Exhibit 10.1
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FOURTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 14, 2004
Among
BOOTH CREEK SKI HOLDINGS, INC.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BOOTH CREEK SKI ACQUISITION CORP.
WATERVILLE VALLEY SKI RESORT, INC.
MOUNT CRANMORE SKI RESORT, INC.
SKI LIFTS, INC.
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP.,
as Borrowers,
DRE, L.L.C.,
as Guarantor
THE LENDERS PARTY HERETO,
as Lenders
and
FLEET NATIONAL BANK,
as Agent for the Lenders
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FOURTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Fourth Amendment and Waiver") is entered into as of June 14, 2004 by and
among 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, "TLC"), SIERRA-AT-TAHOE, INC., a Delaware corporation
(together with its successors and assigns, "Sierra-at-Tahoe"), 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"),
LMRC HOLDING CORP., a Delaware corporation (together with its successors and
assigns, "LMRC Holding"), LOON MOUNTAIN RECREATION CORPORATION, a New Hampshire
corporation (together with its successors and assigns, "Loon"), and LOON REALTY
CORP., a New Hampshire corporation (together with its successors and assigns,
"Loon Realty," and together with BCS Holdings, BCS Acquisition, TLC,
Sierra-at-Tahoe, Waterville, Cranmore, Ski Lifts, LMRC Holding and Loon, the
"Borrowers", and each a "Borrower"), as borrowers, DRE, L.L.C., a Delaware
limited liability company (together with its successors and assigns, the
"Guarantor"), as guarantor, the lenders from time to time party to the Credit
Agreement described below (the "Lenders"), and FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), as agent (the "Agent") for itself and the other Lenders.
Recitals
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WHEREAS, the Borrowers, the Guarantor, the Lenders and the Agent are
parties to an Amended and Restated Credit Agreement dated as of March 15, 2002
(as amended, supplemented or otherwise modified through the date of this Fourth
Amendment and Waiver, the "Credit Agreement").
WHEREAS, the Borrowers, the Guarantor, the Lenders and the Agent desire to
amend the Credit Agreement and grant a limited waiver to the Borrowers and the
Guarantor in connection with certain of the covenants and obligations of the
Borrowers and the Guarantors on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged and subject to the conditions to
effectiveness specified in Section 4, the Borrowers, the Guarantor, the Lenders
and the Agent hereby amend the Credit Agreement and agree as follows:
Section 1. Definitions.
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(a) All capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Credit Agreement.
(b) Section 1.2 of the Credit Agreement is hereby amended to add the new
definition of "Fourth Amendment and Waiver" in alphabetical order, as
follows:
"Fourth Amendment and Waiver' means that certain Fourth
Amendment and Waiver to Amended and Restated Credit Agreement
dated as of June 14, 2004 by and among the Borrowers, the
Guarantor, the Lenders and the Agent."
Section 2. Amendments
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(a) Section 5.5 of the Credit Agreement is hereby amended by
deleting paragraph (a) thereof in its entirety and
substituting therefor the following:
"(a) Minimum Consolidated Resort EBITDA. The Loan Parties
and their Subsidiaries shall earn Consolidated Resort
EBITDA for any four consecutive fiscal quarter period
ending during each period set forth below of not less
than the amount set forth opposite such period:
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Minimum
Consolidated
Period Resort EBITDA
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May 2, 2003 through January 30, 2004 $19,000,000
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January 31, 2004 through April 29, 2005 $19,500,000
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April 30, 2005 through maturity $20,500,000"
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Section 3. Waiver. The Lenders hereby waive any Default or Event of Default
arising as a result of the failure by the Borrowers to satisfy Section 5.5(a) of
the Credit Agreement in effect prior to giving effect to this Fourth Amendment
and Waiver for the four consecutive quarter period ending April 30, 2004 or any
related failure to satisfy Section 6.3 of the Credit Agreement based on such
failure by the Borrowers to satisfy Section 5.5(a) of the Credit Agreement in
effect prior to giving effect to this Fourth Amendment and Waiver for the four
consecutive quarter period ending April 30, 2004. This waiver is limited as
specified and shall not, except as otherwise set forth in this Fourth Amendment
and Waiver, constitute a modification, amendment or waiver of any other
provision of the Credit Agreement, and shall not constitute a course of dealing
between the parties.
Section 4. Effectiveness; Conditions to Effectiveness. This Fourth Amendment and
Waiver shall become effective upon execution and delivery hereof by the
Borrowers, the Guarantor, the Agent and the Lenders and payment of the fees owed
to the Lenders as set forth in a fee letter of even date herewith between the
Lenders and BCS Holdings.
Section 5. Representations and Warranties; No Default. The Loan Parties confirm
to the Lenders their representations and warranties set forth in Article 6 of
the Credit Agreement (after giving effect to this Fourth Amendment and Waiver)
(except as to transactions permitted under the Credit Agreement and described in
a Compliance Certificate previously delivered to the Agent or in this Fourth
Amendment and Waiver and except to the extent that any representation or
warranty expressly relates to an earlier date) as of the date hereof, as if set
forth herein in full. The Loan Parties certify that, after giving effect to this
Fourth Amendment and Waiver, no Default exists under the Credit Agreement.
Section 6. Miscellaneous. The Borrowers, jointly and severally, agree to pay on
demand all of the Agent's reasonable expenses in preparing, executing and
delivering this Fourth Amendment and Waiver, and all related instruments and
documents, including, without limitation, the reasonable fees and out-of-pocket
expenses of the Agent's special counsel, ▇▇▇▇▇▇▇ Procter LLP. This Fourth
Amendment and Waiver shall be a Lender Agreement and shall be governed by and
construed and enforced under the laws of The Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the Borrowers, the Guarantor, the Lenders and the Agent
have caused this Fourth Amendment and Waiver to Amended and Restated Credit
Agreement to be executed by their duly authorized officers as of the date first
set forth above.
BOOTH CREEK SKI HOLDINGS, INC.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BOOTH CREEK SKI ACQUISITION CORP.
WATERVILLE VALLEY SKI RESORT, INC.
MOUNT CRANMORE SKI RESORT, INC.
SKI LIFTS, INC.
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP., as Borrowers
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name:▇▇▇▇▇ ▇. ▇▇▇▇
Title:Vice President
DRE, L.L.C., as Guarantor
By: Ski Lifts, Inc., its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name:▇▇▇▇▇ ▇. ▇▇▇▇
Title:Vice President
FLEET NATIONAL BANK, as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Managing Director
FLEET NATIONAL BANK, as
Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Managing Director
U.S. BANK NATIONAL
ASSOCIATION, as Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name:▇▇▇ ▇. Stuart
Title:Assistant Vice
President