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.
$25,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of October 30, 1998
BANKBOSTON, N.A.
TABLE OF CONTENTS
PAGE
1. General 1
1.1 Restatements; Calculations1
1.2 Definitions; Certain Rules of Construction 2
2. The Credit 23
2.1 The Revolving Credit 23
2.1.1 Revolving Loan 23
2.1.2 Annual Clean-Up 23
2.1.3 Borrowing Requests 23
2.1.4 Revolving Notes 23
2.2 Letters of Credit 24
2.2.2 Participations in Letters of Credit 24
2.2.3 Form and Expiration of Letters of Credit 24
2.2.4 Payment of Drafts 24
2.3 Application of Proceeds 25
2.3.1 The Revolving Loan 25
2.3.2 Letters of Credit 25
2.3.3 Specifically Prohibited Applications;
Use of Proceeds 25
2.4 Nature of Obligations of Lenders to Extend Credit 25
3. Interest; LIBOR Pricing Options; Fees 25
3.1 Interest 25
3.2 LIBOR Pricing Options 26
3.2.1 Election of LIBOR Pricing Options 26
3.2.2 Notice to Lenders and Borrowers 26
3.2.3 Selection of LIBOR Interest Periods 27
3.2.4 Additional Interest 27
3.2.5 Violation of Legal Requirements 27
3.2.6 Funding Procedure 28
3.3 Fees 28
3.3.1 Commitment Fees for Revolving Loan 28
3.3.2 Prepayment Fee 28
3.3.3 Letter of Credit Fees 28
3.4 Capital Adequacy 29
3.5 Computations of Interest 29
4. Payment 29
4.1 Payment at Maturity 29
4.2 Mandatory Prepayments 30
4.3 Voluntary Prepayments of Revolving Loan 30
4.4 Reborrowing; Application of Payments 30
4.5 Payment and Interest Cut-off 30
4.6 Charging Accounts 30
5. Conditions 30
5.1 Conditions to Initial Extension of Credit 30
5.1.1 Notes 31
5.1.2 Payment of Fees 31
5.1.3 Legal Opinion 31
5.2 Conditions to Extending Credit 31
5.2.1 Representations and Warranties; No Default;
No Material Adverse Change 31
5.2.2 Perfection of Security 31
5.2.3 Proper Proceedings 32
6. Security 32
7. General Covenants 32
7.1 Taxes and Other Charges 32
7.2 Conduct of Business, etc 33
7.2.1 Types of Business 33
7.2.2 Maintenance of Properties, Compliance with
Agreements, etc. 33
7.2.3 Statutory Compliance. 33
7.3 Insurance 33
7.4 Financial Statements and Reports 34
7.4.1 Annual Statements 34
7.4.2 Quarterly Reports 35
7.4.3 Monthly Reports 35
7.4.4 Other Reports 36
7.4.5 Notice of Litigations; Notice of Defaults 36
7.4.6 ERISA Reports 36
7.4.7 Right to Obtain Appraisals 37
7.4.8 Other Information 37
7.5 Certain Financial Tests 38
7.5.1 Financing Debt to Cash Flow 38
7.5.2 Cash Flow to Fixed Charges 38
7.5.3 Minimum Net Worth 38
7.6 Indebtedness 38
7.7 Guarantees; Letters of Credit 40
7.8 Liens 40
7.9 Investments 41
7.10 Distributions 43
7.11 Capital Expenditures 44
7.12 Merger and Dispositions of Assets; Release of Liens;
Use of Certain Proceeds 44
7.13 Subsidiaries 46
7.14 ERISA 46
7.15 Transactions with Affiliates 47
7.16 Loan to Value Ratio 47
7.17 Environmental Cleanup 47
7.18 Cash Concentration 47
7.19 Permitted Management Fees 47
7.20 Letters of Credit at Annual Clean-up 47
8. Representations and Warranties 48
8.1 Organization and Business 48
8.1.1 The Borrowers 48
8.1.2 Qualification 48
8.2 Financial Statements and Other Information. 48
8.3 Changes in Condition 49
8.4 Agreements Relating to Financing Debt,
Investments, etc 49
8.5 Title to Assets 49
8.6 Licenses, etc 49
8.7 Litigation 50
8.8 Tax Returns 50
8.9 No Legal Obstacle to Agreements 50
8.10 Defaults 51
8.11 Certain Business Representations 51
8.11.1 Environmental Compliance 51
8.11.2 Burdensome Obligations 52
8.11.3 Future Expenditures. 52
8.12 Pension Plans 52
8.13 Disclosure 52
9. Defaults. 53
9.1 Events of Default 53
9.2 Certain Actions Following an Event of Default 56
9.2.1 No Obligation to Extend Credit 56
9.2.2 Specific Performance; Exercise of Rights 56
9.2.3 Enforcement of Payment Credit Securities Setoff 57
9.2.4 Acceleration 57
9.2.5 Cumulative Remedies 57
9.3 Annulment of Defaults 57
9.4 Waivers 58
10. Expenses; Indemnity 58
10.1 Expenses 58
10.2 General Indemnity 59
10.3 Indemnity With Respect to Letters of Credit 59
11. Operations 60
11.1 Interests in Credits 60
11.2 Agent's Authority to Act 60
11.3 Borrowers to Pay Agent, etc. 60
11.4 Lender Operations for Advances, etc. 60
11.4.1 Advances 60
11.4.2 Agent to Allocate Payments 61
11.4.3 Letters of Credit 61
11.5 Sharing of Payments, etc. 61
11.6 Amendments, Consents, Waivers, etc. 62
11.7 Agent's Resignation 62
11.8 Concerning the Agent 63
11.8.1 Action in Good Faith, etc 63
11.8.2 No Implied Duties, etc. 63
11.8.4 Compliance 63
11.8.5 Employment of Agents and Counsel 63
11.8.6 Reliance on Documents and Counsel 64
11.8.7 Agent's Reimbursement 64
11.9 Rights as a Lender 64
11.10 Independent Credit Decision 64
11.11 Indemnification 65
12. Successors and Assigns 65
12.1 Assignments by Lenders 65
12.1.1 Assignees and Assignment Procedures. 65
12.1.2 Acceptance of Assignment and Assumption 66
12.1.3 Federal Reserve Bank 66
12.1.4 Further Assurances 66
12.2 Credit Participants 66
13. Notices 67
14. Course of Dealing, Amendments and Waivers 67
15. Defeasance 68
16. Venue; Service of Process 68
17. Joint and Several Liability 68
18. General 69
19. WAIVER OF JURY TRIAL 69
EXHIBITS
Exhibit 2.1.4 - Form of Revolving Note
Exhibit 5.2.1 - Form of Officer's Certificate (for Closing Date)
Exhibit 7.4.1 - Form of Officer's Certificate (for annual
financial statements and reports)
Exhibit 7.4.2 - Form of Officer's Certificate (for quarterly
financial statements and reports)
Exhibit 7.18 - Environmental Cleanup Requirements and Schedule
Exhibit 8.1 - The Borrowers and their Subsidiaries
Exhibit 8.4 - Financing Debt, etc.
Exhibit 8.7 - Litigation
Exhibit 8.11.1 - Environmental Litigation
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.
AMENDED AND RESTATED
CREDIT AGREEMENT
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"), 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 BCS Holdings, BCS Acquisition,
Northstar-at-Tahoe, Sierra-at-Tahoe, Bear Mountain, Waterville, Cranmore, Ski
Lifts, Grand Targhee, LMRC Holding and Loon, the "Borrowers", and each a
"Borrower"), BANKBOSTON, N.A., a national banking association (together with its
successors and assigns, "BKB"), any other Lenders from time to time party
hereto, and BKB, as agent (the "Agent") for itself and the other Lenders, hereby
agree as follows:
1. General.
1.1 Restatements; Calculations. Effective as of the date hereof (the
"Restatement Date"), this Amended and Restated Credit Agreement (the
"Agreement") amends and restates in its entirety the Amended and Restated Credit
Agreement dated as of March 18, 1997, as amended and in effect immediately prior
to the amendment and restatement thereof effected hereby (the "1997 Credit
Agreement"), between the Borrowers, BKB and BKB, as agent.
Effective on the Restatement Date, the "Revolving Loan" outstanding
under the 1997 Credit Agreement on such date shall be deemed to be the Revolving
Loan under Section 2.1.1 and shall be evidenced by Revolving Notes.
Amounts in respect of interest, fees and other amounts payable to or
for the account of the Lenders shall be calculated in accordance with the
provisions of (i) the 1997 Credit Agreement with respect to any period (or
portion of any period) ending prior to the Restatement Date and (ii) this
Agreement as in effect on the Restatement Date after giving effect to the
amendment and restatement thereof effected hereby and as from time to time
thereafter in effect with respect to any period (or portion of any period)
commencing on or after the Restatement Date.
1.2 Definitions; Certain Rules of Construction. Except as the context otherwise
explicitly requires, (i) the capitalized term "Section" refers to sections of
this Agreement, (ii) the capitalized term "Exhibit" refers to exhibits to this
Agreement, (iii) references to a particular Section shall include all
subsections thereof and (iv) the word "including" shall be construed as
"including without limitation". Certain capitalized terms are used in this
Agreement as specifically defined in this Section 1.2 as follows:
"Accumulated Benefit Obligations" means the actuarial present value of the
accumulated benefit obligations under any Plan, calculated in a manner
consistent with Statement No. 87 of the Financial Accounting Standards Board.
"Acquisition Appraisals" means, collectively,
(i) the Appraisal on the assets of Cranmore performed
by ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇ and dated October 2, 1996;
(ii) the Appraisal on Northstar-at-Tahoe performed by
ResortNorth Valuation and dated September 21, 1996;
(iii) the Appraisal on Sierra-at-Tahoe performed by
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇ and dated September 27, 1996;
(iv) the Appraisal on Bear Mountain performed by
ResortNorth Valuation and dated September 18, 1996;
(v) the Real Estate Appraisal on Northstar-at-Tahoe
performed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Appraisal Company and dated
November 22, 1996;
(vi) the Appraisal on the assets and business of Loon
performed by ResortNorth Valuation, Inc. and dated January 30,
1998; and
(vii) the updated Appraisals which may be obtained
pursuant to Section 7.4.7.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person, and shall include (i) any officer or director
or general partner of such Person and (ii) any Person of which such Person or
any Affiliate (as defined in clause (i) above) of such Person shall, directly or
indirectly, beneficially own either at least 5% of the outstanding equity
securities having the general power to vote or at least 5% of all equity
interests.
"Agent" means BKB, in its capacity as agent for the Lenders, and
its successors in that capacity.
"Agent's Base Rate" means, on any date, the rate of interest
announced by the Agent at its Boston Office as its "base rate".
"Agreement" has the meaning provided in Section 1.1 hereof.
"Alternate Base Rate" means, on any date, the greater of (a) the
Agent's Base Rate or (b) the sum of 1/2% plus the Federal Funds Rate.
"Alternate Base Rate Loan" means any portion of the Loan for which
interest is calculated on the basis of the Alternate Base Rate.
"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.
"Applicable Rate" means, at any date, the sum of:
(a) (i) with respect to each portion of the Loan subject to a
LIBOR Pricing Option, the sum of the Applicable Margin plus the LIBOR
Rate with respect to such LIBOR Pricing Option;
(ii) with respect to each other portion of the Loan,
the sum of the Applicable Margin plus the Alternate Base Rate;
plus
(b) an additional 2% effective during any Default Rate Period.
"Appraisal" means a valuation similar in form to the Acquisition
Appraisals, of the operating business, assets, real estate or any portion
thereof of any of the Borrowers.
"ASC Subordinated Note" means the Subordinated Promissory Note dated
November 27, 1996 issued by BCS Acquisition, Waterville and Cranmore payable to
American Skiing Company, a Maine corporation.
"Assignee" has the meaning provided in Section 12.1.1.
"Banking Day" means any day other than Saturday, Sunday or a day on
which banks in Boston, Massachusetts are authorized or required by law or other
governmental action to close and, if such term is used with reference to a LIBOR
Pricing Option, any day on which dealings are effected by first-class banks in
the inter-bank LIBOR markets in New York, New York.
"Bankruptcy Code" means Title 11 of the United States Code (or any
successor statute) and the rules and regulations thereunder, all as from time to
time in effect.
"Bankruptcy Default" means an Event of Default referred to in Section
9.1.9.
"BCS Acquisition" has the meaning provided in the preamble hereto.
"BCS Acquisition Security Agreement" means the Security Agreement,
originally dated as of November 27, 1996, as amended and restated as of December
3, 1996, between the Agent and BCS Acquisition, as amended, restated,
supplemented or otherwise modified and in effect from time to time.
"BCS Group" means Booth Creek Ski Group, Inc., a Delaware corporation,
together with its successors and assigns.
"BCS Holdings" has the meaning provided in the preamble hereto.
"BCS Holdings Security Agreement" means the Security Agreement dated as
of December 3, 1996 between the Agent and BCS Holdings, as amended, restated,
supplemented or otherwise modified and in effect from time to time.
"Bear Mountain" has the meaning provided in the preamble hereto.
"Bear Mountain Mortgage" means the Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing all dated as of December 3, 1996, executed
by Bear Mountain in favor of the Agent, as amended, restated, supplemented or
otherwise modified and in effect from time to time.
"Bear Mountain Security Agreement" means the Security Agreement dated
as of December 3, 1996, between Bear Mountain and the Agent, as amended,
restated, supplemented or otherwise modified and in effect from time to time.
"BKB" has the meaning provided in the preamble hereto.
"Booth Creek Management Company" means Booth Creek, Inc., a Delaware
corporation, and its successors and assigns.
"Booth Creek LLLP" means Booth Creek Partners Limited II, L.L.L.P., a
Colorado limited liability limited partnership, and its successors and assigns.
"Borrowers" has the meaning provided in the preamble hereto.
"Boston Office" means the principal banking office of the Agent in
Boston, Massachusetts.
"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.
"California Resorts" means Northstar-at-Tahoe, Sierra-at-Tahoe and Bear
Mountain, collectively.
"Capital Expenditures" means, for any period, amounts added or required
to be added to the fixed assets account on the Consolidated balance sheet of the
Borrowers, prepared in accordance with GAAP, in respect of (i) the acquisition,
construction, improvement or replacement of land, buildings, machinery,
equipment, leaseholds and any other real or personal property, and (ii) to the
extent not included in clause (i) above, expenditures on account of materials,
contract labor and direct labor relating thereto (excluding expenditures
properly expensed as repairs and maintenance in accordance with GAAP); provided,
however, that additions to the fixed asset accounts resulting from exchanges of
an existing capital asset for another capital asset of equal or greater net book
value shall not constitute a Capital Expenditure to the extent effected without
the expenditure of cash or the incurrence of additional debt, if the net book
value of such capital asset(s) for one or a series of related transactions being
replaced is less than or equal to $500,000 or otherwise with the written consent
of the Agent, Capital Expenditures shall not include any such amounts added to
fixed assets in respect of acquisition of assets paid for by the Borrowers by
cancellation of obligations of the sellers of such assets to the Borrowers.
"Capitalized Lease" means any lease which is required to be capitalized
on the balance sheet of the lessee in accordance with GAAP and Statement Nos. 13
and 98 of the Financial Accounting Standards Board.
"Capitalized Lease Obligations" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP and Statement Nos. 13 and
98 of the Financial Accounting Standards Board.
"Cash Equivalents" means:
(a) negotiable certificates of deposit, time
deposits and bankers' acceptances issued by any United States
financial institution having capital and surplus and undivided
profits aggregating at least $100,000,000 and rated Prime-1 by
▇▇▇▇▇'▇ Investors Service, Inc. or A-1 by Standard & Poor's
Corporation or issued by any Lender;
(b) short-term corporate obligations rated
Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. or A-1 by Standard
& Poor's Corporation;
(c) any direct obligation of the United States of
America or any agency or instrumentality thereof, or of any
state or municipality thereof, (i) which has a remaining
maturity at the time of purchase of not more than one year or
(ii) which is subject to a repurchase agreement with any
Lender (or any other financial institution referred to in
clause (a) above) exercisable within one year from the time of
purchase and (iii) which, in the case of obligations of any
state or municipality, is rated AA or better by ▇▇▇▇▇'▇
Investors Service, Inc.; and
(d) any mutual fund or other pooled investment vehicle
rated AA or better by ▇▇▇▇▇'▇ Investors Service, Inc. which
invests primarily in obligations described above.
"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 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
$10,000,000 or such higher amount approved in writing by the
Majority Lenders;
(ii) depletion of natural resources;
(iii) non-cash impairment charges recorded pursuant
to FASB Statement No. 121; provided, however, that the amount
and nature of such non- cash impairment charges shall be
separately identified in the quarterly and annual schedules
prepared by the Borrowers for the Computation Covenants, and
inclusion of such non-cash impairment charges in the
determination of Cash Flow shall be subject to the approval of
the Agent;
(iv) Interest Expense of such Person; and
(v) taxes based upon or measured by income of such
Person.
"Cash Flow Adjustment" means, for any four fiscal quarter period of the
Borrowers, the sum of (a) the amount of taxes based upon or measured by income
actually paid during such period, plus (b) $3,000,000, plus (c) Distributions
made pursuant to Section 7.10.2, plus (d) Investments in DRE LLC as set forth on
Exhibit 8.4.
"Cash Management System" has the meaning provided in Section 7.18.
"Charter" means the articles of organization, certificate of
incorporation, articles of incorporation, statute, constitution, joint venture
agreement, partnership agreement, declaration of trust, limited ability company
agreement or other charter document of any Person other than an individual, each
as from time to time in effect.
"CIBC Securities Subsidiary" means CIBC WG Argosy Merchant Funds II,
L.L.C., and its successors and assigns.
"Closing Date" means the Restatement Date and any subsequent date on
which any extension of credit is made pursuant to Section 2.1.1 or 2.2.1.
"Code" means, collectively, the federal Internal Revenue Code of 1986
(or any successor statute), and the rules and regulations thereunder, all as
from time to time in effect.
"Computation Covenants" means Sections 7.5 and 7.11.
"Consolidated" and "Consolidating", when used with reference to any
term, mean that term (or the terms "combined" and "combining", as the case may
be, in the case of partnerships, joint ventures and Affiliates that are not
Subsidiaries) as applied to the accounts of the Borrowers (or other specified
Person) and all of their Subsidiaries (or other specified Persons), or such of
their Subsidiaries as may be specified, consolidated (or combined) in accordance
with GAAP and with appropriate deductions for minority interests in
Subsidiaries, whether or not such deductions are required by GAAP.
"Control Group Person" means any of the Borrowers, any Subsidiary and
any Person which is at any time after December 3, 1996 a member of the
controlled group or under common control with any of the Borrowers or any
Subsidiary within the meaning of sections 414(b) or 414(c) of the Code or
section 4001(a)(14) of ERISA.
"Controlled Disbursement Advance" has the meaning provided in Section
2.1.3.
"Controlled Disbursement Agreement" means any present or future written
agreement from time to time entered into between the Borrowers and the Agent or
any Affiliate of the Agent pursuant to which loans may be made to cover checks
drawn by the Borrowers on a zero balance account or similar controlled
disbursement basis.
"Cranmore" has the meaning provided in the preamble hereto.
"Cranmore Mortgage" means the Fee Mortgage and Security Agreement,
originally dated as of November 27, 1996, executed by Cranmore in favor of BKB,
as amended, restated, supplemented or otherwise modified and in effect from time
to time.
"Cranmore Security Agreement" means the Guarantee and Security
Agreement, originally dated as of November 27, 1996, between Cranmore and the
BKB, as amended, restated, supplemented or otherwise modified and in effect from
time to time.
"Credit Documents" means
(i) this Agreement, any Controlled Disbursement
Agreement, the Revolving Notes, the Security Agreements and
the Mortgages, each as from time to time in effect;
(ii) all financial statements, mortgages,
assignments, Uniform Commercial Code financing statements or
certificates delivered to any of the Lenders by any of the
Borrowers in connection herewith or with any of the above; and
(iii) any other present or future agreement or
instrument from time to time entered into among the Agent or
all the Lenders, on one hand, and any of the Borrowers or (so
long as any of the Borrowers is also party thereto) any
Affiliate of any of them, on the other hand, relating to,
amending or modifying this Agreement or any other Credit
Document referred to above or which is stated to be a Credit
Document, each as from time to time in effect.
"Credit Obligation Advance" has the meaning provided in Section 2.1.3.
"Credit Obligations" means all present and future liabilities,
obligations and Indebtedness of any of the Borrowers or any of their respective
Affiliates party to a Credit Document owing to the Lenders or any of them, or to
the Agent or any Affiliate of the Agent, under or in connection with this
Agreement or any other Credit Document, including obligations in respect of
principal, interest, commitment fees, Letter of Credit fees, reimbursement
obligations under Letters of Credit and other fees, charges, indemnities and
expenses from time to time owing hereunder or under any other Credit Document.
"Credit Participant" has the meaning provided in Section 12.2.
"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 described in the Security Agreements, the Mortgages (excluding any
environmental indemnity agreements) and any three party agreement with the USFS.
"Default" means any Event of Default and any event or condition which
with the passage of time or giving of notice, or both, would become an Event of
Default.
"Default Rate Period" means any period commencing on a day the Agent
notifies the Borrowers that the interest rates hereunder are increasing as a
result of the occurrence and continuance of an Event of Default until the
earlier of such time as (i) such Event of Default is no longer continuing or
(ii) such Event of Default is deemed no longer to exist, in each case pursuant
to Section 9.3.
"Designated Cleanup Period" has the meaning provided in Section 2.1.2.
"Distribution" means, with respect to any Person:
(i) the declaration or payment of any dividend,
including dividends payable in shares of capital stock of such
Person, on or in respect of any shares of any class of capital
stock of such Person;
(ii) the purchase or redemption of any shares of any
class of capital stock of such Person (or of options, warrants
or other rights for the purchase of such shares), directly,
indirectly through a Subsidiary of such Person or otherwise;
(iii) any other distribution on or in respect of any
shares of any class of equity of or beneficial interest in
such Person;
(iv) any payment of principal or interest with
respect to, or any purchase or redemption of, any Indebtedness
of such Person which by its terms is subordinated to the
payment of the Credit Obligations; and
(v) any payment, loan or advance (including any
salary, management fee or other fee, benefit, bonus or any
other compensation in respect of services provided to such
Person or any lease payments) by such Person to, or any other
Investment by such Person in, the holder of any shares of any
class of the capital stock of or equity interest in such
Person.
"DRE LLC" means DRE, L.L.C., a Delaware limited liability company, and
its successors and assigns.
"Environmental Audits" means, collectively,
(i) the summary of environmental audit on the assets
of Waterville attached as Exhibit B-1 to the Line Letter dated
November 27, 1996 by BKB to BCS Acquisition, Waterville and
Cranmore;
(ii) the Limited Phase II Environmental Audit on the
assets of Cranmore performed by H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Civil
Engineers and dated May 30, 1995;
(iii) the Phase I Environmental Site Audit on
Northstar-at-Tahoe performed by ▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates
and dated October 1996;
(iv) the Phase I Environmental Site Audit on
Sierra-at-Tahoe performed by ▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates and
dated October 1996;
(v) the Phase I Environmental Site Audit on Bear
Mountain performed by ▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates and dated
October 1996;
(vi) the Phase I Assessment of Ski Lifts;
(vii) the Phase I Assessment of Grand Targhee;
(viii) the Phase II Assessment at Grand Targhee; and
(ix) the Phase I Environmental Report dated as of
July 1997 on Loon.
"ERISA" means, collectively, the Employee Retirement Income Security
Act of 1974 (or any successor statute), and the rules and regulations
thereunder, all as from time to time in effect.
"Event of Default" has the meaning provided in Section 9.1.
"Excess Real Property" means unimproved parcels of real property owned
by the Borrowers which are not then used or contemplated to be used in
connection with the ski or golf operations of the Borrowers.
"Exchange Act" means the federal Securities Exchange Act of 1934, as
amended and in effect from time to time.
"Executive Officer" means the chief executive officer, chief operating
officer or president of any of the Borrowers (or other specified Person) or any
vice president of any of the Borrowers (or other specified Person) who is not a
Financial Officer.
"Federal Funds Rate" means, for any day, the rate equal to the weighted
average (rounded upward to the nearest 1/8%) of (a) the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as such weighted average is published for such day
(or, if such day is not a Banking Day, for the immediately preceding Banking
Day) by the Federal Reserve Bank of New York or (b) if such rate is not so
published for such Banking Day, quotations received by the Agent from three
federal funds brokers of recognized standing selected by the Agent. Each
determination by the Agent of the Federal Funds Rate shall, in the absence of
manifest error, be conclusive.
"Final Maturity Date" means November 15, 1999.
"Final Offering Memorandum" means the Offering Memorandum dated
February 23, 1998, of BCS Holdings, in respect of the Series C Senior Unsecured
Notes.
"Financial Officer" means the chief financial officer, controller,
treasurer or assistant treasurer of any of the Borrowers (or other specified
Person) or a vice president whose primary responsibility is for the financial
affairs of any of the Borrowers (or other specified Person).
"Financing Debt" means (without duplication):
(i) Indebtedness for borrowed money;
(ii) Indebtedness evidenced by notes, bonds,
debentures or similar instruments;
(iii) Indebtedness in respect of Capitalized
Leases;
(iv) Indebtedness for the deferred purchase price of
assets (other than normal trade accounts payable or other
accrued liabilities arising in the ordinary course of business
including, without limitation, trade accounts (payable over
not more than 24 months) for rental equipment, uniforms, and,
with the consent of the Agent which will not be unreasonably
withheld or delayed, other items; and
(v) Indebtedness in respect of mandatory redemption
or mandatory dividends on capital stock (or other equity
interests).
"Financing Statements" means Uniform Commercial Code financing
statement(s) from the Borrowers in favor of the Agent giving notice of a
security interest in the Credit Security, such financing statements to be in
form and substance satisfactory to the Agent and the Lenders.
"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 following any acquisition of any Subsidiary, Fixed
Charges shall mean (y) actual Fixed Charges, computed as provided in clauses (i)
through (iii) hereof, accrued or paid by the Borrowers through the end of such
period plus (z) actual Fixed Charges, computed as provided in clauses (i)
through (iii) hereof, accrued or paid by such Subsidiary since the date of such
acquisition through the end of such period, annualized.
"GAAP" means generally accepted accounting principles, as defined by
the United States Financial Accounting Standards Board, as from time to time in
effect; provided, however, that for purposes of compliance with Section 8 (other
than Section 8.4) and the related definitions, and for purposes of Section
8.2.1, "GAAP" means such principles as in effect on October 31, 1997 as applied
by the Borrowers in the preparation of the financial statements referred to in
Section 8.2.1, and consistently followed, without giving effect to any
subsequent changes other than changes consented to in writing by the Agent.
"Grand Targhee" has the meaning provided in the preamble hereto.
"Grand Targhee Development Contingent Payment" means the "Development
Contingent Payment" as that term is defined in the Grand Targhee Purchase
Agreement.
"Grand Targhee Purchase Agreement" means the Stock Purchase Agreement
dated as of February 11, 1997 pursuant to which BCS Holdings purchased 100% of
the capital stock of Grand Targhee.
"Grand Targhee Security Agreement" means the Fixture Filing and
Security Agreement dated as of March 18, 1997, between Grand Targhee and the
Agent, as amended, restated, supplemented or otherwise modified and in effect
from time to time.
"Grand Targhee Skier Contingent Payments" means the "Skier Contingent
Payments" as that term is defined in the Grand Targhee Purchase Agreement.
"Guarantee" means:
(i) any guarantee by a Person of the payment or
performance of, or any contingent obligation by a Person in
respect of, any Indebtedness or other obligation of any
obligor other than such Person;
(ii) any other arrangement whereby credit is extended
to one obligor on the basis of any legally enforceable promise
or undertaking of another Person (including any "comfort
letter" or "keep well agreement" written by such other Person
to a creditor or prospective creditor) to (a) pay the
Indebtedness of such obligor, (b) purchase an obligation owed
by such obligor, (c) pay for the purchase or lease of assets
or services regardless of the actual delivery thereof or (d)
maintain the capital, working capital, solvency or general
financial condition of such obligor, in each case whether or
not such arrangement is disclosed in the balance sheet of such
other Person or referred to in a footnote thereto;
(iii) any liability of a Person as a general partner
of a partnership in respect of Indebtedness or other
obligations of such partnership;
(iv) any liability of a Person as a joint venturer of
a joint venture in respect of Indebtedness or other
obligations of such joint venture; and
(v) reimbursement obligations with respect to letters
of credit, surety bonds and other financial guarantees;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Material" means, collectively, any pollutant, toxic or
hazardous material or waste, including any "hazardous substance" or "pollutant"
or "contaminant" as defined in section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act (or any successor
statute) or regulated as toxic or hazardous under the Resource Conservation and
Recovery Act of 1976 or any similar state or local statute or regulation, and
the rules and regulations thereunder, all as from time to time in effect.
"Indebtedness" means all obligations, contingent or otherwise, which in
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, but in any event including:
(i) liabilities secured by any Lien existing on
property owned or acquired by the obligor or any Subsidiary
thereof, whether or not the liability secured thereby shall
have been assumed;
(ii) Capitalized Lease Obligations;
(iii) liabilities in respect of mandatory redemption,
repurchase or dividend obligations with respect to capital
stock (or other evidence of beneficial interest); and
(iv) all Guarantees and endorsements in respect of
Indebtedness of others.
"Indemnitee" has the meaning provided in Section 10.2.
"Interest Expense" means, for any period, the aggregate amount of
interest, including payments in the nature of interest under Capitalized Leases,
paid or accrued by the Borrowers (whether such interest is reflected as an item
of expense or capitalized) on Indebtedness; provided, however, that following
any acquisition of any Subsidiary, Interest Expense shall include the sum of (y)
actual Interest Expense accrued or paid by the Borrowers plus (z) actual
Interest Expense accrued or paid by such Subsidiary since the date of such
acquisition through the end of such period, annualized.
"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 rates, or other similar arrangements.
"Investment" means, with respect to any Person:
(i) any share of capital stock, evidence of
Indebtedness or other security issued by any other Person;
(ii) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person;
(iii) any Guarantee of the Indebtedness of any
other Person;
(iv) any acquisition of all or any material part of
the business of or any resort property of any other Person or
the assets comprising such business or part thereof;
(v) any commitment to make any Investment or any
option payments made relating to an Investment; and
(vi) any other similar investment.
The investments described in the foregoing clauses (i) through (vi)
shall be included in the term "Investment" whether they are made or acquired by
purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method; provided, however, that the term
"Investment" shall not include (a) current trade and customer accounts
receivable for goods furnished or services rendered in the ordinary course of
business and payable in accordance with customary trade terms, (b) advances and
prepayments to suppliers for goods and services in the ordinary course of
business, (c) advances to employees for travel expenses, drawing accounts and
similar expenditures, (d) stock or other securities acquired in connection with
the satisfaction or enforcement of Indebtedness or claims due to such Person or
as security for any such Indebtedness or claim or (e) demand deposits in banks
or trust companies.
"▇▇▇▇ ▇▇▇▇▇▇▇" means the ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, a
Massachusetts corporation, and its successors and assigns.
"Legal Requirement" means any present or future requirement imposed
upon any of the Lenders or the Borrowers and their Subsidiaries by any law,
statute, rule, regulation, directive, order, decree or guideline (or any
interpretation thereof by courts or of administrative bodies) of the United
States of America, or any jurisdiction in which any LIBOR Office is located or
any state or political subdivision of any of the foregoing, or by any board,
governmental or administrative agency, central bank or monetary authority of the
United States of America, any jurisdiction in which any LIBOR Office is located,
or any political subdivision of any of the foregoing. Any such law, statute,
rule, regulation, directive, order, decree, guideline or interpretation imposed
on any of the Lenders not having the force of law shall be deemed to be a Legal
Requirement for purposes of Section 3 if such Lender reasonably believes that
compliance therewith is customary commercial practice of similarly situated
lending institutions generally.
"Lender" means the Agent, the banks and other Persons owning a
Percentage Interest and their respective successors and assigns, including
Assignees under Section 12.1.
"Lending Officer" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or other officers of
the Agent from time to time designated by it in writing to the Borrowers.
"Letter of Credit Exposure" means, with respect to any Letter of
Credit, the amount of the Maximum Exposure Under Letters of Credit attributable
to such Letter of Credit.
"Letters of Credit" has the meaning provided in Section 2.2.1.
"LIBOR Base Rate" means, for any LIBOR Interest Period, the average
(rounded upward to the nearest whole multiple of one sixteenth of one percent
(1/16 of 1%)) of the rate of interest per annum at which deposits in United
States Dollars in a principal amount approximately equal to the principal amount
of the portion of the Loan to be subject to such Interest Period would be quoted
on Telerate page 3750 (or such other page as may replace page 3750 on the
Telerate Service or such other service or services as may be nominated by the
British Bankers' Association for United States Dollar deposits) as of 11:00 AM.,
London time, at least two London banking days prior to the first day of the
LIBOR Interest Period, the determination of which by the Agent shall, in the
absence of manifest error, be conclusive.
"LIBOR Interest Period" means any period, selected as provided in
Section 3.2.1, of one, two, three or six months, commencing on any Banking Day
and ending on the corresponding date in the subsequent calendar month so
indicated (or, if such subsequent calendar month has no corresponding date, on
the last day of such subsequent calendar month); provided, however, that subject
to Section 3.2.3, if any LIBOR Interest Period so selected would otherwise begin
or end on a date which is not a Banking Day, such LIBOR Interest Period shall
instead begin or end, as the case may be, on the immediately preceding or
succeeding Banking Day as determined by the Agent in accordance with the then
current banking practice in the inter-bank LIBOR market with respect to LIBOR
deposits at the applicable LIBOR Office, which determination by the Agent shall,
in the absence of manifest error, be conclusive.
"LIBOR Loan" means any portion of the Loan for which interest is
calculated on the basis of a LIBOR Rate.
"LIBOR Office" means such non-United States office or international
banking facility of any Lender as the Lender may from time to time select.
"LIBOR Pricing Options" means the options granted pursuant to Section
3.2.1 to have the interest on any portion of the Loan computed on the basis of a
LIBOR Rate.
"LIBOR Rate" for any LIBOR Interest Period means the rate, rounded
upward to the nearest 1/100%, obtained by dividing (a) the LIBOR Base Rate for
such LIBOR Interest Period by (b) an amount equal to 1 minus the LIBOR Reserve
Rate; provided, however, that if at any time during such LIBOR Interest Period
the LIBOR Reserve Rate applicable to any outstanding LIBOR Pricing Option
changes, the LIBOR Rate for such LIBOR Interest Period shall automatically be
adjusted to reflect such change, effective as of the date of such change to the
extent required by the Legal Requirement implementing such change.
"LIBOR Reserve Rate" means the stated maximum rate (expressed as a
decimal) of all reserves (including any basic, supplemental, marginal or
emergency reserve or any reserve asset), if any, as from time to time in effect,
required by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System applicable to LIBOR Pricing Options, (b)
any other category of liabilities that includes LIBOR deposits by reference to
which the interest rate on portions of the Loan subject to LIBOR Pricing Options
is determined, (c) the principal amount of or interest on any portion of the
Loan subject to a LIBOR Pricing Option or (d) any other category of extensions
of credit, or other assets, that includes loans subject to a LIBOR Pricing
Option by a non-United States office of any of the Lenders to United States
residents.
"Lien" means, with respect to any Person:
(i) any encumbrance, mortgage, pledge, lien, charge
or security interest of any kind upon any property or assets
of such Person, whether now owned or hereafter acquired, or
upon the income or profits therefrom;
(ii) the acquisition of, or the agreement to acquire,
any property or assets upon conditional sale or subject to any
other title retention agreement, device or arrangement
(including a Capitalized Lease); and
(iii) the sale, assignment, pledge or transfer for
security of any accounts, general intangibles or chattel paper
of such Person, with or without recourse.
"LMRC Holding" has the meaning provided in the preamble hereto.
"LMRC Holding Security Agreement" means the Security Agreement dated as
of February 23, 1998 between LMRC Holding and the Agent, as amended, restated,
supplemented and in effect from time to time.
"Loans" means the Revolving Loans and the Letters of Credit.
"Loon" has the meaning provided in the preamble hereto.
"Loon Mortgage" means the Mortgage, Security Agreement and Assignment
of Leases and Rents, dated as of February 23, 1998, executed by Loon in favor of
the Agent, as amended, restated, supplemented or otherwise modified and in
effect from time to time.
"Loon Realty" has the meaning provided in the preamble hereto.
"Loon Realty Security Agreement" means the Security Agreement, dated as
of February 23, 1998, 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
February 23, 1998, between Loon and the Agent, as amended, restated,
supplemented or otherwise modified and in effect from time to time.
"Majority Lenders" means such Lenders who together own at least 51% or
more of the Percentage Interests.
"Margin Stock" means "margin stock" within the meaning of Regulations
T, U or X (or any successor provisions) of the Board of Governors of the Federal
Reserve System, or any regulations, interpretations or rulings thereunder, all
as from time to time in effect.
"Material Adverse Change" means any materially adverse change in the
business, assets, financial condition or income of the Borrowers and their
Subsidiaries taken as a whole since October 30, 1998.
"Material Plan" means any Plan or Plans, collectively, as to which (i)
the excess of (a) the aggregate Accumulated Benefit Obligations under such Plan
or Plans over (b) the aggregate fair market value of the assets of such Plan or
Plans allocable to such benefits, all determined as of the then most recent
valuation date or dates for such Plan or Plans, is greater than (ii) $1,000,000.
"Maximum Amount of Revolving Credit" has the meaning provided in
ection 2.1.1.
"Maximum Exposure Under Letters of Credit" means at any time the sum of
(i) the aggregate face amount of all unpaid drafts which may then or thereafter
be presented by beneficiaries under all Letters of Credit then outstanding, plus
(ii) the aggregate face amount of all drafts then outstanding which the Agent
has theretofore accepted under Letters of Credit but has not paid.
"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.
"Multiemployer Plan" means any Plan which is a "multiemployer plan" as
defined in section 4001(a)(3) of
------------------
ERISA.
"Net Income" means, with respect to any Person for any period, the net
income (or loss) of the Borrowers determined in accordance with GAAP. Plus, to
the extent approved by the Agent which approval shall not be unreasonably
witheld or delayed, the pro forma effect on cash flow (including the effects of
income and expenses) for such period of any acquisiton made by any of the
Borrowers or any of thier subsidiaries permittied under this Agreement;
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 of any asset acquired in connection
with a Permitted Investment made after October 30, 1998;
(b) extraordinary and nonrecurring gains and losses; and
(c) net income of the Borrowers from real estate activities,
except to the extent received in cash by the Borrowers during such
period, including, without limitation, principal and interest received
in cash on the promissory notes received from purchasers of Excess Real
Property sold in accordance with the terms hereof.
"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:
(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 and
Loon.
"Northstar-at-Tahoe" has the meaning provided in the preamble hereto.
"Northstar-at-Tahoe Mortgage" means the Deed of Trust, Assignments of
Rents, Security Agreement and Fixture Filing dated as of March 18, 1997,
executed by Northstar-at-Tahoe in favor of the Agent, as amended, restated,
supplemented or otherwise modified and in effect from time to time.
"Northstar-at-Tahoe Security Agreement" means the Security Agreement
dated as of March 18, 1997, between Northstar-at-Tahoe and the Agent, as
amended, restated, supplemented or otherwise modified and in effect from time to
time.
"Northstar Club" means Northstar Club, L.L.C., a California limited
liability company, together with its successors and assigns.
"Obligor" means the Borrowers and each other Person guaranteeing or
granting collateral to secure any Credit Obligations.
"Payment Date" means the first Banking Day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
entity.
"Percentage Interest" has the meaning provided in Section 11.1.
"Permitted BCS Group Owners" means Booth Creek LLLP (so long as ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇. or ▇▇▇▇ ▇▇▇▇▇▇▇ is the managing general partner thereof), ▇▇▇▇
▇▇▇▇▇▇▇ and its Affiliates (other than its portfolio companies), the CIBC
Securities Subsidiary, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇,
any trust solely for the benefit of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇▇▇▇▇▇▇ or
their respective immediate family members, or any partnership all the ownership
interests in which are beneficially owned by any of the foregoing; provided that
with respect to any trust or partnership either ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. or ▇▇▇▇
▇▇▇▇▇▇▇ shall at all times have the exclusive power under such trust or
partnership to direct, directly or indirectly, the voting of the share of voting
stock of BCS Group held by such trust or partnership.
"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.
"Plan" means any pension or other employee benefit plan subject to
Title IV of ERISA and/or Section 412 of the Code maintained, or to which
contributions have been made by any of the Borrowers, any of their Subsidiaries
or any Control Group Person at any time after December 3, 1996.
"Resorts" means the California Resorts, the New Hampshire Resorts, the
Washington Resorts and the Wyoming Resort, collectively.
"Restatement Date" has the meaning provided in Section 1.1.
"Revolving Loan" has the meaning provided in Section 2.1.1.
"Revolving Note" has the meaning provided in Section 2.1.4.
"Securities Act" means, collectively, the federal Securities Act of
1933 (or any successor statute) and the rules and regulations thereunder, all as
from time to time in effect.
"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 February
26, 1998, as further amended and restated on September 14, 1988,and as further
amended and in effect from time to time.
"Senior Exchange Notes" means the "Exchange Notes" as such term is
defined in the Senior Indenture.
"Senior Indenture" means the Indenture dated as of March 18, 1997,
among BCS Holdings, the Guarantors named therein, Marine Midland Bank as
Trustee, and certain note holders as amended and supplemented by Supplemental
Indenture No. 1 dated as of April 25, 1997, Supplemental Indenture No. 2 dated
as of dated as of February 26, 1998 and Supplemental Indenture No. 3 dated as of
February 26, 1998 and Supplemental Indenture No. 4 dated as of October 8, 1998.
"Senior Unsecured Notes" means the notes issued pursuant to the Senior
Indenture, and any Senior Exchange Notes issued therefor.
"Sierra-at-Tahoe" has the meaning provided in the preamble hereto.
"Sierra-at-Tahoe Mortgage" means the Deed of Trust, Assignments of
Rents, Security Agreement and Fixture Filing dated as of December 3, 1996,
executed by Sierra-at-Tahoe in favor of the Agent, as amended, restated,
supplemented or otherwise modified and in effect from time to time.
"Sierra-at-Tahoe Security Agreement" means the Security Agreement dated
as of December 3, 1996, between Sierra-at-Tahoe and the Agent, as amended,
restated, supplemented or otherwise modified and in effect from time to time.
"Senior Liabilities" means all Indebtedness of the Borrowers minus
Subordinated Indebtedness.
"Ski Lifts" has the meaning provided in the preamble hereto.
"Ski Lifts Mortgage" means the Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing dated as of March 18, 1997, executed by
Ski Lifts in favor of the Agent, as amended, restated, supplemented or otherwise
modified and in effect from time to time.
"Ski Lifts Security Agreement" means the Security Agreement dated as of
March 18, 1997, between Ski Lifts and the Agent, as amended, restated,
supplemented or otherwise modified and in effect from time to time.
"Stated Maximum" means $25,000,000.
"Subordinated Indebtedness" means Indebtedness of the Borrowers which
is subordinated to the Credit Obligations on terms reasonably acceptable to and
approved in writing by the Agent.
"Subsidiary" means any Person of which any of the Borrowers (or other
specified Person) shall at the time, directly or indirectly through one or more
of its Subsidiaries, (i) own at least 50% of the outstanding capital stock (or
other shares of beneficial interest) entitled to vote generally, (ii) hold at
least 50% of the partnership, limited liability company membership, joint
venture or similar interests or (iii) be a general partner or joint venturer;
provided, however, that in no event shall DRE LLC be considered a Subsidiary for
purposes of this Agreement.
"Trailing Four Fiscal Quarter Cash Flow" means for any four consecutive
fiscal quarters the Cash Flow of the Borrowers for the period of four fiscal
quarters most recently completed.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect in Massachusetts on the Restatement Date.
"USFS" means the United States Department of Agriculture, Forest
Service.
"Washington Resorts" means Ski Lifts.
"Waterville" has the meaning provided in the preamble hereto.
"Waterville Mortgage" means the Fee Mortgage and Security Agreement
originally dated November 27, 1996 between Waterville and the Agent, as amended,
restated, supplemented or otherwise modified and in effect from time to time.
"Waterville Security Agreement" means the Guarantee and Security
Agreement, originally dated as of November 27, 1996 between Waterville and BKB,
as amended, restated, supplemented or otherwise modified and in effect from time
to time.
"Wyoming Resort" means Grand Targhee.
2. The Credit.
2.1 The Revolving Credit.
2.1.1 Revolving Loan. Subject to all of the terms and conditions
of this Agreement and so long as no Default exists, the Lenders will make loans
to the Borrowers in an aggregate principal amount not to exceed at any time
outstanding an amount (the "Maximum Amount of Revolving Credit") equal to the
sum of (x) the lesser of (a) the Stated Maximum or (b) such amount (in a minimum
amount of $300,000 and in integral multiples of $100,000) specified by
irrevocable notice from BCS Holdings to the Agent (such notice reducing the
Maximum Amount of Revolving Credit seven calendar days after being given to the
Agent) minus (y) the Maximum Exposure Under Letters of Credit. The aggregate
principal amount of the loans made pursuant to this Section 2.1.1 at any one
time outstanding referred to as the "Revolving Loan".
2.1.2 Annual Clean-Up. For a period of sixty (60) consecutive
days in each year, commencing between February 1 and February 28 of such year
(such period being the "Designated Cleanup Period" for such year), the Revolving
Loan shall not exceed $8,000,000 plus any sums maintained as in accounts at the
Boston Office in accordance with Section 7.20 hereof.
2.1.3 Borrowing Requests. Revolving Loans will be made to the
Borrowers by the Lenders under Section 2.1.1 on any Banking Day on or after the
Restatement Date and prior to the Final Maturity Date. Not later than noon
(Boston time) on the first Banking Day prior to the requested Closing Date for
any such Loan, the Borrowers will give the Agent notice of their request (which
may be given by a telephone call received by a Lending Officer and promptly
confirmed in writing), specifying (i) the amount of the requested Loan (which
shall be not less than $300,000 and in an integral multiple of $100,000) and
(ii) the requested Closing Date therefor. Notwithstanding anything to the
contrary contained in this Section 2.1.3, the Agent may, in its sole discretion,
make Revolving Loans to the Borrowers under Section 2.1.1 at any time and in any
amount in order to cover (i) the obligations of the Borrowers under any
Controlled Disbursement Agreement (each such Loan being a "Controlled
Disbursement Advance"), and (ii) the Credit Obligations of the Borrowers (each
such Revolving Loan being a "Credit Obligation Advance"). Each loan under this
Section 2.1.3 will be made at the Boston Office by depositing the amount thereof
to the general account of the Borrowers with the Agent.
2.1.4 Revolving Notes. All Revolving Loans shall be evidenced by
notes in substantially the form of either Exhibit 2.1.4 to this Agreement (each
such note being a "Revolving Note") payable jointly and severally by the
Borrowers to each Lender in a stated amount equal to such Lender's Percentage
Interest in the Revolving Loan. Each Lender shall keep a record of the date and
amount of (i) each loan made by such Lender to the Borrowers pursuant to Section
2.1.1 and (ii) each payment of principal made by the Borrowers pursuant to
Section 4. Prior to the transfer of any Revolving Note, the Lender shall endorse
on a schedule thereto appropriate notations evidencing such dates and amounts;
provided, however, that the failure of any Lender to make any such recordation
or endorsement shall not affect the obligations of the Borrowers under this
Agreement, the Revolving Notes or any other Credit Document.
2.2 Letters of Credit.
2.2.1 Issuance of Letters of Credit. Subject to all of the terms
and conditions of this Credit Agreement and so long as no Default exists, the
Agent will issue for the account of any Borrower one or more irrevocable standby
letters of credit (the "Letters of Credit") up to a Maximum Exposure Under
Letters of Credit of $5,000,000. Letters of Credit will be issued on any Banking
Day on or after the Restatement Date and prior to the Final Maturity Date. Any
Borrower may from time to time request a Letter of Credit to be issued by
providing notice to the Agent received not less that three Banking Days prior to
the requested Closing Date for such Letter of Credit specifying (i) the amount
of the requested Letter of Credit, (ii) the beneficiaries thereof and (iii) the
requested Closing Date. As a condition to the issuance of any Letter of Credit
such Borrower will provide to the Agent a signed application and such other
documents relating to the issuance of letters of credit as are customarily
required by the Agent.
2.2.2 Participations in Letters of Credit. Upon the issuance of
any Letter of Credit, a participation therein, in an amount equal to the
Lenders' respective Percentage Interests, shall automatically be deemed granted
by the Agent to each other Lender on the date of such issuance and the Lenders
shall automatically be obligated, as set forth in Section 11.1, to reimburse the
Agent to the extent of their respective Percentage Interests for all obligations
incurred by the Agent to third parties in respect of such Letter of Credit not
reimbursed by or on behalf of the Borrowers.
2.2.3 Form and Expiration of Letters of Credit. Each Letter of
Credit and each draft accepted or paid under a Letter of Credit shall be issued,
accepted or paid, as the case may be by the Agent at the Boston Office. No
Letter of Credit shall provide for the payment of drafts drawn thereunder, and
no draft shall be payable, at a date that is later that the earlier of (i) the
date 12 months after the date of issuance or (ii) the Final Maturity Date. Each
Letter of Credit and each draft accepted under a Letter of Credit shall be in
such form and minimum amount, and shall contain such terms, as the Agent and the
Borrower may agree upon at the time such Letter of Credit is issued, including a
requirement of not less than three Banking Days after presentation of a draft
before payment must be made thereunder, the term of such Letter of Credit and
any rights of cancellation with respect thereto.
2.2.4 Payment of Drafts. At such time as the Agent makes any
payment on a draft presented or accepted under a Letter of Credit, the Borrowers
will pay to the Agent in immediately available funds on demand the amount of
such payment. If the Borrowers do not pay to the Agent the amount required by
the foregoing provision, the Agent may make a Credit Obligation Advance pursuant
to Section 2.1.3 in such amount as to pay in full the reimbursement obligation
under such Letter of Credit and any reasonable other fees and costs permitted by
this Agreement with respect to such Letter of Credit.
2.3 Application of Proceeds.
2.3.1 The Revolving Loan. Subject to Section 2.3.3 and Section 7,
the Borrowers will apply the proceeds of the Revolving Loan only for working
capital and other lawful corporate purposes or expenditures.
2.3.2 Letters of Credit. Subject to Section 2.3.3 and
Section 7, Letters of Credit shall be issued for lawful corporate purposes
relating to the business of the Borrowers as requested in writing to the Agent.
2.3.3 Specifically Prohibited Applications; Use of Proceeds. The
Borrowers will not, directly or indirectly, apply any part of the proceeds of
any of the Loans to purchase or carry Margin Stock. The Borrowers also will not
directly or indirectly, apply any part of the proceeds of any extension of
credit hereunder to any real estate development activity of the Borrowers or any
of their Subsidiaries or Affiliates except as permitted by Section 7.11.
2.4 Nature of Obligations of Lenders to Extend Credit. The
Lenders' obligations under this Agreement to make the Revolving Loan or
participate in Letters of Credit are several and are not joint or joint and
several. If any Lender shall fail to perform its obligations to extend such
credit, the amount of the commitment of the Lender so failing to perform may be
assumed by the other Lenders, in their sole discretion, in such proportions as
such Lenders may agree among themselves and the Percentage Interests of each
other Lender shall be appropriately adjusted, but such failure or such
assumption and adjustment shall not relieve the Lenders from any of their
obligations to make such extension of credit.
3.0 Interest; LIBOR Pricing Options; Fees.
3.1 Interest. The Loan shall accrue and bear interest at a rate per
annum which shall at all times equal the Applicable Rate. Prior to any stated or
accelerated maturity of the Loan, the Borrowers will jointly and severally pay,
on each Payment Date, the accrued and unpaid interest on the portion of the Loan
which was not subject to a LIBOR Pricing Option. On the last day of each LIBOR
Interest Period or on any earlier termination of any LIBOR Pricing Option, the
Borrowers will jointly and severally pay the accrued and unpaid interest on the
portion of the Loan which was subject to the LIBOR Pricing Option which expired
or terminated on such date. In the case of any LIBOR Interest Period longer than
90 days, the Borrowers will also jointly and severally pay the accrued and
unpaid interest on the portion of the Loan subject to the LIBOR Pricing Option
having such LIBOR Interest Period at quarterly intervals, the first such payment
to be made on the last Banking Day of the three-month period which begins on the
first day of such LIBOR Interest Period. On the stated or any accelerated
maturity of the Loan, the Borrowers will jointly and severally pay all accrued
and unpaid interest on the Loan, including any accrued and unpaid interest on
any portion of the Loan which is subject to a LIBOR Pricing Option. Upon the
occurrence and during the continuance of an Event of Default, the Lenders may
require accrued interest to be payable on demand or at regular intervals more
frequent than each Payment Date. All payments of interest hereunder shall be
made to the Agent for the account of each Lender in accordance with such
Lender's Percentage Interest.
3.2 LIBOR Pricing Options.
3.2.1 Election of LIBOR Pricing Options. Subject to all of the
terms and conditions hereof and so long as no Default exists, the Borrowers may
from time to time, by irrevocable notice to the Agent actually received not less
than three Banking Days prior to the commencement of the LIBOR Interest Period
selected in such notice, elect to have such portion of the Loan as the Borrowers
may specify in such notice accrue and bear interest during the LIBOR Interest
Period so selected at the Applicable Rate computed on the basis of the LIBOR
Rate. In the event the Borrowers at any time fail to elect a LIBOR Pricing
Option under this Section 3.2.1 for any portion of the Loan (upon termination of
a LIBOR Pricing Option or otherwise), then such portion of the Loan will accrue
and bear interest at the Applicable Rate based on the Alternate Base Rate. No
election of a LIBOR Pricing Option shall become effective:
(a) if, prior to the commencement of any such
LIBOR Interest Period, the Agent determines that (i) the electing or granting of
the LIBOR Pricing Option in question would violate a Legal Requirement, (ii)
LIBOR deposits in an amount comparable to the principal amount of the Loan as to
which such LIBOR Pricing Option has been elected and which have a term
corresponding to the proposed LIBOR Interest Period are not readily available in
the inter-bank LIBOR market, or (iii) by reason of circumstances affecting the
inter-bank LIBOR market, adequate and reasonable methods do not exist for
ascertaining the interest rate applicable to such deposits for the proposed
LIBOR Interest Period; or
(b) if the Majority Lenders shall have advised
the Agent by telephone or otherwise at or prior to noon (Boston time) on the
second Banking Day prior to the commencement of such proposed LIBOR Interest
Period (and shall have subsequently confirmed in writing) that, after reasonable
efforts to determine the availability of such LIBOR deposits, the Majority
Lenders reasonably anticipate that LIBOR deposits in an amount equal to the
Percentage Interest of the Majority Lenders in the portion of the Loan as to
which such LIBOR Pricing Option has been elected and which have a term
corresponding to the LIBOR Interest Period in question will not be offered in
the LIBOR market to the Majority Lenders at a rate of interest that does not
exceed the anticipated LIBOR Base Rate.
3.2.2 Notice to Lenders and Borrowers. The Agent will promptly
inform each Lender (by telephone or otherwise) of each notice received by it
from the Borrowers, pursuant to Section 3.2.1 and of the LIBOR Interest Period
specified in such notice. Upon determination by the Agent of the LIBOR Rate for
such LIBOR Interest Period or in the event such election shall not become
effective, the Agent will promptly notify the Borrowers and each Lender (by
telephone or otherwise) of the LIBOR Rate so determined or why such election did
not become effective, as the case may be.
3.2.3 Selection of LIBOR Interest Periods. LIBOR Interest
Periods shall be selected so that:
(a) the minimum portion of the Loan subject to
any LIBOR Pricing Option shall be $1,000,000 and an integral multiple of
$500,000;
(b) no more than six LIBOR Pricing Options shall
be outstanding at any one time; and
(c) no LIBOR Interest Period with respect to any
part of the Loan subject to a LIBOR Pricing Option shall expire later than the
Final Maturity Date.
3.2.4. Additional Interest. If any portion of the Loan subject to
a LIBOR Pricing Option is repaid, or any LIBOR Pricing Option is terminated for
any reason pursuant to the terms of this Agreement (including acceleration of
maturity), on a date which is prior to the last Banking Day of the LIBOR
Interest Period applicable to such LIBOR Pricing Option, the Borrowers will pay
to the Agent for the account of each Lender in accordance with such Lender's
Percentage Interest, in addition to any amounts of interest otherwise payable
hereunder, an amount equal to the present value (calculated in accordance with
this Section 3.2.4) of interest for the unexpired portion of such LIBOR Interest
Period on the portion of the Loan so repaid, or as to which a LIBOR Pricing
Option was so terminated, at a per annum rate equal to the excess, if any, of
(a) the rate applicable to such LIBOR Pricing Option minus (b) the rate of
interest obtainable by the Agent upon the purchase of debt securities
customarily issued by the Treasury of the United States of America which have a
maturity date approximating the last Banking Day of such LIBOR Interest Period.
The present value of such additional interest shall be calculated by discounting
the amount of such interest for each day in the unexpired portion of such LIBOR
Interest Period from such day to the date of such repayment or termination at a
per annum interest rate equal to the interest rate determined pursuant to clause
(b) of the preceding sentence, and by adding all such amounts for all such days
during such period. The determination by the Agent of such amount of interest
shall, in the absence of manifest error, be conclusive. For purposes of this
Section 3.2.4, if any portion of the Loan which was to have been subject to a
LIBOR Pricing Option is not outstanding on the first day of the LIBOR Interest
Period applicable to such LIBOR Pricing Option other than for reasons described
in Section 3.2. 1, the Borrowers shall be deemed to have terminated such LIBOR
Pricing Option.
3.2.5 Violation of Legal Requirements. If any Legal Requirement
shall prevent any Lender from funding or maintaining through the purchase of
deposits in the interbank LIBOR market any portion of the Loan subject to a
LIBOR Pricing Option or otherwise from giving effect to such Lender's
obligations as contemplated by Section 3.2, (a) the Agent may by notice to the
Borrowers terminate all of the affected LIBOR Pricing Options, (b) the portion
of the Loan subject to such terminated LIBOR Pricing Options shall immediately
bear interest thereafter at the Applicable Rate computed on the basis of the
Alternate Base Rate and (c) the Borrowers shall make any payment required by
Section 3.2.4.
3.2.6 Funding Procedure. The Lenders may fund any portion of the
Loan subject to a LIBOR Pricing Option out of any funds available to the
Lenders. Regardless of the source of the funds actually used by any of the
Lenders to fund any portion of the Loan subject to a LIBOR Pricing Option,
however, all amounts payable hereunder, including the interest rate applicable
to any such portion of the Loan and the amounts payable under Sections 3.2.4 and
3.5, shall be computed as if each Lender had actually funded such Lender's
Percentage Interest in such portion of the Loan through the purchase of deposits
in such amount of the type by which the LIBOR Base Rate was determined with a
maturity the same as the applicable LIBOR Interest Period relating thereto and
through the transfer of such deposits from an office of the Lender having the
same location as the applicable LIBOR Office to one of such Lender's offices in
the United States.
3.3 Fees.
3.3.1 Commitment Fees for Revolving Loan. In consideration of the
Lenders' commitments to make the extensions of credit provided for in Section
2.1.1, while such commitments are outstanding, the Borrowers, jointly and
severally, will pay, to the Agent for the account of the Lenders in accordance
with the Lenders' respective commitments in the Revolving Loan, on each Payment
Date in the last month of a fiscal quarter of the Borrowers, an amount equal to
interest computed at the rate of 0.375% per annum on the amount by which (a) the
average daily Maximum Amount of Revolving Credit during the quarter or portion
thereof ending on such Payment Date exceeded (b) the sum of the average daily
Revolving Loan during such period or portion thereof; provided, however, that
the first such payment shall be for the period beginning on the Restatement Date
and ending on the first such Payment Date.
3.3.2 Prepayment Fee. In consideration of the Agent's arranging
the commitments to make the extensions of credit provided for in this Agreement,
if the Borrowers provide notice pursuant to Section 2.1.1 such that the Maximum
Amount of Revolving Credit (excluding the effects of Section 2.1.2 and the
Maximum Exposure Under Letters of Credit on the Maximum Amount of Revolving
Credit at the time such notice is given) is reduced to $10,000,000 or less, the
Borrowers will pay to the Agent $100,000.
3.3.3 Letter of Credit Fees. The Borrowers, jointly and
severally, will pay to the Agent on the date on which each Letter of Credit is
issued and, if any such Letter of Credit is extended, renewed or otherwise
remains outstanding longer than one year from the date of issuance, on each
anniversary of the issuance of such Letter of Credit, a Letter of Credit fee at
a rate of 1.5% per annum on the amount of the Letter of Credit Exposure with
respect to such Letter of Credit for a period which is the shorter of (i) the
period from the date on which such Letter of Credit is issued through the
expiration date of such Letter of Credit (or, if later, the date on which an
accepted draft presented under such Letter of Credit may be paid) or (ii) one
year. The Borrowers, jointly and severally, shall also pay to the Agent
customary service charges and expenses for its services at the times and in the
amount from time to time in effect in accordance with the Agent's general rate
structure, including fees and expenses relating to the issuance, amendment,
negotiation, cancellation and similar operations.
3.4 Capital Adequacy. If any Lender shall have determined that compliance
by such Lender with any applicable law, governmental rule, regulation or order
regarding capital adequacy of banks or bank holding companies, or any
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital as a consequence of such Lender's obligations
hereunder to a level below that which such Lender could have achieved but for
such compliance (taking into consideration such Lender's policies with respect
to capital adequacy immediately before such compliance and assuming that such
Lender's capital was fully utilized prior to such compliance) by an amount
deemed by such Lender to be material, such Lender shall, promptly after it has
made such determination, give notice thereof to the Borrowers, with a copy to
the Agent. Promptly after the receipt by the Borrowers of any such notice, the
Borrowers and the Lender who sent such notice shall attempt to negotiate in good
faith an adjustment to the amount payable to such Lender under this Agreement,
which amount shall be sufficient to compensate such Lender for such reduced
return. If the Borrowers and such Lender are unable to agree to such adjustment
within thirty days of the day on which the Borrowers receive such notice, then
the Borrowers will on demand by such Lender pay to such Lender such additional
amounts as shall be sufficient, in such Lender's reasonable determination, to
compensate such Lender for such reduced return, such additional amounts
commencing on the date of such notice (but not earlier than the effective date
of any such law, governmental rule, regulation or order). Any such determination
by a Lender hereunder shall be conclusive and binding upon the Borrowers, absent
manifest error. In making any such determination such Lender may use any
reasonable averaging and attribution methods.
3.5 Computations of Interest. For purposes of this Agreement, interest (and
any amount expressed as interest) shall be computed on a daily basis and on the
basis of a 360-day year for any LIBOR Loans, and on a daily basis and on the
basis of a 365-day year for any Alternate Base Rate Loan.
4.0 Payment.
4.1 Payment at Maturity. On the stated or any accelerated maturity of the
Revolving Notes, the Borrowers will jointly and severally pay to the Agent for
the account of each Lender for credit to the Revolving Notes an amount equal to
the Indebtedness evidenced by the Revolving Notes then due, together with all
accrued and unpaid interest thereon and all other Credit Obligations then
outstanding in respect of the Revolving Loan.
4.2 Mandatory Prepayments. If at any time the Revolving Loan exceeds (i)
the Maximum Amount of Revolving Credit or (ii) the amount permitted by Section
2.1.2, the Borrowers promptly will jointly and severally pay the amount of such
excess to the Agent for the account of each Lender for credit to the Revolving
Notes.
4.3 Voluntary Prepayments of Revolving Loan. In addition to the
prepayments required by Section 4.2. the Borrowers may from time to time prepay
all or any portion of the Revolving Loan (in a minimum amount of $300,000 and an
integral multiple of $100,000), without premium or penalty (except with respect
to additional interest due pursuant to Section 3.2.4 in the case of certain
voluntary repayments of LIBOR Loans). With respect to such prepayment, the
Borrowers shall give the Agent at least one Banking Day's prior notice of its
intention to prepay, specifying the date of payment, the total principal amount
of the Revolving Loan to be paid on such date and the amount of interest to be
paid with such prepayment. Notwithstanding anything contained in this Section
4.3, the Agent may accept payments in connection with a Controlled Disbursement
Agreement at any time and in any amount.
4.4 Reborrowing; Application of Payments. The amounts of the Revolving
Loan prepaid pursuant to Section 4.3 may be reborrowed from time to time prior
to the Final Maturity Date in accordance with Section 2.1. The amount of the
Revolving Loan prepaid pursuant to Section 4.2 may not be reborrowed. All
payments of principal hereunder shall be made to the Agent for the account of
each Lender in accordance with the Lenders' respective Percentage Interests.
4.5 Payment and Interest Cut-off. Notice of prepayment having been given
in accordance with Section 4.3 and whether or not notice is given of prepayments
pursuant to Section 4.2, the amount specified to be prepaid shall become due and
payable on the date specified for prepayment, and from and after such date
(except to the extent the Borrowers shall fail to make the payment thereof)
interest thereon shall cease to accrue.
4.6 Charging Accounts. The Borrowers authorize the Agent to
charge the accounts of the Borrowers, on the dates when the amounts thereof
become due and payable, with the amounts of the principal of and interest on the
Loans, commitment fees and all other fees and amounts owing under any Credit
Document.
5. Conditions.
5.1 Conditions to Initial Extension of Credit. The obligations of
the Lenders to make the initial extension of credit under Section 2 shall be
subject to the satisfaction, of the conditions set forth in this Section 5.1 and
in Section 5.2.
5.1.1 Notes. The Borrowers shall have executed Revolving Notes
and delivered them to the Agent.
5.1.2 Payment of Fees. The Borrowers shall have paid (i) the
reasonable fees and expenses of the Agent's counsel, ▇▇▇▇▇▇▇, Procter & ▇▇▇▇
LLP, for which statements have been rendered on or before the Restatement Date,
and (ii) a fee to BKB as Agent as provided in the letter agreement of even date
hereof.
5.1.3 Legal Opinion. The Lenders shall have received from Winston
& ▇▇▇▇▇▇, special counsel for the Borrowers, and from the Borrowers' local
counsel, duly authorized and directed by the Borrowers, their opinions with
respect to the transactions contemplated by the Credit Documents, which opinions
shall be in form and substance satisfactory to the Lenders.
5.1.4 Confirmation of Mortgage Liens and Security Interests.
The Borrowers shall have (a) confirmed to the Agent that the mortgage liens and
other security interests created under the Mortgages and Security Agreements
shall continue in full force and effect and secure the Credit Obligations and
(b) delivered to the Agent such confirmations, amendments, endorsements and
other instruments reasonably requested by the Agent in connection therewith.
5.2 Conditions to Extending Credit. The obligations of the
Lenders to make any extension of credit pursuant to Section 2 shall be subject
to the satisfaction, on or before the Closing Date for such extension of credit,
of the conditions set forth in this Section 5.2.
5.2.1 Representations and Warranties; No Default; No Material
Adverse Change. The representations and warranties of the Borrowers contained in
this Agreement, the Security Agreements and the Mortgages shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as though originally made on and as of such date, other than
any such representations or warranties that, by their terms refer to a specific
date other than the Closing Date, in which case, as of such date; no Default
shall exist on such Closing Date prior to or immediately after giving effect to
the requested extension of credit and no Material Adverse Change shall have
occurred; and the Borrowers shall have furnished to the Agent on such Closing
Date a certificate to these effects, in substantially the form of Exhibit 5.2.1,
signed by an Executive Officer or a Financial Officer.
5.2.2 Perfection of Security. Each Obligor shall have duly
authorized, executed, acknowledged, delivered, filed, registered and recorded
such security agreements, (including, but not limited to, the Security
Agreements), the Mortgages, three-party agreements with the USFS, 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.
5.2.3 Proper Proceedings. This 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.
5.2.4 Legality, etc. The making of the requested extension of
credit on the Closing 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.
5.2.5 General. All legal and corporate proceedings in connection
with the transactions contemplated by this 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.
6. Security. Each of the Borrowers acknowledges and agrees that all of
the Credit Obligations under this amended and restated Agreement shall at all
times be secured in the manner and on the terms contemplated by the Credit
Documents, including the Security Agreements and the Mortgages, but excluding
any environmental indemnity agreements.
7. General Covenants. The Borrowers covenant that, until all of the Credit
Obligations shall have been paid in full and until the Lenders' commitments to
extend credit under this Agreement and any other Credit Document shall have been
irrevocably terminated, they will comply with each of the following provisions:
7.1 Taxes and Other Charges. The Borrowers will duly pay and discharge,
or cause to be paid and discharged, before the same shall become in arrears (or
in conformity with customary trade terms, where applicable) (i) all taxes,
assessments and other governmental charges imposed upon the Borrowers and their
properties, sales or activities, or upon the income or profits therefrom, (ii)
all claims for labor, materials or supplies which if unpaid might by law become
a Lien upon any of its property, and (iii) all accounts payable and other
Indebtedness incident to their operations; provided, however, that any such tax,
assessment, charge, claim or Indebtedness need not be paid if the validity or
amount thereof shall at the time be contested in good faith by appropriate
proceedings and if the Borrowers shall, in accordance with GAAP, have set aside
on their books adequate reserves with respect thereto.
7 2. Conduct of Business, etc.
7.2.1 Types of Business. The Borrowers will engage only in
the types of businesses in which they are engaged as of the date hereof and
businesses related or ancillary thereto.
7.2.2 Maintenance of Properties, Compliance with Agreements, etc.
The Borrowers will, and will cause each of their Subsidiaries to, (i) keep their
properties in such repair, working order and condition (ordinary wear and tear
excepted), and from time to time make such repairs, replacements, additions and
improvements thereto, as their management deems necessary and appropriate and
comply at all times in all material respects with all franchises, licenses,
leases and other material agreements to which any of them is a party so as to
prevent any loss or forfeiture thereof or thereunder, unless compliance at such
time is being contested in good faith by appropriate proceedings or unless such
losses or forfeitures could not in the aggregate result in any Material Adverse
Change and (ii) do all things necessary to preserve, renew and keep in full
force and effect and in good standing the legal existence and authority of the
Borrowers and their material Subsidiaries necessary to continue any of their
businesses; provided, however, that this Section 7.2.2 shall not apply to assets
or entities disposed of in transactions permitted by Section 7.12 and provided
further that so long as before and after giving effect thereto no Default
exists, with the consent of the Agent, which shall not be unreasonably withheld
or delayed, any Borrower or Subsidiary may merge or consolidate with or into
another Borrower or Subsidiary.
7.2.3 Statutory Compliance. The Borrowers will, and will cause
each of their respective Subsidiaries to, comply in all material respects with
all valid and applicable statutes, ordinances, zoning and building codes and
other rules and regulations of the United States of America, of the states and
territories thereof and their counties, municipalities and other subdivisions
and of any foreign country or other jurisdictions applicable to the Borrowers
and their material Subsidiaries, except where compliance therewith shall at the
time be contested in good faith by appropriate proceedings or where failure so
to comply could not in the aggregate result in any Material Adverse Change.
7.3 Insurance. Each of the Borrowers will, and will cause its
Subsidiaries to, maintain at all times, with financially sound and reputable
insurers, insurance with respect to its properties and business and against such
casualties and contingencies in such types and such amounts as shall be in
accordance with sound business practices and reasonably satisfactory to the
Lenders. Such insurance will be deemed satisfactory so long as each of the
Borrowers and their Subsidiaries (i) keep their physical property insured
against fire and extended coverage risks in amounts and with deductibles equal
to those generally maintained by businesses of similar size engaged in similar
activities, (ii) maintain all such workers' compensation or similar insurance as
may be required by law, and (iii) maintain, in amounts and with deductibles
equal to those generally maintained by businesses of similar size engaged in
similar activities, general public liability insurance against claims for bodily
injury, death or property damage occurring on, in or about the properties of
each of the Borrowers, and product liability insurance.
7.4 Financial Statements and Reports. Each of the Borrowers will maintain
a system of accounting in which full and correct entries will be made of all
dealings and transactions in relation to their business and affairs in
accordance with GAAP. The fiscal year of each of the Borrowers will end on the
Friday closest to the end of October in each year.
7.4.1 Annual Statements. The Borrowers will furnish to the
Lenders as soon as available and in any event within 100 days after the end of
each fiscal year, the Consolidated and Consolidating balance sheet and statement
of income of each of the Borrowers and their Subsidiaries, respectively, as at
the end of such fiscal year and the Consolidated and Consolidating statements of
changes in shareholders' equity and cash flows of the Borrowers and their
Subsidiaries, respectively, for such year (all in reasonable detail), together
with comparative figures for the preceding fiscal year (computed on a pro forma
basis if necessary), and accompanied by:
(i) unqualified reports or certificates of
Ernst & Young, L.L.P. (or, if they cease to be auditors of the
Borrowers and their Subsidiaries, independent certified public
accountants of recognized standing reasonably satisfactory to
the Lenders), to the effect that they have audited such
Consolidated financial statements in accordance with GAAP and
that such Consolidated financial statements present fairly, in
all material respects, the financial position of the Persons
covered thereby at the dates thereof and the results of their
operations for the periods covered thereby in conformity with
GAAP;
(ii) the statement of such accountants that
they have caused this Agreement to be reviewed and that in the
course of their audit of the Borrowers and their Subsidiaries
nothing has come to their attention to lead them to believe
that any Default hereunder exists and in particular that they
have no knowledge of any Default under Section 7.5 or, if such
is not the case, specifying such Default or possible Default
and the nature thereof, it being understood that the
examination of such accountants cannot be relied upon to give
them knowledge of any such Default except as it relates to
accounting or auditing matters;
(iii) a certificate of the Borrowers
signed by a Financial Officer substantially in the form of
Exhibit 7.4.1;
(a) to the effect that such
officer has caused this
Agreement to be reviewed
by the Borrowers
and has no knowledge of any
Default, or if such officer
has such knowledge,
specifying such Default and
the nature thereof, and
what action the Borrowers
have taken, are taking or
propose to take with
respect thereto,
(b) stating what changes, if
any, have occurred in GAAP
since the date of the
financial statements
described in Section 8.2,
and
(c) containing a schedule of
computations demonstrating,
as of the close of
such fiscal year,
compliance with the
Computation Covenants;
and
(iv) supplements to Exhibits 8.1 and 8.4
showing any changes in the information set forth in such
Exhibits during such fiscal year.
7.4.2 Quarterly Reports. The Borrowers will furnish to the
Lenders as soon as available and, in any event, within 45 days after the end of
each fiscal quarter, internally prepared Consolidated and Consolidating balance
sheets as at the end of such quarter, and Consolidated and Consolidating
statements of income and cash flows of the Borrowers and their Subsidiaries for
such quarter (all in reasonable detail), accompanied by a certificate of the
Borrowers signed by a Financial Officer substantially in the form of Exhibit
7.4.2:
(i) to the effect that such financial
statements have been prepared in accordance with GAAP and
present fairly, in all material respects, the financial
position of the Borrowers and their respective Subsidiaries at
the dates thereof and the results of their operations for the
periods covered thereby, subject only to normal year-end audit
adjustments and the addition of footnotes;
(ii) to the effect that such officer has
caused this Agreement to be reviewed by the Borrowers and has
no knowledge of any Default, or if such officer has such
knowledge, specifying such Default and the nature thereof and
what action the Borrowers have taken, are taking or propose to
take with respect thereto, and
(iii) containing a schedule of computations by
the Borrowers demonstrating, as of the close of such fiscal
quarter, compliance with the Computation Covenants.
7.4.3 Monthly Reports. The Borrowers will furnish to the Lenders
as soon as available and, in any event, within 40 days after the end of each
calendar month, an internally prepared Consolidated balance sheet as at the end
of such month, and Consolidated statements of income and cash flows of the
Borrowers and their Subsidiaries for such month and other related information in
the form consistent with past practice (all in reasonable detail).
7.4.4 Other Reports. The Borrowers will furnish to the
Lenders:
(i) as soon as available, and in any event
within 40 days after the end of each fiscal year, an annual
budget and/or operating projections for the upcoming fiscal
year of the Borrowers, prepared in a manner consistent with
the manner in which the financial statements described in
Sections 7.4.1 through 7.4.3 are prepared;
(ii) as soon as available, any material
updates, if any, of such budget and projections;
(iii) as soon as available, all management
letters furnished to the Borrowers by their auditors;
(iv)as soon as practicable but, in any event,
within 20 Banking Days after the issuance thereof, all
budgets, projections, statements of operations and other
material reports furnished by the Borrowers or any of their
Subsidiaries generally to their shareholders in such capacity
(but not including any such budgets, projections, statements
of operations and other material reports furnished to the
Board of Directors of any entity of the BCG Group but not
otherwise made generally available); and
(v) as soon as practicable but, in any event,
within 20 Banking Days after the issuance thereof, such
registration statements, proxy statements and reports, if any,
as may be filed by the Borrowers or any Subsidiary with the
Securities and Exchange Commission.
7.4.5 Notice of Litigations; Notice of Defaults. The Borrowers
will promptly furnish to the Agent written notice of any litigation or any
administrative or arbitration proceeding to which any of the Borrowers or any
Subsidiary may hereafter become a party which may involve any material risk of
any judgment which, after giving effect to any applicable insurance, may result
in a claim of more than $500,000 against any of the Borrowers or any Subsidiary.
Within five Banking Days after acquiring knowledge thereof, the Borrowers will
notify the Lenders of the existence of any Default, specifying the nature
thereof and what action the Borrowers have taken, are taking or propose to take
with respect thereto.
7.4.6 ERISA Reports. The Borrowers will:
(i)furnish the Lenders with a copy of any
request for a waiver of the funding standards or an extension
of the amortization period required by sections 303 and 304 of
ERISA or section 412 of the Code, promptly after any Control
Group Person submits such request to the Department of Labor
or the Internal Revenue Service;
(ii) notify the Lenders of any reportable
event (as defined in section 4043 of ERISA), unless the notice
requirement with respect thereto has been waived by
regulation, promptly after any Control Group Person learns of
such reportable event; and furnish the Lenders with a copy of
the notice of such reportable event required to be filed with
the PBGC, promptly after such notice is required to be given;
(iii)furnish the Lenders with a copy of any
notice received by any Control Group Person that the PBGC has
instituted or intends to institute proceedings under section
4042 of ERISA to terminate any Plan, or that any Multiemployer
Plan is insolvent or in reorganization status under Title IV
of ERISA, promptly after receipt of such notice;
(iv) notify the Lenders of the possibility of
the termination of any Plan by its administrator pursuant to
section 4041 of ERISA, as soon as any Control Group Person
learns of such possibility and in any event prior to such
termination; and furnish the Lenders with a copy of any notice
to the PBGC that a Plan is to be terminated, promptly after
any Control Group Person files a copy of such notice; and
(v) notify the Lenders of the intention of
the Borrowers or any Control Group Person to withdraw, in
whole or in part, from any Multiemployer Plan, prior to such
withdrawal, and, upon any Lender's request from time to time,
of the extent of the liability, if any, of such Person as a
result of such withdrawal, to be the best of such Person's
knowledge at such time.
7.4.7 Right to Obtain Appraisals. The Agent shall have the right
to obtain from time to time, at the Borrowers' cost and expense, updated
Appraisals, provided that so long as no Default or Event of Default shall have
occurred and be continuing, the Borrowers shall only be obligated to reimburse
the Agent for its costs and expenses related to one updated Appraisal each
fiscal year. The costs and expenses incurred by the Agent and the Lenders in
obtaining such Appraisals shall be paid by the Borrowers forthwith upon billing
or request by the Agent for reimbursement therefor.
7.4.8 Other Information. From time to time upon request of any
authorized officer of the Agent, the Borrowers will furnish to the Lenders such
other information regarding the business, affairs and condition, financial or
otherwise, of each of the Borrowers and their Subsidiaries as such officer may
reasonably request, including copies of all licenses, agreements, contracts,
leases and instruments to which any of the Borrowers or their Subsidiaries are
party. Upon reasonable notice to the Borrowers, the Lenders' authorized officers
and representatives shall have the right during normal business hours to examine
the books and records of each of the Borrowers and their Subsidiaries, to make
copies, notes and abstracts therefrom and to make an independent examination of
its books and records, for the purpose of verifying the accuracy of the reports
delivered by any of the Borrowers and their Subsidiaries pursuant to this
Section 7.4 or otherwise and ascertaining compliance with this Agreement or any
other Credit Document.
7.5 Certain Financial Tests.
7.5.1 Financing Debt to Cash Flow. During the periods set forth
below, the ratio of the unpaid principal amount of Consolidated Financing Debt
of the Borrowers to Trailing Four Fiscal Quarter Cash Flow for such periods
shall not exceed the ratios set forth below during the applicable periods:
Period Ratio
October 30, 1998 through October 29, 1999 6.5-to-1.0
October 30, 1999 through October 27, 2000 6.0-to-1.0
October 28, 2000 through November 2, 2001 5.5-to-1.0
November 3, 2001 and thereafter 5.0-to-1.0
7.5.2 Cash Flow to Fixed Charges. On the last day of each fiscal
quarter of the Borrowers during the periods set forth below, 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 the
percentages set forth below of Consolidated Fixed Charges of the Borrowers for
such four fiscal quarters then ending:
Period Percentages
October 30, 1998 through October 29, 1999 100%
October 30, 1999 through October 27, 2000 105%
October 28, 2000 and thereafter 110%
7.5.3 Minimum Net Worth. At all times, Consolidated Net
Worth of the Borrowers shall be in excess of $10,000,000.
7.6 Indebtedness. None of the Borrowers and their Subsidiaries
will create, incur, assume or otherwise become or remain liable with respect to
any Indebtedness or obligations under operating leases except the following:
7.6.1 Indebtedness in respect of the Credit Obligations.
7.6.2 Guarantees permitted by Section 7.7.
7.6.3 Current liabilities, (other than for Financing Debt and
operating leases), incurred in the ordinary course of business; provided,
however, that all such Indebtedness, including without limitation trade
payables, shall be paid in accordance with Section 7.1.
7.6.4 To the extent that payment thereof shall not at the time be
required by Section 7.1, Indebtedness in respect of taxes, assessments,
governmental charges and claims for labor, materials and supplies.
7.6.5 Indebtedness secured by Liens of carriers, warehousemen,
mechanics and landlord and similar liens permitted by Sections
7.8.5 and 7.8.6.
7.6.6 Indebtedness in respect of (a) judgments or awards in an
aggregate amount of less than or equal to $1,000,000 and (b) judgments or awards
in excess of $1,000,000 which (i) which have been in force for less than the
applicable appeal period, so long as execution is not levied, or (ii) in respect
of which the Borrowers shall at the time in good faith be prosecuting an appeal
or proceedings for review, so long as execution thereof shall have been stayed
pending such appeal or review.
7.6.7 To the extent permitted by Section 7.8.7, Indebtedness in
respect of Capitalized Lease Obligations or secured by purchase money security
interests; provided, however, that the aggregate principal amount of all
Indebtedness permitted to be incurred by this Section 7.6.7 after the
Restatement Date shall not exceed $5,000,000 at any one time outstanding.
7.6.8 Obligations in respect of (i) leases with the United States
Forest Service with respect to forest lands and (ii) other operating leases
(excluding certain leases with General Electric Capital Corporation for three
ski lifts dated on or about December 24, 1998), provided the basic annual rental
payments under such other operating leases do not exceed in the aggregate
$3,000,000 in any fiscal year.
7.6.9 Indebtedness with respect to deferred compensation in the
ordinary course of business and Indebtedness with respect to employee benefit
programs (including liabilities in respect of deferred compensation, pension or
severance benefits, early termination benefits, disability benefits, vacation
benefits and tuition benefits) incurred in the ordinary course of business.
7.6.10 Indebtedness in respect of customer advances and deposits,
deferred income, deferred gains, deferred taxes and other deferred credits
arising in the ordinary course of business.
7.6.11 Indebtedness in respect of inter-company loans and
advances between and among the Borrowers and their Subsidiaries which are not
prohibited by Section 7.9.
7.6.12 [Intentionally Omitted]
7.6.13 Indebtedness in respect of the Senior Unsecured
Notes, not to exceed $133,500,000 in aggregate principal amount.
7.6.14 Indebtedness in respect of the ASC Subordinated Note;
provided, however, that such Indebtedness shall not in the aggregate exceed
$2,750,000.
7.6.15 Indebtedness in respect of the Grand Targhee
Development Contingent Payment and the Grand Targhee Skier Contingent Payments.
7.6.16 Indebtedness in respect of obligations outstanding on
the date hereof and described on Exhibit 8.4.
7.6.17 Indebtedness in respect of the obligations of
Northstar-at-Tahoe to Star Resorts, pursuant to the Agreement to Purchase and
Sell Units between Northstar Club and Northstar-at-Tahoe, dated as of October
27, 1997 and as amended as of April 22, 1998, such obligations not to exceed in
the aggregate $700,000.
7.6.18 [Intentionally Omitted]
7.6.19 Indebtedness in respect of Interest Rate Protection
Agreements between BCS Holdings and the Agent.
7.6.20 Indebtedness consisting of (i) Bear Mountain 1915
Improvement Bond Act Obligations, not to exceed $700,000 in aggregate principal
amount and (ii) Waterville Valley Sewer Obligations, not to exceed $150,000 in
aggregate principal amount.
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, (iv) a guarantee
by BCS Holdings of workers' compensation liabilities of Ski Lifts and (v)
Guarantees of Indebtedness permitted to be incurred under Section 7.6 hereof of
any of the Borrowers by a Borrower or a Subsidiary.
7.8 Liens. None of the Borrowers or any of their Subsidiaries will create,incur
or enter into, or suffer to be created or incurred or to exist, any Lien, or any
arrangement or agreement which prohibits it from creating any Lien, on its
respective properties or assets, except the following.
7.8.1 Liens included in any Credit Document and Liens on
the Credit Security which secure the Credit Obligations.
7.8.2 Liens to secure taxes, assessments and other
governmental charges, to the extent that payment thereof shall not at the time
be required by Section 7.1.
7.8.3 Deposits or pledges made (i) in connection with, or to
secure payment of, workers' compensation, unemployment insurance, old age
pensions or other social security, (ii) in connection with insurance maintained
in accordance with Section 7.3, (iii) to secure the performance of bids,
tenders, contracts (other than contracts relating to Financing Debt) or leases,
(iv) to secure statutory obligations or surety or appeal bonds, (v) to secure
indemnity, performance or other similar bonds in the ordinary course of business
or (vi) in connection with contests of tax or other liabilities to the extent
that payment thereof shall not at that time be required by Section 7.1.
7.8.4 Liens in respect of judgments or awards, to the
extent that such judgments or awards are permitted by Section 7.6.6.
7.8.5 Liens of carriers, warehousemen, mechanics and
similar Liens or deposits to secure the release thereof.
7.8.6 Encumbrances in the nature of (i) zoning restrictions, (ii)
easements, rights of way and similar interests (iii) restrictions of record on
the use of real property and (iv) landlords' and lessors' Liens on rented
premises, which in each case do not materially detract from the value of the
encumbered property or materially impair the use thereof in the business of the
Borrowers.
7.8.7 Capitalized Lease Obligations incurred after the
Restatement Date and purchase money security interests in or purchase money
mortgages on real or personal property acquired after the Restatement Date,
including agreements to enter into Capitalized Lease Obligations, Purchase Money
Security Interests and Purchase Money Mortgages, to secure purchase money
Indebtedness to the extent permitted by Section 7.6.7 incurred in connection
with the acquisition of such property, which security interests or mortgages
cover only the real or personal property so acquired and proceeds thereof and
reasonable attachments and accessories thereto.
7.8.8 Liens securing obligations under the ASC Subordinated
Note, to the extent permitted by Section 7.7.14.
7.8.9 Other existing Liens and Capitalized Lease Obligations
described on Exhibit 8.4 on the property secured by such Liens or the subject of
such Capitalized Lease as of the Restatement Date and any renewals or
replacements thereof, but not any increase in the amount thereof.
7.8.10 Liens granted pursuant to the Option Agreement dated
as of April 22, 1998 between Northstar-at-Tahoe and Northstar Club.
7.9 Investments. None of the Borrowers and their Subsidiaries
will have outstanding, acquire, commit itself to acquire or hold any Investment
(including any Investment consisting of the acquisition of any business) except
for the following:
7.9.1 Investments in cash and Cash Equivalents.
7.9.2 Trade or customer accounts or notes receivable for
inventory or equipment sold or leased or services rendered in the ordinary
course of business and for real estate permitted to be sold pursuant to Section
7.12 hereof.
7.9.3 Advances to employees, agents and consultants in the
ordinary course of business, including, but not limited to, travel, payroll and
other expenses incurred in the ordinary course of business.
7.9.4 Investments representing Indebtedness of any Person owing
as a result of the sale by the Borrowers or a Subsidiary in the ordinary course
of business to such Person of products or services or the sale of tangible
property no longer required in its business.
7.9.5 Capital Expenditures to the extent permitted by
Section 7.11.
7.9.6 Investments by any Borrower in any other Borrower.
7.9.7 Investments consisting of loans to employees of any of the
Borrowers provided that the aggregate outstanding principal amount of such loans
shall not at any time exceed $200,000.
7.9.8 Investments consisting of contingent liabilities of any
Borrower represented by endorsements of negotiable instruments for collection or
deposit in the ordinary course of business, and advances, deposits, down
payments and prepayments on account of certain firm purchase orders made in the
ordinary course of business.
7.9.9 Investments described on Exhibit 8.4.
7.9.10 Investments consisting of the one share of common
stock of Tahoe Airline Guarantee Corp. owned by the Borrowers on the
Restatement Date.
7.9.11 Investments, not to exceed $1,000,000 in aggregate amount,
(i) pursuant to the 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.
7.9.12 Investments consisting of a Promissory Note made by
Northstar Club, not to exceed $700,000 in principal amount and the related
Agreement to Purchase and Sell Real Property between Northstar Club and
Northstar-at-Tahoe, dated as of October 27, 1997 as amended as of April 22,
1998.
7.9.13 Investments that comprise part of Interest Rate
Protection Agreements between BCS Holdings and the Agent.
7.9.14 Investments consisting of the holdback under the Loon
Acquisition Agreement.
7.9.15 An investment consisting of the rights of BCS Holdings and
BCS Acquisition under the Agreement of Merger dated as of August 28, 1998 among
them and Seven Springs Farm, Inc. (the "Seven Springs Merger Agreement");
provided, however, that this Section shall not be construed as permitting
consummation of the transactions contemplated by the Seven Springs Merger
Agreement or the taking of any further action with respect thereto; and
provided, further, that absent further consent of the Agent, amendment of the
Seven Springs Merger Agreement, the taking of any action thereunder that it is
an Investment or consummation of any transaction contemplated thereby shall be
an Investment prohibited by this Agreement.
7.9.16 Investments consisting of not more than 21,122 shares
of Class B Common Stock of Arlberg Holding Company, Inc. and a convertible
subordinated debenture of Arlberg Holding Company, Inc. in the original
principal amount of $50,000, all of which Investments have been pledged to the
Agent.
7.9.17 Investments in joint ventures consisting of the
contribution of Excess Real Property by the Borrowers up to an aggregate amount
at any time not to exceed $10,000,000 in net book value of such Excess Real
Property.
7.9.18 Other Investments, whether consisting of cash or property,
not to exceed $1,000,000 for any one Investment or related series of Investments
and not to exceed $2,000,000 in the aggregate on and after the Restatement Date.
7.9.19 Investments which are Guarantees permitted under Section
7.7 hereof.
7.10 Distributions. None of the Borrowers and their Subsidiaries
shall make any Distribution except for the following:
7.10.1 The Borrowers may pay dividends in their common stock and,
so long as immediately before and after giving effect thereto no Default exists,
the Borrowers may make Distributions consisting of the exchange of one class of
capital stock for another class of capital stock.
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.
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.
7.10.4 So long as before and after giving effect there to no
Default exists, Distributions from one Borrower to any other Borrower.
7.11 Capital Expenditures. The Borrowers will not make or incur Capital
Expenditures in any period of four fiscal quarters in excess of the sum of (a)
common stock equity contributions received in cash during such twelve-month
period plus (b) amounts in excess of $12,000,000 received in cash or in cash
from the collection on promissory notes received from the sale of Excess Real
Property, plus (c) 50% of Cash Flow for such four fiscal quarter period;
provided, however, that not more than 25% of such Capital Expenditures in any
such period shall be for real estate activities of the Borrowers; and provided
further that after the end of the second fiscal quarter of fiscal year 1999, the
Borrowers may request that the allowance for Capital Expenditures in fiscal year
1999 be increased by an additional amount not to exceed 10% of Cash Flow of the
Borrowers for fiscal 1999 through April 30, 1999, which the Agent may approve,
in whole or in part, in its sole discretion.
7.12 Merger and Dispositions of Assets; Release of Liens; Use of Certain
Proceeds. None of the Borrowers will become a party to any merger or
consolidation, and none of the Borrowers will sell, sell and lease back, lease,
sublease or otherwise dispose of any of its assets; provided, however, that so
long as immediately prior to and after giving effect thereto no Default exists,
the Borrowers may sell or otherwise dispose of:
(a) inventory in the ordinary course of business;
(b) tangible assets to be replaced in the ordinary course of
business by other assets of substantially equal or greater value;
(c) assets to any Borrower;
(d) assets consisting of less than one acre of real property,
owned by Northstar-at-Tahoe, to be sold to Northstar Club pursuant to
the Agreement to Purchase and Sell Real Property dated as of October
27, 1997, as amended as of April 22, 1998;
(e) tangible assets either obsolete or no longer used or
useful in the business of the Borrowers; provided, however, that the
aggregate fair market value (or book value, if greater) of the assets
sold or disposed of pursuant to this clause (e) shall not exceed
$2,000,000 in any fiscal year;
(f) assets consisting of approximately 2.11 acres of real
property owned by Northstar-at-Tahoe, if sold to Northstar Club in
accordance with the terms of the Option Agreement dated as of September
14, 1998 between Northstar-at-Tahoe and Northstar Club;
(g) undeveloped real property consisting of lots numbered
112-158 as part of Phase IV of Big Springs Development at Northstar;
(h) with the consent of the Agent which shall not be
unreasonably withheld or delayed, any Borrower or Subsidiary may merge
or consolidate with or into another Borrower or Subsidiary;
(i) any parcel of Excess Real Property; provided, however,
that:
(i) each applicable municipal authority exercising
jurisdiction over the parcel of Excess Real Property has approved a lot
split ordinance or other applicable action under local law dividing the
parcel of Excess Real Property from the remainder of the property
subject to any of the Mortgages and assigning separate tax
identification numbers to each;
(ii) no part of the remaining real property subject
to any of the Mortgages shall be part of a tax lot affecting any
portion of the parcel of Excess Real Property;
(iii) all requirements under all laws, statutes,
rules and regulations (including, without limitation, all zoning and
subdivision laws, setback requirements, sideline requirements, parking
ratio requirements, use requirements and building and fire code
requirements) applicable to the property subject to any of the
Mortgages necessary to accomplish the lot split shall have been
fulfilled;
(iv) as a result of the lot split, the remaining
property subject to any of the Mortgages will not be in violation of
any applicable law, statute, rule or regulation (including, without
limitation, all zoning and subdivision laws, setback requirements,
sideline requirements, parking ratio requirements, use requirements and
building and fire code requirements) and all necessary variances, if
any, shall have been obtained;
(v) appropriate reciprocal easement agreements for
the benefit and burden of the remaining property subject to any of the
Mortgages and the parcel of Excess Real Property regarding the use of
common facilities of such parcels, including, but not limited to, open
areas, ski lifts, ski trails, roadways, parking areas, utilities,
snowmaking facilities and community facilities by the occupants of the
remaining property subject to any of the Mortgages and the parcel of
Excess Real Property, in a form and substance acceptable to Agent.
shall be declared and recorded;
(vi) BCS Holdings shall have delivered to Agent one
or more endorsements to the title insurance policies insuring the Lien
of the applicable Mortgage or such other evidence reasonably acceptable
to the Agent insuring that, after giving effect to such release, the
title insurance policies insuring the Lien of the applicable Mortgage
are in full force and effect and unaffected by such release; and
(vii) Each of the Borrowers with an interest in such
Excess Real Property shall execute such documents and instruments as
Agent shall reasonably require in connection with the foregoing.
Notwithstanding anything to the contrary herein, the Borrowers may
utilize the cash proceeds from the sale of Excess Real Property for any purpose
specifically permitted hereunder or for any other purpose with the consent of
the Agent, which consent shall not be unreasonably withheld or delayed.
Upon the transfer of any parcel of the Excess Real Property as
permitted above, and upon the request of any such Borrower, at any time so long
as there is no Default, the Lenders shall release all Liens under the Mortgages
or Security Agreements to which such asset is subject, provided that the
Borrowers shall reimburse the Lenders for any costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) they incur arising
from the transfer of the asset and any release of such asset from the Lien of
the Mortgages or the Security Agreements.
7.13 Subsidiaries. Each of the Borrowers shall have no Subsidiaries other
than (a) as set forth on Exhibit 8.1 and (b) domestic Subsidiaries formed after
the Restatement Date so long as the following conditions are satisfied: (i) the
Agent has reviewed and approved charter documents, by-laws and other instruments
relating to the formation of such Subsidiary; (ii) such Subsidiary has joined in
this Agreement, jointly and severally, as a Borrower, or has executed an
unlimited guaranty of all Credit Obligations, each on terms and conditions
acceptable to the Agent; (iii) all of the issued and outstanding capital stock
of such Subsidiary has been pledged to the Agent to secure the Credit
Obligations pursuant to the Security Agreements; (iv) the Subsidiary has granted
to the Agent a mortgage of and security interest in all of its assets pursuant
to mortgages and security agreements on terms and conditions acceptable to
Agent; (v) an opinion or opinions of counsel to such Subsidiary covering such
matters as the Agent may reasonably request; and (vi) the Borrowers have
executed and delivered to the Agent of such other documents, certificates and
opinions as the Agent may reasonably request.
7.14 ERISA. Each of the Borrowers and their respective Subsidiaries will
meet, and will cause all Control Group Persons to meet, all minimum funding
requirements applicable to them with respect to any Plan pursuant to section 302
of ERISA or section 412 of the Code, without giving effect to any waivers of
such requirements or extensions of the related amortization periods which may be
granted. Each of the Borrowers and their respective Subsidiaries will comply,
and will cause all Control Group Persons to comply, in all material respects,
with the provisions of ERISA and the Code applicable to each Plan. At no time
shall the Accumulated Plan Benefit Obligations under any Plan that is not a
Multiemployer Plan exceed the fair market value of the assets of such Plan
allocable to such benefits by more than $250,000.
7.15 Transactions with Affiliates. No Borrower shall effect any
transaction with any of its Affiliates, other than as permitted by Section 7.19,
on a basis less favorable to such Borrower than would be the case if such
transaction had been effected with a non-Affiliate.
7.16 Loan to Value Ratio. The Borrowers will ensure that the Revolving
Loan shall at no time exceed sixty percent (60%) of the sum of the value of the
mountain operations of the Borrowers as set forth in the Acquisition Appraisals,
or if later such new Appraisals have been obtained by the Agent pursuant to
Section 7.4.7 hereof, the value of the mountain operations as set forth in the
most recent such Appraisals.
7.17 Environmental Cleanup. The Borrowers will develop a written action
plan addressing those items listed on Exhibit 7.18 which if not addressed would
result in a Material Adverse Change, and submit such action plan to the Agent on
or before March 15, 1999, such action plan to be reasonably acceptable to the
Agent.
7.18 Cash Concentration. The Borrowers shall maintain a cash management
system accounts with the Agent (the "Cash Management System") at all times prior
to the Final Maturity Date. The Cash Management System shall include all
accounts of the Borrowers except certain nonmaterial and trust accounts excluded
from the Cash Management System with the prior consent of the Agent, such
consent not to be unreasonably withheld. The Cash Management System shall
include an automatic weekly transfer to accounts maintained at the Boston
Office, of all positive balances in any deposit or other cash account included
in the Cash Management System.
7.19 Permitted Management Fees. So long as before and after giving effect
thereto no Default exists, the Borrowers may pay management fees to Booth Creek
Management Company; provided, however, that (i) payment of such fees shall be
made in equal monthly installments in each fiscal year; and (ii) such fees shall
not during any fiscal year of the Borrowers exceed in the aggregate the lesser
of (a) $750,000 and (b) $350,000 plus 0.025 times the amount that Cash Flow for
that fiscal year exceeds $25,000,000; provided further, however, that during any
period in which payment of fees is not permitted by this Section 7.19 because of
the existence of a Default, such management fee payments shall accrue without
interest and may be paid at such time as no Default or Event of Default exists.
7.20 Letters of Credit at Annual Clean-up. At all times during any
Designated Cleanup Period the accounts of the Borrowers maintained at the Boston
Office, excluding any interest account maintained for the Senior Unsecured
Notes, shall have an aggregate balance that exceeds the aggregate amount of
Letter of Credit Exposure with respect to all of the Letters of Credit
previously issued and not yet canceled or expired at such time.
7.21 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 material tangible personal
property outside the states of California, Washington and Wyoming, respectively,
and (ii) any of the New Hampshire Resorts removes, relocates or maintains any
material tangible personal property outside the state of New Hampshire.
8. Representations and Warranties. In order to induce the Lenders to
extend credit to the Borrowers hereunder, the Borrowers represent and warrant
that:
8.1. Organization and Business.
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 has 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 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.
8.1.2 Qualification. Except as set forth on Exhibit 8.1 each of
the Borrowers is duly and legally qualified to do business as a foreign
corporation and is in good standing in each state or jurisdiction in which such
qualification is required and is duly authorized, qualified and licensed under
all laws, regulations, ordinances or orders of public authorities, or otherwise,
to carry on its business in the places and in the manner in which it is
conducted, except for failures to be so qualified, authorized or licensed which
would not in the aggregate result, or pose a material risk of resulting, in any
Material Adverse Change.
8.2 Financial Statements and Other Information. The Borrowers have
previously furnished to the Lenders copies of the Consolidated and Consolidating
balance sheets of the Borrowers as at May 1, July 31, and October 30, 1998, and
Consolidated and Consolidating statements of changes in shareholders' equity and
cash flows the Borrowers for the periods 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, in all material respects,
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.
8.3 Changes in Condition. No Material Adverse Change has occurred, and
since October 30, 1998, the Borrowers have not entered into any material
transaction outside the ordinary course of business except for the transactions
contemplated by this Agreement and except as listed on Exhibit 8.3 hereto.
8.4 Agreements Relating to Financing Debt, Investments, etc. Exhibit 8.4,
as from time to time hereafter supplemented in accordance with Section 7.4 or
otherwise by written notice to the Lenders, sets forth (i) the amounts (as of
the dates indicated in Exhibit 8.4, as so supplemented) of all Financing Debt of
the Borrowers and all agreements which relate to such Financing Debt, (ii) all
Liens and Guarantees with respect to such Financing Debt and (iii) all
agreements which directly or indirectly require the Borrowers to make any
Investment. The Borrowers have furnished the Agent with correct and complete
copies of any agreements described in clauses (i), (ii) and (iii) above
requested by the Lenders.
8.5 Title to Assets. The Borrowers and their Subsidiaries have good and
marketable title to all assets necessary for or material in the operations of
their respective businesses as now conducted or proposed to be conducted by them
and reflected in the most recent balance sheet referred to in Section 8.2.1 (or
the balance sheet most recently furnished to the Lenders pursuant to Sections
7.4.1 through 7.4.3 or otherwise by written notice to the Lenders), and to all
material assets acquired subsequent to the date of such balance sheet, subject
to no Liens except for those permitted by Section 7.8 and except for assets
disposed of as permitted by Section 7.12.
8.6 Licenses, etc. The Borrowers have all material patents, patent
applications, patent licenses, patent rights, trademarks, trademark rights,
trade names, trade name rights, copyrights, licenses, franchises, permits,
authorizations and other rights as are necessary for the conduct of their
business as now conducted or proposed to be conducted by them. All of the
foregoing are in full force and effect, and the Borrowers are in substantial
compliance with the foregoing without any known conflict with the valid rights
of others which has resulted, or poses a material risk of resulting, in any
Material Adverse Change. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
license, franchise or other right or affect the rights of the Borrowers
thereunder so as to result in any Material Adverse Change. There is no
litigation or other proceeding or dispute with respect to the validity or, where
applicable, the extension or renewal, of any of the foregoing which has
resulted, or poses a material risk of resulting, in any Material Adverse Change.
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.
8.8 Tax Returns. Each of the Borrowers and their Subsidiaries has filed
all material tax and information returns which are required to be filed by it
and has paid, or made adequate provision for the payment of, all taxes which
have or may become due pursuant to such returns or to any assessment received by
it. The Borrowers know of no material additional assessments or any basis
therefor. The Borrowers reasonably believe that the charges, accruals and
reserves on the books of the Borrowers and their Subsidiaries in respect of
taxes or other governmental charges are adequate.
8.9 No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Credit Document, nor the making of any borrowings
hereunder, nor the securing of the Credit Obligations with the Credit Security,
nor the consummation of any transaction referred to in or contemplated by this
Agreement or any other Credit Document, nor the fulfillment of the terms hereof
or thereof or of any other agreement, instrument, deed or lease referred to in
this Agreement or any other Credit Document, has constituted or resulted in or
will constitute or result in:
(i) any breach or termination of the
provisions of any agreement, instrument, deed or lease to which the Borrowers or
any Subsidiary is a party or by which it is bound, or of the charter or by-laws
of any of the Borrowers;
(ii) the violation of any law, statute,
judgment, decree or governmental order, rule or regulation applicable to the
Borrowers or any Subsidiary;
(iii) the creation under any agreement,
instrument, deed or lease of any Lien (other than Liens on the Credit Security
which secure the Credit Obligations) upon any of the assets of the Borrowers; or
(iv) any redemption, retirement or other
repurchase obligation of the Borrowers under any charter, by-law, agreement,
instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Borrowers in connection with the execution, delivery
and performance of this Agreement, the Notes or any other Credit Document, the
transactions contemplated hereby or thereby or the making of any borrowing
hereunder which has not been obtained or made prior to the Restatement Date, or
which, if not obtained, does not result, or pose a material risk of resulting,
in any Material Adverse Change.
8.10 Defaults. Neither the Borrowers nor any Subsidiary is in default
under any provision of its charter or by-laws or of this Agreement or any other
Credit Document. Neither the Borrowers nor any Subsidiary is in default under
any provision of any agreement, instrument, deed or lease to which it is party
or by which it or its property is bound, or has violated any law, judgment,
decree or governmental order, rule or regulation, so as to result, or pose a
material risk of resulting, in any Material Adverse Change.
8.11 Certain Business Representations.
8.11.1 Environmental Compliance.
(i) Each of the Borrowers and their
Subsidiaries is in compliance in all material respects with
the applicable provisions of the Clean Air Act, the Federal
Water Pollution Control Act, the Resource Conservation and
Recovery Act of 1976, the Comprehensive Environmental
Response, Compensation and Liability Act and any similar state
or local statute or regulation in effect in any jurisdiction
in which any properties of the Borrowers or any Subsidiary are
located, and with all applicable published rules and
regulations of the United States Environmental Protection
Agency and of any similar state agencies, other than those
which in the aggregate could not reasonably be expected to
result in a Material Adverse Change.
(ii) Except as set forth on Exhibit 8.11.1, no
suit, claim, action or proceeding, of which any of the
Borrowers have been given written notice or otherwise have
actual knowledge, is now pending before any court,
governmental agency or board, or to the Borrowers' knowledge,
threatened by any Person (nor to the Borrowers' knowledge,
does any factual basis exist therefor) for, and none of the
Borrowers nor any of their Subsidiaries has received written
correspondence from any federal, state or local governmental
authority with respect to, in each case excepting items as
would not reasonably be expected to result in a Material
Adverse Change:
(a) currently alleged noncompliance
by any of the Borrowers or Subsidiaries with any such
environmental law, rule or regulation which could
result in a Material Adverse Change,
(b) personal injury, wrongful death
or other tortious conduct relating to materials,
commodities or products used, generated, sold,
transferred or manufactured by any of the Borrowers
or their Subsidiaries (including but not limited to
products made of, containing or incorporating
asbestos, lead or other hazardous materials,
commodities or toxic substances), or
(c) the release into the environment
by any of the Borrowers or their Subsidiaries of any
Hazardous Material generated by the Borrowers or any
of their Subsidiaries whether or not occurring at or
on a site owned, leased or operated by any of the
Borrowers or their Subsidiaries.
(iii) To the best of the Borrowers' knowledge,
none of the properties owned or leased by any of the Borrowers
or their Subsidiaries has been used as a treatment, storage or
disposal site.
(iv) To the best of any of the Borrowers'
knowledge, no Hazardous Material is present in any real
property currently or formerly owned or operated by any of the
Borrowers or their Subsidiaries except that which could not
reasonably be expected to result in a Material Adverse Change.
8.11.2 Burdensome Obligations. None of the Borrowers is party to
or bound by any agreement, instrument, deed or lease and is not subject
to any charter, by-law or other restriction which, in the opinion of
the management of the Borrowers, is so unusual or burdensome as in the
foreseeable future to result, or pose a material risk of resulting, in
a Material Adverse Change.
8.11.3 Future Expenditures. The Borrowers do not anticipate that
future expenditures, if any, by the Borrowers needed to meet the
provisions of any then existing federal, state or foreign governmental
statutes, orders, rules or regulations will be so burdensome as to
result, or pose a material risk of resulting, in any Material Adverse
Change.
8.12 Pension Plans. Neither the Borrowers nor any Subsidiary has any Plan
in effect as of the date hereof except for Plans of which the Lenders have been
notified in writing and are in compliance with Section 7.14. Neither the
Borrowers nor any Subsidiary has any liability (contingent or otherwise) under
Title IV of ERISA or under Section 412 of the Code nor is any of the Borrowers
or any Subsidiary currently a participant in a "multiemployer plan" (as defined
in Section 4001(a)(3) of ERISA).
8.13 Disclosure. Neither this Agreement nor any other Credit
Document to be furnished to the Lenders by or on behalf of any of the Borrowers
or any Subsidiary in connection with the transactions contemplated hereby or by
such Credit Document contains any
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances under which they were made. No fact is actually known to
any of the Borrowers which has resulted, or in the future (so far as any of the
Borrowers can reasonably foresee) will result in any Material Adverse Change,
except to the extent that present or future general economic conditions may
result in a Material Adverse Change.
9. Defaults.
9.1 Events of Default. The following events are referred to as
"Events of Default":
9.1.1 Any of the Borrowers shall fail to make any payment in
respect of: (i) interest or any fee on or in respect of any of the
Credit Obligations owed by them as the same shall become due and
payable, and such failure shall continue for a period of five Banking
Days, or (ii) principal of any of the Credit Obligations owed by them
as the same shall become due, whether at maturity or by acceleration or
otherwise.
9.1.2 Any of the Borrowers shall fail to perform or observe
any of the provisions of Sections 7.5 through 7.21.
9.1.3 Any of the Borrowers or any of their Subsidiaries or any of
their respective Affiliates party to any Credit Document shall fail to
perform or observe any other covenant, agreement or provision to be
performed or observed by them under this Agreement or any other Credit
Document after giving effect to the applicable grace periods. Such
failure shall not be rectified or cured to the written satisfaction of
the Majority Lenders within 30 days after notice thereof by the Agent
to any of the Borrowers.
9.1.4 Any representation or warranty of or with respect to any of
the Borrowers, any Subsidiary or any of their respective Affiliates
party to any Credit Document made to the Lenders in, pursuant to or in
connection with this Agreement or any other Credit Document shall prove
to have been false in any material respect upon the date when made and
the condition, transaction or event which causes such representation or
warranty to be false has had a Material Adverse Change.
9.1.5 (i) Any of the Borrowers or any of their Subsidiaries or
BCS Group shall fail to make any payment when due (after giving effect
to any applicable grace periods) in respect of any Financing Debt the
principal amount of which exceeds $1,000,000 (other than the Credit
Obligations);
(ii) any of the Borrowers or any Subsidiary or BCS
Group shall fail to perform or observe the terms of any agreement
relating to such Financing Debt, and such failure or condition shall
continue, without having been duly cured, waived or consented to,
beyond the period of grace, if any, specified in such agreement or, if
such Financing Debt is in respect of the notes issued under the
Securities Purchase Agreements for 30 days or longer beyond the period
of grace, if any, specified in such Securities Purchase Agreements;
(iii) any such Financing Debt of any of the Borrowers
or any Subsidiary or BCS Group shall be accelerated or become due or
payable prior to its stated maturity for any reason whatsoever (other
than voluntary prepayments thereof);
(iv) any Lien on any property of any of the Borrowers
or any Subsidiary securing any such Financing Debt shall be enforced by
foreclosure or similar action; or
(v) any holder of any such Financing Debt shall
exercise any right of rescission with respect to the issuance thereof.
9.1.6 Except as permitted by Section 7.12, any of the Borrowers
shall cease to own, directly or indirectly, all the capital stock of
any of their Subsidiaries other than certain existing shares of
Preferred Stock of Ski Lifts.
9.1.7 Any Credit Document shall cease, for any reason (other than
the scheduled termination thereof in accordance with its terms), to be
in full force and effect, or any of the Borrowers, any Subsidiary or
any of their respective Affiliates party thereto shall so assert, or
the security interests created by this Agreement and the other Credit
Documents shall cease to be enforceable and of the same effect and
priority purported to be created hereby.
9.1.8 A final judgment which, with other outstanding final
judgments against any of the Borrowers and their Subsidiaries, exceeds
an aggregate of $1,000,000 (after consideration of applicable insurance
proceeds) shall be rendered against any of the Borrowers or any of
their Subsidiaries or Affiliates party to any Credit Document and if,
within 60 days after entry thereof, such judgment shall not have been
discharged or execution thereof stayed pending appeal, or if, within 60
days after the expiration of any such stay, such judgment shall not
have been discharged.
9.1.9 Any of the Borrowers, any Subsidiary or any of their
respective Affiliates obligated with respect to any Credit Obligation
shall:
(i) commence a voluntary case under the
Bankruptcy Code or authorize, by appropriate proceedings of its board of
directors or other governing body, the commencement of such a voluntary case;
(ii) have filed against it a petition
commencing an involuntary case under the Bankruptcy Code which shall not have
been dismissed within 60 days after the date on which such petition is filed; or
file an answer or other pleading within such 60-day period admitting or failing
to deny the material allegations of such a petition or seeking, consenting to or
acquiescing in the relief therein provided;
(iii) have entered against it an order for
relief in any involuntary case commenced under the Bankruptcy Code;
(iv) seek relief as a debtor under any
applicable law, other than the Bankruptcy Code, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in such
relief;
(v) have entered against it an order by a
court of competent jurisdiction (a) finding it to be bankrupt or insolvent, (b)
ordering or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors or (c) assuming custody of, or
appointing a receiver or other custodian for, all or a substantial portion of
its property; or
(vi) make an assignment for the benefit
of, or enter into a composition with, its creditors, or appoint, or consent to
the appointment of, or suffer to exist a receiver or other custodian for, all or
a substantial portion of its property.
9.1.10 Any Control Group Person shall fail to pay when due amounts
aggregating in excess of $500,000 which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any Control Group
Person or administrator; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to administer any
Material Plan or a proceeding shall be instituted by a fiduciary of any Material
Plan against any Control Group Person to enforce section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated.
9.1.11 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. is no longer an incumbent
director or officer of BCS Holdings, or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. is no longer
actively involved in the management of the Resorts.
9.1.12 (i) BCS Group shall cease to own 100% of the capital
stock of BCS Holdings;
(ii) the approval by the holders of capital
stock of BCS Group of any plan or proposal for the liquidation or dissolution of
BCS Group;
(iii) ▇▇▇▇ ▇▇▇▇▇▇▇ and its Affiliates (other than its
portfolio companies)shall cease to beneficially own (within the
meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, voting
stock (or non-voting stock convertible into voting stock) representing at least
30% of the total voting power of all voting stock of BCS Group; or Booth Creek
LLLP shall cease to beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, voting stock representing at least (x)
50% of the total voting power of all voting stock of BCS Group prior to the
exercise of the ▇▇▇▇ ▇▇▇▇▇▇▇ warrants, the CIBC warrants and any management
options and (y) 35% of the total voting power of all voting stock of BCS Group
after the exercise of all such warrants and options;
(iv) except for Permitted BCS Group Owners, any
Person or group of related persons for purposes of Section 13(d) of the Exchange
Act (a "Group"), together with any affiliates thereof, shall become the owner,
directly or indirectly, beneficially or of record, of voting stock representing
more than 35% of the total voting power of all voting stock of BCS Group;
(v) Booth Creek LLLP shall cease to have the right to
appoint a majority of the Board of Directors of BCS Group;
(vi) the replacement of a majority of the Board of
Directors of either of BCS Group or BCS Holdings over a two-year period from the
directors who constituted the Board of Directors of BCS Group or BCS Holdings,
respectively, at the beginning of such period, and such replacement shall not
have been approved by a vote of at least two-thirds of the Board of Directors of
BCS Group or BCS Holdings, respectively, then still in office who either were
members of such Board of Directors at the beginning of such period or whose
election as a member of such Board of Directors was previously so approved; or
(vii) the occurrence of any "Change of Control" as
defined in the Senior Indenture.
9.2 Certain Actions Following an Event of Default. If any one or
more Events of Default shall occur, then in each and every such case:
9.2.1 No Obligation to Extend Credit. Upon notice from the
Agent to any of the Borrowers, the obligations of the Lenders to make any
further extensions of credit hereunder shall terminate.
9.2.2 Specific Performance; Exercise of Rights. The Agent may
(and upon written request of the Majority Lenders shall) proceed to protect and
enforce the Lenders' rights by suit in equity, action at law and/or other
appropriate proceeding, either for specific performance of any covenant or
condition contained in this Agreement or any other Credit Document or in any
instrument or assignment delivered to the Lenders pursuant to this Agreement or
any other Credit Document, or in aid of the exercise of any power granted in
this Agreement or any other Credit Document or any such instrument or
assignment.
9.2.3 Enforcement of Payment Credit Securities Setoff. The Agent
may (and upon written request of the Majority Lenders shall) proceed to enforce
payment of the Credit Obligations in such manner as it may elect and to realize
upon any and all rights in the Credit Security, and the Lenders may offset and
apply toward the payment of such balance (and/or toward the curing of any Event
of Default) any Indebtedness from the Lenders to the respective Obligors,
including any Indebtedness represented by deposits in any account maintained
with the Lenders, regardless of the adequacy of any security for the Credit
Obligations, and the Lenders shall have no duty to determine the adequacy of any
such security in connection with any such offset.
9.2.4 Acceleration. The Agent on behalf of the Lenders may (and
upon written request of the Majority Lenders shall) by notice in writing to any
of the Borrowers (i) declare all or any part of the unpaid balance of the Credit
Obligations then outstanding to be immediately due and payable, and thereupon
such unpaid balance or part thereof shall become so due and payable, and (ii)
require the Borrowers immediately to deposit with the Agent in cash an amount
equal to the then Maximum Exposure Under Letters of Credit, and thereupon such
unpaid balance or part thereof and such amount equal to the Maximum Exposure
Under Letters of Credit shall become so due and payable, all without
presentation, protest or further demand or notice of any kind, all of which are
hereby expressly waived; provided, however, that if a Bankruptcy Default shall
have occurred, the unpaid balance of the Credit Obligations shall automatically
become immediately due and payable.
9.2.5 Cumulative Remedies. To the extent not prohibited by
applicable law which cannot be waived, all of the Agent's and the Lenders'
rights hereunder and under each other Credit Document shall be cumulative.
9.3 Annulment of Defaults. Any Default or Event of Default shall be
deemed not to exist or to have occurred for any purpose of this Agreement if the
required holders of Credit Obligations in accordance with Section 11.6 or the
Agent (with any consent of holders of Credit Obligations required by Section
11.6) shall have waived such Default or Event of Default in writing, stated in
writing that the same has been cured to such Lenders' reasonable satisfaction or
entered into an amendment to this Agreement which by its express terms cures
such Default or Event of Default. No such action by the Lenders or the Agent
shall extend to or affect any subsequent Default or Event of Default or impair
any rights of the Lenders upon the occurrence thereof. The making of any
extension of credit during the existence of any Default or Event of Default
shall not constitute a waiver thereof.
9.4 Waivers. Each of the Borrowers hereby waives to the extent not
prohibited by applicable law:
(i) all presentments, demands for
performance, notices of nonperformance (except to the extent required by the
provisions of this Agreement or any other Credit Document), protests, notices of
protest and notices of dishonor,
(ii) any requirement of diligence or
promptness on the part of any Lender in the enforcement of its rights under this
Agreement, the Notes or any other Credit Document,
(iii) any and all notices of every kind
and description which may be required to be given by any statute or rule of law,
except as expressly required in any Credit Document, and
(iv) any defense of any kind (other than
indefeasible payment in full) which it may now or hereafter have with respect to
its liability under this Agreement, the Notes or any other Credit Document or
with respect to the Credit Obligations.
10. Expenses; Indemnity.
10.1 Expenses. Whether or not the transactions contemplated
hereby shall be consummated, the Borrowers will bear
(i) all reasonable out of pocket
expenses of the Lenders (including the reasonable fees and disbursements of the
special and local counsel to the Agent, but excluding fees and expenses of
counsel to the other Lenders) in connection with the preparation and duplication
of this Agreement, each other Credit Document, the transactions contemplated
hereby and thereby and each closing hereunder, and any amendments,
modifications, approvals, consents or waivers hereunder;
(ii) all recording and filing fees and
transfer and documentary stamp and similar taxes at any time payable in respect
of this Agreement, any other Credit Document, any Credit Security or the
incurrence of the Credit Obligations; and
(iii) to the extent not prohibited by
applicable law that cannot be waived, after the occurrence and during the
continuance of any Default or Event of Default, all other reasonable expenses
incurred by the Lenders or the holder of any Credit Obligation in connection
with the enforcement of any rights hereunder or under any other Credit Document,
including costs of collection and reasonable attorneys' fees (including a
reasonable allowance for the hourly cost of attorneys employed by the Lenders on
a salaried basis) and expenses; and
(iv) fees and disbursements of the Agent
in connection with the Acquisition Appraisals and any updated Appraisals
conducted pursuant to Section 7.4.7.
10.2 General Indemnity. The Borrowers will indemnify the Lenders and hold
them harmless from any liability, loss or damage resulting from the violation by
the Borrowers of Section 2.1.3. The Borrowers will also indemnify each Lender,
each of the Lenders' directors, officers and employees, and each Person, if any,
who controls any Lender (each Lender and each of such directors, officers,
employees and control Persons is referred to as an "Indemnitee") and hold each
of them harmless from and against any and all claims, damages, liabilities and
reasonable expenses (including reasonable fees and disbursements of counsel with
whom any Indemnitee may consult in connection therewith and all reasonable
expenses of litigation or preparation therefor) which any Indemnitee may incur
or which may be asserted against any Indemnitee in connection with (i) the
existence or exercise of any of the security rights with respect to the Credit
Security in accordance with the Credit Documents or (ii) any other litigation or
investigation involving the Borrowers, any Subsidiaries or Affiliates, or any
officer, director or employee thereof (including the Lenders' compliance with or
contest of any subpoena or other process issued against them in any proceeding
involving the Borrowers or any Subsidiaries or Affiliates), other than
litigation commenced by the Borrowers against the Lenders which seeks
enforcement of any of the rights of the Borrowers hereunder or under any other
Credit Document and is finally determined adversely to the Lenders and except to
the extent such claims, damages, liabilities and expenses result from an
Indemnitee's gross negligence or willful misconduct.
10.3 Indemnity With Respect to Letters of Credit. Any action, inaction or
omission on the part of the Agent or any of its correspondents under or in
connection with any Letter of Credit or the relative instruments, documents or
property, if in good faith and not constituting gross negligence or willful
misconduct, shall be binding upon each Borrower and shall not place the Agent or
any of its correspondents under any liability to any Borrower. Each Borrower
agrees to indemnify the Agent and its correspondents and hold them harmless from
and against any and all claims, losses, liabilities and damages, including
without limitation reasonable attorneys' fees, arising from or in connection
with any Letter of Credit, including any such claim, loss, liability or damage
arising out of any transfer, sale, delivery, surrender or endorsement of any
invoice, ▇▇▇▇ of lading, warehouse receipt or other document at any time held by
the Agent, or held for its account by any of its correspondents, in connection
with any Letter of Credit; provided, however, that the foregoing shall not
extend to actions taken by the Agent unless such actions were taken in good
faith by the Agent and, with respect to drafts presented for payment, if it
determines in good faith that the drafts and related documents appear on their
face to be in accordance with the terms and conditions of the Letter of Credit
in question, and any action or failure to act in accordance with a written
opinion of its counsel shall conclusively be deemed to be in good faith.
11. Operations.
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.
11.2 Agent's Authority to Act. Each of the Lenders hereby appoints and
authorizes the Agent to act for the Lenders as the Lenders' Agent in connection
with the transactions contemplated by this Agreement and the other Credit
Documents on the terms set forth herein.
11.3 Borrowers to Pay Agent, etc. The Borrowers shall be fully protected
in making all payments in respect of the Credit Obligations to the Agent, in
relying upon consents, modifications and amendments executed by the Agent
purportedly on the Lenders' behalf, and in dealing with the Agent as herein
provided. The Agent shall charge the accounts of the Borrowers, any amounts paid
by the Agent to third parties under Letters of Credit or drafts presented
thereunder, Letter of Credit fees, on the dates when the amounts thereof become
due and payable, with the amounts of the principal of and interest on the Loan
for the Borrowers, commitment fees, and all other fees and amounts owing under
any Credit Document.
11.4 Lender Operations for Advances, etc.
11.4.1 Advances. On each Closing Date, each Lender shall advance
to the Agent in immediately available funds such Lender's Percentage
Interest in the portion of the Loans advanced on such Closing Date
prior to 10:00 a.m. (Boston time). If such funds are not received at
such time, but all the conditions set forth in Section 5 have been
satisfied, each Lender hereby authorizes and requests the Agent to
advance for the Lender's account, pursuant to the terms hereof, the
Lender's respective Percentage Interest in such portion of the Loan and
agrees to reimburse the Agent in immediately available funds for the
amount thereof prior to 2:00 p.m. (Boston time) on the day any portion
of the Loans is advanced hereunder; provided, however, that the Agent
shall be under no obligation to make any such advance.
11.4.2 Agent to Allocate Payments. All payments of principal and
interest in respect of the extensions of credit made pursuant to this
Agreement, commitment fees, and other fees under this Agreement shall,
as a matter of convenience, be made by the Borrowers to the Agent in
immediately available funds, and the share of each Lender shall be
credited to such Lender by the Agent in immediately available funds in
such manner that the principal amount of the Credit Obligations to be
paid shall be paid proportionately in accordance with the Lenders'
respective Percentage Interests in such Credit Obligations.
11.4.3 Letters of Credit. Each of the Lenders hereby authorizes
and requests the Agent to issue the Letters of Credit and to grant each
Lender a participation in each of such Letter of Credit in an amount
equal to its Percentage Interest in the amount of each such Letter of
Credit. Promptly upon the request of the Agent, each Lender hereby
agrees to reimburse the Agent in immediately available funds for such
Lender's Percentage Interest in the amount of all obligations to third
parties incurred by the Agent in respect of each Letter of Credit and
each draft accepted under a Letter of Credit to the extent not
reimbursed by the Borrowers. The Agent will notify each Lender monthly
of the issuance of any Letter of Credit, the amount and date of payment
of any draft drawn or accepted under a Letter of Credit and whether in
connection with the payment of any such draft the amount thereof was
added to the Revolving Loan or was reimbursed by the Borrowers.
11.5 Sharing of Payments, etc. Each Lender agrees that (i) if by
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to its Percentage Interest in the Loan which is greater than the
proportion received by any other Lender in respect of the aggregate amount of
principal and interest due with respect to the Percentage Interest in the Loan
of such other Lender and (ii) if such inequality shall continue for more than 10
days, the Lender receiving such proportionately greater payment shall purchase
participations in the Percentage Interests in the Loans held by the other
Lenders, and such other adjustments shall be made from time to time, as may be
required so that all such payments of principal and interest with respect to the
Loans held by the Lenders shall be shared by the Lenders pro rata in accordance
with their respective Percentage Interests; provided, however, that this Section
11.5 shall not impair the right of any Lender to exercise any right of set-off
or counterclaim it may have and to apply the amount subject to such exercise to
the payment of Indebtedness of any Obligor other than Indebtedness with respect
to the Loans. The Borrowers agree, to the fullest extent permitted by applicable
law, that any Credit Participant and any Lender purchasing a participation from
another Lender pursuant to this Section 11.5 may exercise all rights of payment
(including the right of set-off), and shall be obligated to share payments under
this Section 11.5, with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Borrowers and a
Lender hereunder in the amount of such participation.
11.6 Amendments, Consents, Waivers, etc. Except as otherwise set forth
herein, the Agent may (and upon the written request of the Majority Lenders
shall) take or refrain from taking any action under this Agreement or any other
Credit Document, including giving its written consent to any modification of or
amendment to and waiving in writing compliance with any covenant or condition in
this Agreement or any other Credit Document or any Default or Event of Default
hereunder or thereunder, all of which actions shall be binding upon all of the
Lenders; provided, however, that without the written consent of such Lenders as
own 100% of the Percentage Interests (other than Delinquent Lenders during the
existence of a Delinquency Period so long as such Delinquent Lender is treated
the same as the other Lenders with respect to any actions enumerated below):
(i) No reduction in the interest rate on
the Loans shall be made.
(ii) No extension or postponement of the
stated time of payment of all or any portion of the Loans
or interest thereon shall be made.
(iii) No increase in the amount, or
extension of the term, of the Lenders' commitments beyond that
provided for in Section 2 shall be made.
(iv) No alteration of the Lenders'
several rights of set-off contained in Section 11.5 shall be
made.
(v)No release of any Credit Security other
than as permitted by Section 7.9 or 7.12 and other than assets
having an aggregate fair value not exceeding $2,000,000 shall
be made.
11.7 Agent's Resignation. The Agent may resign at any time by giving at
least 60 days' prior written notice of its intention to do so to each of the
Lenders and upon the appointment by the Majority Lenders of a successor Agent
satisfactory to the Borrowers. If no successor Agent shall have been so
appointed and shall have accepted such appointment within 45 days after the
retiring Agent's giving of such notice of resignation, then the retiring Agent
may with the consent of the Borrowers, which shall not be unreasonably withheld,
appoint a successor Agent which shall be a bank or a trust company organized
under the laws of the United States of America or any state thereof and having a
combined capital, surplus and undivided profit of at least $25,000,000;
provided, however, that any successor Agent appointed under this sentence may be
removed upon the written request of the Majority Lenders, which request shall
also appoint a successor Agent satisfactory to the Borrowers. Upon the
appointment of a new Agent hereunder, the term "Agent" shall for all purposes of
this Agreement thereafter mean such successor. After any retiring Agent's
resignation hereunder as Agent, or the removal hereunder of any successor Agent,
the provisions of this Agreement shall continue to inure to the benefit of such
Agent as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
11.8 Concerning the Agent.
11.8.1 Action in Good Faith, etc. The Agent and its officers,
directors, employees and agents shall be under no liability to any of
the Lenders or to any future holder of any interest in the Credit
Obligations for any action or failure to act taken or suffered in good
faith and not constituting gross negligence, and any action or failure
to act in accordance with a written opinion of its counsel shall
conclusively be deemed to be in good faith and not grossly negligent.
The Agent shall in all cases be entitled to rely, and shall be fully
protected in relying, on instructions given to the Agent by the
required holders of Credit Obligations as provided in this Agreement.
11.8.2 No Implied Duties, etc. The Agent shall have and
may exercise such powers as are specifically delegated to the Agent
under this Agreement or any other Credit Document together with all
other powers incidental thereto. The Agent shall have no implied duties
to any Person or any obligation to take any action under this Agreement
or any other Credit Document except for action specifically provided
for in this Agreement or any other Credit Document to be taken by the
Agent. Before taking any action under this Agreement or any other
Credit Document, the Agent may request an appropriate specific
indemnity satisfactory to it from each Lender in addition to the
general indemnity provided for in Section 11.11 and until the Agent has
received such specific indemnity, the Agent shall not be obligated to
take (although it may in its sole discretion take) any such action
under this Agreement or any other Credit Document.
11.8.3 Validity, etc. Subject to Section 11.8.1, the Agent shall
not be responsible to any Lender or any future holder of any interest
in the Credit Obligations (i) for the legality, validity,
enforceability or effectiveness of this Agreement or any other Credit
Document, (ii) for any recitals, reports, representations, warranties
or statements contained in or made in connection with this Agreement or
any other Credit Document, (iii) for the existence or value of any
assets included in any security for the Credit Obligations, (iv) for
the perfection or effectiveness of any Lien purported to be included in
such security or (v) for the specification or failure to specify any
particular assets to be included in such security.
11.8.4 Compliance. The Agent shall not be obligated to ascertain
or inquire as to the performance or observance of any of the terms of
this Agreement or any other Credit Document; and in connection with any
extension of credit under this Agreement or any other Credit Document,
the Agent shall be fully protected in relying on a certificate of any
of the Borrowers or any guarantor as to the fulfillment by the
Borrowers of any conditions to such extension of credit.
11.8.5 Employment of Agents and Counsel. The Agent may execute any
of its duties as Agent under this Agreement or any other Credit
Document by or through employees, agents and attorneys-in-fact and
shall not be answerable to any of the Lenders, any of the Borrowers or
any other Subsidiary (except as to money or securities received by the
Agent or the Agent's authorized agents) for the default or misconduct
of any such agents or attorneys-in-fact selected by the Agent with
reasonable care. The Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its
duties hereunder or under any other Credit Document.
11.8.6 Reliance on Documents and Counsel. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
affidavit, certificate, cablegram, consent, instrument, letter, notice,
order, document, statement, telecopy, telegram, telex or teletype
message or writing reasonably believed in good faith by the Agent to
the genuine and correct and to have been signed, sent or made by the
Person in question, including without limitation any telephonic or oral
statement made by such Person, and, with respect to legal matters, upon
the written opinion of counsel selected by the Agent.
11.8.7 Agent's Reimbursement. Each of the Lenders severally agrees
to reimburse the Agent in the amount of such Lender's Percentage
Interest, for any expenses not reimbursed by the Borrowers (without
limiting the obligation of the Borrowers to make such reimbursement):
(i) for which the Agent is entitled to reimbursement by the Borrowers
under this Agreement or any other Credit Document, and (ii) after the
occurrence of a Default, for any other expenses incurred by the Agent
on the Lenders' behalf in connection with the enforcement of the
Lenders' rights under this Agreement or any other Credit Document.
11.9 Rights as a Lender. With respect to any credit extended by it
hereunder, BankBoston, N.A. shall have the same rights, obligations and powers
hereunder as any other Lender and may exercise such rights and powers as though
it were not the Agent, and unless the context otherwise specifies, BankBoston,
N.A. shall be treated in its individual capacity as though it were not the Agent
hereunder. Without limiting the generality of the foregoing, the Percentage
Interest of BankBoston, N.A. shall be included in any computations of Percentage
Interests. BankBoston, N.A. and its Affiliates may accept deposits from, lend
money to, act as trustee for and generally engage in any kind of banking or
trust business with the Borrowers, any Subsidiary or any Affiliate of any of
them and any Person who may do business with or own an equity interest in the
Borrowers, any of its Subsidiaries or any Affiliate of any of them, all as if
such bank were not the Agent and without any duty to account therefor to the
other Lenders.
11.10 Independent Credit Decision. Each of the Lenders acknowledges that it
has independently and without reliance upon the Agent, based on the financial
statements and other documents referred to in Section 8.2, on the other
representations and warranties contained herein and on such other information
with respect to each of the Borrowers and their respective Subsidiaries as such
Lender deemed appropriate, made such Lender's own credit analysis and decision
to enter into this Agreement and to make the extensions of credit provided for
hereunder. Each Lender represents to the Agent that such Lender will continue to
make its own independent credit and other decisions in taking or not taking
action under this Agreement or any other Credit Document. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to such Lender, and no act by the Agent taken under this Agreement
or any other Credit Document, including any review of the affairs of the
Borrowers and any of their Subsidiaries, shall be deemed to constitute any
representation or warranty by the Agent. Except for notices, reports and other
documents expressly required to be furnished to each Lender by the Agent under
this Agreement or any other Credit Document, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition, financial or
otherwise, or credit worthiness of the Borrowers or any of their Subsidiaries
which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
11.11 Indemnification. The holders of the Credit Obligations hereby agree
to indemnify the Agent (to the extent not reimbursed by the Obligors and without
limiting the obligation of any of the Obligors to do so), pro rata according to
their respective Percentage Interests, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against the Agent relating to or arising out
of this Agreement, any other Credit Document, the transactions contemplated
hereby or thereby, or any action taken or omitted by the Agent in connection
with any of the foregoing; provided, however, that the foregoing shall not
extend to actions or omissions which are taken by the Agent with gross
negligence or willful misconduct.
12 Successors and Assigns. Any reference in this Agreement to any of the parties
hereto shall be deemed to include the successors and assigns of such party, and
all covenants and agreements by or on behalf of the Borrowers, the Agent or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns; provided, however, that (a) the
Borrowers may not assign their rights or obligations under this Agreement, and
(b) the Lenders may not assign their respective Percentage Interests in the Loan
hereunder except as set forth below in this Section 12.
12.1 Assignments by Lenders.
12.1.1 Assignees and Assignment Procedures. Any Lender may, with
the consent of the Borrowers (which consent shall not be unreasonably
withheld and provided that such consent shall not be required if a
Default exists at the time of such assignment) and the consent of the
Majority Lenders (which consent shall not be unreasonably withheld),
assign to one or more banks or other institutional lenders (each an
"Assignee") (a) in the case of any Lender other than the Agent, all or
a portion, which shall not be less than $5,000,000 and (b) in the case
of the Agent, all or a portion (which shall not be less than
$5,000,000), of its interests, rights and obligations under this
Agreement and the other Credit Documents; provided, however, that prior
to any reduction in the Maximum Amount of Revolving Credit, the Agent
shall hold not less than $10,000,000 principal amount of the Revolving
Note. From and after the effective date specified in each assignment
agreement:
(i) the Assignee shall be a party hereto
and, to the extent provided in such assignment agreement have
the rights and obligations of the assigning Lender under this
Agreement, and
(ii) the assigning Lender shall, to the
extent provided in such assignment, be released from its
obligations under this Agreement.
12.1.2 Acceptance of Assignment and Assumption. Upon the execution
of an assignment agreement pursuant to this Section 12, the assigning
Lender shall give prompt notice thereof to the Borrowers and the Agent.
Within five Banking Days after receipt of notice, the Borrowers, at
their own expense, shall execute and deliver to the assigning Lender,
in exchange for each surrendered Note, (i) a new Note to the order of
such Assignee in a principal amount equal to the amount of the Loans
evidenced by the surrendered Note which has been assumed by such
Assignee pursuant to such assignment agreement and (ii) a new Note to
the order of the assigning Lender in a principal amount equal to the
amount of the Loan evidenced by the surrendered Note which has been
retained by such assigning Lender. Such new Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of
the surrendered Notes, and shall be dated the date of the surrendered
Notes which they replace.
12.1.3 Federal Reserve Bank. Notwithstanding the foregoing
provisions of this Section 12, each Lender and any Assignee may at any
time pledge or assign all or any portion of such Person's rights under
this Agreement and the other Credit Documents to a Federal Reserve
Bank; provided, however, that no such pledge or assignment shall
release such Person from such Person's obligations hereunder or under
any other Credit Document.
12.1.4 Further Assurances. The Borrowers shall sign such
documents and take such other actions from time to time reasonably
requested by an Assignee to enable it to share in the benefits of
the rights created by the Credit Documents.
12.2 Credit Participants. Any Lender may, without the consent of the
Borrowers, in compliance with applicable laws in connection with such
participation, sell to one or more "qualified institutional investors" as
defined in Rule 144A under the Securities Act (each a "Credit Participant")
participations in all or a portion of its interests, rights and obligations
under this Agreement and the other Credit Documents; provided, however, that:
(a) such Lender's obligations under this
Agreement shall remain unchanged;
(b) such Lender shall remain solely responsible
to the other parties hereto for the performance of such
obligations; and
(c) the Borrowers shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of the
Borrowers under this Agreement or any Credit Document and to
approve any amendment, modification or waiver of any provision
of this Agreement or any Credit Document (other than
amendments, modifications or waivers with respect to any fees
payable hereunder or the amount of principal of or the rate at
which interest is payable on the Loan, or the stated dates for
payments of principal of or interest on the Loan).
13. Notices. Except as otherwise specified in this Agreement,any notice required
to be given pursuant to this Agreement shall be given in writing. Any notice,
demand or other communication in connection with this Agreement shall be deemed
to be given if given in writing (including telex, telecopy or similar
teletransmission) addressed as provided below (or to the addressee at such other
address as the addressee shall have specified by notice actually received by the
addressor), and if either (i) actually delivered in fully legible form to such
address (evidenced in the case of a telex by receipt of the correct answer back)
or (ii) in the case of a letter, five days shall have elapsed after the same
shall have been deposited in the United States mails, with first-class postage
prepaid and registered or certified.
If to any of the Borrowers, to them at their addresses set forth in
Exhibit 8.1 (as supplemented pursuant to Section 7.4), to the attention of their
respective Presidents with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Winston & ▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
If to the Agent, to it at its address set forth on the signature page
of this Agreement, to the attention of the account offices specified on the
signature page, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., P.C., ▇▇▇▇▇▇▇, Procter
& ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
If to any Lenders, to them at their respective addresses set forth on
the signature page of this Agreement, to the attention of the account officer
specified on the signature page, with a copy to the Agent.
14. Course of Dealing, Amendments and Waivers. No course of dealing between any
Lenders and the Borrowers or any Subsidiary or Affiliate of the Borrowers shall
operate as a waiver of any of the Lenders' rights under this Agreement or any
other Credit Document or with respect to the Credit Obligations. No delay or
omission on the part of any Lender in exercising any right under this Agreement
or any other Credit Document or with respect to the Credit Obligations shall
operate as a waiver of such right or any other right hereunder or thereunder. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right or remedy on any future occasion. No waiver, consent or amendment with
respect to this Agreement or any other Credit Document shall be binding unless
it is in writing and signed by the Agent or the holders of the required Credit
Obligations.
15. Defeasance. When all Credit Obligations have been paid, performed and
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Borrowers hereunder or under any other Credit Document, this
Agreement shall terminate and, at the Borrowers' written request, accompanied by
such certificates and opinions as the Borrowers and the Agent shall reasonably
deem necessary, the Credit Security shall revert to the Borrowers and the right,
title and interest of the Lenders therein shall terminate. Thereupon, on the
Borrowers' demand and at their cost and expense, the Agent shall execute proper
instruments, acknowledging satisfaction of and discharging this Agreement, and
shall redeliver to the Borrowers any Credit Security then in its possession;
provided, however, that Sections 11.8.7, 11.11, 16, 17 and 19 shall survive the
termination of this Agreement.
16. Venue; Service of Process. Each of the Borrowers and the Lenders by
its execution hereof:
(i) Irrevocably submits to the nonexclusive
jurisdiction of the state courts of The Commonwealth of
Massachusetts and to the nonexclusive jurisdiction of the
United States District Court for the District of Massachusetts
for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof.
(ii) Waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as
a defense or otherwise, in any such proceeding brought in any
of the above-named courts, any claim that it is not subject
personally to the jurisdiction of such court, that its
property is exempt or immune from attachment or execution,
that such proceeding is brought in an inconvenient forum, that
the venue of such proceeding is improper, or that this
Agreement or any other Credit Document, or the subject matter
hereof or thereof, may not be enforced in or by such court.
Each of the Borrowers and the Lenders consents to service of process in any such
proceeding in any manner permitted by Chapter 223A of the General Laws of The
Commonwealth of Massachusetts and agrees that service of process by registered
or certified mail, return receipt requested, at its address specified in or
pursuant to Section 13 is reasonably calculated to give actual notice.
17. Joint and Several Liability. Any obligations of the Borrowers,
including without limitation any obligations of any of the Borrowers, shall be
joint and several obligations of the Borrowers.
18 General. All covenants, agreements, representations and warranties made in
this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been material and relied on
by each Lender, notwithstanding any investigation made by any Lender on its
behalf, and shall survive the execution and delivery to the Lenders hereof and
thereof. The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or provision
hereof. The headings in this Agreement are for convenience of reference only and
shall not limit, alter or otherwise affect the meaning hereof. This Agreement
and the other Credit Documents constitute the entire understanding of the
parties with respect to the subject matter hereof and thereof and supersede all
prior and current understandings and agreements, whether written or oral. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (OTHER THAN THE
CONFLICT OF LAWS RULES).
19. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
CANNOT BE WAIVED, EACH OF THE BORROWERS, THE OTHER OBLIGORS, THE AGENT AND THE
LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN
ANY WAY CONNECTED WITH THE DEALINGS OF THE LENDERS, THE AGENT, OR THE BORROWERS
OR ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE.
Each of the Borrowers and the other Obligors acknowledges that it has been
informed by the Agent that the provisions of this Section 19 constitute a
material inducement upon which each of the Lenders has relied and will rely in
entering into this Agreement and any other Credit Document, and that it has
reviewed the provisions of this Section 19 with its counsel. Any Lender, the
Agent, the Borrowers or any other Obligor may file an original counterpart or a
copy of this Section 19 with any court as written evidence of the consent of the
Borrowers, the other Obligors, the Agent and the Lenders to the waiver of their
rights to trial by Jury.
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
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP.
By:
Title: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice
President
BANKBOSTON, N.A.
as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANKBOSTON, N.A.
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT 2.1.4
FORM OF REVOLVING NOTE
N-___ As of October 30, 1998
FOR VALUE RECEIVED, the undersigned, 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"), LMRC Holding Corp., a Delaware corporation
(together with its successor 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 BCS
Holdings, BCS Acquisition, Northstar-at-Tahoe, Sierra-at-Tahoe, Bear Mountain,
Waterville, Cranmore, Ski Lifts, Grand Targhee, LMRC Holding and Loon the
"Borrowers", and each a "Borrower"), hereby jointly and severally promise to pay
[Insert Lender] (the "Lender") or order, on the Final Maturity Date, 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, 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 and as further amended and restated as of October 30, 1998, as from time to
time in effect (the "Credit Agreement"), among the Borrowers, 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.
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.
BOOTH CREEK SKI HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: -------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
BOOTH CREEK SKI ACQUISITION CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: --------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
TRIMONT LAND COMPANY
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
SIERRA-AT-TAHOE, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
BEAR MOUNTAIN, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
WATERVILLE VALLEY SKI
RESORT, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
MOUNT CRANMORE SKI RESORT,
INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
SKI LIFTS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
GRAND TARGHEE INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
LMRC HOLDING CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
LOON MOUNTAIN RECREATION
CORPORATION
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
LOON REALTY CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: ------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
LOAN AND PAYMENTS OF PRINCIPAL
Amount Amount of Unpaid
of Principal Principal Notation
Date Loan Repaid Balance Made By
EXHIBIT 5.2.1
FORM OF OMNIBUS OFFICER'S CERTIFICATE
(For Closing Date)
Pursuant to Section 5.2.1 of the Credit Agreement dated as of December
3, 1996, as amended and restated as of March 18, 1997 and as further amended and
restated as of October 30, 1998, 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 and 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 Section 8 of the
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, other than
representations or warranties that by their terms refer to a specific date other
than the Closing Date, in which case, as of such date, 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 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 as of this 28 day of
January 1999.
BOOTH CREEK SKI HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
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: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
EXHIBIT 7.4.1
OFFICER'S CERTIFICATE
(For Annual Financial Statements and Reports)
Pursuant to Section 7.4.1 of the Credit Agreement dated as of December
3, 1996, as amended and restated as of March 18, 1997 and as further amended and
restated as of October 30, 1998, 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 and 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 (i) no Default exists as of the date hereof except as set forth in
Exhibit A attached hereto; (ii) no changes have occurred in GAAP since October
30, 1997 affecting the Borrowers except as set forth in Exhibit B attached
hereto; and (iii) the Schedule of Computations set forth in Exhibit C attached
hereto demonstrates, as of the close of the fiscal year just ended, compliance
with the Computation Covenants.
Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
This certificate has been executed by a duly authorized Financial
Officer of Booth Creek Ski Holdings, Inc. this ____ day of _____________, ____.
BOOTH CREEK SKI HOLDINGS, INC.
By:
Title:
EXHIBIT 7.4.2
OFFICER'S CERTIFICATE
(For Quarterly Financial Statements and Reports)
Pursuant to Section 7.4.2 of the Credit Agreement dated as of December
3, 1996, as amended and restated as of March 18, 1997 and as further amended and
restated as of October 30, 1998, 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 and 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 (i) the financial statements furnished pursuant to Section 7.4.2
have been prepared in accordance with GAAP and present fairly, in all material
respects, the financial position of the Borrowers at the dates thereof and the
results of its operations for the periods covered thereby, subject only to
normal year-end audit adjustments and the addition of footnotes; (ii) no Default
exists as of the date hereof except as set forth in Exhibit A attached hereto;
and (iii) the Schedule of Computations set forth in Exhibit B attached hereto
demonstrates, as of the close of the fiscal quarter just ended, compliance with
the Computation Covenants.
Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
This certificate has been executed by a duly authorized Financial
Officer of Booth Creek Ski Holdings, Inc., this ___ day of ___________, 19__.
BOOTH CREEK SKI HOLDINGS, INC.
By:
Title:
EXHIBIT 7.18
Environmental Cleanup
1. Snoqualmie Pass, Washington.
o Remove four heating oil underground storage tanks
used to heat several buildings at Snoqualmie and, if
necessary, remediate any contamination associated with such
tanks.
o Repair floors in the maintenance areas at Alpental,
Snoqualmie and Ski Acres resorts so as to eliminate any
potential pathway for hazardous materials into the
environment.
o Evaluate nature and extent of any contamination
associated with two above-ground storage tanks containing
diesel and gasoline located near the Alpental maintenance shop
and any contamination associated with stained soils or pools
of liquid associated with other above-ground storage tanks..
Remediate any contamination discovered with respect to such
tanks in accordance with applicable federal, state and local
laws, rules and regulations.
Provide secondary containment for such tanks.
o Comply with all applicable reporting and record
keeping requirements set forth in ▇▇▇▇ Title III, Sections 311
and 312.
o Test all potentially hazardous wastes generated
onsite to determine if they qualify as hazardous waste under
RCRA or any equivalent state or local law, rule or regulation.
To the extent such wastes are determined to be hazardous, such
wastes must be handled, stored and disposed of in compliance
with all applicable federal, state and local laws, rules or
regulations. Prepare and implement a plan for compliance with
RCRA or any equivalent state or local law, rule or regulation
regarding reporting or record keeping relating to hazardous
wastes.
o Operate any space heaters located at Ski Acres or
other facilities which are used to burn used oil in compliance
with all applicable federal, state or local requirements.
o Perform any testing, record keeping or reporting
required by federal, state or local law, rule or regulation
ground water ▇▇▇▇▇.
o Obtain any required permits for any aboveground or
underground tanks used to store hazardous substances or
petroleum products.
o Create and implement compliance plan for handling
waste antifreeze generated from vehicle maintenance operations
in compliance with all applicable federal, state or local
environmental laws rules or regulations.
o Create and implement compliance plan for handling,
storing and disposing of used oil filters in accordance with
federal, state or local laws, rules or regulations.
o Develop an asbestos operation and maintenance plan
and implement same to assure that the presumed asbestos
containing materials identified in the ENVIRON January 20,
1997 report are properly managed.
o Prepare a spill prevention control and counter
measures plan (SPCC).
o Prepare a written hazard communication plan or a
lockout/tag-out plan and maintain a complete set of MSDS
forms, as required by law.
o Store all oils, hydraulic fluids, solvents or
antifreezes stored at the Alpental, Snoqualmie and Ski Acres
maintenance buildings in approved and segregated hazardous
material storage area and secondary containment must be
provided.
o Remediate visible staining of the floor areas so as
to comply with all applicable federal, state or local
environmental laws rules or regulations.
o Prepare a plan to address the occupational safety
and health issues identified in the January 20, 1997 ENVIRON
report.
2. Grand Targhee Ski & Summer Resort, Alta, Wyoming.
o Evaluate nature and extent of any contamination
associated with soils underlying a concrete pit and two former
floor drains located within the lower maintenance building at
Grand Targhee Ski & Summer Resort as detailed in the February
4, 1997, letter from ENVIRON to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Remediate any contamination discovered with respect to such
pit and drains in accordance with applicable federal, state
and local laws, rules and regulations.
o Complete construction of new wastewater treatment
plant in compliance with applicable federal, state and local
laws, rules and regulations, including the compliance order
entered with the Wyoming Department of Environmental Quality.
Evaluate and, if necessary, remediate or dispose of existing
wastewater treatment lagoon sludges in compliance with
applicable federal, state and local laws, rules and
regulations.
o Evaluate nature and extent of any contamination
associated with several areas of soil contamination identified
in the vicinity of lower maintenance building in the May,
1996, ▇▇▇▇▇▇ Engineering and January 17, 1997 ENVIRON
Corporation reports. Remediate any contamination discovered
with respect to such areas in accordance with applicable
federal, state and local laws, rules and regulations.
o Provide secondary containment for existing
above-ground fuel storage tanks located west of the
maintenance building used to fuel Grand Targhee vehicles and
for the waste oil tank located adjacent to the lower
maintenance building.
o Discontinue practice of vehicle maintenance and
steam cleaning over concrete pit located in the lower
maintenance building.
o Develop an alternative plan for treatment and
disposal of oily wastewater, including installation of an
oil-water separator system and secondary containment for the
waste oil storage tank and discharge of treated water to new
package wastewater treatment system following construction
during 1998/1999 ski season.
o Develop SPCC plan for Grand Targhee.
o Determine whether emergency generators
require registration under WDEQ Air Quality Standards. If so,
register such generators.
o Dispose of all spent mineral spirits in accordance
with all applicable federal, state and local law, rules or
regulations.
o Comply with all applicable reporting and record
keeping requirements set forth in ▇▇▇▇ Title III Sections 311
and 312.
o Prepare written hazard communication plan and a
lockout/tag-out plan, or a noise conservation program as
outlined in the ENVIRON January 1997 report.