FINAL
THIRD AMENDMENT AGREEMENT
THIS THIRD AMENDMENT AGREEMENT (as amended from time to time, this "Third
Amendment Agreement"), dated as of December 31, 2003 among GRAND SUMMIT RESORT
PROPERTIES, INC., a Maine corporation, (herein referred to as "GSRP") and
TEXTRON FINANCIAL CORPORATION, a Delaware corporation (herein referred to as
"TFC").
W I T N E S S E T H:
A. WHEREAS, GSRP and TFC entered into that certain Statement of Intention and
Special Additional Financing Agreement dated July 25, 2000 (as amended to but
excluding the date hereof, the "Existing SOI" and, as amended hereunder,
"Amended SOI"), pursuant to which TFC agreed to make subordinated loans to GSRP
in accordance with the terms of the Existing SOI;
B. WHEREAS, capitalized terms used herein shall have the meanings ascribed to
the same in the Existing SOI and in Section 1 of that certain Seventh Amendment
Agreement (the "Seventh Amendment Agreement"), dated as of December 31, 2003,
among GSRP, TFC, as lender and Administrative Agent, and the other lenders that
are parties to that certain Loan and Security Agreement, dated as of September
28, 1998, among GSRP, TFC, as lender and administrative agent, and said other
lenders (as amended to the date here of, the "Existing LSA" and, after giving
effect to the Seventh Amendment Agreement, the "Amended LSA"); and
C. WHEREAS, the parties to the Existing SOI have agreed to certain amendments
to the Existing SOI, as described and set forth below, which amendments are
intended to be coordinated with the Seventh Amendment Agreement and to also
provide additional funding for GSRP under the Amended SOI (in accordance with
the terms and conditions hereinafter set forth);
NOW, THEREFORE, in consideration of TFC's and GSRP's agreements hereunder,
and in consideration of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, TFC and GSRP hereby agree as
follows:
1. Seventh Amendment Agreement. TFC hereby consents to and approves the
Seventh Amendment Agreement and to all actions provided to be taken therein
(subject to the terms and conditions thereof) with respect to GSRP, the
Administrative Agent and the lenders that are parties thereto.
2. Definition of Existing LSA. The "Existing LSA," as such term is
defined in Section 1(a) of the Existing SOI shall be deemed to mean and include
the "Amended LSA," as defined herein.
3. Release Prices. The release prices referred to in Section 1(c) of the
Existing SOI in respect of the Canyons Project are as set forth in the Amended
LSA. Release prices in respect of the Steamboat Project are as set forth in the
Amended LSA.
4. Steamboat Project. TFC and GSRP acknowledge and agree, with respect to
Section 1(e), (f) and (g) of the Existing SOI, that all construction in respect
of the Steamboat Project is completed and that all Commitments under the
Existing LSA and the Existing SOI have been ended or expired or otherwise
terminated and that the outstanding principal amount of the Loan (other than the
Subordinated Loan Tranche Obligations) as of the date hereof is $30,621,260.03.
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5. Section 1(i) of the Existing SOI. Section 1(i) of the Existing SOI is
hereby amended and restated in its entirety as follows:
(i) Special Financing being provided by this Statement of Intention
and Agreement. TFC, in its individual capacity as a Steamboat Construction
Project Advance Lender and not as Administrative Agent (TFC, as the
advancing lender of the facility hereinafter described in this paragraph
1(i) is referred to herein as the "Special Subordinated Lender"), is
prepared to make, subject to the terms and conditions hereinafter set
forth, available to GSRP in conjunction with the Amended LSA a special
subordinated loan facility up to a maximum principal amount of $10,600,000
(the "Subordinated Loan Tranche") for the sole purpose, prior to the Third
Amendment Effective Date, of financing the Construction Costs necessary to
complete all construction of the Steamboat Project in accordance with the
supplemented Plans for such Project (the "Supplemented Plans"), which shall
reflect the originally approved Plans for the Steamboat Project and such
modifications thereto as are described on Attachment 2 hereto (the
"Steamboat Plan Modifications"), and financing certain Nonconstruction
Costs as provided for in the Second Amendment Agreement prior to the Third
Amendment Effective Date and, on and after the Third Amendment Effective
Date and prior to April 30, 2004, of providing certain working capital
financing to GSRP up to an aggregate of an additional $635,251. All
Construction Costs for the Steamboat Project and in respect of the Mt.
▇▇▇▇▇▇ Circle have been paid for prior to the Third Amendment Agreement
Effective Date and this facility shall be exclusively used to fund, on and
after the Third Amendment Effective Date, working capital costs as set
forth above.
6. Section 1(j) of the Existing SOI. Section 1(j) of the Existing SOI is
hereby amended and restated in its entirety as follows:
(j) Attachments. The Subordinated Loan Tranche is to be evidenced
by one or more amendment attachments (each an "Amendment Attachment"),
substantially in the form of Attachment 4 hereto (as the same may be
further amended), to be executed by GSRP and attached to the Steamboat
Construction Project Note of TFC. Advances in respect of the Subordinated
Loan Tranche ("Subordinated Loan Tranche Advances") would be deemed by GSRP
and TFC to be Steamboat Construction Project Advances under the Existing
LSA and would be secured by all of the Collateral (including, without
limitation, the Steamboat Assignment of Architect's Contract, the Steamboat
Assignment of Contracts, the Steamboat Assignment of Construction Contract,
the Steamboat Assignment of Rents, the Steamboat Assignment of Declarant's
Rights, the Steamboat Assignment of Property-Related Contracts, the
Steamboat Assignment of Rents, the Steamboat Blanket Mortgage, the Canyons
Assignment of Architect's Contract, the Canyons Assignment of Contracts,
the Canyons Assignment of Construction Contract, the Canyons Assignment of
Rents, the Canyons Assignment of Declarant's Rights, the Canyons Assignment
of Property-Related Contracts, the Canyons Assignment of Rents, and the
Canyons Blanket Mortgage), provided that:
(i) the Subordinated Loan Tranche and all Subordinated Loan
Tranche Advances made thereunder by TFC, as the Special Subordinated
Lender, would not count as, or be construed as being a part of,
Steamboat Construction Project Advance Commitments or any other
Commitments (the undertaking of TFC, as the Special Subordinated
Lender, to make Subordinated Loan Tranche Advances to GSRP being
evidenced solely by this Statement of Intention and Agreement on the
terms and conditions hereinafter set forth),
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(ii) the Subordinated Loan Tranche would not be counted as,
or be a part of, Steamboat Loan Exposure or other Loan Exposure under
the Existing LSA,
(iii) TFC, as the Special Subordinated Lender, would not be
counted as, or be a part of, the Steamboat Construction Project
Required Lenders or any other Project Required Lenders and would not
otherwise be counted as or vote as a Lender under the Amended LSA
solely in its capacity as the Special Subordinated Lender hereunder,
provided, however, the Special Subordinated Lender shall have the
right and power to direct the Administrative Agent as the Special
Subordinated Lender after the Senior Obligations (as such term is
hereinafter defined) are paid in full and for so long as the
Subordinated Loan Tranche Obligations are outstanding,
(iv) Except as set forth in Section 8 of the Seventh
Amendment Agreement with respect to cash payment of interest hereunder
(which shall rank pari passu with the payment of interest in respect
of the Steamboat Loan), the Subordinated Loan Tranche and all
Collateral securing the same is and shall be junior and subordinate to
(A) the payment of all Loans and other Obligations under the Existing
LSA (excluding therefrom the Subordinated Loan Tranche Obligations and
the Percentage Sales Fees; such Loans and Obligations subject to such
exclusions are referred to herein, collectively, as the "Senior
Obligations") and (B) the Liens securing the same in the Collateral;
it is the intention of GSRP and TFC, as the Special Subordinated
Lender, that the rights of the Lenders under the Existing LSA shall
not be impaired or prejudiced in any way by this Statement of
Intention and Agreement and it is further the view of GSRP and TFC, as
the Special Subordinated Lender, that the availability of the
Subordinated Loan Tranche is essential to the completion of the
construction of the Steamboat Project, the repayment of the Steamboat
Loan and the continued performance by GSRP of all of its other
undertakings and agreements in the Amended LSA and, accordingly,
directly benefits the Lenders under the Amended LSA, and
(v) GSRP will collaterally assign to the Special
Subordinated Lender (pursuant to an assignment substantially in the
form of Attachment 5 hereto as the same may be amended from time to
time) all of its right, title and interest in and to the "Free and
Clear Proceeds" described in Paragraph 2(b)(iii)(6) below and GSRP
shall authorizes the Administrative Agent to pay such amounts to the
Special Subordinated Lender as provided for in said Paragraph. Until
all Senior Obligations under the Existing LSA have been paid in full,
no proceeds of the Collateral shall be used to repay outstanding
principal or deferred interest in respect of the Subordinated Loan
Tranche Advances as provided for in paragraph 1(k) hereof; however, to
the extent provided for in Section 8 of the Seventh Amendment
Agreement, proceeds of Collateral otherwise payable to the Lenders in
respect of the Steamboat Project under the Amended LSA shall also be
used to pay the "cash interest" due and payable to TFC under Paragraph
1(k) hereof (said cash portion being 10% per annum of the therein
stated, fixed rate of interest of 20% per annum), with such cash being
paid to TFC hereunder, as the Special Subordinated Lender, at the same
time as interest is being paid to TFC, as a Lender to the Steamboat
Project under the Amended LSA (with respect to any monthly interest
payment due hereunder, the "Cash Interest Payment").
GSRP shall execute and deliver to TFC in exchange for the existing
Amendment Attachment, as amended, the following Amendment Attachments: (1) a
$5,000,000 Amendment Attachment dated as of July 25, 2000, (2) a $3,000,000
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Amendment Attachment dated as of July 25, 2000, and (3) a $2,600,000 Amendment
Attachment dated as of July 25, 2000. The existing outstanding Subordinated Loan
Tranche Advances and related Subordinated Loan Tranche Obligations as evidenced
by the existing Amendment Attachment, as amended, shall be allocated ratably
over the Amendment Attachments listed in clauses (1), (2) and (3) above and all
additional Subordinated Loan Tranche Advances made on and after December 31,
2003 shall be evidenced by the Amendment Attachment referred to in clause (3)
above. The existing Amendment Attachment, as amended, after giving effect to the
foregoing, will be cancelled.
6. Section 1(k) of the Existing SOI. Section 1(k) of the Existing SOI is
hereby amended and restated in its entirety as follows:
(k) Term Summary. In consideration of TFC's
(i) making the Subordinated Loan Tranche available to the
GSRP,
(ii) not requiring the application of the Steamboat
Construction Project Advances Maturity Date to the Subordinated Loan
Tranche but rather establishing a separate maturity date with respect
thereto of November 30, 2007 (the "Subordinated Loan Tranche Maturity
Date"); it being the intention of the parties hereto that the
outstanding principal balance of the Subordinated Loan Tranche shall
be payable (other than on said maturity date or in the instance of an
acceleration of the Subordinated Loan Tranche Obligations, as
hereinafter defined) only in connection with the receipt by GSRP of
"Free and Clear Proceeds" referred to below in Paragraph 2(b)(iii)(6),
(iii) making such Subordinated Loan Tranche junior and
subordinate to the Loans under the Existing LSA, as provided in
Paragraph 2(b)(i) hereof,
(iv) not requiring the application of the Default Rate to the
Subordinated Loan Tranche,
(v) providing for the deferral of interest payments and
(vi) allowing the voluntary prepayment of the Subordinated
Loan Tranche Advances, in whole (but not in part) at any time, at the
sole election of GSRP, and without prepayment or premium of any kind
other than the Final Payment Fee and the Sixth Amendment Fees owing to
the Special Subordinated Lender and its affiliates together with all
other Subordinated Loan Tranche Obligations (upon the prepayment in
full of the Subordinated Loan Tranche Advances, no further
Subordinated Loan Tranche Advances shall be obtainable hereunder),
GSRP agrees, as more particularly set forth below,
(A) to pay interest on the principal balance of the
Subordinated Loan Tranche from time to time outstanding at a rate of
interest of twenty percent (20%) per annum, payable monthly in arrears
on the 10th day of the month following the month for which such
interest accrued (or, if such day is not a Business Day, on the first
Business Day thereafter), provided that only 50% of the amount of such
interest accrued in respect of any month shall be due and payable in
cash on such 10th day and the other 50% of such amount of such
interest shall automatically be deferred (without the accrual of any
further interest thereon) until the Final Payment Date (as defined in
subclause (B) immediately below), if no Default or Event of Default
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under the Existing LSA or default or event of default hereunder shall
exist, except that such deferral shall nonetheless still occur
notwithstanding the existence of such a Default or Event of Default or
such default hereunder if the Senior Obligations shall have not been
paid in full; on the Final Payment Date such deferred amount (together
with all other deferred amounts of interest hereunder) and all other
accrued and unpaid interest shall become due and payable and,
(B) to pay the Special Subordinated Lender
(1) in installments as provided in Paragraph 2(b)(iii)
(3) hereof, a fee of $1,000,000 or such lesser amount as may
be required by Paragraph 6(a) hereof (the "Syndication Fee")
and
(2) in one lump sum a final payment fee (the "Final
Fee"), which shall be payable on the earlier of the
Subordinated Loan Tranche Maturity Date or the date on which
all principal of the Subordinated Loan Tranche is fully paid
(such date is referred to herein as the "Final Payment
Date"), equal to the sum of the Final Fee Component Amounts
for each of the Subordinated Loan Tranche Advances, where a
"Final Fee Component Amount" for a Subordinated Loan Tranche
Advance shall equal the difference between the original
outstanding principal amount of such Subordinated Loan
Tranche Advance minus the discounted net present value of
each payment of interest and principal in respect of such
Subordinated Loan Tranche Advance determined in accordance
with customary financial practice by using a discount period
of one month and a monthly interest rate equal to 2.083333%
(or such lesser rate as may be required by Paragraph 6(a)
hereof) and by discounting each such payment of principal
and interest from the date on which such payment was made to
the date when such Subordinated Loan Tranche Advance was
originally extended by the Special Subordinated Lender (for
purposes of determining interest to be discounted in respect
of any Subordinated Loan Tranche Advance, only the interest
payments accruing at 20% per annum thereon shall be included
therein and such interest payments shall be deemed paid on
the dates on which they are actually paid in cash and any of
such interest payments that are deferred, in accordance with
the terms hereof, to the Final Payment Date shall be deemed,
for purposes of this determination, to have been paid in
cash on the First Amendment Effective Date; any other cash
payments made in respect of the principal amount of any
outstanding Subordinated Loan Tranche Advance made after the
First Amendment Effective Date shall be deemed to have been
made on the First Amendment Effective Date for purposes of
calculating the Final Fee Component Amount in respect of
such Subordinated Loan Tranche Advance); no interest shall
accrue on the unpaid portion of the Final Fee;
(C) Pursuant to the Second Amendment Agreement, the Subordinated
Lender eliminated the "Participation/Syndication Costs" and "Steamboat/Canyons
Construction Loan Participation/Syndication Costs," under, and as defined in,
the First Amendment Agreement.
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7. Section 1(l) of the Existing SOI. Section 1(l) of the Existing SOI is
hereby amended and restated in its entirety as follows:
(l) Conditions for Subordinated Loan Tranche Advances; Waiver of
Reserve. The Subordinated Loan Tranche shall be available, subject to
the satisfaction of the conditions precedent applicable to a
withdrawal request in respect of Excess Projects' Cash Proceeds under
the Sixth Amendment Agreement and the other conditions precedent set
forth below in this Statement of Intention and Amendment, in multiple
Subordinated Loan Tranche Advances. The proceeds of such Advances
shall be used to pay for working capital expenses in the applicable
Schedule of Expenses; any repayment of principal of any Subordinated
Loan Tranche Advance shall not be available to be reborrowed
hereunder. The Special Subordinated Lender hereby waives any
requirement of a Reserve as otherwise originally required under the
Existing SOI.
8. Section 2(a) of the Existing SOI. Section 2(a) of the Existing SOI is
amended and restated in its entirety as follows:
Subject to the satisfaction of all conditions precedent to any
withdrawal request by GSRP under Section 6 of the Sixth Amendment
Agreement and subject to the other conditions precedent set forth in
Paragraph 3 hereof, the Special Subordinated Lender agrees to make
Subordinated Loan Tranche Advances to GSRP from the date hereof to and
including April 30, 2004 (x) in an aggregate principal amount at any
one time outstanding not to exceed $10,600,000 (with only $635,251 of
such amount being available to be advanced on and after the Third
Amendment Effective Date), and (y) in an aggregate principal amount
that, when aggregated with the outstanding principal amount of the
Senior Obligations owing to the Special Subordinated Lender, does not
exceed $41, 221,260.03 at any time. Each Subordinated Loan Tranche
Advance shall be a part of the Subordinated Loan Tranche and the
Subordinated Loan Tranche shall be deemed to be a part of the credit
extended to GSRP under the Steamboat Loan by the Special Subordinated
Lender (as a Steamboat Construction Project Advance Lender) pursuant
to the Existing LSA, and GSRP shall execute and deliver to the Special
Subordinated Lender an amendment attachment or amendment attachments
(substantially in the form of Attachment 4 hereto, as amended from
time to time) to its Steamboat Note (to be affixed thereto by the
Special Subordinated Lender) to evidence such Subordinated Loan
Tranche (or portion or portions thereof) and each Subordinated Loan
Tranche Advance to be made thereunder, provided that
(a) Limitations of Subordinated Loan Tranche Advances -- no
principal advanced by the Special Subordinated Lender in respect
of the Subordinated Loan Tranche shall
(i) qualify as Steamboat Loan Exposure,
(ii) count as Steamboat Construction Project Advance
Commitments,
(iii) be included in any determination as to whether
the Steamboat Loan or the Steamboat Project Construction
Advances have, in the aggregate, exceeded the Steamboat
Construction Project Borrowing Base,
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(iv) entitle the Special Subordinated Lender to vote
any principal amount or other amounts outstanding in respect
of the Subordinated Loan Tranche for any purpose under the
Existing LSA (unless all of the Senior Obligations under the
Existing LSA have been fully and finally paid),
(v) enable the Special Subordinated Lender, as such, to
claim the status as being one of the Steamboat Required
Lenders, one of the Required Parties or the right to vote on
any issue requiring unanimous consent of all Lenders or
Steamboat Construction Project Lenders under the Existing
LSA (unless all of the Senior Obligations under the Existing
LSA have fully and finally been paid),
(vi) claim any fees or rights to be reimbursed for any
costs and expenses as a Steamboat Lender or a Lender under
the Existing LSA (unless all of the Senior Obligations under
the Existing LSA have fully and finally been paid),
(vii) enable the Special Subordinated Lender to be able
to claim a share of the Collateral or any proceeds in
respect thereof except as it otherwise would be entitled to
claim as a Lender or the Administrative Agent under the
Existing LSA or as set forth in Paragraph 2(b)(ii),
Paragraph 2(b)(iii)(6) or Paragraph 2(b)(iii)(8) below or as
otherwise allowed under Section 8 of the Seventh Amendment
Agreement, or
(viii) cause the outstanding principal balance of the
Loans (including the outstanding principal balance of the
Subordinated Loan Tranche) to exceed the Maximum Outstanding
Loan Limit under the Amended LSA.
9. Section 2(b) of the Existing SOI. Section 2(b) of the Existing SOI is
amended and restated in its entirety as follows:
(b) Certain Terms Applicable to Subordinated Loan Tranche
Advances --subject to the limitations and restrictions set forth in
subclause (a) above and in this subclause (b),
(i) the principal, interest, fees (including the Syndication
Fee) and other costs and expenses incurred in connection with the
Subordinated Loan Tranche (collectively, the "Subordinated Loan
Tranche Obligations") are intended to be and qualify as Steamboat
Obligations, to be secured by all of the Collateral (including,
without limitation, the Steamboat Assignment of Architect's
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Contract, the Steamboat Assignment of Contracts, the Steamboat
Assignment of Construction Contract, the Steamboat Assignment of
Rents, the Steamboat Assignment of Declarant's Rights, the
Steamboat Assignment of Property-Related Contracts, the Steamboat
Assignment of Rents, the Steamboat Blanket Mortgage, the Canyons
Assignment of Architect's Contract, the Canyons Assignment of
Contracts, the Canyons Assignment of Construction Contract, the
Canyons Assignment of Rents, the Canyons Assignment of
Declarant's Rights, the Canyons Assignment of Property-Related
Contracts, the Canyons Assignment of Rents, and the Canyons
Blanket Mortgage), to be evidenced by the Steamboat Note of the
Special Subordinated Lender pursuant to an amendment attachment
or attachments to be affixed thereto (in the form of Attachment 4
attached hereto) and to be junior and subordinate in payment to
the Senior Obligations (except as provided for in Section 8 of
the Seventh Amendment Agreement regarding Cash Interest Payments)
and in Lien to the Liens in and to the Collateral securing such
Senior Obligations, as more particularly provided for in
Attachment 6 hereto;
(ii) the Administrative Agent shall act on behalf of the
Special Subordinated Lender, to the same extent as it would act
under the Existing LSA as Administrative Agent, for purposes of
securing, perfecting, asserting, and/or enforcing Liens and
security interests in and to the Collateral as security for the
Subordinated Loan Tranche Obligations (except that the Special
Subordinated Lender shall have no right to instruct the
Administrative Agent or to participate in any instructions being
given to the Administrative Agent unless and until all of the
Senior Obligations under the Existing LSA have fully and finally
been paid; for the avoidance of doubt and subject to the terms
and provisions of Paragraph 2(b)(i) hereof, GSRP hereby grants to
the Administrative Agent on behalf of the Special Subordinated
Lender a security interest and Lien in and to the Collateral to
secure the payment and/or performance of all of the Subordinated
Loan Tranche Obligations;
(iii) the Subordinated Loan Tranche Obligations shall be,
and be deemed to be, part of the, Steamboat Obligations, except
that
(1) the rate of interest payable in respect thereof,
the amount of fees payable thereon (including, without
limitation, the Syndication Fee and the Final Payment Fee)
and all other Subordinated Loan Tranche Obligations shall be
payable only to the Special Subordinated Lender in
accordance with the terms hereof and out of Free and Clear
Proceeds,
(2) the Subordinated Loan Tranche Advances and the
Subordinated Loan Tranche Obligations shall mature on the
Subordinated Loan Tranche Maturity Date, provided that, in
any case, the Subordinated Loan Tranche Obligations shall be
subject to acceleration as set forth in the last paragraph
of Paragraph 2(b)(iii)(7) hereof,
(3) subject to Paragraph 2(b)(i) hereof, (aa) GSRP
shall pay to the Special Subordinated Lender the Syndication
Fee in installments, each such installment being payable
whenever after October 1, 2000 Free and Clear Proceeds (as
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defined in the Existing SOI without giving effect to the
Second Amendment Agreement or Third Amendment Agreement are
available, with each such installment being in an amount
equal to 30% of the amount of such Free and Clear Proceeds;
if the full Syndication Fee shall have not been paid on or
prior to December 31, 2000, it shall become due and payable
in full on such date; the Special Subordinated Lender and
GSRP acknowledge that the Syndication Fee has been paid in
full, and (bb) GSRP shall pay to the Special Subordinated
Lender on the Final Payment Date the Final Payment Fee, as
determined in respect of such Final Payment Date as
calculated pursuant to Paragraph 1(k)(B) hereof,
(4) Intentionally Omitted;
(5) as additional consideration for the fees and rate
of interest set forth above, the Special Subordinated Lender
agrees that no Default Rate of interest shall be applicable
to the Subordinated Loan Tranche Obligations;
(6) the following proceeds of Collateral or payments
from GSRP shall be designated as "Free and Clear Proceeds"
and shall be applied to the payment of the Subordinated Loan
Tranche Obligations: (aa) while the Senior Obligations are
still outstanding, any payments of the Cash Interest Payment
provided for hereunder and as otherwise permitted to be paid
to Special Subordinated Lender under Section 8 of the
Seventh Amendment Agreement, (bb) after the Senior
Obligations have been paid in full and for so long as no
Default or Event of Default exists, all Obligation-Servicing
Projects' Cash Proceeds, all payments under Section
2.5(c)(iii) of the Existing LSA, all payments under Section
3.5 of the Existing LSA and all payments under Section 3.6
of the Existing LSA and (cc) after the Senior Obligations
shall have been paid in full and for so long as a Default or
Event of Default exists, all Projects' Cash Proceeds.
Sections 4, 5, and 6 of the Sixth Amendment Agreement shall
remain in effect and shall function hereunder after the
Senior Obligations have been paid in full and for so long as
any of the Subordinated Loan Tranche Obligations shall have
not been fully and finally paid. Free and Clear Proceeds
shall be applied to the Subordinated Loan Tranche
Obligations as follows:
first, for so long as Senior Obligations
are outstanding and with respect to any Cash
Interest Payment provided for hereunder and as
otherwise permitted to be paid to the Special
Subordinated Lender under Section 8 of the Seventh
Amendment Agreement, the portion of such Free and
Clear Proceeds consisting of such Cash Interest
Payment shall be used to pay such Cash Interest
Payment;
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second, after the Senior Obligations
have been paid in full, in the following order:
-- first, towards the costs
and expenses incurred by the Special
Subordinated Lender under this Statement
of Intention and Agreement, including,
without limitation, any Loan Costs in
respect of the Subordinated Loan Tranche
and all other fees, costs and expenses
set forth in Paragraph 6(c) hereof;
-- second, towards the accrued
and unpaid interest on the Subordinated
Loan Tranche Advances (other than the
portion thereof that shall have been
deferred to the Final Payment Date);
-- third, towards the
then-outstanding principal amount of the
Subordinated Loan Tranche Advances, and
-- fourth, any other
Subordinated Loan Tranche Obligations.
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For the avoidance of doubt and for so long as the
Subordinated Loan Tranche Obligations are outstanding,
GSRP's only right to obtain cash in respect of the
Collateral shall be in respect of Excess Projects' Cash
Proceeds under, and pursuant to, Section 6 of the Sixth
Amendment Agreement. At such time as the Subordinated Loan
Tranche Obligations have been fully and finally paid, the
Special Subordinated Lender shall have no further rights in
and to the Free and Clear Proceeds. For the further
avoidance of doubt, after the full and final payment of the
Subordinated Loan Tranche Obligations, GSRP shall still be
obligated to Textron Financial Corporation, as a Lender
under the Amended LSA, to pay the Percentage Sales Fee under
the Amended LSA.
(7) Intentionally Omitted.
(8) after the full and final repayment of all Senior
Obligations, the Special Subordinated Lender shall have the
full right, in accordance with the terms hereof and of the
Amended LSA, to instruct the Administrative Agent to
foreclose on all or any of the Collateral and to apply all
proceeds from all Collateral to the Subordinated Loan
Tranche Obligations as follows:
first, towards the costs and expenses
incurred by the Special Subordinated Lender under
this Statement of Intention and Agreement,
including, without limitation, any Loan Costs in
respect of the Subordinated Loan Tranche and all
other fees, costs and expenses set forth in
Paragraph 6(c) hereof;
second, towards the accrued and unpaid
interest on the Subordinated Loan Tranche
Advances;
third, towards the then-outstanding
principal amount of the Subordinated Loan Tranche
Advances,
fourth, to the payment of the Final
Payment Fee and the Syndication Fee, and
sixth, to any other Subordinated Loan
Tranche Obligations.
The aforesaid right shall not be prejudiced or impaired by
any Percentage Sales Fee that remains unpaid.
10. Section 3 of the Existing SOI. Section 3 of the Existing SOI is
amended and restated in its entirety as follows:
3. CONDITIONS TO MAKING OF SUBORDINATED LOAN TRANCHE ADVANCES.
The conditions precedent set forth in Section 6 of the Sixth Amendment
Agreement shall apply to the making of Subordinated Loan Tranche Advances
except that references therein to a "withdrawal request" or similar
language shall be deemed references to a request for a Subordinated Loan
Tranche Advance; to the extent that such conditions are inconsistent with
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any one or more of the conditions set forth below, the conditions set forth
below shall govern; and each of the conditions set forth below shall also
be applicable to the making of Subordinated Loan Tranche Advances:
(a) Title Insurance Endorsement. GSRP shall have delivered to the
Administrative Agent title insurance endorsements to the Title Insurance
Policy {Blanket} in respect of such Subordinated Loan Tranche Advance and
each of the Canyons Project (if there shall remain any unsold Canyons
Quartershare Interests) and the Steamboat Project in form and substance
reasonably satisfactory to the Administrative Agent.
(b) Sufficiency -- no Subordinated Loan Tranche Advance shall be made
if the proceeds thereof together with the proceeds of any Excess Projects'
Cash Proceeds to be released under Section 6 of the Sixth Amendment
Agreement at the same time as the making of such Subordinated Loan Tranche
Advance are insufficient to fully pay the expenses set forth on the
applicable Schedule of Expenses; GSRP shall coordinate its requests for
Subordinated Loan Tranche Advances and its withdrawal requests for Excess
Projects' Cash Proceeds to the reasonable satisfaction of the Special
Subordinated Lender;
(c) Defaults -- no Subordinated Loan Tranche Advance shall be made if
a Default or Event of Default exists under the Existing LSA or a default or
event of default exists under this Statement of Intention and Agreement or,
unless waived by the Special Subordinated Lender, the sixty (60) day period
referred to in Section 12 of the Second Amendment Agreement shall have
commenced and not have expired;
(d) Limits-- no Subordinated Loan Tranche Advance shall be made if the
dollar limits under Paragraph 2 hereof would be exceeded after giving
effect to such Advance;
(e) Representations - the warranties and representations contained in
this Statement of Intention and Agreement and in the Amended LSA shall be
true in all material respects as of date of the making of such Subordinated
Loan Tranche Advance;
(f) Other Actions - All actions taken in connection with such
Subordinated Loan Tranche Advance shall be reasonably satisfactory to the
Special Subordinated Lender and its counsel and no event or circumstance
shall have occurred which, in the reasonable opinion of the Special
Subordinated Lender, is reasonably likely to have a material adverse effect
on GSRP, any of the Projects or the ability of GSRP to pay in full the
Subordinated Loan Tranche Obligations; and
11. Attachment 6. Attachment 6 of the Existing SOI is hereby amended and
restated in its entirety as follows:
(a) If a Default or Event of Default under the Amended LSA shall
exist, no payment of any Subordinated Loan Tranche Obligation (other than
Cash Interest Payments) shall be made for so long as any Obligation under
the Amended LSA (other than Subordinated Loan Tranche Obligations and the
Payment Sales Fees; such Obligations other than the Subordinated Loan
Tranche Obligations and Payment Sales fee are referred to in this
Attachment as the "Senior Obligations") shall be outstanding.
(b) Intentionally Omitted.
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(c) To the extent that a Lien in and to the Collateral under the
Amended LSA secures, in whole or part, a Subordinated Loan Tranche
Obligation, such Lien (to the extent of such Subordinated Loan Tranche
Obligation) shall be junior and subordinate to any Lien in such Collateral
that secures a Senior Obligation, subject, in each case, to the cash
proceeds of such Collateral being used to pay the Cash Interest Payments as
provided for in Section 8 of the Seventh Amendment Agreement.
(d) In the event of
(i) any insolvency or bankruptcy case or proceeding under the
Federal Bankruptcy Code or any state bankruptcy or similar law, or any
receivership, liquidation, arrangement, relief, reorganization or
other similar case or proceeding in connection therewith, relative to
the Borrower or to its assets, or
(ii) any liquidation, dissolution, reorganization, compromise,
arrangement, adjustment, protection, composition, relief or other
winding up of the Borrower or its debts, whether voluntary or
involuntary and whether or not involving any insolvency or bankruptcy
or any case or proceeding of any kind, or
(iii) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Borrower,
then and after each such event the Senior Obligations shall be entitled to
receive payment in full in cash of all amounts due or to become due thereon
or in respect thereof before any payments are made in respect of the
Subordinated Loan Tranche Obligations or any distribution of any kind or
character (whether in cash, securities or other property) is made in
respect of the Subordinated Loan Tranche Obligations (other than with
respect to the Cash Interest Payments, which shall be pari passu with the
rights of the Lenders in respect of the Steamboat Project to receive
payments in respect of their Steamboat Obligations), and, to that end, it
is hereby agreed that, after any such event, all payments or distributions
(whether in cash, securities or other property) in respect of the
Subordinated Loan Tranche Obligations (other than with respect to the Cash
Interest Payments) shall be paid over or delivered for application to the
Senior Obligations. The holders of the Subordinated Loan Tranche
Obligations shall duly and promptly take such action as is reasonably
necessary to file appropriate claims or proofs of claims in any such
proceedings referred to in this clause and to execute and deliver such
other instruments and take such other actions as may be reasonably
necessary to prove or realize upon such claims and to have the proceeds of
such claims paid as provided in this clause, and, in the event that the
holders of Subordinated Loan Tranche Obligations shall not have made any
such filing on or prior to the date 14 days before the expiration of the
time for such filing or shall not have timely executed or delivered any
such other instruments and taken such other actions, the holders of Senior
Obligations are each hereby irrevocably authorized and empowered (but shall
have no obligation) to, as the agent and attorney-in-fact for the holders
of the Subordinated Loan Tranche Obligations for the specific and limited
purpose set forth in this clause, file such proof of claim for or on behalf
of such holders of Subordinated Loan Tranche Obligations, execute and
deliver such other instruments for or on behalf of such holders and take
such other action necessary under applicable law to collect any amounts due
in respect of such claim in such proceeding.
(e) In the event that, notwithstanding the provisions of this
Attachment and in contravention thereof, the Borrower shall make, or the
holders of Subordinated Loan Tranche Obligations shall receive or retain,
any payment or distribution of the Borrower's assets of any kind or
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character, whether in cash, securities or other property, then and in such
event such payment or distribution shall be received and held by such
holder in trust for the benefit of the holders of the Senior Obligations
and shall be paid over or delivered to such holders of Senior Obligations
for application to the payment to the Senior Obligations, provided that
nothing in this clause (e) shall apply to the Cash Interest Payments.
(f) No right of any holder of Subordinated Loan Tranche Obligations to
enforce its rights in respect of the Subordinated Loan Tranche Obligations
shall at any time or in any way be prejudiced or impaired by any act or
failure to act on the part of such holder, or by any non-compliance by GSRP
with the terms, provisions and covenants of this Attachment, regardless of
any knowledge thereof that such holder may have or be otherwise charged
with. Nothing herein shall prohibit or prevent any holder of Subordinated
Loan Tranche Obligations from enforcing any right or remedy hereunder or at
law or equity in respect of Subordinated Loan Tranche Obligations (subject
to the obligations hereunder of such holder to turn over the net proceeds
therefrom to the holders of the Senior Obligations).
(g) Without in any way limiting the generality of the foregoing
paragraph, the holders of the Senior Obligations may, at any time and from
time to time (without the consent of or notice to any holder of
Subordinated Loan Tranche Obligations, without incurring responsibility to
the holders of Subordinated Loan Tranche Obligations, without impairing or
releasing the subordination provided in this Attachment and without
releasing the obligations hereunder of GSRP or any such holder of
Subordinated Loan Tranche Obligations), (1) amend or modify in any way or
manner any payment, provision, document or covenant relating to the Senior
Obligations (whether or not such payment, provision, document or covenant
also relates to the Subordinated Loan Tranche Obligations), (2) sell,
exchange, release or otherwise deal with any Property pledged, assigned or
mortgaged to secure, or otherwise securing, the Senior Obligations, or any
guarantee of the Senior Obligations (whether or not such property also
relates to the Subordinated Loan Tranche Obligations); and (3) exercise or
refrain from exercising any rights against GSRP, the Collateral under the
Existing LSA and any other Person (whether or not such rights also relate
to the Subordinated Loan Tranche Obligations), provided that nothing in
this sentence shall authorize such holders to modify any rights that the
Special Subordinated Lenders may have under Section 8 of the Seventh
Amendment Agreement without its prior written consent. The Borrower and
each other holder of Subordinated Loan Tranche Obligations waive any right
to require the holders of the Senior Obligations to marshal any assets in
favor of the holders of Subordinated Loan Tranche Obligations or against or
in payment of any or all of the Senior Obligations.
(h) No holder of Subordinated Loan Tranche Obligations shall be
subrogated to the rights of any holder of Senior Obligations to receive
payments and distributions of cash, securities or other property applicable
to the Senior Obligations until all amounts payable for or on account of
the Senior Obligations shall have been indefeasibly paid in full.
(i) The provisions of this Attachment shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any
Senior Obligations is rescinded or must otherwise be returned by the
holders thereof upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
(j) Each holder of Subordinated Loan Tranche Obligations, by its
acceptance thereof, agrees to take such action as may be reasonably
necessary or appropriate to effectuate, as among the holders of Senior
Obligations, the holders of Subordinated Loan Tranche Obligations and the
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Borrower, the subordination provided in this Attachment.
(k) The provisions of this Attachment may not be amended, modified or
waived without the prior written consent of the holders of Senior
Obligations. The provisions set forth in this Attachment constitute a
continuing agreement and shall (A) be and remain in full force and effect
at any time, and from time to time, during which any Senior Obligation
shall remain outstanding, (B) be binding upon the Borrower and each holder
of Subordinated Loan Tranche Obligations and their respective successors,
transferees and assigns, and (C) inure to the benefit of, and be
enforceable, in accordance with the terms hereof, directly by, the holders
of Senior Obligations and their respective successors, transferees and
assigns, against each holder of Subordinated Loan Tranche Obligations and
the Borrower.
12. Waiver. Upon this Third Amendment Agreement becoming effective on the
Third Amendment Effective Date and subject to the proviso to this sentence, each
Default and/or Event of Default existing on the Third Amendment Effective Date
and arising from or otherwise in respect of (a) the failure of GSRP to make
principal payments under the Existing LSA such that the aggregate outstanding
principal balance of the Advances under the Existing LSA would not exceed
$30,000,000 by June 29, 2003, as provided for in Section 2.5(c)(iii) of the
Existing LSA, (b) the failure of GSRP to make principal payments under the
Existing LSA such that the aggregate outstanding principal balance of the
Advances under the Existing LSA would not exceed $25,000,000 by June 30, 2003,
as provided for in Section 2.5(c)(iii) of the Existing LSA, and (c) the failure
of GSRP to make principal payments under the Existing LSA such that the
aggregate outstanding principal balance of the Advances under the Existing LSA
would not exceed $20,000,000 by June 30, 2003, as provided for in Section
2.5(c)(iii) of the Existing LSA are, in each case, hereby waived. No other
Default or Event of Default (whether occurring prior to the date hereof or
hereafter) shall be deemed waived, and the Special Subordinated Lender reserves
all of its rights and remedies under the Amended LSA, the other Security
Documents, the Amended SOI, at law and in equity with respect thereto.
13. Miscellaneous Amendments. Each reference to "$10,000,000" in the
Existing SOI and the Collateral Assignment of Free and Clear Proceeds, dated as
of July 25, 2000, as amended, is hereby amended to be "10,600,000." Attachment 4
to the Existing SOI is hereby amended and restated in its entirety as set forth
on Schedule 1 attached hereto.
14. Representations and Warranties. GSRP hereby represents and warrants as
of the date hereof as follows, which representations and warranties are hereby
incorporated into and made part of the Amended SOI:
14.1 Except as set forth in Schedule 2 hereto, each of the
representations and warranties contained in Section 4 of the Existing SOI
is true and correct as of the date hereof.
14.2 Except with respect to the Permitted Exceptions, all Liens
granted to TFC under the Existing SOI and the other Security Documents are
duly granted, valid, perfected and prior in right to all other Liens that
now or hereafter may be granted to or held by any other Person.
14.3 The execution and delivery of this Third Amendment Agreement, the
Seventh Amendment Agreement, the Modification Documents and the other
documents and instruments contemplated herein and in the Seventh Amendment
Agreement, and compliance by GSRP with all of the provisions of this Third
Amendment Agreement, the Existing SOI, as amended hereby, and each of the
other documents set forth above are:
15
(i) within the corporate powers of GSRP;
(ii) valid and legal acts and will not conflict with, or result
in any breach in any of the provisions of, or constitute a default
under, or result in the creation of any Lien upon any Property of GSRP
under the provisions of, any agreement, charter instrument, bylaw or
other instrument to which GSRP is a party or by which its Property may
be bound.
14.4 Neither the nature of GSRP, nor of any of its businesses or
Properties, nor any relationship between GSRP and any other Person, nor any
circumstance in connection with the execution or delivery of this Third
Amendment Agreement and the other documents contemplated in connection
herewith, nor the operation of any Project and the sale, or offering for
sale, of any Quartershare Interest of any of the Projects by GSRP, is such
as to require a consent, approval or authorization of, or filing,
registration or qualification with, any governmental authority on the part
of GSRP, as a condition of the execution, delivery or performance of this
Third Amendment Agreement, the Seventh Amendment Agreement, and the other
documents contemplated in connection herewith.
14.5 GSRP will not be, on or after the date hereof, a party to any
contract or agreement which restricts its right or ability to incur
indebtedness under, or prohibits the execution of, or compliance with, this
Third Amendment Agreement by GSRP. GSRP has not agreed or consented to
cause or permit in the future (upon the happening of a contingency or
otherwise) any of its Property constituting the Collateral, whether now
owned or hereafter acquired, to be subject to a Lien other than Permitted
Exceptions and all Liens in favor of TFC in respect of such Collateral
remain in full force and effect.
14.6 GSRP is not entering into this Third Amendment Agreement and the
transactions contemplated hereby, and does not intend to incur any
obligations hereunder or otherwise make any transfers in connection
herewith, with the actual intent to hinder, delay or defraud either present
or future creditors. After giving effect to the consummation of the
transactions contemplated by this Third Amendment Agreement and the making
of the advances contemplated hereunder, (a) the assets of GSRP at a fair
valuation thereof on a going concern basis will not be less than its debts,
(b) GSRP is not currently engaged in or about to engage in a business or
transaction for which its remaining assets are unreasonably small in
relation to such business or transaction, and (c) GSRP will be able to pay
its respective debts as they become due. "Debt" for purposes of this
Section 14.6 means any liability on a claim, and "claim" means (i) any
right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, or (ii) any right to an
equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured.
14.7 After giving effect to this Third Amendment Agreement, no Default
or Event of Default has occurred or is continuing, nor does any event or
condition exist that would constitute a Default or an Event of Default. No
material adverse change has occurred in or in respect of the Collateral or
any one or more of the Projects that has not been disclosed to TFC. The
Obligations continue to be Senior Debt under, and as defined in, the ASC
Indenture and no default or event of default exists under such Indenture
and no defaults or events of default exist under any other agreement for
indebtedness for borrowed money, any financing lease or any guaranty of any
16
of the foregoing to which GSRP is a party. GSRP has not issued and is not
otherwise obligated in respect of any obligation of the Parent, American
Skiing Company or any subsidiary of American Skiing Company for
borrowed-money indebtedness, other than its guaranty of the ASC Indenture,
which by its own terms is junior and subordinated to the Obligations.
15. Conditions to Effectiveness. This Third Amendment Agreement shall
become effective on the date (the "Third Amendment Effective Date") on
which the parties hereto shall have executed this Third Amendment Agreement
and each of the following conditions shall have been satisfied:
15.1 Warranties and Representations True as of First Amendment
Effective Date. The warranties and representations contained or referred to
in this Third Amendment Agreement shall be true in all material respects on
the Third Amendment Effective Date with the same effect as though made on
and as of that date. TFC shall have received a certificate, in form and
substance satisfactory to TFC, dated as of the Third Amendment Effective
Date, signed by an Executive Vice-President or Vice President of GSRP and
certifying that the warranties and representations of GSRP contained in
this Third Amendment Agreement are true in all material respects on the
Third Amendment Effective Date.
15.2 Secretary's Certificates.
TFC shall have received a certificate of the Secretary or any
Assistant Secretary of GSRP, in form and substance reasonably satisfactory
to TFC, dated as of the Third Amendment Effective Date, certifying
(i) the adoption by the Board of Directors of GSRP of a
resolution authorizing GSRP to enter into this Third Amendment
Agreement, the Seventh Amendment Agreement, and the transactions and
instruments contemplated hereby and thereby, and
(ii) the incumbency and authority of, and verifying the specimen
signatures of, the officers of GSRP authorized to execute and deliver
this Third Amendment Agreement, the Seventh Amendment Agreement, the
Modification Agreements (referred to below), and the other documents
contemplated hereunder.
15.3 Certificate. GSRP shall have delivered to TFC a legal opinion
from its General Counsel in form and substance reasonably satisfactory to
TFC.
15.4 Expenses. GSRP shall have paid all fees and expenses required to
be paid by it pursuant to Section 6(c) of Existing SOI pursuant to invoices
or other bills submitted to GSRP.
15.5 Seventh Amendment Agreement. The Seventh Amendment Agreement
shall be in full force and effect.
15.6 Proceedings. All actions taken in connection with the execution
of this Third Amendment Agreement and all documents and papers relating
thereto shall be satisfactory to TFC and its counsel. TFC and its counsel
shall have received copies of such documents and papers as it or such
counsel may reasonably request in connection therewith, all in form and
substance satisfactory to TFC and its counsel.
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15.7 Other Documents.
(a) GSRP shall have executed and delivered to TFC
(A) the modification agreement to the Canyons Blanket
Mortgage and the Canyons Assignment of Rents, in form and
substance satisfactory to TFC, and
(B) the modification agreement to the Steamboat Blanket
Mortgage and the Steamboat Assignment of Rents, in form and
substance satisfactory to TFC and
(b) GSRP shall have delivered to TFC title insurance endorsements
to the Title Insurance Policy {Blanket} in respect of the Canyons and
Steamboat Projects in form and substance satisfactory to TFC.
16. Miscellaneous.
16.1 This Third Amendment Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
permitted assigns.
16.2 This Third Amendment Agreement shall be governed by the internal
laws of the State of Maine. To the extent any provision of this Third
Amendment Agreement is not enforceable under applicable law, such provision
shall be deemed null and void and shall have no effect on the remaining
portions of this Third Amendment Agreement.
16.3 The titles of the Sections appear as a matter of convenience
only, do not constitute a part hereof and shall not affect the construction
hereof. The words "herein," "hereof," "hereunder" and "hereto" refer to
this Third Amendment Agreement as a whole and not to any particular Section
or other subdivision.
16.4 All warranties, representations and covenants made by GSRP herein
or in the Existing SOI or in any certificate or other instrument delivered
by it or on its behalf under this Agreement or in the Existing SOI shall be
considered to have been relied upon by TFC and shall survive the execution
and delivery of this Third Amendment Agreement.
16.5 Except as explicitly amended by, or otherwise provided for in,
this Third Amendment Agreement , the Existing SOI, the Notes and the other
Security Documents remain in full force and effect under their respective
terms as in effect immediately prior to the effectiveness of this Third
Amendment Agreement, and GSRP hereby affirms all of its obligations
thereunder.
16.6 This Third Amendment Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by all,
of the parties hereto. This Third Amendment Agreement may be executed in
counterpart by facsimile signature, which signatures shall be treated as,
and shall have the effect of original and manually executed signatures.
18
16.7 GSRP hereby releases, remises, acquits and forever discharges the
Administrative Agent and TFC and their respective employees, agents,
representatives, consultants, attorneys, fiduciaries, servants, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions (all of
the foregoing hereinafter called the "Released Parties"), from any and all
actions and causes of action, judgments, executions, suits, debts, claims,
demands, liabilities, obligations, damages and expenses of any and every
character, whether known or unknown, fixed or contingent, asserted or
unasserted, direct or indirect, at law or in equity, of whatsoever kind or
nature, whether heretofore or hereafter arising for or because of any
matter or things done, omitted or suffered to be done by any of the
Released Parties prior to and including the date of execution hereof,
arising out of or in any way connected with (a) the SOI, the Amended LSA,
the Steamboat Note of TFC or the other Notes or Security Documents, as
amended from time to time (including, without limitation, this Third
Amendment Agreement and the Seventh Amendment Agreement) and (b) the
Subordinated Loan Tranche (all of the foregoing hereinafter called the
"Released Matters"). GSRP hereby acknowledges that the agreements set forth
in this Third Amendment Agreement are intended to be in full satisfaction
of all or any alleged injuries or damages arising in connection with the
Released Matters. GSRP hereby represents and warrants to Administrative
Agent and TFC that GSRP has not purported to transfer, assign or otherwise
convey any of its right, title or interest in any Released Matter to any
other person and that the foregoing constitutes a full and complete release
of all Released Matters.
16.8 The parties hereto agree that the Existing SOI, as amended
hereby, and the Amended LSA, as amended by the Seventh Amendment Agreement,
are intended to be one instrument and agreement, subject to the terms and
conditions hereof and thereof.
16.9 The Administrative Agent agrees, contemporaneously with the Third
Amendment Effective Date, to send to the "Bank Depository" and the "Bank
Agent" (as such terms are defined in the Steamboat Cash Pledge Agreement) a
certificate certifying that the Steamboat Cash Pledge Agreement has
terminated.
[Remainder of page intentionally left blank. Next page is signature page.]
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IN WITNESS WHEREOF, the parties have executed this Third Amendment
Agreement as of the day and year first above written.
GSRP: TFC:
GRAND SUMMIT RESORT TEXTRON FINANCIAL
PROPERTIES, INC. CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------- ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CFO/Sr.VP Title: AVP-Loan Manager
The undersigned confirms that all indebtedness of GSRP owing to the undersigned
is junior and subordinate to all indebtedness of GSRP owing to TFC under the
Amended SOI pursuant to that certain Subordination Agreement dated as of
September 1, 1998, as amended. All of such indebtedness of GSRP owing to TFC
under the Amended SOI shall qualify as "Senior Debt" under the Amended SOI.
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO/Sr.VP
20