EX-10 2 ex101.txt FOURTH AMENDMENT AND WAIVER Exhibit 10.1 ================================================================================ 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 ================================================================================ 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 -------- 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. ------------ (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 ---------- (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: ------------------------------------------------------- Minimum Consolidated Period Resort EBITDA ------------------------------------------------------- May 2, 2003 through January 30, 2004 $19,000,000 ------------------------------------------------------- January 31, 2004 through April 29, 2005 $19,500,000 ------------------------------------------------------- April 30, 2005 through maturity $20,500,000" ------------------------------------------------------- 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, Goodwin 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 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/ Brian J. Pope --------------------------------- Name:Brian J. Pope Title:Vice President DRE, L.L.C., as Guarantor By: Ski Lifts, Inc., its Manager By: /s/ Brian J. Pope ----------------------------- Name:Brian J. Pope Title:Vice President FLEET NATIONAL BANK, as Agent By: /s/ Christopher C. Holmgren ----------------------------- Name:Christopher C. Holmgren Title:Managing Director FLEET NATIONAL BANK, as Lender By: /s/ Christopher C. Holmgren ----------------------------- Name:Christopher C. Holmgren Title:Managing Director U.S. BANK NATIONAL ASSOCIATION, as Lender By: /s/ Rob L. Stuart ----------------------------- Name:Rob L. Stuart Title:Assistant Vice President