section 12 of the Amended Credit Agreement.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
BOOTH CREEK SKI HOLDINGS, INC.
BOOTH CREEK SKI ACQUISITION CORP.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BEAR MOUNTAIN, INC.
WATERVILLE VALLEY SKI RESORT, INC.
MOUNT CRANMORE SKI RESORT, INC.
SKI LIFTS, INC.
GRAND TARGHEE INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Executive Vice President, Finance
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Executive Vice President, Finance
BANKBOSTON, N.A.,
as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director
BANKBOSTON, N.A.,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
19
FORM OF REVOLVING NOTE
N-__ February ____, 1998
FOR VALUE RECEIVED, LMRC Holding Corp., a Delaware corporation
(together with its successors and assigns, "LMRC Holding"), Loon Mountain
Recreation Corporation, a New Hampshire corporation (together with its
successors and assigns, "Loon"), and Loon Realty Corp., a New Hampshire
corporation (together with its successors and assigns, "Loon Realty", and
together with LMRC Holding and Loon, the "Borrowers", and each a "Borrower"),
hereby jointly and severally promise to pay [INSERT LENDER] (the "Lender") or
order, on March 31, 1999, the aggregate unpaid principal amount of the loans
made by the Lender to the Borrowers pursuant to the Credit Agreement referred
to below. The Borrowers promise to pay daily interest from the date hereof,
computed as provided in such Credit Agreement, on the aggregate principal
amount of such loans from time to time unpaid at the per annum rate applicable
to such unpaid principal amount as provided in such Credit Agreement, plus any
accrued and unpaid interest owing to the Lender on the date hereof, such
interest being payable at the times specified in such Credit Agreement, except
that all accrued interest shall be paid at the stated or accelerated maturity
hereof or upon the prepayment in full hereof.
Payments hereunder shall be made to BankBoston, N.A., as agent for the
payee hereof (the "Agent"), at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
All loans made by the Lender pursuant to the Credit Agreement referred
to below and all repayments of the principal thereof shall be recorded by the
Lender and, prior to any transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such loan then outstanding shall be
endorsed by the Lender on the schedule attached hereto or on a continuation of
such schedule attached to and made a part hereof; provided, however, that the
failure of the Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrowers under this Revolving Note, such Credit
Agreement or under any other Credit Document.
This Revolving Note evidences borrowings under, and is entitled to the
benefits and security of, and is subject to the provisions of, the Credit
Agreement dated as of December 3, 1996, as amended and restated as of March 18,
1997, as from time to time in effect (the "Credit Agreement"), among the
Borrowers, certain Affiliates thereof, the Agent, the Lender and certain other
lenders. The principal of this Revolving Note is prepayable in the amounts and
under the circumstances set forth in the Credit Agreement, and may be prepaid
in whole or from time to time in part, all as set forth in the Credit
Agreement. Terms defined in the Credit Agreement and not otherwise defined
herein are used herein with the meanings so defined.
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In case an Event of Default shall occur, the entire principal of this
Revolving Note may become or be declared due and payable in the manner and with
the effect provided in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (OTHER THAN THE CONFLICT OF LAWS
RULES).
The parties hereto, including the Borrowers and all guarantors and
endorsers, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance
and enforcement of this Revolving Note, except as specifically otherwise
provided in the Credit Agreement, and assent to extensions of time of payment,
or forbearance or other indulgence without notice.
LMRC HOLDING, INC.
By ___________________________
Title:
LOON MOUNTAIN RECREATION CORPORATION
By ___________________________
Title:
LOON REALTY CORP.
By ___________________________
Title:
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LOAN AND PAYMENTS OF PRINCIPAL
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Amount Amount of Unpaid
of Principal Principal Notation
Date Loan Repaid Balance Made By
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FORM OF OMNIBUS OFFICER'S CERTIFICATE
(For Loon Joinder Date)
Pursuant to Amendment No. 4 dated as of February __, 1998 (the "Loon
Joinder"), to the Credit Agreement dated as of December 3, 1996, as amended and
restated as of March 18, 1997 and as now in effect (the "Credit Agreement"),
among the undersigned Booth Creek Ski Holdings, Inc., Booth Creek Ski
Acquisition Corp., Trimont Land Company, Sierra-at-Tahoe, Inc., Bear Mountain,
Inc, Waterville Valley Ski Resort, Inc., Mount Cranmore Ski Resort, Inc., Ski
Lifts, Inc., Grand Targhee Incorporated, LMRC Holding Corp., Loon Mountain
Recreation Corporation, Loon Realty Corp. (collectively the "Borrowers"),
BankBoston, N.A., a national banking association ("BKB"), the other Lenders,
and BKB, as Agent for itself and the other Lenders, the Borrowers represent and
warrant that the representations and warranties contained in the Loon Joinder,
the Amended Credit Agreement, and the representations and warranties of each of
the Borrowers under the Security Agreements and the Mortgages are true and
correct in all material respects on and as of the date hereof with the same
force and effect as though originally made on and as of the date hereof; after
giving effect to the requested extension of credit under the Credit Agreement,
no Default exists; and no Material Adverse Change has occurred.
Terms defined in the Amended Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined.
This certificate has been executed by a duly authorized Executive
Officer or Financial Officer of each of the Borrowers this ___ day of February,
1998.
BOOTH CREEK SKI HOLDINGS, INC.
BOOTH CREEK SKI ACQUISITION CORP.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BEAR MOUNTAIN, INC.
SKI LIFTS, INC.
MOUNT CRANMORE SKI RESORT, INC.
WATERVILLE VALLEY SKI RESORT, INC.
GRAND TARGHEE INCORPORATED
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP.
By:
------------------------------------
Title:
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