SECOND AMENDMENT AND CONSENT
SECOND AMENDMENT AND CONSENT, dated as of May 14, 2004 (this
"Amendment"), to the Credit Agreement, dated as of February 14, 2003, as amended
by the First Amendment, dated as of July 2, 2003 (the "Credit Agreement"), among
AMERICAN SKIING COMPANY ("ASC"), the Subsidiary Borrowers (as defined in the
Credit Agreement) from time to time parties thereto, the several banks and other
financial institutions from time to time parties thereto (the "Lenders"), and
GENERAL ELECTRIC CAPITAL CORPORATION ("GECC"), as administrative agent for the
Lenders thereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
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WHEREAS, the Borrowers have requested that the Lenders (i)
agree to amendments to certain provisions of the Credit Agreement and (ii)
consent to the transfer of certain Operating Assets from Killington, Ltd. to a
newly created Affiliate of ASC; and
WHEREAS, the Lenders are willing to agree to the requested
amendments and consent to such transfer, in each case on and subject to the
terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Defined Terms. Terms used herein but not defined shall have the meanings
given to them in the Credit Agreement as amended hereby.
2. Amendments to Section 1.1 (Defined Terms) of the Credit Agreement.
Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) the definition of "Excluded Subsidiary" is hereby amended by
replacing the text of clause (ii) thereof in its entirety with the
following "(ii) Grand Summit Resort Properties, Inc., SP Land Company, LLC
and ▇▇▇▇▇▇ ▇▇▇▇▇ Associates LLC and their Subsidiaries".
(b) the definition of "Reinvestment Deferred Amount" is hereby amended
by deleting the parenthetical phrase "(other than ASCRP and its
Subsidiaries)".
(c) Section 1.1 of the Credit Agreement is hereby amended by adding
thereto the following defined terms in their appropriate alphabetic order:
"Oak Hill Notes": (i) the $22,990,785.65 Promissory
Note dated March 31, 2004 between ASCRP and Oak Hill and (ii)
the $482,506.57 Promissory Note dated March 31, 2004 between
ASCRP and OHSF ASTC, LLC, in each case as in effect on the
Second Amendment Effective Date
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"Second Amendment": the Second Amendment and Waiver,
dated as of May 14, 2004, to this Agreement.
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"Second Amendment Effective Date": the date on which
each of the conditions set forth in Section 9 of the
------------------------------- Second Amendment were
satisfied, which date is May 14, 2004.
3. Amendment to Section 7.2 (Indebtedness) of the Credit Agreement. Section
7.2 of the Credit Agreement is hereby amended by deleting "and" at the end of
clause (e) thereof, replacing the period at the end of clause (f) thereof with
"; and", and adding the following new clause (g) thereto:
(g) unsecured Indebtedness of ASCRP pursuant to the Oak Hill Notes.
4. Amendment to Section 7.5 (Disposition of Property) of the Credit
Agreement. Section 7.5 of the Credit Agreement is hereby amended by replacing
the text of clause (h) thereof in its entirety with "dispositions of Capital
Stock of Grand Summit Resort Properties, Inc.".
5. Amendment to Section 7.9 (Optional Payments and Modifications of Certain
Debt Instruments) of the Credit Agreement. Section 7.9 of the Credit Agreement
is hereby amended by (i) adding the words "or the Oak Hill Notes" after the term
"Subordinated Debt" in clause (a) and clause (b) of such Section and (ii)
deleting the "or" immediately prior to clause (d) thereof and adding the
following new clause at the end of such Section:
or (e) pay any cash interest on any Oak Hill Note (it being
agreed that ASCRP shall instead add any accrued interest
payable from time to time under the Oak Hill Notes to the
principal of the Oak Hill Notes as permitted pursuant to
Section 1(a) of each Oak Hill Note).
6. Required Lenders Consent under Section 7.5(f) of the Credit Agreement.
The Required Lenders hereby consent to the transfer by Killington, Ltd. of the
Properties described on Schedule 6 to this Amendment to SP Land Company, LLC
("SPLC") and ▇▇▇▇▇▇ ▇▇▇▇▇ Associates LLC ("CKA"), as indicated on such Schedule,
in exchange for a 24% membership interest in SPLC and a 50% membership interest
in CKA, respectively.
7. Addition of New Borrowers. Subject to the satisfaction of each of the
conditions set forth in Section 6.9(c) of the Credit Agreement, each of the
Subsidiaries of ASC indicated as "New Subsidiary Borrowers" on the signature
pages to this Amendment (the "New Subsidiary Borrowers") hereby becomes a
Subsidiary Borrower under the Credit Agreement with the same force and effect as
if originally named therein as a Subsidiary Borrower and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Subsidiary Borrower thereunder. Each New Subsidiary Borrower
hereby represents and warrants that each of the representations and warranties
contained in Section 4 of the Credit Agreement is true and correct on and as the
date hereof (after giving effect to the terms of the Amendment) as if made on
and as of such date, except for representations and warranties expressly stated
to relate to a specific earlier date.
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8. Certain Excluded Immaterial Subsidiaries. The Administrative Agent
hereby approves the Subsidiaries listed on Schedule 8 hereto as Excluded
Immaterial Subsidiaries in accordance with the Credit Agreement, subject, among
other things, to the requirements of Section 6.12 of the Credit Agreement,
mutatis mutandis, as if such Subsidiaries were listed on Part I of Schedule 6.12
of the Credit Agreement (provided that the reference to the Closing Date in
Section 6.12(b) shall be deemed to be a reference to the Second Amendment
Effective Date for such purpose).
9. Conditions to the Effectiveness of the Amendment. This Amendment
(including, for the avoidance of doubt, the consent set forth in Section 6
hereof) shall become effective as of the first date each of the conditions
precedent set forth below shall have been fulfilled (the "Second Amendment
Effective Date"):
(a) Amendment. The Administrative Agent shall have received this
Amendment, executed and delivered by a duly authorized officer of each
Borrower (including the New Subsidiary Borrowers) and the Required Lenders.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the amendments
effected hereby, the consent granted pursuant to Section 6 hereof and the
joinder of the New Subsidiary Borrowers pursuant to Section 7 hereof.
(c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents and
herein shall be true and correct on and as of the Second Amendment
Effective Date as if made on and as of the Second Amendment Effective Date
after giving effect to the amendments effected hereby, the consent granted
pursuant to Section 6 hereof and the joinder of the New Subsidiary
Borrowers pursuant to Section 7 hereof.
(d) ASCRP Loan Settlement. The Administrative Agent shall have
received satisfactory evidence that the "Escrowed Documents", as such term
is defined in the Settlement Escrow Agreement, dated as of March 31, 2004,
among Killington, Ltd., ASCRP, ASC, SPLC, Fleet National Bank, Ski Partners
LLC and Gravel and ▇▇▇▇ (the "Escrow Agreement"), shall have been released
and all the transactions contemplated to occur under the Escrowed Documents
upon such release (collectively, the "Loan Settlement") shall have been
consummated, and no material provision of the Loan Settlement Agreement (as
defined in the Escrow Agreement) or any other Escrowed Document shall have
been modified or waived without the consent of the Required Lenders.
(e) New Subsidiary Borrowers. The requirements of Section 6.9(c) of
the Credit Agreement shall have been satisfied with respect to each New
Subsidiary Borrower (other than the requirement that the New Subsidiary
Borrowers execute and deliver a Subsidiary Borrower Agreement).
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(f) New and Amended Mortgages. The Administrative Agent shall have
received a Mortgage with respect to the real property of each New
Subsidiary Borrower, and certain other real property previously owned by
ASCRP, in each case as listed on Schedule 9(f) hereto (the "New Mortgaged
Properties"), which Mortgages (or amendments to existing Mortgages, as
applicable) shall have been executed and delivered by a duly authorized
officer of each party thereto, and the other requirements of clauses (i)
through (iii) of Section 6.9(b) of the Credit Agreement shall have been met
with respect to each New Mortgaged Property.
(g) Certain Personal Property. After giving effect to the Loan
Settlement and any transfers occurring in connection therewith on or prior
to the Second Amendment Effective Date, the New Subsidiary Borrowers or any
other Borrower shall own, among other things, the personal property listed
on Schedule 9(g) hereto.
(h) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where assets
of the New Subsidiary Borrowers are located, and such searches shall reveal
no liens on any of the assets of the Borrowers except for liens permitted
by Section 7.3 of the Credit Agreement or discharged on or prior to the
Second Amendment Effective Date pursuant to documentation satisfactory to
the Administrative Agent.
(i) Amendment Fee. The Administrative Agent shall have received an
amendment fee of $150,000 from the Borrower, to be divided ratably among
the Lenders executing this Amendment.
(j) Oak Hill Letter Agreements. The Administrative Agent shall have
received executed letter agreements from the holders of the Oak Hill Notes
with respect to certain matters relating to an ASCRP bankruptcy, in the
form previously agreed between the Administrative Agent and Oak Hill.
(k) Consents to Membership Interest Pledges. The Administrative Agent
shall have received written consent letters from (i) Ski Partners LLC,
consenting to the pledges by Killington, Ltd. and ASCRP of their respective
membership interests in SPLC to the Administrative Agent under the
Guarantee and Collateral Agreement, and (ii) SPLC, consenting to the pledge
by Killington, Ltd. of its membership interest in CKA to the Administrative
Agent under the Guarantee and Collateral Agreement.
10. Payment of Expenses. ASC agrees to pay or reimburse the Administrative
Agent and the Lenders for all of their reasonable out-of-pocket costs and
expenses incurred in connection with the negotiation, preparation, execution and
delivery of this Amendment and any other documents prepared in connection
herewith, and consummation of the transactions contemplated hereby and thereby,
including the fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Administrative Agent.
11. Representations Relating to Certain Leases. Each Borrower represents
and warrants to the Administrative Agent and each Lender as follows:
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(a) ASC Utah, Inc. (the "Tenant") is party to that certain Amended and
Restated Lease Agreement Number 419 between the State of Utah, acting
through the School and Institutional Trust Lands Administration (the "▇▇▇▇▇
Lease") and the Tenant, dated July 1, 1998 and that certain Ground Lease
Agreement by and between Wolf Mountain Resorts, L.C. and the Tenant dated
July 3, 1997, as amended by the First Amendment to Ground Lease Agreement
dated August 3, 1998 and the Second Amendment to Ground Lease Agreement
dated November 12, 1999 (the "Wolf Mountain Lease", together with the ▇▇▇▇▇
Lease, the "Leases").
(b) The Leases are in full force and effect as of the date hereof. No
party to the Leases has entered into any amendments, modifications or
supplements to the Leases and there are no agreements or other
understandings (oral or written) between the parties to the Leases with
respect to the Leases, except that certain Partial Settlement Agreement and
Release by and between Wolf Mountain Resorts, L.C. and Tenant, effective as
of May 5, 2004.
(c) No party to the Leases is in default of any covenant, agreement,
condition or restriction contained in the Leases. No party to the Leases
has given or received written notice of any dispute under the Leases. To
the best of Tenant's knowledge, no default (or any event, act or omission
which would constitute an event of default with notice or the lapse of time
or both) exists under the Lease.
(d) Tenant's rights under Article 6 of the ▇▇▇▇▇ Lease and Article 25
of the Wolf Mountain Lease are in full force and effect and have not been
cancelled, terminated, amended or modified.
12. Post-Closing Covenant. The Borrowers agree to obtain, as promptly as
practicable after the Second Amendment Effective Date and in any event within 60
days thereafter, estoppels from the landlords under the Leases reaffirming the
representations and warranties contained in Section 11 of this Amendment and as
otherwise provided under the Leases.
13. Loan Document; No Other Amendments.
(a) The Borrowers and the other parties hereto acknowledge and agree
that this Amendment shall constitute a Loan Document.
(b) Except as expressly amended, modified and supplemented hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
14. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(a) The parties hereto may execute this Amendment in any number of
separate counterparts, and all such counterparts taken together shall be
deemed to constitute one and the same instrument. This Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
AMERICAN SKIING COMPANY, as a Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
ASC LEASING, INC.
ASC UTAH
DOVER RESTAURANTS, INC.
KILLINGTON, LTD.
KILLINGTON RESTAURANTS, INC.
L.B.O. HOLDING, INC.
MOUNT SNOW LTD.
MOUNTAINSIDE
PERFECT TURN, INC.
PICO SKI AREA MANAGEMENT COMPANY
S-K-I LTD.
STEAMBOAT SKI & RESORT CORPORATION
SUGARLOAF MOUNTAIN CORPORATION
SUNDAY RIVER LTD.
SUNDAY RIVER SKIWAY CORPORATION, as Subsidiary Borrowers
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. Jr.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
NEW SUBSIDIARY BORROWERS: AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.,
as a Subsidiary Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
Second Amendment
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Risk Manager
Second Amendment
CAPITALSOURCE FINANCE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Second Amendment
TRS 1 LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
Second Amendment
COOKSMILL, as a Lender
c/o Scotiabank (Ireland) Limited
IFSC House, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
Title: Authorised Signatory
Second Amendment
▇▇▇▇▇▇▇ NATIONAL LOAN INVESTORS,
LTD, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇ LEVERAGED LOAN INVESTORS,
LTD, as a Lender
By: /s/ ▇▇▇▇ Parchment
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Name: ▇▇▇▇ Parchment
Title: Director
Second Amendment