CONSENT UNDER THE AMENDED, RESTATED
AND CONSOLIDATED CREDIT AGREEMENT
CONSENT dated as of December 5, 2001 (this "Consent") under
the Amended, Restated and Consolidated Credit Agreement dated as of October 12,
1999 (as amended, the "Credit Agreement") by and among American Skiing Company
("American Skiing") and the other borrowers party thereto (collectively, the
"Borrowers"), the lenders party thereto (the "Lenders") and Fleet National Bank,
N.A. (formerly known as BankBoston, N.A.), as agent (the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have
made Loans and other financial accommodations to the Borrowers which remain
outstanding; and
WHEREAS, the Borrowers have requested that the Agent and the
Lenders consent to certain transactions as set forth herein, and the Agent and
the Lenders are willing to do so, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Section 1.1. Defined Terms. Unless otherwise
defined herein, capitalized terms used herein have the meanings assigned in the
Credit Agreement and the following term shall have the following meaning:
"Sugarloaf Sale": the sale by Sugarloaf Mountain Company to
Carrabassett Valley Academy (or its permitted successors and assigns)
of certain assets pursuant to the terms of that certain Purchase and
Sale Agreement dated as of November 9, 2001, attached hereto as Exhibit
A.
"Term Loan Transaction": the transaction represented by,
collectively, (a) the Term Loan Agreement dated as of December 5, 2001
among Heavenly Valley Limited Partnership, the lenders party thereto
and Fleet National Bank, as agent, (b) the Guaranty dated as of
December 5, 2001 by American Skiing, (c) the Security Agreement dated
as of December 5, 2001 between Heavenly Valley Limited Partnership and
Fleet National Bank, as agent, (d) the Security Interest Subordination
Agreement dated as of December 5, 2001 among Heavenly Valley Limited
Partnership, Fleet National Bank, as agent under the Term Loan
Agreement referred to above, the Agent and the Lenders, and (e) and all
other related documents, in each case, attached hereto as Exhibits B-1
through B-8.
ARTICLE II
CONSENTS; AGREEMENTS
Section 2.1. Consents. (a) Notwithstanding anything to the
contrary set forth in the Credit Agreement, the Agent and the requisite Lenders
hereby consent to the Sugarloaf Sale; provided, that, in the event that 100% of
the proceeds of such sale are not applied pursuant to Section 4.1(c)(ii) of the
Credit Agreement, such proceeds shall be applied to prepay the Loans as set
forth to Section 4.1(c)(v) of the Credit Agreement. The requisite Lenders hereby
consent to the release by the Agent of all security interests held by the Agent
for the benefit of the Lenders in the assets that are the subject of the
Sugarloaf Sale.
(b) Notwithstanding anything to the contrary set forth in the
Credit Agreement, the Agent and the requisite Lenders hereby consent to the Term
Loan Transaction, including, without limitation, the incurrence of Indebtedness
and the granting of Liens by certain of the Borrowers and certain of its
Affiliates as contemplated thereby. The requisite Lenders hereby consent to the
subordination by the Agent of its security interests in the Joint Collateral (as
defined in the Security Interest Subordination Agreement dated as of December 5,
2001). Notwithstanding anything to the contrary set forth in the Credit
Agreement, the proceeds from the Term Loan Transaction shall be applied to the
prepayment of Revolving Credit Advances; provided, however, such prepayments
shall not constitute a permanent reduction of the aggregate Maximum Revolving
Credit Amount.
Section 2.2. Agreement. Notwithstanding anything to the
contrary set forth in the Second Amendment or in Section 9.8 of the Credit
Agreement, the Agent, the Lenders and the Borrowers hereby agree that, during
the Prepayment Period, neither the Borrowers nor any Restricted Subsidiary shall
make or commit to make, directly or indirectly, any Permitted Disposition,
except the following: (a) the Sugarloaf Sale and (b) sales or dispositions (or a
series of individual sales or dispositions) for fair market value up to
$500,000; provided, however, that such sales or dispositions shall require the
consent of the Agent.
ARTICLE III
CLOSING DATE
Section 3.1 Closing Date. This Consent shall become effective
as of the date hereof upon receipt by the Agent of counterparts of this Consent,
duly executed and delivered by the Borrowers, the Agent and the requisite
Lenders.
ARTICLE IV
INTERPRETATION
Section 4.1. Continuing Effect of the Credit Agreement. The
Borrowers, the Agent and each Lender hereby acknowledges and agrees that the
Credit Agreement shall continue to be and shall remain unchanged and in full
force and effect in accordance with its terms, except as expressly modified
hereby.
Section 4.2. No Waiver. Nothing contained in this Consent
shall be construed or interpreted or is intended as a waiver of any Default or
Event of Default or of any rights, powers, privileges or remedies that the Agent
or the Lenders have or may have under the Credit Agreement, any other related
document or applicable law on account of such Default or Event of Default.
ARTICLE V
MISCELLANEOUS
Section 5.1. Representations and Warranties. The Borrowers
hereby represent and warrant as of the date hereof that, after giving effect to
this Consent, (a) no Default or Event of Default has occurred and is continuing,
and (b) all representations and warranties of the Borrowers contained in the
Credit Agreement are true and correct in all material respects with the same
effect as if made on and as of such date.
Section 5.2. Payment of Fees and Expenses. The Borrowers
hereby agree to pay or reimburse the Agent on demand for all its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation and
execution of this Consent, including, without limitation, the reasonable fees
and disbursements of counsel to the Agent.
Section 5.3. Counterparts. This Consent may be executed by the
parties hereto in any number of separate counterparts, and all of said
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counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 5.4. GOVERNING LAW. THIS CONSENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS.
Section 5.5. Reservation of Rights. Notwithstanding anything
contained in this Consent, the Borrowers acknowledge that the Agent and the
Lenders do not waive, and expressly reserve, the right to exercise, at any time,
any and all of their rights and remedies under the Credit Agreement, any other
related document and applicable law on account of any Default or Event of
Default.
Section 5.6. Confirmation of Indebtedness. The Borrowers
hereby confirm and acknowledge that, as of the Closing Date, (i) the Borrowers
are truly and justly indebted to the Lenders, without defense, counterclaim or
offset of any kind and (ii) the Borrowers are liable to the Lenders in respect
of Loans and Letters of Credit in the aggregate principal amount of
$152,624,786.
Section 5.7. Waiver. The Borrowers hereby release, waive, and
forever relinquish all claims, demands, obligations, liabilities and causes of
action of whatever kind or nature, whether known or unknown, which any of them
have, may have, or might assert at the time of execution of this Consent or in
the future against the Agent, the Lenders and/or their respective parents,
affiliates, participants, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns (collectively, the "Lender
Group"), directly or indirectly, which occurred, existed, was taken, permitted
or begun prior to the execution of this Consent, arising out of, based upon, or
in any manner connected with (i) any transaction, event, circumstance, action,
failure to act or occurrence of any sort or type, whether known or unknown, with
respect to the Credit Agreement, any other Lender Agreement and/or the
administration thereof or the obligations created thereby; (ii) any discussions,
commitments, negotiations, conversations or communications with respect to the
refinancing, restructuring or collection of any obligations related to the
Credit Agreement, any other Lender Agreement and/or the administration thereof
or the obligations created thereby, or (iii) any matter related to the
foregoing; provided, however, that the provisions of this Section 5.7 shall not
apply to any such matters of which the Borrowers are presently unaware and which
constitute or result from the gross negligence and/or willful misconduct of any
member of the Lender Group.
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IN WITNESS WHEREOF, the parties hereto have caused this
Consent to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
AMERICAN SKIING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUNDAY RIVER LTD.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
PERFECT TURN, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUNDAY RIVER TRANSPORTATION INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
L.B.O. HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUGARBUSH RESORT HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUGARBUSH LEASING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUGARBUSH RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
MOUNTAIN WASTEWATER TREATMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
S-K-I, LTD.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
KILLINGTON, LTD.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
MOUNT SNOW LTD.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
PICO SKI AREA MANAGEMENT COMPANY
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
RESORT SOFTWARE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
KILLINGTON RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
DOVER RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
SUGARLOAF MOUNTAIN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
MOUNTAINSIDE
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
ASC UTAH
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
STEAMBOAT SKI & RESORT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
HEAVENLY SKI & RESORT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
HEAVENLY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
HEAVENLY VALLEY, LIMITED PARTNERSHIP
By: Heavenly Corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
FLEET NATIONAL BANK (successor in
interest to BankBoston, N.A.), as Agent
By:/s/ Xxxxxx Xxxxxx
------------------------------------
Title: Vice President
FLEET NATIONAL BANK (successor in
interest to BankBoston, N.A.), as a
Lender
By:/s/ Xxxxxx Xxxxxx
------------------------------------
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:/s/ Illegible
------------------------------------
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
successor by merger to First
Security Bank, N.A., as a Lender
By:/s/ Illegible
------------------------------------
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:/s/ Illegible
------------------------------------
Title: Vice President
THE XXXXXX BANK, N.A., as a Lender
By:/s/ Illegible
------------------------------------
Title:
BLACK DIAMOND CLO 1998-1 LTD., as a
Lender
By: /s/ Illegible
------------------------------------
Title: Director
BLACK DIAMOND CLO 2000-1 LTD.,
as a Lender
By: /s/ Illegible
------------------------------------
Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING,
LTD., as a Lender
By: /s/ Illegible
------------------------------------
Title: Director
By:
------------------------------------
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
as a Lender
By: Xxxxxxx Xxxxx Investment Managers,
L.P., as Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC., as a Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Title: Authorized Signatory
CAPTIVA II FINANCE LTD., as a Lender
By:
------------------------------------
Title:
KZH-PAMCO LLC, as a Lender
By: /s/ Illegible
------------------------------------
Title:
KZH HIGHLAND-2 LLC, as a Lender
By: /s/ Illegible
------------------------------------
Title:
XXX XXXXXX PRIME RATE INCOME TRUST,
as a Lender
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Title: Executive Director
GLENEAGLES TRADING LLC, as a Lender
By: /s/ Xxx X. Xxxxxx
------------------------------------
Title: Assist. Vice President
SRV-HIGHLAND, INC., as a Lender
By: /s/ Xxx X. Xxxxxx
------------------------------------
Title: Assist. Vice President
XXXX XXXX MASTER TRUST IV, as a Lender
By: Fleet National Bank as Trust
Administrator
By: /s/ Illegible
------------------------------------
Title:
